The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.]
Reflexive deference to the executive and legislative branches should not be viewed as a judicial virtue but as a vice, argues Evan Bernick of the Center for Judicial Engagement. Accordingly, both conservatives and liberals should be concerned about Judge Merrick Garland's record of judicial restraint. Read Evan's dispatch here.
- Americans may not contribute more than $2,700 to a political candidate per election; such limits have been in place since 1974. Does the prohibition tread on our right to free speech? C. Circuit: The plaintiff advanced a non-frivolous argument that it does, so the district court was wrong to not certify the question to the en banc court.
- In 2008, Congress authorized Amtrak, a for-profit venture, to regulate its competitors, other railroad companies. Which is a due-process violation, says the C. Circuit, on remand from the Supremes. (Does nondelegation, the issue before the Supreme Court with Amtrak, make your heart sing? Perhaps you'd be interested in an amicus brief IJ just filed on that very topic.)
- In 1917, Congress imposed a debt ceiling on the federal government of about $215 billion (adjusted for inflation). At present, the national debt exceeds $19 trillion. Is the Debt Limit Statute, lately the object of a bruising political fight each time it is raised or suspended, constitutional? C. Circuit: Plaintiff, who owns some of the debt and is concerned such fights threaten to devalue his investments, lacks standing to find out.
- Does the Privileges and Immunities Clause prohibit New York from requiring non-resident lawyers to have a physical office in the state? Plaintiff showed no evidence of protectionist motive, says the Second Circuit, so no. Dissent: Uh, the burden was on the state, guys.
- New York law allows Democrats to run for office as Republicans (and vice versa) without relinquishing their party affiliation if the opposing party's leaders approve. How might one secure such approval? In New York City, bribery will do the trick. This Second Circuit opinion recounts the tale, which ends in tears for the principals.
- Worker accused of participating in, attempting to stymie an investigation into scheme to sabotage the tools of his trade. Did an arbitrator's subsequent punishment exceed the permissible scope of the relevant collective-bargaining agreement? Indeed not, says two-thirds of a Second Circuit panel: The arbitrator had broad discretion, and the arbitration proceedings were fundamentally fair. Also, Tom Brady.
- Allegation: The food at a correctional facility in Kershaw, S.C. is unconstitutionally bad, sparse-resulting in malnutrition, illness. Fourth Circuit: An earlier, unsuccessful suit raising the same claims at a nearby prison does not bind the plaintiff here (at least for now).
- North Carolina requires written notice to probationers of any court costs and fines they may owe, but plaintiff, who lost his job after being arrested for failure to pay said fees, never received such notice. Can he sue his probation officers? Fourth Circuit: His Fourth Amendment rights were violated, but no, because qualified immunity.
- Arkansas state trooper takes motorist with BAC of .11, who can't stand or speak and lapses in and out of consciousness, to jail. The motorist dies in his cell; he had a heart ailment. The motorist's estate may sue the trooper for failing to obtain medical assistance, says two-thirds of an Eighth Circuit panel.
- Septuagenarian inmate given 21 days to: seek discovery, review responses from prison officials (that are not due back to him within the 21-day period), and respond to prison officials' motion for dismissal or summary judgment. Yikes! He can only access the library for a few hours a week, the prison officials' motion has over 40 case citations, and his claims are highly fact-sensitive. How about giving him more time? Magistrate judge: No. District Judge: No. Tenth Circuit: Yes.
- Man convicted of pimping challenges his 35-year sentence on the grounds that sentencing judge—who resigned from the bench after being arrested on drug and gun charges—was mentally incompetent, biased against black men generally, and biased against him in particular. Eleventh Circuit: Even mentally ill judges aren't necessarily incompetent, but you have sufficiently alleged bias, so let's have an evidentiary hearing.
- And in en banc news, the Ninth Circuit will reconsider the constitutionality of Tucson, Ariz.'s hybrid voting system, which results in 83 percent of voters not having a say in city council primaries each election.
- Bonus state appellate decision: Corrections deputy convicted after Florida inmate alleges that the deputy ushered another inmate into his cell to attack him. A third inmate narrated the incident while making a phone call, which was recorded. Should this evidence have been barred by the Confrontation Clause? Court: No.
In February, the Muskogee County, Ok., sheriff's department seized over $50,000 cash from a motorist-despite a complete lack of evidence of illicit activity. The money, proceeds from a Burmese Christian rock band's U.S. tour, was destined to go to a school in Burma and an orphanage in Thailand. The motorist, a former refugee from Burma who is now a naturalized U.S. citizen, was the group's volunteer tour manager. Unfazed, the county filed a forfeiture action against the cash and a criminal charge against the manager. But last week prosecutors dropped both-hours after a Washington Post story on the case and IJ's announcement that we were representing the innocent owners. The victory nevertheless underscores the need for comprehensive civil forfeiture reform, something that Oklahoma legislators rejected earlier this year. Read more about the case here.