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On the ‘Lucas’ decision Here is a quick, if belated, response to John Echeverria’s misguided suggestion [ NLJ, 11-14-05] that we should overrule Lucas v. South Carolina Coastal Council because it took too cavalier an attitude to coastal protection. Echeverria is surely right to note that excessive development in exposed coastal areas should not be supported by state subsidies. Those should be promptly withdrawn in favor of market-rate insurance. But once that is done, all that is left to do to Lucas is to expand its scope so that it covers all losses in value attributable to state regulation, not just those which wipe out all economic use. Any valuation of land for ordinary uses will take into account the risk of its destruction. If that evaluation is positive, then there is no reason to drive it down to zero through regulation once that subsidy is eliminated. State officials rightly have to trade off private harms for public benefits in all cases of regulation. They will never make the right judgments if all private losses are kept off the societal books, which is just what is done when no compensation is required. State expertise is important to determine which safety measures are needed, but it will operate in a distorted way if public officials and their experts need not take into account the private losses that their initiatives impose on people who have committed no harm to anyone else. Richard A. Epstein Chicago The writer is an NLJ columnist. ‘Reckless disregard’ I just read the article by Barry Richard [ NLJ, 11-21-05] that criticized Reynolds v. Hartford Financial Services Inc., 426 F.3d 1020 (9th Cir. 2005). Our firm [Stoll Stoll Berne Lokting & Shlachter] represents the plaintiffs in that case. The article failed to disclose that Mr. Richard is representing Progressive Insurance Co., the third-largest auto insurer in the United States, in several putative class action cases pending in Florida that are virtually identical to the Reynolds case. Mr. Richard distorts the holding in Reynolds by making statements such as “[The 9th Circuit] gave the phrase ‘reckless disregard’ a meaning that is unsupported by prior decisions in the 9th Circuit or elsewhere and that leaves corporate clients in a dangerous posture.” That statement is not accurate. The court’s definition of reckless disregard is consistent with its prior rulings. The Reynolds decision turned on the facts, and the facts were that the defendants’ twisted interpretation of the statutory language was so absurd and in total disregard of their statutory obligations that it constituted a willful violation. The only companies the Reynolds decision puts in a “dangerous posture” are those that are willfully violating the Fair Credit Reporting Act. To be fair, we believe that the article should have disclosed that Mr. Richard was representing a party directly impacted by the Reynolds case when criticizing the opinion. Steve D. Larson Portland, Ore. Editor’s note: The NLJ asks its attorney contributors to disclose their involvement only in the cases they write about, not in cases raising similar issues.

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