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.
- Proving that they really are the hardest-working federal appellate court in America, three judges of the D.C. Circuit manage four opinions as to the meaning of the Federal Death Penalty Act of 1994.
- Remember chlorofluorocarbons? The chemicals that made that hole in the ozone layer? After CFCs were banned, companies switched to hydrofluorocarbons. Uh oh! HFCs may not punch holes in the ozone layer, but they are potent greenhouse gases. D.C. Circuit (2017): An EPA rule that prohibits the use of HFCs for CFCs applies only to companies that have not already switched to HFCs. EPA: Okey dokey, everyone can use HFCs. D.C. Circuit (2020, over a dissent): Not without notice and comment rulemaking, they can't.
- The phrase "so help me God" in the naturalization oath violates neither the Constitution nor the Religious Freedom Restoration Act, says the First Circuit.
- Before and throughout the housing market crash, Goldman Sachs repeatedly assured investors that the firm had rigorous safeguards against conflicts of interest. Yikes! Goldman allegedly bet against its common stock investors' interests. Goldman: Our assurances did not fraudulently inflate our stock price; at most, the statements maintained the already inflated value of our stock, which was not inflated by fraud. Second Circuit: The common stock investors' class action can proceed.
- Sexagenarian inmate (convicted of Hoboken, N.J. vote-buying scheme) seeks compassionate release under the First Step Act, citing the risk that COVID-19 poses to prison inmates (and older, infirm inmates like him, in particular). Third Circuit: These are serious concerns, but he didn't exhaust administrative procedures, so we don't have jurisdiction.
- Man accused of brandishing a firearm during a crime of violence is facing life imprisonment under the federal three strikes law because of prior convictions. Crikey! The judge who will preside over his trial successfully prosecuted him in 1989 for bank robbery. New judge? Judge: No. I don't remember the 1989 case. Fourth Circuit: No need for recusal yet. If the man is convicted, the facts of the 1989 case may become relevant at sentencing, and he can ask for recusal then.
- Texas governor takes a dim view of atheist group's display in Capitol building (submitted after a traditional Nativity scene was approved) that features Founding Fathers arrayed around a manger containing the Bill of Rights. Guv: It's "tasteless sarcasm" that mocks Christianity. Fifth Circuit: Rejecting the display likely violates the First Amendment.
- In 2014, during temporary fever tick quarantine in Cameron County, Tex., officials allegedly round up cattle improperly and apply pesticide to them improperly, which injures and kills the animals. Fifth Circuit: Can't sue over that; the Federal Tort Claims Act contains an exception for damages caused by the establishment of a quarantine.
- To preserve hospital capacity and personal protective equipment during the COVID-19 pandemic, many governors have ordered nonessential surgeries and procedures halted, including, in some states, abortions. The Fifth Circuit (over a dissent) will permit Texas to temporarily ban certain nonessential abortions to continue; it's a reasonable restriction during a public health crisis. (The district court has since issued a narrower order allowing medication abortions and certain surgical abortions, depending on gestational age, to continue.) Meanwhile, the Sixth Circuit will not allow Ohio to prohibit abortions, full stop.
- En route to jail, teen under the influence of LSD smashes his head over 40 times against metal cage, side window, and back seat of Mesquite, Tex. police car. Officers do not inform the jail sergeant. The teen dies. District court: Can't sue the officers over that. Fifth Circuit: Reversed. A jury might find the officers were deliberately indifferent to the teen's medical needs.
- The lynchpin of a Michigan murder conviction was a pawnbroker's claim that, on the day of the murder, the defendant pawned a ring belonging to the victim. But the pawnbroker didn't testify. He died before trial, so police testified about what he had said. Sixth Circuit. New trial. This evidence mattered to the jury, but the defendant had no opportunity to cross-examine the pawnbroker. That violates the Confrontation Clause.
- Attempting to turn the tables, union members in Lincolnshire, Ill. cite the Supreme Court's recent Janus decision to argue that they should not be forced to pay municipal taxes that fund the Illinois Municipal League, a private organization with whose speech they disagree. Seventh Circuit: But Janus concerned compelled subsidies for private speech, and the League, while nominally private, is made up of municipal officials. So their speech is government speech to which Janus does not apply.
- Concerned about the risk of COVID-19, detained immigrant seeks an order under the All Writs Act for immediate release. Ninth Circuit: We're going to construe this as a request for habeas relief and remand to the district court. Dissent: We should be absolutely clear that the All Writs Act does not empower us to do this.
- Immigrants who are being detained indefinitely while they challenge their removal (because of a reasonable fear of persecution back home) seek individualized bond hearings. Ninth Circuit (over a dissent): Circuit precedent requires such hearings after six months, and that precedent controls despite some "tension" between it and a recent SCOTUS decision.
- Under federal law, JAG lawyers for the Army National Guard often do not have to be licensed in the state where they practice. In California, one JAG lawyer has taken to suing and filing bar complaints against JAG lawyers who aren't licensed in California, claiming that they're engaged in the unauthorized practice of law. Ninth Circuit: The most recent lawyer to be sued was entitled to have the case removed to federal court.
- Ninth Circuit: Facebook's (alleged) tracking of users' browsing habits—even when they weren't signed into Facebook—may well have violated California privacy law.
- Allegation: Marion County, Fla. officer orders bystanders (a former EMT and a nurse) to stop giving CPR to 14-year-old boy who had just attempted suicide by hanging, even though they detect signs of life. Without examining the teen, the officer radios that there is no rush. When paramedics arrive, the officer stops them. Eventually, they reach the boy, detect a faint pulse, and resume CPR. The boy dies a week later. Can the boy's mother sue the officer? District court: Yes. Eleventh Circuit: Maybe not. Back to the district court to reconsider, under a different standard, whether the officer was on notice that this kind of conduct violated clearly established law.
Friends, last year the Fourth Circuit held that the Telephone Consumer Protection Act unconstitutionally prohibited robocalls from political campaigns while permitting them by collectors of government debt. To "remedy" this First Amendment violation, the court expanded the TCPA to cover everyone. In this amicus brief to the U.S. Supreme Court, IJ argues that "misery loves company" is not a valid rule of constitutional law.