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.)
In July, Tennessee regulators threatened to shut down an app that connects licensed beauty professionals directly to customers—bypassing salons—after a salon owner complained about the "highly disturbing" competition. But this month, the regulators backed down. Click here to read more.
This week on the podcast: Mandatory transvaginal ultrasounds, Syrian refugees, and a pair of taxi cases.
- For his role in 9/11 attacks, U.S. military commission convicts Yemeni man of conspiracy to commit war crimes. Defendant: Which is a crime under U.S. but not international law, so I should have been tried in a regular court rather than by military commission. D.C. Circuit (sitting en banc): Conviction affirmed.
- Allegation: Corrupt officials raid financial firm's Moscow office, take its assets, and use them to claim fraudulent $230 million tax rebate from Russian treasury. The firm complains to the Russian gov't, which, instead of pursuing the raiders, files charges against the firm and its lawyers, who flee the country (but for one who infamously perishes in prison). With their ill-gotten gains, the raiders purchase properties in NYC. U.S. gov't: Which we can forfeit. Second Circuit: The alleged raiders cannot challenge the forfeiture with their current counsel, who previously worked on behalf of the victimized firm (after its first team of lawyers fled).
- Newspaper reports on Lehigh County, Penn., woman who never married David Lee Roth but felt compelled to file for divorce from the celebrated musician. She sues the newspaper for defamation. Third Circuit: No need to reconsider the ruling against her.
- Former detainees sue private contractor over "sadistic" torture at Abu Ghraib prison. District Court: It's not for the courts to second-guess the military's sensitive judgments. Fourth Circuit: It's not clear senior military officials knew what was going on, and, even if they did, they cannot authorize unlawful conduct. The case should not have been dismissed.
- Jury: Memphis, Tenn., police's aggressive, confrontational early morning efforts to herd patrons of entertainment district off the streets and into bars—or out of the neighborhood—violated arrestee's right to intrastate travel. Sixth Circuit: Which is a fundamental right in this circuit, so the city needed to produce some evidence the sweeps advance public safety (or are at least meant to), and it didn't.
- Hotel guest avers he could not have waved a gun menacingly at another guest, as he was elsewhere at the time. Nevertheless, Battle Creek, Mich., police cuff him in an extremely painful manner and arrest him. Sixth Circuit: He can sue the officers and the city.
- Nonresidents of Illinois are barred from obtaining a concealed carry permit in the state unless they reside in one of four states that have gun laws that are substantially similar to Illinois'. Seventh Circuit (over a dissent): The law is imperfect but not so unreasonable as to justify a preliminary injunction while a challenge to it proceeds.
- Allegation: Columbia, Mo., detectives manipulate teenage murder suspect into false confession; he implicates a friend as well. Detectives pressure witness to falsely identify the pair. A state court throws out the friend's conviction on account of withheld exculpatory evidence, actual innocence. Can the friend sue the detectives? Back to the district court to address qualified immunity in the first instance, says the Eighth Circuit.
- California law requires licensed pregnancy counseling centers that do not provide abortions to make patients aware of clinics that do. Unlicensed centers need not provide that information but must inform patients that they lack a license. Compelled speech in violation of the First Amendment? No, the law withstands intermediate scrutiny, says the Ninth Circuit.
- For $1k/month, man allows use of his name to obscure the true ownership of a Los Angeles County medical marijuana business. He's caught. Man: I have chronic pain. Any chance I can get sentencing condition that prevents me from possessing marijuana lifted? No can do, says the Ninth Circuit. The congressional appropriations rider that forbids the feds from interfering with states' implementation of their own medical marijuana laws doesn't help your case.
- Federal agent infiltrates "carder" website run by malefactors in the former USSR, sells fake drivers' licenses to a teenager in Phoenix (a user of the site). Investigators find counterfeit cash, stolen IDs, and other damning evidence at the teen's house. Then-teenager: I was underage when one of the two counts I was convicted on transpired, which renders my conviction infirm. Ninth Circuit: Conviction and 20-year sentence affirmed.
- Lawyers assisting service members facing disciplinary action encouraged them to drool and otherwise fake mental illness, says Fort Carson base commander, so they are banned from base. Lawyers: We would never do that, and the ban violates our due process and free speech rights. Tenth Circuit: Very understandable that the lawyers want to clear their names, but we owe much deference to a commander's decision to exclude someone from base. Dismissed.
- Tenth Circuit: Kansas officials may not, for the time being, enforce state law requiring individuals to proffer one of 13 acceptable forms of ID to prove their citizenship before obtaining or renewing a voter ID card.
This year, South Carolina legislators banned online eye exams—not to advance any public purpose, but, according to Gov. Nikki Haley, who vetoed the law, "to stifle competition for the benefit of a single industry." The legislature overrode the veto, however, and now residents have no choice but to make annual visits to storefront optometrists. (Prescriptions for corrective lenses expire after just one year in South Carolina—far sooner than medically necessary.) This week, IJ teamed up with a newly illegal online startup to challenge the law under South Carolina's Constitution, which prohibits arbitrary rules unmoored from a true threat to public health or safety. Read more about the case here.