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.)
Justice Antonin Scalia made many positive contributions to administrative law. His tireless advocacy of agency-empowering Chevron deference was not among them. Evan Bernick of the Center for Judicial Engagement explains why Scalia was wrong on Chevron—and why the court should jettison a profoundly pernicious and unconstitutional doctrine. Read more here.
New podcast: Life sentences for juveniles, a union leader's "neat trick," prisoners' legal mail, and undergarments and prison tattoos. Click here for iTunes.
- Employees resign their union membership, but employer continues automatically deducting dues from their paycheck and sending them to the union; apparently there is only a 15-day window each year to cancel automatic deductions. D.C. Circuit: Normally that would be allowed, but the National Labor Relations Board should consider whether the particular circumstances of this case call for an exception.
- Utica, N.Y., pharmacist with a fear of needles declines to vaccinate customers; he's fired. Unlawful disability discrimination? Jury: Not to put too fine a point on it, but yes. Rite Aid must pay him $1.8 million. 2nd Circuit: Not so.
- New York, like many other states, prohibits law firms from raising capital from (non-lawyer) investors. An unconstitutional infringement on their First Amendment rights to associate and petition? The 2nd Circuit says no.
- Despite court order, Delaware County, Pa., man declines to provide password to encrypted hard drive to investigators, who have very good reason to suspect child porn will be found; he's found in contempt. Does the contempt order violate his right against self-incrimination? We don't have to answer that, says the 3rd Circuit, but no.
- 3rd Circuit: Claim that man was fired in retaliation for taking medical leave should not have been dismissed; the district court held him to a higher standard of proof than the Labor Department prefers. And because of Chevron we must defer to the Labor Department. Concurrence: Deference to agencies might be dictated by Chevron (and Auer), but that's most discomforting: "We would never allow a private litigant the power to authoritatively reinterpret the rules applicable to a dispute, yet we routinely allow the nation's most prolific and powerful litigant, the government, to do exactly that."
- A person who gambles virtual gold in a virtual casino hoping to win virtual prizes in a mobile-phone role-playing game may have lost many things, but they have not lost "money" for purposes of Maryland's gambling-loss-recovery statute, says the 4th Circuit.
- Birdville, Tex., school board invites students to give a one-minute statement prior to the start of public meetings. Allegation: Students typically lead attendees in prayer. An establishment clause problem? The 5th Circuit says no.
- In a 1977 case called Abood v. Detroit Board of Education, the Supreme Court held that public employees can be required to pay fees to a union as a condition of public employment. In 2016, the Supreme Court appeared poised to overrule Abood. Then Scalia died. 7th Circuit: This case is controlled by Abood, and while this court cannot overrule Abood, the Supreme Court can.
- For years, broadcast TV networks have fought a legal war against services that capture broadcast signals and retransmit them over the Internet. Battle has been waged in numerous federal courts, including the Supreme Court, and has paid many Big Law salaries. 9th Circuit: Yet another victory for the networks.
- Does the doctrine of qualified immunity protect state actors (a New Mexico prosecutor in the instant case) who go beyond their lawful state authority? This 10th Circuit panel has three answers, two of which are "maybe."
- Sixteen-year-old boy sentenced to 155 years in prison for stabbing and raping—but not killing—a 17-year-old girl. He will not be eligible for parole until he has served 131.75 years. 10th Circuit: Unconstitutional.
- Small-time creamery wishes to sell pasteurized skim milk without any additives. Florida regulators: Sure thing, but unless you inject additives (to replace vitamins removed during the skimming process), you can't call it skim milk. You can call it "imitation milk product." 11th Circuit: You can call it skim milk. This is an IJ case.
- Business A sues Business B in state court; the case is removed to federal court because of diversity jurisdiction; the businesses (and their owners) are not denizens of the same state. The parties spend years and millions of dollars litigating. Yikes! One of Business A's (many) owners went unidentified and defeats diversity; the case should have gone in state court. 11th Circuit: No need for the $500,000 sanction levied on Business A's lawyers; they didn't act in bad faith, and there is plenty of blame to go around.
- And in en banc news, the 10th Circuit will not reconsider its finding that a Colorado fencing business was insufficiently vigilant in verifying the immigration status of its employees.
Last year, IJ sued New York City on behalf of a class of residents and business owners forced to waive their constitutional rights under threat of eviction by the NYPD's no-fault eviction program. The NYPD exacted such waivers with little regard to actual guilt or due process. Plaintiff Sung Cho, for instance, was targeted for eviction because NYPD officers sold stolen electronics to customers at his laundromat. To settle the case, he had to waive not only his own constitutional rights, but also the rights of anyone who might purchase his business. This month: partial victory! Legislation approved by Mayor Bill de Blasio makes significant reforms, including making innocence a defense to eviction. IJ's lawsuit will continue, however, as the new law does nothing for the thousands of New Yorkers victimized by the program up until now. Read more here.