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.)
Thousands of Americans die needlessly each year because they cannot find a bone marrow donor, writes IJ's Nick Sibilla. Click here to watch IJ's award-winning short film on the need for compensation for donors.
- Oil companies that drill on Alaska's North Slope transport their crude to market by means of a single pipeline. During the 800-mile journey, high-quality crude gets commingled with low-, so FERC calculates compensation for companies that receive lower-quality stuff than they put in. D.C. Circuit: Could be some companies are still getting shortchanged. FERC needs to change, or at least explain, its methodology.
- The United States was not at war with al-Qaeda in 2000, argues the alleged mastermind of the attack on the USS Cole. So does a military commission set up after 9/11 have the authority to put him on trial? We'll not intervene, says the D.C. Circuit.
- Puerto Rican officials drastically raise corporate alternative-minimum tax. Walmart: In such a way as to apply only to us. Our tax liability would increase to 132 percent of our total annual income if this is enforced. First Circuit: The tax violates the dormant Commerce Clause.
- Resident complains to Quincy, Mass., police about an officer who angrily and mistakenly confronted her (while armed) about stolen property. The officer is suspended and ordered to stay away from the police station, but he shows up there just as she arrives to make a statement. He's fired. First Circuit: Which was not unlawful retaliation for protected speech.
- New York City officials require cabs to be equipped with GPS so that regulators might detect overcharging. An unreasonable search? Second Circuit: The plaintiff doesn't seem to own his cab, so he can't bring suit. Dissent: The city never argued that. Moreover, the implied license taxi drivers extend to customers (and therefore also to regulators) to briefly occupy their cabs is plainly not an invitation to install surveillance equipment.
- EMT receives unsolicited phallus photo from a co-worker, reports him. He just happens to have printouts on hand of a fabricated text-message conversation indicating she welcomed such behavior. She's fired for sexually harassing him. District court: The employer can't be held liable for the actions of a low-level employee. Second Circuit: It can when the employer's negligence gave effect to his nefarious intent.
- Electrical fire breaks out at Lower Merion Township, Pa., home as electricians repair faulty wiring. Yikes! Police file bogus arson charges against a former resident. District court: She was acquitted, so she can't sue police for fabricating evidence. Third Circuit: Yes she can. Moreover, though she was never jailed, she was indeed "seized" (when fingerprinted, forced to post bond, and required to attend numerous pretrial proceedings on pain of arrest), so her malicious-prosecution claim was improperly dismissed.
- DHS officials decide that 28 women and their children (who entered the country illegally and were caught immediately) should be deported forthwith, as they aren't likely to be tortured or face spousal abuse at home. Can the women seek review of those findings in an Article III court? The Third Circuit says no and, moreover, that the statute that mandates this result does not violate the Constitution.
- Advancing theories of fire that have been "unequivocally repudiated by rigorous scientific testing," prosecutors obtain arson and murder convictions in 1986 against Ionia, Mich., man who lost his wife and daughters in a house fire. Released in 2012, can he sue officials involved in his prosecution? Sixth Circuit: But for the estate of one forensics worker, no.
- Allegation: Man makes to flee traffic stop (over a speeding violation); a Flint, Mich., officer runs in front of the car just as the man hits the gas. The officer shoots him dead through the driver's-side window. Sixth Circuit: The officer is not entitled to qualified immunity (just yet).
- Indiana officials revoke child-care provider's registration. Provider: We committed none of the violations alleged. We'd like to appeal. Officials: Because you are merely registered with the state (as opposed to licensed), there is no administrative-appeals process. District court: Which deprived the provider of due process. Seventh Circuit: Which was a clearly established right, so the officials can be sued in their individual capacities.
- There may have been something untoward about Minnesota law-enforcement officials repeatedly accessing the state's driver's license database for a glimpse of two local media personalities', a former Minneapolis officer's, and a reality-TV contestant's personal information, says the Eighth Circuit. Numerous other plaintiffs, including media members, political activists, former police officers (and their spouses) and a beauty pageant contestant, all failed to make such a showing, however.
- Defense attorney convicted of money laundering for knowingly accepting stolen money from a client and disbursing some of it back to said client. Yikes! A prosecution witness who is both a paid informant and receiving leniency on his own charges in exchange for his testimony lied to the grand jury about these facts, and prosecutors did not correct the record. (The jury at trial did know said facts). Ninth Circuit: No reversible error. Conviction affirmed.
- Nevada medical-marijuana permit holder tries to buy gun, is rebuffed. Federal law prohibits the sale of guns to "unlawful drug users," and the Bureau of Alcohol, Tobacco, Firearms and Explosives says even state-approved marijuana use counts. Ninth Circuit: The government didn't put forth any evidence that medical-marijuana patients are especially prone to gun violence, but there was no need to under intermediate scrutiny. No Second Amendment violation here.
- Federal parolee kidnaps 11-year-old, keeps her captive for 18 years. Can she sue the feds for negligently supervising the parolee, who committed numerous parole violations before the kidnapping? Sadly not, says the majority of a Ninth Circuit panel. Officials could not have known the parolee would target her specifically and so owed her no special duty of care.
- After customers who have purchased an unlimited-data plan have used a certain amount of data each month, AT&T drastically slows down the speed of their service. FTC: And didn't adequately inform customers of the fact. Ninth Circuit: The agency lacks the statutory authority to get involved.
- Federal officials seize $800,000 from U.S. bank accounts controlled by Mexican businessmen suspected of (but not charged with) laundering drug money. Ninth Circuit: The men have standing, at least for the time being, to challenge the forfeiture.
New Mexico legislators abolished civil forfeiture last year, requiring law-enforcement officials to secure a criminal conviction before taking people's property (and prohibiting them from padding their budgets with the proceeds). How did Albuquerque officials (who seized 1 vehicle for every 66 residents over a recent five-year period) respond? By announcing plans to buy an even larger parking lot for seized vehicles—paid for with revenues from property forfeited from people such as IJ client Arlene Harjo, whom the city has not accused of committing any crime. Can Albuquerque officials continue to both ignore state law and flout the U.S. Constitution? Not by the hair of our majestically bearded litigators' chins. Click here to learn more.