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 USA Today, Clark Neily and Evan Bernick of the Center for Judicial Engagement opine on the peril and promise of the president-elect's potential Supreme Court nominees. Click here to read.
Previously on the podcast: due process on campus, elephant trophies, drug forfeiture, and puppycide most foul.
- Federal agencies are subject to strict recordkeeping requirements, and, if it comes to light that records have been unlawfully removed or destroyed, an agency must ask the Attorney General to intercede. D.C. Circuit: Which the State Department failed to do in the instant case, wherein a former Secretary of State conducted gov't business on a private email server and may not yet have relinquished all such emails to the department.
- The DOD offers many goods and services at below-market prices to military personnel at a network of commissaries and exchanges. Must the Air Force allow 800 civilian employees access to one such "shoppette" at Luke Air Force Base in Arizona? The D.C. Circuit says no.
- Ninety-nine percent of white Boston police officers pass drug test. Ninety-eight percent of black officers do. Can black officers who were fired after their hair tested positive for cocaine (but who deny any drug use) sue over this disparate impact? First Circuit: Indeed. A jury may find that additional testing could have detected false positives.
- Recently bankrupt auto manufacturer no longer wishes to sell cars through Yonkers, N.Y. dealership, but state law forbids terminating the relationship without "good cause." District court: Poor sales is good cause. New York high court: The manufacturer used an unfair formula to calculate the dealer's sales (relative to other dealers'). Second Circuit: So judgment in favor of the dealer (on that issue).
- DUI suspect flees on foot. Horn Lake, Miss. officer finds him, and, though he's unarmed and unresisting, the officer allows (perhaps orders) a police dog to bite him—and doesn't call the dog off for a minute or more—which causes serious injury to the suspect's calf. Fifth Circuit: No qualified immunity.
- Tennessee Valley Authority officials fire nuclear-plant guard who failed pulmonary health test. Unlawful disability discrimination? TVA: No, national security is at stake. Sixth Circuit: There is no national-security exemption from the relevant statute. The guard's suit can go forward.
- Guard at Vandalia, Ill. prison taunts handcuffed inmate, sticks his finger in the inmate's ears. The inmate threatens the guard. The guard hits him, chokes him unconscious, and tosses him into his cell, where he hits his head on the toilet. Guards leave him there with a broken orbital bone. Seventh Circuit: No reason to overturn the jury's verdict in favor of the inmate.
- Drug suspect pulled over for doing 66 in a 65-mph zone. Eighth Circuit: The officer thought the suspect was speeding, so it doesn't matter if the true purpose of the stop was drug enforcement. No need to suppress the evidence.
- Twelve-year-old boy shows up at Hayti, Mo. police station, explains that his father is a drug dealer. Eighth Circuit: There was probable cause for the search warrant. Conviction affirmed.
- Though the Constitution requires judicial officers to be appointed by the president, SEC administrative law judges are appointed by the agency's staff. SEC: Which is no problem because our judges are employees, not officers. Tenth Circuit (over a dissent): They're officers.
- Doctor accused of fondling underage patient, but his alibi is strong. Realizing things aren't going well, the prosecutor makes inflammatory statements in order to provoke a mistrial, get a do-over in front of new jury. Texas court: No retrial.
- Wisconsin woman wins "forfeiture" case after the administrative rule she's accused of violating (by way of singing in protest at state capitol building) is held unconstitutional. Must the state pay her litigation costs? Wisconsin court: No, because the forfeiture was brought by the state (at the behest of a state agency) rather than by a state agency.
- And in en banc news, the Ninth Circuit will reconsider whether zoning restrictions (that allegedly amount to a ban) on new gun stores in Alameda County, Calif. comport with the Second Amendment.
Colorado outsources the enforcement of its campaign-finance laws to the public at large, authorizing anyone to sue over alleged violations. Unsurprisingly, political insiders frequently use the law to harass opponents and critics. A First Amendment problem? We say so. Last year, IJ partnered with a Colorado mom, Tammy Holland, who had been sued by local school-board members over a newspaper ad she placed urging voters to familiarize themselves with school-board candidates. Last week, a magistrate judge recommended that her challenge proceed. Click here to read more.