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.
Well, hot dog! IJ is headed to the Maryland Court of Appeals, the state's highest court, to challenge restrictive and confusing rules that forbid mobile food vendors in Baltimore from operating within 300 feet of a brick-and-mortar business that sells similar foods. Click here to read more.
- If the feds determine that a private pipeline will serve a public use, they can authorize eminent domain to secure the necessary land. But is the transport of natural gas to foreign markets a public use? Maybe not, says the D.C. Circuit; the relevant statute says "interstate commerce," not "foreign commerce," justifies eminent domain. The feds need to explain how the public benefits from an Ohio-to-Michigan pipeline (that is already operational) that exports a big chunk of its capacity to Canada.
- Allegation: President Trump has a financial stake in quite a few hotels, restaurants, and event spaces in D.C. and New York—and has implicitly encouraged foreign governments to seek his favor by patronizing them, which they have. (Says one diplomat: "Why wouldn't I stay at his hotel blocks from the White House[?] … Isn't it rude to come to his city and say, 'I am staying at your competitor?'") Second Circuit (over a dissent): The owners of competing hospitality venues have standing to sue the president for violating the Emoluments Clause.
- Allegation: After a Democratic National Committee staffer is murdered in D.C., Fox News promulgates conspiracy theory that he was rubbed out for leaking DNC emails. Prior to running the story, reporters persuade the staffer's parents to retain a private investigator (a recently hired Fox contributor) whose statements lent credibility to the sham story. Second Circuit: The parents can sue Fox and the reporters for intentional infliction of emotional distress.
- Allegation: Pennsylvania prison staff take away inmate's wheelchair, discipline him for seeking help with walking, laugh at him when he falls. The falls cause serious injuries and leave him unable to bathe himself or get medication and food. Third Circuit: His claims, filed without assistance from an attorney, should not have been dismissed.
- North Carolina defense attorney invokes the Ten Commandments, particularly "Thou shalt not kill," to jurors during sentencing phase of murder trial. During deliberations, a juror consults her pastor on whether she will indeed "burn in hell" if the jury imposes the death penalty and relays the pastor's counsel to the rest of the jury. They impose the death penalty. Fourth Circuit (over a dissent): Habeas granted. The jury's verdict was tainted.
- After the housing crisis in 2007, Congress created the Federal Housing Finance Agency, an independent agency designed to supervise lenders Fannie Mae and Freddie Mac. To help ensure its independence, Congress structured the FHFA with just one director (rather than a bunch of directors) who can only be fired "for cause" (rather than at the will of the president). Is the director unconstitutionally insulated from presidential control? The Fifth Circuit, sitting en banc, says yes; and furthermore, the FHFA exceeded its authority when it ordered Fannie and Freddie to turn over all their profits to the U.S. Treasury, dispossessing investors.
- Remember when Sen. Rand Paul was attacked by his neighbor over a dispute about debris on the property line? The neighbor was given 30 days in prison. Sixth Circuit: Remanded for resentencing. That's not enough time for an attack that broke six ribs.
- Owner of a vacant lot in Tennessee seeks permission to put up a billboard but is denied. A First Amendment violation? Sixth Circuit: Well, he would have been allowed to put up the sign if it had said "Vacant Lot for Sale" or anything else related to the property, which sure sounds content based. Strict scrutiny applies, and the gov't loses.
- Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He's detained for 13 years before he's finally acquitted in a third trial. And this happens because the state lied about an "utterly unqualified" assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there's so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.
- In which (1) an Arkansas inmate sues about solitary confinement, (2) prison officials don't brief qualified immunity before the district court, (3) prison officials don't brief qualified immunity on appeal, (4) the Eighth Circuit orders briefing on qualified immunity, and (5) the Eighth Circuit dismisses on qualified immunity.
- Does the federal Computer Fraud and Abuse Act forbid companies from scraping data from LinkedIn users whose profiles are public and using it for commercial gain? LinkedIn: Yes! Especially because we now want to use the data ourselves for the same reason. Ninth Circuit: Likely not; the data had been made public by the choice of both LinkedIn and the user, so viewing it does not constitute "unauthorized access" under the CFAA.
- Back in 1991, Montana banned robocalls related to political campaigns. A First Amendment violation? The Ninth Circuit treats this like the easy question it is.
- John Steinbeck died in 1968, but the fight over his literary legacy has lingered on. Most recently, the estate of the author's third wife sued the estate of his son over various misuses of Steinbeck's intellectual property. Ninth Circuit (in a literary opinion): We affirm the award of compensatory damages. As for you, punitive damages … well … look over there and we'll tell you about the rabbits.
- Under the Privacy Act, the feds are prohibited from maintaining records describing how an individual has exercised rights guaranteed by the First Amendment, unless pertinent to an authorized law enforcement activity. Citing the Act, the proprietor of Antiwar.com sues the FBI, seeking the expungement of two threat assessment memos created about the group. Ninth Circuit: The law enforcement exception applies only while there's an ongoing investigation. The first memo must be expunged, but the second is OK for now.
- Tampa, Fla. salon owner fires massage therapist who vacationed in Ghana out of fear that the therapist would return infected with Ebola. (Though there was an outbreak in West Africa at the time, Ghana was not affected.) A violation of the Americans with Disabilities Act? The feds: Yep. The ADA protects persons from discrimination on the basis of perceived disability. Eleventh Circuit: Nope. That doesn't apply to healthy people who may potentially become ill in the future.
Last year, the Kansas Supreme Court ruled that police officers can't pull over vehicles simply because the owner (who obviously may not be the driver) has a suspended license. Huzzah! There are a gazillion non-driving reasons people get their licenses suspended: unpaid parking fines, delinquent child support, court debt (including collection fees, interest, nonpayment fees, payment plan set-up fees, probation fees, and warrant fees). The list goes on. Allowing police to pull people over simply because they're suspected debtors turns police into roving debt collectors and yields little public safety benefit. So argues an amicus brief that IJ signed onto this week, urging the U.S. Supreme Court to let the ruling stand.