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.)
After the U.S. Supreme Court's Kelo decision, Georgia lawmakers strengthened protections for property owners facing eminent domain. Are the reforms the law of the land or are they, as local officials recently argued to the Georgia Supreme Court, merely "suggested guidelines"? IJ legislative analyst Nick Sibilla has the story.
- FBI agent searches classified database for info on his family and friends; he's stripped of his security clearance. Former agent: Non-Muslim agents only get reprimands for this kind of thing. D.C. Circuit: Case dismissed because you didn't raise that claim earlier. Concurrence: But if you had, we could've considered it, notwithstanding the gov't's argument that it's foreclosed because of national security.
- Warden at Brooklyn, N.Y., prison declines prisoner's request to keep stuffed animals. A substantial burden on the prisoner's sincere religious beliefs? Could be, says the Second Circuit.
- Allegation: Man's daughter doesn't pay rent for two months; debt collector tries to garnish his bank account. The man twice sends bank statements indicating the funds are from Social Security and thus exempt from garnishment. He's nonetheless dragged into court, where the collector reviews his statements, withdraws its case. Can he sue? District court: No. Second Circuit: Vacated. Could be the collector intended to harass, frustrate him.
- Hunt County, Tex., officer files report identifying wrong man (who has the same name as the real perp) in assault case. A detective investigates further; a prosecutor asks judge for an arrest warrant. Yikes! No one catches the mistake. The wrong man goes to jail for 16 days. Can he sue the first officer? Fifth Circuit (sitting en banc): No, the officer wasn't involved with the warrant application. Dissent: "Pro se litigants could only dream of receiving the judicial help that the en banc court is giving an officer represented by a highly competent attorney."
- Wireless provider turns over arson suspect's location data (at the time of the crime) to Ouachita Parish, La., detective, who had not sought a warrant. (The evidence is suppressed at trial.) Can the suspect sue the phone company for violating his privacy? The Fifth Circuit says no; the detective said the situation was an emergency, and the provider had no reason to think otherwise. (From the footnotes: Capitalize the "I" in Internet, folks.)
- Ohio provides only paper ballots to absentee voters. Blind voters: Which we can't use without help, a state of affairs officials could remedy by offering the ballots online (as other states do). An ADA violation? Maybe so, says the Sixth Circuit.
- District court: The 15-year sentence given to man lured into participating in fake stash house robbery serves "no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that [he] and his community may have had." Seventh Circuit: Not exactly getting a dangerous criminal off the streets, but conviction and sentence affirmed.
- District court: Litigants challenging the Trump Administration's cancellation of program that deferred deportation for about 800,000 illegal immigrants who arrived as children are entitled to more internal documents than the feds have seen fit to release. Ninth Circuit (over a dissent): That's so.
- Company pays call center employees less than minimum wage for some tasks, more for others. If their weekly pay comes out to less than minimum wage, they get a bump. Employees: Shouldn't be a weekly bump. Each individual hour should be bumped up to minimum wage. Ninth Circuit: The pay scheme may be "mind-numbingly complex," but it's lawful. The Dept. of Labor has been using the per-workweek measure since 1940.
- In 2015, Fox premieres TV show Empire, based on fictional hip hop music label of the same name. Can Empire Distribution, a real hip hop label founded in 2010, sue for violation of its trademarks? The Ninth Circuit says no.
- Online reviewer pillories Newport Beach accountant. Must Yelp reveal the reviewer's identity? Indeed so, says a California appeals court; the review contains factual statements that could be proved false, so the accountant might win his defamation suit. But sanctions against Yelp for trying to protect the reviewer's anonymity are reversed.
- With no crosswalks nearby, man jaywalks across five-lane avenue, is struck by vehicle. Is the church he was trying to reach negligent for putting its auxiliary parking lot there? Appeals court: Yep. California Supreme Court: Nope.
Last week, IJ's strategic research team released the second edition of License to Work, which gathers and ranks state-imposed barriers to entry in 102 low- and middle-income occupations across the U.S. The takeaway? States are making it too hard for people to earn an honest living. Many occupations that are licensed in some states are unlicensed in others, and being practiced without apparent widespread harm. And many entry restrictions are far out of sync with what public health and safety might require. For instance, on average it takes more than a year's worth of training to obtain a cosmetology license; emergency medical technicians need only about a month. Click here to read the report.