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.)
Medallions to own or lease taxis were once an investment that outpaced gold and the Dow. Thanks to competition from Uber and Lyft, their value is now freefalling nationwide. Instead of preserving the taxi industry's cartel, cities should scrap the medallion system entirely and liberalize taxi markets, argues Nick Sibilla.
This week on the podcast: Special guest Erica Smith drops by to discuss a ban on sex toys, (continued) IRS misconduct, an FEC regulation that (likely) runs afoul of the First Amendment, and a truthful endodontist.
- District court, without further explanation, imposes sentencing conditions forbidding sex offender from having any contact with children or taking employment (without approval from a probation officer) that would bring him into contact with minors. First Circuit: The reason for the employment ban is obvious from his criminal history, but there's no apparent reason to ban contact with all children. Remand for resentencing.
- Aggrieved plaintiffs sue the United Nations for its alleged role in causing or failing to prevent the cholera epidemic in Haiti, but the Convention on the Privileges and Immunities of the United Nations says that the UN is immune from suit in American courts. Second Circuit: Yeah, the UN is immune from suit in American courts.
- Plaintiffs: Widener University School of Law juked its employment statistics and defrauded students into paying higher tuition—certify a class action! Third Circuit: While happy law students may all be alike, every unhappy law student will be unhappy in their own way. Class certification denied.
- Appellant famous comedian asks the court to "reseal" embarrassing depositions that have been widely disseminated on the internet, but the Third Circuit declines to close the barn door after the horse has already gone viral.
- Defendant: Sure, I may have sold millions of dollars in phony promissory notes, but I shouldn't be subject to a sentencing enhancement because I wasn't technically acting as an "investment adviser" at the time. Third Circuit: You were so.
- Kim Dotcom stands accused of a "Mega Conspiracy" to violate copyright laws. The U.S. government moved to forfeit $75 million held in bank accounts in New Zealand and Hong Kong. Fourth Circuit: Federal courts can forfeit this money even though it is out of the country, and Dotcom is barred from challenging the forfeiture because he refuses to come to the U.S. (a country in which he has never once set foot) in order to stand trial.
- Plaintiff, a deputy sheriff, was fired after he gave media interviews claiming the Baltimore City Sheriff's Office covered up the truth about an incident in which he was shot in the face while executing a search warrant—supposedly by the target of the warrant but, plaintiff claims, actually by a fellow officer. Fourth Circuit: If true, that would violate the First Amendment and qualified immunity would not apply.
- Small tax preparation firm has an anti-Midas touch: Almost all their clients suffer significant business losses every year. Fifth Circuit: A jury found tax fraud, and that seems reasonable to us.
- Competing manufacturers of shaved ice confections have a decade-long history of litigation, each seeking to freeze the other out of the sno-ball market. Fifth Circuit: No, it really, really, really isn't RICO.
- Tennessee Valley Authority pension fund eliminates cost of living adjustments following 2008 financial crash. Plaintiffs sue, claiming a violation of the Takings Clause, and the pension fund concedes a violation occurred. Sixth Circuit: There was no Takings Clause violation, and we decline to defer to the government's contrary concession.
- Jamaican seeks asylum on the ground that he will face persecution because of his bisexuality, but immigration judge refuses to believe his testimony. Seventh Circuit: This is the kind of factual determination where review is really limited. Posner (in dissent): The immigration judge refused to believe the applicant was bisexual on the ground that he'd previously had sex with women. This is maybe not the kind of thing we should be deferring to.
- Murder, kidnapping, fabricated evidence, multimillion-dollar jury verdicts—and all that in just the procedural history. The Seventh Circuit quickly disposes of the latest chapter in a former Chicago cop and FBI informant's colorful 20-year criminal history.
- Criminal defendant: You can't increase my sentence for meth distribution just because I fled to Mexico! You should've decreased my sentence because I voluntarily returned, nine years later, and asked the FBI if I was free to go! Eighth Circuit: Uh, no, we won't reward you for going on the lam.
- Does the First Amendment require prison officials to allow a Chinese inmate to communicate with his relatives in their native Mandarin language? Eighth Circuit: No, because he could communicate in English and hire a translator. And the fact that the prison provides Spanish translators does not mean it must provide a Chinese translator, too.
- The schools of Garland County, Ark., have operated under a desegregation order since 1992. One of its terms—that a student's race determined their eligibility for a school choice program—was struck down as unconstitutional. Should the desegregation order be voided? The Eighth Circuit says no, because it does other laudable things to remedy past segregation.
- Congressional appropriations rider prohibits DOJ from spending money to interfere with states' implementation of their own medical marijuana laws. DOJ presses forward with prosecutions regardless. Ninth Circuit: So long as defendants can show "strict compliance" with state laws, DOJ must back off.
- Democratic Party of Hawaii, claiming a First Amendment right to limit primary participation to party members, challenges Hawaii's open primary law. Ninth Circuit: Since under the challenged law we cannot know if the people voting in the primaries are Democrats or not, the Democratic Party cannot show that non-Democrats are voting in its primaries in significant numbers and thus cannot prove a constitutional violation.
- Nevada law allows homeowner associations to foreclose on homes for unpaid HOA fees, without giving prior notice to banks or other lenders with interests in the properties. Lenders can "opt in" to receive notice by requesting it in advance. Ninth Circuit: This "opt-in" notice scheme violates due process.
- Nine years ago, environmentalists petitioned the EPA to ban the pesticide chlorpyrifos. Nine years later, that petition is still pending. Ninth Circuit: No, EPA, you cannot have another six months to issue a response.
- The Tenth Circuit allows a group of homeowners to resume their racketeering case against Bank of America and a BOA contractor because they plausibly allege the two companies formed an "association in fact" and conspired to deny home-loan modifications to qualified applicants. Compare the Eighth Circuit, which holds that various farming companies acting in their own interests are not an "association in fact."
- After a woman seeking treatment for anorexia was denied benefits by her insurance company, she appealed to an insurance ombudsman, who agreed she didn't need treatment. The Eleventh Circuit holds that the ombudsman's opinion was properly considered in a lawsuit against the insurance company, but that the woman should have been given an opportunity to contest his opinion.
- St. Petersburg, Fla., police arrested a minister who cared for the homeless in a city park and then banned him from the park for one year. The Eleventh Circuit holds that the First Amendment doesn't apply to the park ban, reasoning that just as the government can shut down a bookstore where prostitution occurs, it can ban a person from a park for breaking the law there.
- Power and extension cords are "grounding systems," says the D.C. Circuit, and therefore the Secretary of Labor can require mine operators to test the cords to ensure that they are properly grounded, without going through public notice and comment procedures.
For nearly 20 years, Bob and Rina Thomas have operated their family-owned business from a small office building on the Public Square of Elberton, Ga. After the Thomases refused to sell their building to the city in April to make way for renovation of a $5 million hotel, the city turned around and announced plans to bulldoze the Thomases' building to build a pedestrian walkway. Now the city is invoking eminent domain to seize the Thomases' building by using a "quick take" procedure intended to build highways—not clear land for the convenience of private businesses. Click here to read about how IJ is fighting this land grab.