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.)
Would shrinking the Supreme Court to six members reduce "judicial activism"? The Center for Judicial Engagement's Evan Bernick critiques a provocative proposal by Professor Michael Stokes Paulsen. Read it here.
Last week on the podcast: IJ Senior Attorney Robert McNamara joined the panel and talked a trio of Posner opinions.
- Harvard law student submits article with plagiarized commentary to student publication. She is allowed to graduate, but the incident is noted on her transcript. Then-law student: Which is defamatory and a breach of contract. First Circuit: It's neither.
- Allegation: Gov't contractor vocally opposes reelection of Moosic, Penn. ,official. The official presses other officials not to renew the contractor's contract. (They renew it.) Third Circuit: If the official had threatened or coerced the other officials in some way, the contractor's retaliation claim could proceed. But such conduct has not been alleged.
- In 1995, South Carolina teenager pleads guilty to murder. Then-teenager: I only took the plea deal because I was facing the death penalty, which has since been held unconstitutional for juvenile offenders. May I withdraw my plea? Fourth Circuit: No.
- Nonprofit: Deserving refugees are not getting asylum because of their suspected involvement with unnamed terrorist groups, including those who machinate exclusively against enemies of the U.S. Many groups are likely misclassified; the gov't must declassify what groups it considers to be terrorists. Seventh Circuit: Mustn't. Concurrence: Congress ought to look into this though, if it's indeed the reason so few Syrian Christians are getting asylum.
- In Facebook posts, Brainerd, Minn., nursing student disparages classmates, opines on his anger-management issues. He's expelled. Former student: The school doesn't have the authority to police off-campus speech unrelated to an academic assignment, and the program's code of ethics is rather vague on what conduct amounts to unacceptable unprofessionalism. Moreover, I was entitled to notice, a hearing, due process. Eighth Circuit (over a dissent): There's no First Amendment violation, and a single meeting with administrators was all the process that he was due.
- The Pacific bearded seal is not endangered, but it will be by 2095, say the feds. Can the seal go on the endangered species list now (which will hinder offshore drilling)? Go for it, says the Ninth Circuit. The feds' judgment that the seal will not adapt to the warming predicted by climate models is entitled to Skidmore deference.
- California corrections official: When I put inmate who filed (now-substantiated) complaint of excessive force in administrative segregation for three months, I wasn't retaliating. I was looking after his safety, as required by state rule. Ninth Circuit (over a dissent): Doubtful. A jury may well think otherwise.
- Tenth Circuit: The federal law governing when and how the Bureau of Land Management is to remove wild horses from public and private lands is unworkable for a particular stretch of southwestern Wyoming. Nonetheless, the agency's attempt to reinterpret the law into something workable is not entitled to Chevron deference because the law is not ambiguous; the removal of 1,263 horses from the area exceeded the agency's authority.
- Change to sentencing guidelines makes drug convict eligible for shortened sentence. Prosecutors: The gentleman made a rap video identifying and threatening witnesses against him. Tenth Circuit: So a sentence reduction is not in the cards.
- In June, an Eleventh Circuit panel ordered the Board of Immigration Appeals to reconsider its ruling that a particularly winsome green-card holder is deportable. Last week: "The panel is now advised that the BIA does not deem this court's … opinion sufficient to accept [the] case on remand." Which will not fly.
In May 2016, Navajo County, Ariz., police seized Terry and Ria Platt's car, which they had lent to their son. Prosecutors moved to forfeit the car despite the fact that their son's alleged misdeeds—possessing cash and a small amount of marijuana—do not give rise to forfeiture in Arizona. After the prosecutors told the court that the Platts had never filed a claim seeking the return of the vehicle (they had), the Platts filed a constitutional challenge to Arizona's forfeiture regime. And this week, prosecutors agreed to return the car. Huzzah! Nevertheless, the prosecutors have a seven-year window to refile the forfeiture action, and they maintain that their actions were completely legal. Thus, the Platts' suit must go on to protect themselves and so that other innocent property owners do not suffer the same abuses. Read more here.