The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Friends, some good news: In the past few years, legislators in Wyoming, North Dakota, and Utah have legalized the sale of almost any homemade food (excepting those containing meat). Free from any licensing, permitting, or inspection requirements, hundreds of new businesses have formed and now offer an astounding array of dishes—and there hasn't been a single outbreak of foodborne illness. Institute for Justice legislative analyst Nick Sibilla has more at Forbes.com.
- A 30-year-old precedent mandating prompt disclosure of jurors' identities after the end of a trial may have been handed down "well before the first tweet was tweeted," but it still binds this First Circuit panel.
- Allegation: Though lacking reasonable suspicion, Customs and Border Protection officers barge into cabins on cruise ship, the Adventure of the Seas. The search yields no drugs but does yield naked and partially dressed vacationers. For shame! Two days earlier, the Third Circuit had ruled that CBP needed reasonable suspicion before it could search for drugs in a cabin on the Adventure of the Seas, the very same cruise ship. So the vacationers' suit can proceed? Indeed not, says the Third Circuit. Two days was not enough time for the CBP officers to digest the new opinion. Qualified immunity!
- District court holds that, depending on the facts, defendant state-court judges may not be entitled to judicial immunity for setting up a system under which people arrested for failing to pay fines and fees were denied counsel or hearings about their ability to pay. Which, the Fourth Circuit notes, is not actually appealable until the district court has a chance to figure out what the facts are.
- Road trip pro-tip: Don't shoot at truckers. Besides the obvious reasons, the trucker could be a gov't contractor transporting mail for the United States Postal Service. Which would make the shooting a federal crime, affirms the Sixth Circuit—while itself committing among the gravest of usage crimes: "free reign."
- Appearing as a creditor in bankruptcy court, the National Labor Relations Board tries to save a claim against the debtor by relying on issue preclusion. But it provides only a general discussion and doesn't show how the elements are met. Strike one. Then on appeal to the district court, the NLRB tries to rely on issue preclusion, but it again provides only a general discussion and doesn't show how the elements are met. Strike two. On appeal to the Seventh Circuit, the NLRB "persists in providing only a generalized discussion of preclusion doctrine." Guess what happened.
- Wisconsin's open enrollment system lets students transfer from their resident school district to a different district, but only if the new district has capacity. Three students with disabilities, denied transfer, sue under the Americans with Disabilities Act, alleging that the system discriminates against them because of their disabilities. Seventh Circuit: Not so. The open enrollment system merely lets schools assess whether they have the resources to comply with disabled students' individualized education programs.
- Man spends more than two years in pretrial detention based on allegedly fabricated police reports. After the charges are dropped, he sues Chicago police. Permitting the case to go forward, the Seventh Circuit does some constitutional housekeeping and clarifies that pretrial detention based on fabricated evidence violates the Fourth Amendment but not the Fifth.
- Quinquagenarian lawyer applies for senior in-house counsel gig, but he's rejected in favor of 29-year-old applicant. Age discrimination? Can't say, says the Seventh Circuit (sitting en banc). The relevant statute protects only current employees, not outside job applicants. Dueling dissents disagree, with one dubbing the majority's approach "deliberately naïve" and blind to "fifty years of history, context, and application."
- Woman enters the U.S. in 2002 using a fraudulent visa. She's caught, agrees to be sent back to Cambodia. But officials there won't take her back, so she's been permitted to stay in the U.S. subject to an order that allows her to be deported at any time. In 2017 (and now married to a U.S. citizen), she files a habeas petition, arguing the REAL ID Act makes said order invalid. Tenth Circuit (over a dissent): Dunno about that, but the REAL ID Act does say we can't hear your claim.
- An Alabama jury deadlocks, sends six notes over two days regarding their inability to reach a verdict; the judge's responses include such gems as "justice is after all, but an approximate science." Upon learning that the lone holdout juror is doing crossword puzzles, the judge orders all reading materials removed. Eighteen minutes later, the jury returns a guilty verdict (and the defendant gets life without parole for armed robbery). Habeas granted, says the Eleventh Circuit. This verdict was coerced, and the defendant received ineffective assistance of counsel. (For an added bonus, the court discusses several 17th-century English methods to ensure unanimous jury verdicts.)
- In briefing news, seven retired federal judges including Richard Posner (7th Cir.), Shira Scheindlin (SDNY), and Nancy Gertner (D. Mass.) filed an amicus brief in the Federal Circuit. They argue that PACER—the main repository of federal-court documents—should be free. "Wealth should not control access to justice." (Fun facts: The Internet Archive, home of the Wayback Machine, has offered to host all current and future PACER content for free, forever. And the RECAP Project is creating a free copy of PACER that already has tens of millions of documents.)
- And in en banc news, the Fifth Circuit will not (over a "respectful but strenuous" dissent) revisit its earlier decision upholding Louisiana's law requiring a doctor to have nearby hospital admitting privileges in order to perform abortions.
In Tennessee, failure to pay court fees means you can lose your driver's license. But can that rule possibly apply to poor people who just don't have the money? Taking away a driver's license makes it that much harder to get to work, which makes it that much harder to pay the fees. Indeed, says an IJ amicus brief to the Sixth Circuit, the rule is irrational, counterproductive, and unconstitutional. It harms not only drivers but also society writ large—consuming law enforcement, prosecutorial, judicial, and penal resources without improving public safety. Click here to read the brief.