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.)
The growing bipartisan movement to rein in occupational licensing has claimed some important victories in recent weeks, writes IJ Communications Associate Nick Sibilla at Forbes.com, with the repeal of restrictions on hair braiders in New Hampshire and shampooers in Tennessee. Read more here.
- Feds: Honest folks don't accumulate stockpiles of cash or have family members schlep stockpiles on trains. Thus, a couple (charged with no crime) from whom we seek to forfeit $17.9k must have obtained it illicitly—or at least they haven't shown they obtained it licitly. D.C. Circuit: It's for a jury of laypeople to decide whether the couple's story is really so suspicious.
- Nazis loot Hungarian baron's fine art collection. Do U.S. courts have jurisdiction to consider his heirs' suit seeking recovery of or compensation for the trove, some of which is now displayed in several Hungarian museums? D.C. Circuit: Yes, for some of the pieces. For the rest—maybe. (Your editorial staff found the district court's opinion interesting as well.)
- Veteran coal miner believes biometric hand scanning, a newly introduced measure to track miners' work hours, puts him in league with the Antichrist. He retires rather than submit to such scans. EEOC: The company failed to accommodate his sincere religious beliefs. Fourth Circuit: Pay him back wages but no need for punitive damages.
- That (among other things) a Langley Park, Md. brothel made use of condoms manufactured out of state means the robbery of said brothel implicates interstate commerce, says the Fourth Circuit, so the robbery is a federal case.
- Texas dentists who specialize in implant dentistry, dental anesthesiology, oral medicine, and orofacial pain would like to advertise that fact, but Texas law prohibits using the word "specialist" to refer to anything other than one of nine specialties recognized by the ADA. Fifth Circuit: Which is an unconstitutional restriction on commercial speech.
- Plaintiff: The Fifth Amendment's Takings Clause automatically waives the gov't's sovereign immunity, which means I get to bring my takings suit wherever I want. Fifth Circuit: You might think so, but binding precedent says the opposite, which means you belong in the Court of Federal Claims, not here.
- Former inmates: Marion County, Ind., jail officials regularly delayed our release for up to three days—in part because officials used a computer system that didn't work with the court and police systems; certify our class action. (Fun fact: That computer system was a gift from the jail's phone company, which charged high rates for calls that generated beaucoup profits for the phone company and the sheriff.) District court: We'll certify some of the subclasses, but not all. Seventh Circuit: We'll certify all.
- Putnam County, Ind., officer (6'3″, 270lbs) is convicted of excessive force for beating up restrained, compliant arrestees in two separate instances. Seventh Circuit (2016): The district court needs to reconsider or better explain its far-below-guidelines sentence of 14 months. Seventh Circuit (2017): Again, 14 months seems lenient given the officer's prior conviction for beating up a three-year-old.
- Allegation: Oak Lawn, Ill., strip mall owner displeases politically connected tenant; village officials force the owner to remedy nonexistent code violations to the tune of hundreds of thousands of dollars—ultimately forcing him into foreclosure. Seventh Circuit: His deadline to sue the village accrued when the foreclosure process began, not when it concluded.
- Peoria, Ill., police officer interviewing for specialty assignment (pursuing asset forfeitures) declines to answer any questions until she has read aloud a "nine-page manifesto." She does not get the gig. Seventh Circuit: She may not press her sex-discrimination or other claims.
- Rancher tells officer looking for missing cattle that "if you can step foot on [my] property, mister, you're not going to be walking away." North Dakota jury: Which was not a true threat but protected free speech. Eighth Circuit: The officer's subsequent tasing of the rancher did not constitute excessive force.
- Plaintiff lends her car to her brother-in-law. Yikes! His license is suspended; cops impound the car. She tenders valid license and proof of ownership. LAPD: Sorry, we're impounding this baby for 30 days, in accordance with policy meant to punish unlicensed drivers. Ninth Circuit: That's a seizure. Maybe also a taking. Her suit should not have been dismissed.
- Allegation: An IRS investigator used threats of criminal prosecution to dragoon innocent tax preparers into using their own money as bait in a sting operation to catch scammers fraudulently seeking tax refunds. The sting works, but meanwhile the preparers are out $2 million dollars and have been forced into bankruptcy. Is the IRS immune from suit? Not nearly as immune as it thinks it is, says this Ninth Circuit panel.
- Student: School officials failed to investigate a rape committed by basketball player (and son of a former NFL player) of another student, after which he raped me, too. Tenth Circuit: No Title IX violation. The school wasn't required to investigate the earlier [alleged] rape, because only campus security officers knew about it.
- In light of his mental-health issues and general immaturity, a sentence of 70 days (plus five years supervised release) is not unreasonable for a 24-year-old who kidnapped his ex-girlfriend at BB-gunpoint, handcuffed her, and drove her to another state blindfolded in an effort to win her hand in marriage, says two-thirds of a Tenth Circuit panel.
- Environmentalists: Mismanagement of the Okeechobee Waterway, which runs from Florida's Atlantic coast to the Gulf of Mexico, results in algal blooms that kill off wildlife in surrounding waterways and taint drinking water. District court: The Army Corps of Engineers, which manages the waterway, enjoys sovereign immunity. Eleventh Circuit: These issues can't be litigated without the South Florida Water Management District (a state agency) as a party, and, as it's immune from suit in federal courts, the case can't go at all.
- Plaintiff: Defendant, a lawyer, maintains email accounts that serve no purpose but to receive spam, over which he files meritless suits if his demands for compensation are not met. He filed such a suit against us; we seek recompense. Defendant: The plaintiff—an entity doing business under a fictitious name traceable to a dissolved company that purports to have transferred all its assets to a third entity—doesn't have standing. California court: Plaintiff's suit should not have been dismissed.
In March, the Eleventh Circuit ruled that IJ client Mary Lou Wesselhoeft could truthfully label her skim milk as "skim milk," even though it did not meet the gov't's definition. Florida regulators had previously insisted that Mary Lou either add additives, which would contradict her all-natural philosophy, or call her skim milk "imitation milk product," which would be ridiculous. As of last week, her skim milk is back on the market. Hear, hear for commercial speech! Learn more about the case.