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.
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- In 2016, AT&T, a distributor of video content (among other things), announces $85 billion deal to buy Time Warner, a creator of video content. Feds: Which violates antitrust law and will lead to higher prices for consumers. D.C. Circuit: Similar mergers haven't harmed consumers. And if consumers are unhappy with cable, they can switch to Netflix or Hulu.
- Special Counsel Mueller to Roger Stone aide: Turn over docs and appear before grand jury. Aide: No. District court: Contempt! D.C. Circuit: Just so. The Special Counsel is an "inferior officer" within the Department of Justice, meaning his appointment did not violate the Constitution's Appointments Clause. Equally important (some might argue), compare pages 5 and 12 for the intra-opinion split on whether to describe Rod Rosenstein as "Acting Attorney General Rosenstein" or "General Rosenstein." Friends of postpositive adjectives and opponents of militarizing law enforcement favor the former.
- It would ordinarily be too late for man serving life sentence for 1972 murder to challenge his conviction, but the feds waive objections. Expert testimony that his hair was "microscopically identical" to hair found at the crime scene was unreliable. (The feds have been reviewing cases involving such hair identifications since 2012.) Feds: Nevertheless, there was plenty of other evidence he's the murderer. District court: Yup, the conviction stands. D.C. Circuit: We think not.
- Pennsylvania man convicted on child pornography charges is sentenced to three years' probation, 10 years on the sex offender registry. After conviction, Pennsylvania amends the law to require lifetime registration, along with a slew of other monitoring requirements, leading man to file a habeas petition challenging his conviction. District Court: You can seek habeas if you're in custody, and you're not in custody. Third Circuit: You don't have to be in physical custody to file habeas; it's enough to be subject to significant restraints on your liberty that don't apply to the general public, and these definitely qualify.
- Engineering firm sues former employees who stole trade secrets, obtains preliminary injunction. Former employees: But the firm only discovered the alleged treachery by accessing one former employee's social media and bank accounts (via the employee's company laptop). The doctrine of "unclean hands" prevents the firm from benefiting from such an unconscionable act. Third Circuit: Accessing the accounts isn't what caused the ex-employee to breach his duty of loyalty, so unclean hands doesn't apply. Dissent: This may be the right outcome, but the firm's conduct was sufficiently offensive that the district court should take another look.
- Manufacturer of a lucrative antibiotic spends years petitioning the FDA in an effort to keep generic versions off the market, reaping hundreds of millions of dollars. But all good things must come to an end, and in 2012 the FDA approves a generic. Five years later, the Federal Trade Commission sues the manufacturer for unfair competition, seeking an injunction and restitution. But the law only covers a company that "is violating or is about to violate" unfair competition laws. Can it apply to past violations? Third Circuit: The law says what it says, and the FTC can't stretch it. The FTC might also wish to consider that petitioning the FDA is protected by the First Amendment.
- Grand Rapids, Mich. plainclothes officers stop suspected home invader. He says they never identified themselves, so he ran from what he thought was a mugging. The officers give chase and beat him. Bystanders say they're "out of control," "brutal," "gonna kill him." And it's the wrong guy: The man they beat looks nothing like the photo they have of the real suspect. District court: Qualified immunity. Sixth Circuit (deploying photos of the man and the real suspect to great effect): Reversed. The case is going to trial. (A dissent propounds technical objections.)
- Twitter flips out after woman at rally for then-candidate Donald Trump sieg heils in photo. The actor James Woods tweets the woman's identity and suggests she is a Bernie Sanders supporter planted to make Trump look bad. But wait! He identifies the wrong woman. Before @RealJamesWoods deletes the tweet and exonerates the misidentified woman 11 days later, she gets hundreds of threatening messages. Defamation? Sixth Circuit: Not under Ohio law. "So-called #Trump 'Nazi' is a #BernieSanders agitator/operative?" is more question than defamatory assertion.
- For years, Indianapolis police seize cars and then sit on their hands for months before the owners can contest the seizures in court. District court: That part of the civil forfeiture law violates the Fourteenth Amendment's Due Process Clause. Indianapolis prosecutor appeals but also, while appeal is pending, successfully urges the state legislature to amend the law. Which now makes the case moot, declares the prosecutor, so the district court judgment should be set aside! Not so fast, says the Seventh Circuit. It's not clear whether the amendments actually fixed the defects in the law. The case is remanded so the district court can evaluate the amendments in the first instance.
- Man is charged with several crimes; an Indiana trial court sets date beyond which prosecutors may no longer significantly amend the charges. Yikes! Prosecutors significantly amend the charges nine days after the deadline. But the man's lawyer fails to object, and the court permits the change. He's convicted; the "lion's share" of his sentence comes from the late change. District court: Too bad. Seventh Circuit (over a dissent): Vacated. His lawyer should have objected. If, as the state says, Indiana defense attorneys commonly do not object to late changes, that is more concerning rather than less.
- FBI informant inserts himself (perhaps literally, sad to say) into Orange County, Calif. Muslim community, records all interactions (including some to which he was not a party) with a variety of hidden recording devices. He begins to ask pointed questions about jihad and violence. Community members alert the authorities. Can they sue the FBI for unconstitutional searches, religious discrimination? District court: Most of the claims rely on intelligence that could significantly compromise national security if disclosed, so those are dismissed. Ninth Circuit: That's not how the state-secrets privilege works, as "such an approach would constitute judicial abdication." Some of the claims can go.
- In 2016, New Mexico legislature amends the state's bail system to disfavor secured bonds. A trade association of bail bondsmen, along with a collection of state legislators and a criminal defendant, promptly sues the New Mexico Supreme Court, its justices, and various lower courts and officials, claiming that the new system violates the Excessive Bail Clause and the Due Process Clause. Trial court: Not only is the case dismissed, but one of the plaintiffs' lawyers is sanctioned nearly $15k. Tenth Circuit: Affirmed. The lawsuit is a case study in "waste and distraction."
- New Mexico Racing Commission excludes four horses from race at the last minute under rarely used rule. Can the owners' lawsuit about that get around qualified immunity? Tenth Circuit: Neigh.
- And in en banc news, the D.C. Circuit will not skip straight to en banc consideration of whether the procedural protections of the Fifth Amendment's Due Process Clause apply to a Gitmo detainee. Rather, a three-judge panel will get first crack at the case. But, writes Judge Tatel (concurring), the question is one that demands "careful consideration." "The detentions at Guantanamo Bay, which the government tells us may last at least until the hostilities authorized in 2001 abate, are lengthening into decades, with no end in sight."
To operate in South Padre Island, Texas, food trucks must first obtain permission from the owner of one of the city's brick-and-mortar restaurants—and even then the number of food trucks permitted is capped at 12. Is the law a genuine effort to protect the health and safety of South Padre Island's residents and four million annual visitors? Not so much! The law, which was designed by and for restaurant owners, was intended to protect restaurants from competition. This week, IJ filed suit under the Texas Constitution. Read more here.