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.)
Justice Ginsburg recently expressed an unfavorable opinion of a presidential candidate, violating the norm that judges remain above the political fray. Is this particular norm really so essential? Evan Bernick of the Center for Judicial Engagement argues that it is. Read more here.
This week on the podcast: mugshots, visiting Facebook without permission, due process at parole hearings, and Planned Parenthood's public funding.
The Federal Criminal Discovery Blue Book, a 500-page manual for prosecutors created after the botched prosecution of an Alaska Senator, is attorney work product, says the D.C. Circuit, and so exempt from public disclosure. But the full court should revisit the precedent that requires this outcome, say two judges, lest justice not be seen to be done.
After lengthy application process, coal company receives permit to strip mine West Virginia mountaintop. But four years later, the EPA revokes the permit citing environmental impacts that had been underestimated previously. Company: Relying on the permit, we spent millions of dollars bringing the project online. D.C. Circuit: The company forfeited any argument about its reliance costs by failing to make it earlier in the case. Dissent: The company did raise the argument, and it is decisive—completely ignoring such costs hardly makes for reasoned decision-making.
Allegation: Puerto Rican police officer declines to participate in compulsory on-duty prayer session, is demoted. First Circuit: The district court was right to deny qualified immunity to several supervisors.
Feds: Up to $1 billion in assets, including a Midtown Manhattan office tower, owned by a nonprofit (and a related entity) purporting to support the study of Iranian culture are in fact controlled by the Iranian government. So those assets are forfeit. Second Circuit: Could be the nonprofit didn't know the related entity was controlled by Iran. We'll need a trial to find out. Moreover, the search warrant investigators relied on to seize computers, servers, and a trove of documents was defective. Might be that evidence should be suppressed.
Over a thousand victims of terrorism who have obtained (unpaid) money judgments against the Iranian government wish to lay claim to the proceeds from the case above. Second Circuit: The district court needs to reconsider whether the Terrorism Risk Insurance Act of 2002 allows that (if indeed the property is forfeitable).
Philadelphia newspaper reports on then-emerging scandal, in which a paramedic alleged she had nonconsensual relations with firefighters and was paraded around a fire station naked on a leash. Accompanying the story, the paper publishes a photo of a fireman unconnected to the events in question, resulting in much humiliation for him. Third Circuit: The district court erred in dismissing his defamation and false-light claims.
Allegation: Private eye interviews burglary victim, is charged with witness intimidation based on bogus report from Cleveland detective who's handling the case and, it turns out, sending sexually charged text messages to the victim—as well as victims in unrelated cases. (The detective is fired but reinstated by an arbitrator.) Sixth Circuit: The private eye's malicious-prosecution and other claims were properly dismissed.
Man Googles himself, finds an entry in which his name appears frighteningly close to the words "indecency with a child." He sues Google for $19.2 trillion. Sixth Circuit: You lose, but, on the plus side, all of the Google hits about your name now concern this litigation.
Attorneys buy copyrights to porn films, threaten to sue folks who downloaded illegally, and (relying on the accuseds' reluctance to mount a public defense) offer to settle for a fee. District Court: It smacks of "bullying pretense." Have some sanctions—and some more sanctions for emptying your bank accounts to avoid paying up and engaging in legal hijinks to cover your tracks. Seventh Circuit: The district court imposed a criminal contempt sanction using procedure appropriate for a civil sanction, so let's iron that out on remand.
Allegation: Doggie groomer and rescuer turns two doggies over to Chicago animal control, is arrested and then prosecuted despite absence of evidence either animal had been mistreated. Seventh Circuit: His false-arrest and illegal-search claims should not have been dismissed.
Victims of a 1997 suicide bombing in Israel obtain (unpaid) judgment against Iranian government. May the victims take ownership of 30,000 precious artifacts from the ancient city of Persepolis that have been on loan to the University of Chicago since 1937? No, says a divided Seventh Circuit panel.
West Virginia officials accuse pharmaceuticals distributor of distributing pharmaceuticals in such quantities that the distributor must have known its clients were pill mills and not legitimate pain-management specialists. Must the distributor's insurer pay to defend against the state's suit? Indeed so, says the Seventh Circuit.
To become a cosmetologist in California one must complete 1,600 hours of training and instruction. Did a cosmetology school that required its students to (in addition to their formal education) sell retail products, schedule clients, clean facilities, and promote the school—and did not pay students for providing these services—violate the Fair Labor Standards Act? The school's delay in compelling arbitration means it has waived its right to it, says the Ninth Circuit.
The Supreme Court struck down the "residual clause" of the Armed Career Criminal Act last year as unconstitutionally vague. But the same inscrutable language also appears in the U.S. Sentencing Guidelines. May courts continue to apply this language in their sentencing decisions? The Constitution forbids it, says the concurrence in this Eleventh Circuit decision.
Heather Russinko is a single mom who wants to start a home-based business baking cake pops and other delectables. But she lives in New Jersey, which is one of just two states that completely bans the sale of home-baked goods. Legislation that would legalize limited sales of goods that do not require refrigeration has been introduced, but a single senator (who blocked similar legislation that unanimously passed the state's Assembly in 2014) is preventing the new bill from moving out of his committee. Click here to sign Heather's petition urging legislators to free the home bakers.