The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
New on the podcast: A special Fifth Circuit extravaganza recorded before a live student audience at the University of Texas School of Law in Austin at the invitation of the UT chapter of the Federalist Society. Featuring: Jane Webre (a partner at Scott Douglass & McConnico), Kyle Hawkins (the solicitor general of Texas), Steve Vladeck (a law professor at UT), and Evan Young (a partner at Baker Botts and a law professor at UT). Click here for iTunes.
- Plaintiffs: The Metropolitan Washington Airports Authority shouldn't be using revenue from Dulles airport's toll road to pay for a new Metrorail line (scheduled for completion in 2020) connecting Dulles to D.C. Metro. Indeed, the structure of the airport authority violates the nondelegation doctrine, the Guarantee Clause, and the Appointments Clause. Fourth Circuit: Not so. The authority is not a federal entity, so it is not subject to the limitations of the Constitution. Statutory claims fail, too.
- A Texas plasma "donation" center rejects a man who limps and a woman who uses a service animal. The center claims they're not in good enough health to give blood; the would-be donors claim the center is discriminating against them because they're disabled. An Americans with Disabilities Act violation? Not bloody likely, says the Fifth Circuit; the center would have to be a "service establishment" for the ADA to apply, and getting paid for your blood isn't a service. But we're more sanguine about your chances under the state ADA equivalent. That question we certify to the Supreme Court of Texas.
- Responding to the concerns of "aroused citizens," Dallas officials prohibit convention center from contracting with company that stages "love- and sex-themed" conventions. The company sues. City: We prohibited the convention center only from contracting with the company—we didn't say anything about contracting with the company's wholly owned subsidiary that was meant to stage this particular convention. Fifth Circuit (over a dissent): Nice try. The company has standing to sue.
- A sad case. Woman visits a Baytown, Tex. Walmart nine times in 27 hours, each time buying cans of dust remover. (On one visit, she had soiled herself; on another, she was naked from the waist down. (Employees gave her a towel and a dress.)) She buys at least 60 cans total. Early the following day, she dies in the Walmart parking lot. Death by inhaling dust remover. Fifth Circuit: But that doesn't mean you can sue Walmart or its employees. Under Texas law, Walmart did not have to protect her from herself. Case dismissed. No second try in state court.
- A sad case. Avid bow hunter, sitting at home with his bow, has accident; the bow's metal cable guard lodges itself deep in his brain. He dies. There are no witnesses. Bow manufacturer: He must have placed his head inside bow while pulling the drawstring; can't hold us liable for that. Family: He wouldn't have done that; the bow must have been defective. District court: The family failed to present evidence he was engaged in a reasonably anticipated use of the bow. Case dismissed. Fifth Circuit: Affirmed.
- Akron, Ohio officer responds to call about two suspicious men in neighborhood, stops two men standing on sidewalk. One man twists away from a pat-down; a struggle ensues; the man's pistol discharges and he runs away. The cop shoots him dead. Sixth Circuit: No qualified immunity for the stop and frisk; we saw the dashcam video, and a jury should, too, to determine whether the men appeared dangerous. But qualified immunity for the shooting; a scuffle, discharged gun, and fleeing suspect might very well lead an officer to believe the situation dangerous.
- A hot dog may or may not be a sandwich, but it would be "nonsense"—as Judge Thapar notes—to consider pizza to be a hotdog, hamburger, or bratwurst. Anyways, this appellant is going to jail for running drugs, and three judges on the Sixth Circuit have four opinions about whether that's right or wrong and whether Auer deference is good or bad.
- Wisconsin teacher is listed as "under investigation" on public website for 17 months without explanation. Investigation is dropped; his name is removed. Teacher: Too late! The damage is done. Seventh Circuit: Can't sue the superintendent in his official capacity; that's barred by the Eleventh Amendment. Judge Hamilton, concurring: Which is the correct outcome, but "[t]he combination of stigma and delay poses serious due process questions even if [the teacher] himself is not entitled to relief under federal law."
- Police officer, surveilling a Chicago house based on an informant's tip, develops a "hunch" that a man at the house has drugs in the bag he's carrying. Oops: He doesn't! No matter: Eight officers continue detaining the man until the officer develops a second "hunch" that drugs are probably in the house. And bingo: heroin! Sadly, says the Seventh Circuit, the Constitution doesn't allow officers to detain people while they develop serial hunches about places to search.
- There are two things your humble editor knows with absolute conviction: You don't bring a knife to a gunfight, and you don't get into a debate about brief formatting with Judge Easterbrook of the Seventh Circuit. This pro se litigant was lucky to escape largely unscathed, and with a better understanding of the difference between Microsoft Word's "Properties" and "Word Count" features.
- Woman purchases a vacant residential lot in her neighborhood for $1 from the city of Chicago with the intention of converting it into a community garden. A city inspector deems the vegetation too tall. Six months later, the city issues a citation to the property owner and, after a hearing, imposes a $640 fine. Property owner: The delay between inspection and hearing violated my due process rights. Seventh Circuit: "Although a six month delay between inspection and citation may not be a model of administrative efficiency," it's constitutional.
- Seventy percent of the word's cocoa is produced in the Ivory Coast, where child slavery is rampant. Former child slaves who were kidnapped and forced to work for up to 14 hours a day without pay sue large chocolate companies in the U.S., alleging they aided and abetted slavery. Companies: U.S. courts can't hear the suit because any harm took place overseas. Ninth Circuit: The companies are alleged to have had employees from their U.S. headquarters regularly inspect operations in the Ivory Coast and report back to the U.S., where financing decisions were made. That's sufficiently domestic to allow the case to go forward.
- Jury deadlocks in murder trial; prosecutors failed to establish defendant pulled the trigger; a state court judge dismisses the case "without prejudice." Prosecutors retry it, get a conviction. The defendant files a habeas petition in federal court: The conviction violates the Double Jeopardy Clause. While that petition is pending, a state court vacates the conviction. (Prosecutors withheld exculpatory evidence.) The defendant remains in custody, awaiting another retrial. Ninth Circuit: His federal habeas petition is not moot, even though the conviction it challenges is no more. On remand, he can convert it to a petition challenging his detention.
- The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can't.)
- Lawyer who is licensed in Kentucky, who has an office in Kentucky, and who is working only on matters before Kentucky courts makes fateful decision to work from her firm's office just over the river in Ohio (while her application for admission in Ohio is pending). Unauthorized practice of law? Yes, says the Ohio Board of Commissioners on Character and Fitness. No, says a majority of the Ohio Supreme Court, because Rule 5.5 allows "temporary" practice. Yes, says the concurrence (because this is not temporary practice), but Rule 5.5 is an unconstitutional (state and federal) restriction on the lawyer's right to pursue her chosen profession.
- The rational basis test is hard to fail, says the Middle District of Tennessee, but Tennessee's policy of rescinding the driver's licenses of people who fail to pay criminal fines and fees is up—or maybe down—to the task.
For years, non-lawyers in Rhode Island have been offering real estate closing related services, subject to authorization by the General Assembly. "Not so fast!" says a committee of lawyers to the Rhode Island Supreme Court. Those things are the "practice of law," so only lawyers get to do them, notwithstanding the General Assembly and even if there is no evidence of public harm. "Not so fast!" says IJ, in a trio of amicus briefs. The committee's proposed restrictions violate the "fundamental right to engage in a lawful calling" under the state constitution as well as the First Amendment's protections for occupational speech. Read more about the cases and briefs here.