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.)
While the U.S. Supreme Court has endorsed the use of the takings power for private development, the vast majority of state courts that have examined the issue have rejected the Supremes' expansive definition of "public use." Today, for instance, a New Jersey judge rejected casino officials' petition to seize a piano tuner's longtime family home in Atlantic City. Read more here.
And then click here to read an IJ amicus brief urging a Louisiana appeals court to block a plan to seize an industrial port facility along the Mississippi River so that another private party can operate it.
- The FEC prohibits political committees that wish to support a candidate but are not affiliated with the candidate's campaign from using the candidate's name in its name (as well as in the titles of its websites and social-media pages). Unaffiliated committees that wish to oppose a candidate may do so, however. D.C. Circuit: Which is plainly content-based discrimination.
- After reports of immigration judges treating supplicants with insufficient dignity, DOJ officials create formal complaint process, disciplinary procedures for such misconduct. In response to FOIA suit, the DOJ releases hundreds of complaint files—but redacts judges' names. D.C. Circuit: On remand the district court may find some judges are entitled to privacy (based on individualized circumstances), but the blanket redaction is unacceptable.
- Brattleboro, Vt. drug dealer tells state police her boss would kill her if he knew of their invitation to turn informant (which she declines). She is murdered soon after. Knowing local police have undercover officers and informants working in close proximity to her boss, state police hurriedly track his cell phone, arrest him. Second Circuit: Which did not require a warrant. Conviction affirmed.
- In the 1930s, U.S. Mint employee purloins $20 gold coins destined to be melted down (pursuant to FDR's ban on private ownership of gold). Present day: Family discovers 10 of the coins (now perhaps the most valuable ounce of gold in the world) in a lockbox, turns them over to the government for authentication. Gov't: Good news is they're real. Bad news is we're keeping them. Third Circuit (en banc): The gov't need not file a forfeiture petition.
- Indictment: New Jersey senator met with Medicare administrators on behalf of doctor suspected of overbilling (to the tune of $9 million), declined to disclose gifts from the doctor (private chartered flights and hotel stays in Paris and Punta Cana). Third Circuit: Legislators are immune from prosecution for trying to influence policy, but that's not what the senator was allegedly up to here.
- North Carolina legislators analyze voting patterns by racial group, discover that African-Americans are disproportionately likely to make use of early voting days, same-day registration, preregistration, and out-of-precinct voting options. Then they pass a law restricting those options and requiring photo ID (which African-Americans disproportionately lack). Fourth Circuit: The state's justifications for the changes don't hold water, so we have to surmise discriminatory intent.
- Member of Ohio Libertarian Party alerts the authorities that the party's signature gatherers failed to disclose that they were paid to gather signatures necessary for the party's candidates to appear on the ballot. The party is kicked off the ballot. Yikes! The complainant is in fact the paw to the Republican Party's cat. Sixth Circuit: But the implicated Republicans are not state actors, so there is no constitutional violation.
- Now-disgraced Illinois governor signs 2008 law requiring riverboat casinos to turn a portion of their earnings over to competitors, horse racetracks. Jury: Because a racetrack executive offered the guv a bribe. Seventh Circuit: The offer was a one-off and not a "pattern" of racketeering, so the racetracks need only pay $25 million of the $75 million awarded to the casino boats.
- Milwaukee teenager who shot woman in the face during carjacking sentenced to 50 years. Seventh Circuit: A 30-year upward departure from the sentencing guidelines is permissible if the district court offers a compelling reason. But no such reason was provided here, so remanded for resentencing.
- In Missouri, it's illegal to form a political committee within 30 days of an election. Can a group that violated the law in 2014 move forward with a First Amendment challenge? Eighth Circuit: You bet—the case is ripe, not moot, and capable of repetition. Dissent: I disagree with every part of that.
- In a case of interest to fans of professional sports, labor arbitration, and imposing punishment on men who beat small children with sticks, the Eighth Circuit reinstates the domestic-violence suspension of Minnesota Vikings running back Adrian Peterson.
- Plaintiff offended by Glendale, Calif. monument to women pressed into sexual slavery by the Japanese during World War II (and who thus avoids the public park in which it resides) has standing to bring suit, says the Ninth Circuit. But the monument is not an illegal local government intrusion into the realm of foreign policy, so case dismissed.
- In which Judge Kozinski of the Ninth Circuit laments the lawyerly tactic of filing excessively lengthy briefs without permission at the last moment, as if daring the court to reject them, and declares that he'll not read past the word limit for the brief in question.
- Los Angeles County sheriff's officers learn of FBI investigation into excessive force at detention center, hide inmate who was cooperating with the FBI by rebooking him under a series of aliases. Ninth Circuit: No need to reconsider verdict that six defendants obstructed justice.
- Allegation: Assistant principal at Clayton County, Ga. school orders preteen to strip naked in front of other students. No drugs found. Assistant principal: I'm entitled to qualified immunity. Eleventh Circuit: This should go before a jury.
- There is no fundamental right to buy, sell, or use sex toys, says the Eleventh Circuit, so a Sandy Springs, Ga. ban on obscene materials and devices stands. The precedent that mandates this result is ripe for reconsideration, however.
In June, the Louisiana State Board of Cosmetology forced beauty-salon owner Lata Jagtiani to fire her salon's most experienced eyebrow threaders (who use cotton string to remove unwanted hair quickly and safely (and inexpensively)). Because of public complaints or shoddy workmanship? Not at all. Instead, the threaders had not completed the 750 hours of training required to become licensed estheticians. And for good reason! None of the training has anything to do with threading. This week, Lata and two of her former threaders joined with IJ to challenge the state's irrational rules for eyebrow threading. Read more about the case here.