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.)
Over at the The Orange County Register, IJ's Director of Strategic Research Dick M. Carpenter II explains how "bottleneckers" exploit government power for their own gain. It's a subject dear to your humble summarist's heart, as he once helped Dr. Carpenter and IJ Chairman Chip Mellor write a book about it.
- In exchange for a healthy percentage of the profits, prison officials often grant monopolies to phone companies that charge inmates and their families exorbitant per-minute rates and outrageous fees (to set up an account, to put money in the account, to close the account, etc.), such that a four-minute call can cost $56. FCC: We're capping the rates and fees. D.C. Circuit (over a dissent): In fact, you don't have authority to do that for intrastate calls.
- United Airlines: We overpaid the TSA, for whom we collect fees from passengers, $1.5 million. Refund please? TSA: Nah. The secret deadline to seek a refund was years ago. D.C. Circuit: The TSA's position is unsupportable.
- The First Circuit confronts The Case of the Garrulous Septuagenarian Who Repeatedly Volunteered to Let the Cops Search His Truck and, unsurprisingly, finds the gentleman in question did, in fact, consent to a search.
- Shall court orders approving the settlement of a 1980s lawsuit, involving the demolition of a notable art deco building in Manhattan to make room for Trump Tower, be unsealed? The Second Circuit says maybe so.
- Was a Salvadoran soccer star denied due process by an immigration judge's "hostile and impatient attitude, repeated interruptions and castigations, constrictions on relevant responses, and inexplicable focus on irrelevant details"? Third Circuit: Yes, and we urge the BIA to assign this case to a new judge on remand.
- When sex offender cuts off communication with minor (actually two investigators), the minor threatens to kill herself. He resumes communication. Sixth Circuit: A concerning tactic, but we've no precedent that outrageous gov't conduct means a defendant otherwise predisposed to crime can't be prosecuted.
- John Doe, accused of "nonconsensual sexual activities" with Student A, files a federal lawsuit challenging procedures employed by public university's disciplinary board following two hearings and appeals and before a third hearing. Sixth Circuit: The federal courts should let the university's process play out before getting involved.
- O'Fallon, Ill. drug dealer sells heroin to teenagers, one of whom overdoses and dies. In closing statements, the prosecutor consigns the dealer to Dante's innermost circle of hell. Seventh Circuit: Which was an improper appeal to passion, but conviction affirmed.
- It was not clearly erroneous for the trial court to treat simultaneous possession of two illegal drugs as two crimes, not one, for purposes of this constitutional provision. Seventh Circuit: What is the Double Jeopardy Clause?
- Arkansas wildlife officer learns (via anonymous tip and recorded jailhouse call) man may be keeping a deer in his home, which is illegal. The officer obtains a search warrant and finds a deer—and other contraband, which he refers to the sheriff's department for its own search and arrest. But wait! A state judge finds no probable cause for the deer warrant. All charges dropped. Can the homeowner sue the wildlife officer, who should have known the warrant was defective? District court: Yes. Eighth Circuit (over a dissent): No.
- On panel rehearing, the Eighth Circuit once again unanimously agrees that Iowa State University officials who rejected T-shirt designs from a pro-marijuana legalization student group violated the First Amendment. The panel (over a dissent) now goes on to hold that the officials are not entitled to qualified immunity. (We discussed the previous, now-vacated decision on the podcast.)
- Nevada state trooper releases motorist he finds suspicious after no drug doggie is available to sniff vehicle. He speaks with a local canine officer, who pulls the motorist over again; the doggie alerts. No drugs found and no charges filed, but the gov't seizes $167k cash. District court: The gov't's numerous omissions in its forfeiture filings (regarding the role of the first officer) are disappointing. Return the cash and (in a later order) pay beaucoup attorney fees. Ninth Circuit: Affirmed.
- In California, alcohol retailers may advertise their wares but may not accept money (or other incentives) from manufacturers for doing so. An unconstitutional infringement on commercial speech? Ninth Circuit: Could be. On remand, the gov't must show there is a good reason for the law. En banc court (over a dissent): In fact, there is no need for such heightened scrutiny. (We discussed the original panel holding on the podcast.)
- "We do not abdicate the judicial role, and we affirm our obligation 'to say what the law is' in this case." So says the Ninth Circuit in affirming an injunction against President Trump's revised travel ban.
Dr. Lee Birchansky wants to open an outpatient surgery center next to his ophthalmology practice in Cedar Rapids, Iowa. Sadly, that would be a criminal act because state health planners, doing the bidding of the two hospitals where all such surgeries in the area are performed, have repeatedly rejected his applications for the required "certificate of need." (Ironically, after years of arguing that Dr. Birchansky's facility is not needed, one of those hospitals broke ground on a new eye-care facility last year.) The state has no objection to Dr. Birchansky doing surgeries; it just wants him to work for an already-established business, rather than for himself. That's bad policy, and unconstitutional too, so last week Dr. Birchansky filed suit against Iowa's certificate-of-need law. Read more about the case here.