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.)
Should libertarians and others embrace originalism as a means to understanding the Constitution? Emphatically yes, argues Evan Bernick of the Center for Judicial Engagement. Read more here.
This week on the podcast: IJ litigator Renée Flaherty joins the panel and embiggens the fun.
- Inspector general: Starting in 2010, the IRS targeted groups suspected of opposing the Administration's policies, delaying their applications for tax-exempt status and subjecting them to extraordinary demands (like disclosure of internet usernames and passwords). D.C. Circuit: And the misconduct has not ceased, despite the IRS' puzzling protestations to the contrary. So injunctive relief may be in order.
- SEC administrative law judges, who adjudicate securities law violations alleged by the SEC, are hired by the agency's staff. Petitioners: So they're hardly impartial. And the Constitution requires judicial officers to be appointed by the President. SEC: Our judges are employees, not officers. D.C. Circuit: Their decisions aren't final—they're more like recommendations—so they're employees. No constitutional problems here.
- By means of fraud, bribery, and coercion, U.S. environmental activists obtain $8.6 billion judgment in Ecuadorian court against U.S. oil company. District court: Which the company need not pay. Second Circuit: Because of the fraud, bribery, and coercion.
- Hard-up single mom participates in fraud scheme (netting $2.5k). She's caught, sentenced to probation (and forced to pay $46k in restitution). Many years of exemplary citizenhood later, she can't hold down a job as a home-health aide because of the conviction. District court: Let's expunge that. Second Circuit: We can't; Congress could.
- Third Circuit, 2013: Federal law says state officials can either completely legalize sports gambling or totally prohibit it. Partially legalizing and then strictly regulating, as New Jersey tried to do in 2011, is a no go. New Jersey officials: Bet if we (nearly) completely legalize gambling in Atlantic City but (nearly) totally prohibit it elsewhere, it'll be cool. Third Circuit, 2015: You bet wrong. Third Circuit, sitting en banc: Still wrong. We discussed the 2015 decision on the podcast.
- Employee brings firearm onto company property in Columbus, Miss., and leaves it locked in his vehicle—a violation of company policy. He's fired. Mississippi Supreme Court: Can't fire someone for that. Fifth Circuit: So his wrongful-discharge claim should not have been dismissed.
- McAllen, Tex. student declines to recite Mexican Pledge of Allegiance for Spanish class, sends (surreptitiously recorded) video of classmates' recitations to news outlets, the airing of which results in public outrage directed at the school. The student is removed from class. Fifth Circuit: We're not sure there's a First Amendment problem if the school isn't trying to make you believe what they're compelling you to say, and retaliation against students who speak to the press isn't clearly unconstitutional either. So, qualified immunity for school staff.
- Dental specialist practices general dentistry in addition to his specialty (endodontics). Ohio State Dental Board: That's fine, but you may not advertise your specialty to the public. Sixth Circuit: The board cannot forbid truthful speech without a good reason; the district court erred in dismissing the case without hearing one.
- State laws in Tennessee and North Carolina prohibit or severely restrict local governments from providing broadband internet service outside their municipal boundaries. FCC: Federal law preempts state law here, so city officials can expand services to neighboring locales. Sixth Circuit: It just ain't so.
- Company acquires another company. Some of the acquiring company's shareholders (who must approve the deal) file suit seeking more details about the transaction. Seventh Circuit (over a forthcoming dissent): The additional details are of no benefit to the class; the suit is but a way for class counsel to generate fees. This must stop.
- Chicago police pull over driver who didn't use turn signal, allegedly find contraband. The motorist spends a year and a half in jail. Yikes! Dashcam footage shows he signaled. Charges dropped. Seventh Circuit: But he cannot sue the officers or the city. The statute of limitations started running the day after his arrest—not when the charges were dismissed.
- Champlin, Minn. police place suspect in squad car alone. He makes incriminating statements, which are captured by the vehicle's video-recording equipment. Eighth Circuit: No need to suppress the statements.
- Orange County, Calif. officials bill mother $16k for son's stay in juvenile detention. She sells her house, but the proceeds do not cover the debt, and she declares bankruptcy. Ninth Circuit: She need not pay the (curiously inflated) remaining balance. Moreover, officials' unrelenting pursuit of the debt and policy of imposing such debts undermine the credibility of government and the integrity of the legal process.
- Prosecutors characterize San Francisco murder victim as a family man. In fact, the victim was a gang leader and murderer himself. Moreover, a gang investigator lied to the jury about how he came to know the victim. Ninth Circuit: The government's conduct "falls short of what we expect," but the jury's verdict stands.
- Email provider scans users' outgoing emails, forwards those that might contain child porn to private nonprofit, which opens them and notifies the authorities if need be. A Fourth Amendment violation? The nonprofit was acting as an agent of the gov't when it opened the email in question without a warrant, says the Tenth Circuit, so suppress the evidence.
Ogden, Utah officials want to declare over 300 central-city properties "blighted," a necessary precursor to using eminent domain to seize them. Click here to have a gander at some of the homes under threat of condemnation. Do they look "dilapidated," "unsanitary," or "outdated" to you? Click here to sign a petition opposing this abuse of eminent domain.