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.)
In his dissent from the Supreme Court's recent ruling striking down Texas's abortion restrictions, Justice Thomas denounced the Court for picking "favorite" rights, subjecting some of the government's actions to more careful scrutiny than others. The more profound problem (which has thus far escaped Justice Thomas's attention) is that most of the government's actions aren't subjected to any meaningful scrutiny at all, says Evan Bernick of the Center for Judicial Engagement. Read more here.
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Woman does not inform bankruptcy court of three employment discrimination suits she's filed that might yield some money to pay off her creditors. Now with her debts discharged, can she pursue the claims (without fear of owing any favorable judgment to creditors)? D.C. Circuit (over a dissent): No.
Does the Stored Communications Act allow the federal government to compel you to turn over data stored on off-shore servers? Second Circuit: No Concurrence: Man, this statute is a mess. But also no.
Allegation: Corrections officers at Fishkill, N.Y., prison beat up inmate who admonished an officer for scrutinizing his legal papers. He tried to file a grievance from solitary, but it's ignored. He's transferred to another prison two weeks later. Can he sue? Gov't: No, he didn't exhaust his administrative remedies. Second Circuit: That process is so opaque that no one could.
Woman: Man followed me home, raped me on the roof of my NYC apartment building. Man: We met earlier that night; the sex was consensual. Jury: It was rape. Second Circuit (over a dissent): New trial. The prosecution should not have withheld the woman's psychiatric record.
Overruling its precedent, the Sixth Circuit finds that arrested individuals have a privacy interest in their mugshots, so the feds need not release photos of four cops who were later convicted of corruption (yet). Dissent: Law enforcement will still release booking photos when it suits them; this decision does little to protect privacy.
South Dakota woman convicted of daughter's 1988 murder repeatedly denied parole. Woman: An investigator who worked on the case slipped gruesome photos from the crime scene into my file, which violates my right to have my parole request heard by an impartial tribunal. Eighth Circuit: You have no such right.
Des Moines, Iowa, officer takes a ten-foot running start and kicks subdued suspect in the face, breaking his nose and teeth. Did the trial court err in allowing prosecutors to introduce evidence about a previous incident in which the officer used unreasonable force? No, says the Eighth Circuit. Conviction and three-year sentence affirmed.
Roughly ejected from Minneapolis/St. Paul municipal bus when he didn't pay his fare, man places himself in bus's path. The driver attempts to shoo him off by accelerating and braking in rapid succession. No dice. Passengers volunteer to beat up the man, but the driver asks them to just remove him from the vehicle's path. They do. The man sustains bumps and bruises. Eighth Circuit: The driver's actions were related to legitimate bus-driving objectives and were not inspired by malice or sadism. Qualified immunity.
A now-defunct social-networking company that accessed Facebook's computers and sent marketing messages through Facebook after receiving a cease-and-desist letter violated the Computer Fraud and Abuse Act, says the Ninth Circuit.
Former Oregon governor, now under federal investigation for using position to benefit his fiancée, used private email accounts to conduct official business. Must the state, which (without the governor's knowledge) retained the emails, turn them over to a grand jury? Ninth Circuit: Many of the emails sought concern his private affairs, so subpoena quashed.
Upon learning of blood-plasma donor's borderline schizophrenia, Salt Lake City, Utah, clinic ceases paying for his plasma. District court: Which doesn't fall afoul of a federal law prohibiting "service establishments," which provide a service to the public in exchange for a fee, from discriminating against the disabled. Tenth Circuit (over a dissent): Reversed.
Utah Governor's decision to cut off funding to the state's Planned Parenthood affiliate in the wake of undercover videos purporting to show (non-Utah-based) Planned Parenthood staff discussing illegal fetal tissue sales likely was unconstitutional, says two-thirds of Tenth Circuit panel.
Miami Beach, Fla., nightclub owners hire Eastern European women to pose as tourists and entice men to buy wildly overpriced drinks (one to the tune of $43k). Wire fraud? Defendants deceived but did not defraud, says the Eleventh Circuit.
In Washington, D.C., if you want to be an interior designer, you must spend six years acquiring a degree, passing an exam, and apprenticing with an established designer before officials will grant you a license. Is that really the "least restrictive regulation necessary to protect consumers"? That's what district officials will have to ask themselves if new federal legislation (that only applies to D.C.) introduced last week becomes law. The ALLOW Act would require officials to scrutinize and justify the district's occupational regulations in accordance with the Supreme Court's 2015 decision in NC State Board of Dental Examiners v. FTC while giving workers an avenue to defend their right to an honest living. Read more here.