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.)
The Founders created the Supreme Court as an afterthought, a law professor recently argued in The New York Times. Evan Bernick of the Center for Judicial Engagement cannot concur. Read Evan's response here.
This week on the Short Circuit podcast: net neutrality, a Fourth Amendment bench slap, and the SEC's show trials.
Head of federal agency conducts official business over private email account hosted on nongovernmental server. Nonprofit seeks access to the emails under FOIA. D.C. Circuit: Officials cannot evade public-records requests by doing business through private email accounts.
Until recently, a particular kind of health insurance (fixed-indemnity plans) satisfied the ACA's mandate that all citizens obtain minimum coverage. HHS officials: But we've amended the relevant regulation, so no longer. D.C. Circuit: In fact, the HHS has attempted to amend the law, which only Congress may do.
Armed federal agents search Norwalk, Conn., home of business owner suspected of Medicare fraud, interview her for two hours. A coercive, custodial interview requiring a Miranda warning? Coercive but not custodial, says the Second Circuit, so no need to suppress her incriminating statements.
Federal prosecutors indict four commercial fishermen for catching Atlantic striped bass in federal waters. The fishermen claim their conduct was authorized by a fishery-management plan, and the district court agreed. Fourth Circuit: Section 2.4 of Amendment 6 to the management plan makes clear the fishermen are wrong. This prosecution can go forward.
Allegation: Guards at Salem, Va. correctional facility give group of inmates who routinely antagonize other inmates a good talking to. Plaintiff: Which did not help. They called me a snitch and beat me up. Fourth Circuit: No qualified immunity for the guards.
Deputy clerk of the court of Union County, S.C., runs for election against her boss, loses. She's fired. Illegal retaliation? We can't say that deputy clerk is a position requiring political loyalty (which would render the firing legal) on the record before us, says the Fourth Circuit. So her claims should not have been dismissed.
Faced with unfunded public pension liabilities of $1.5 billion, Fort Worth, Tex., officials alter benefits formula so as to reduce future benefits current employees will accrue without impacting benefits they have already accrued. Fifth Circuit (over a dissent): Which does not fall afoul of the state's constitution.
Police officer learns that Ball, La., officials defrauded FEMA, alerts FBI, and becomes a confidential informant. Justice served! The mayor goes to prison. But wait! The officer is fired, allegedly in retaliation for helping the feds. Fifth Circuit: Which may have violated his First Amendment rights, so the district court should not have dismissed his claim against the town.
Is it a "taking" if a liquor manufacturer lawfully terminates its franchise contract with a distributor? Even assuming the franchises are property, says the Sixth Circuit, the liquor manufacturers aren't government actors.
FDA officials trace salmonella that sickened 56,000 to Iowa egg-production facility wherein inspectors find extremely unsanitary conditions. Further investigation reveals falsified records, bribery. The principals plead guilty to misdemeanors, receive $100k fines and three months in prison. Eighth Circuit: They knew or should've known of the risk. Sentences affirmed. Dissent: They didn't know the eggs had salmonella, so they didn't meet the statute's mens rea requirement. Imprisoning them violates due process.
Pine Bluff, Ark., man lays claim to diplomatic immunity to get out of a speeding ticket, but it turns out that he is not a representative of the (fictitious) Conch Republic. Eighth Circuit: That'll get you 57 months in prison.
Los Angeles officials enact ban on "mobile billboards." Ninth Circuit: Ordinance sustained. Government may lawfully prohibit "unsightly forms of expression." Judge Owens, concurring: So the Supreme Court has held, but government should not be in the business of enforcing aesthetic homogeneity. See The Twilight Zone: Eye of the Beholder.
Headhunter leaves headhunting firm, plans to start his own. He uses a former colleague's password to get into his old firm's database, which contains much valuable information that will help his new business. Ninth Circuit: Which violated the Computer Fraud and Abuse Act.
Ninth Circuit: A prosecutor who subpoenaed an alibi witness's medical records by falsely claiming she was actually the murder victim in the trial at issue—and later used those records to undermine the alibi witness's credibility—is not entitled to absolute prosecutorial immunity for the false statements.
After two bail agents disrupt courtroom proceedings by trying to take two women into custody, the judge orders the bailiff to remove them. The bailiff complies, allegedly shoving one of the agents through the courtroom door. The agent later sues the bailiff, claiming excessive force. Ninth Circuit: The bailiff wasn't doing anything judge-like, so no absolute judicial immunity, but he is entitled to qualified immunity.
Dallas officials would like to see trendy shops and chain restaurants where Hinga Mbogo has run a thriving (and reputable) auto-repair shop for 30 years. So the city offered to buy the property, which Hinga owns, at a mutually agreeable price? Sadly, no. Instead, officials rezoned the land and told him to move his business elsewhere. Over 90,000 people signed a petition urging city council members to let Hinga stay, but this week officials sued him in Dallas County District Court, seeking over $300,000 in retroactive fines and an order to stop him from fixing cars there. Read more about the case here.