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 Short Circuit podcast: Special guest Joey Mogul, of the People's Law Office, joins the panel to talk about a pizza raid in Chicago.
- After the Affordable Care Act caused insurance premiums to increase, younger and healthier consumers turned to short-term limited duration insurance plans that were exempt from ACA requirements, and therefore much cheaper. But this shrunk the risk pool for ACA-compliant plans, leading to more premium increases. After an abortive attempt to scale back the market for short-term insurance, the feds relent and return to the original rules. Sellers of ACA-compliant plans sue, alleging that the reversal of course was arbitrary and capricious. D.C. Circuit: Not at all. Premiums kept going up after the rule change, and it was reasonable for the feds to try to make cheaper insurance available to consumers. Dissent: The whole point of the ACA was for young healthy people to subsidize older and sicker people, and this rule undermines that.
- &pizza (a U.S.-based pizza restaurant) sues @pizza, a restaurant in Edinburgh. Allegations: @pizza's founders photographed &pizza restaurants and downloaded copyrighted pictures of &pizza—all culminating in their knock-off restaurant across the Atlantic. D.C. Circuit: None of that means &pizza can enforce the Copyright Act or the Lanham Act extraterritorially. So (for now at least) @pizza gets off scot-free.
- After something like 50 years of marriage, a Connecticut couple divorces. Allegations: The (now-deceased) ex-husband concealed marital assets in offshore accounts, nearly $40 mil of which went to his alma mater to, among other things, fund "unlimited" scholarships for Antiguan and Barbudan students. (Separately, the ex-husband is accused of hiring a hitman to kill his son.) Which gives occasion to this vocab quiz, courtesy of Judge Selya of the First Circuit: eleemosynary, oenologist, vel non, and importunings.
- New York state officials instruct 50-year-old Christian adoption agency to provide adoption services to unmarried and same-sex couples or close down. (The agency's current practice is to refer such couples to other adoption services). The agency sues and seeks a preliminary injunction, but the district court denies the motion and dismisses the case. Second Circuit: Erroneous. Take a second look at that preliminary injunction request.
- South Carolina, like virtually all states, has a winner-take-all system of appointing its nine Electors to the Electoral College, in which all Electors' votes will go to the presidential candidate who received the most votes in the state. Plaintiffs: Which renders the losing side's votes meaningless; the electoral votes should be distributed proportionately. Fourth Circuit: You will not be surprised to learn that the system 48 states use for apportioning their Electors—and have used for more than a century—is constitutional. Dissent: Being old doesn't make it constitutional; the case should move forward.
- Practice pointers, courtesy of the Sixth Circuit: Don't liken your litigation adversaries to (1) incestuous lovers "the likes of which have not been seen since the days of Sodom and Gomorrah" or (2) perpetrators of "rape, murder, pillage, loot and plunder" or (3) a virus or (4) an octopus "slink[ing] back into its hidey hole by firing its putrid pool of purple ink into the faces of the plaintiffs." And if you're going liken your opponent to Marshal Philippe Pétain, at least give the man his accent aigu. (Well, that last one is subtext.) Also, your clients need Article III standing.
- Seventh Circuit: There are many government jobs for which political affiliation may be a valid requirement, but "Deputy Assessor" ain't one of 'em. So no qualified immunity for a newly elected Assessor who canned his rival's supporters.
- Allegation: Displeased with Cook County, Ill. court system's bail reforms, the sheriff unilaterally decides to keep people in jail (more than 80 percent of whom are Black) even after they have met bail conditions and also imposes his own conditions on their release (like, for one plaintiff, no contact with his children). Seventh Circuit: Decisions about pretrial detention are to be made by judges, not sheriffs. The case should not have been dismissed, and the district court shall consider whether the sheriff ought to be held in contempt.
- Eighth Circuit: Police are not required to knock and announce before entering a house if the door is already open.
- Los Angeles drivers whose cars outstay their welcome in metered parking spaces face a $63 fine. Failing to timely pay that fine yields another $63 in late fees. An Excessive Fines Clause violation? Ninth Circuit: No, as to the first $63; maybe, as to the second, since "the City of Los Angeles did not even bother addressing the constitutionality of its late fee." Concurrence in the judgment: I'm skeptical that the Excessive Fines Clause applies to this sort of thing, but Los Angeles conceded that point.
- Las Vegas police arrest man for alleged sexual assault. A state court suppresses evidence and holds that gov't failed to preserve potentially exculpatory material. After gov't drops all charges, the man sues, alleging that officers manipulated the crime scene, lied in the warrant application, threatened him for asserting his constitutional rights, and made racially derogatory remarks to him. District court: A state justice of the peace originally found probable cause to believe the man committed the crimes, which precludes this lawsuit. Ninth Circuit: That hasn't been the rule in Nevada since at least 2005. Most of the man's case can proceed.
- Ostensibly out of his cell to take a shower, juvenile pretrial detainee instead makes his way to a control panel where he unlocks other cells, allowing two compatriots to brutally assault a fourth juvenile, whom the three had threatened the night before. Doña Ana County, N.M. corrections officials were watching TV. Tenth Circuit: Qualified immunity. Dissent: One of the officers was plainly incompetent, so he should be held liable along with the county.
- In the mid-2000s, Chiquita financed Colombian paramilitary groups, even after the U.S. State Dep't designated the groups foreign terrorist organizations. After the company pleaded guilty and paid a $25 mil fine, a number of people sued, claiming the financial support contributed to the deaths of their family members. They've been proceeding pseudonymously due to fears of reprisal, but Chiquita now seeks to reveal their identity and facts. Eleventh Circuit: "For over a decade, hundreds of plaintiffs have litigated this case under their true names, and yet nothing in the record suggests that they have faced paramilitary retaliation." No more privacy.
- How much should Alabama's history of enacting laws designed to suppress voting by people of color factor into the Eleventh Circuit's review of a 2015 voter ID law? Eleventh Circuit: Not much. Case dismissed. Dissent: A lot, actually. This should go to trial.