The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)
Over at Cato Unbound, Evan Bernick of IJ's Center for Judicial Engagement traces judicial restraint back to its progressive roots, explains how it came to dominate conservative legal thinking, and argues that it is incompatible with constitutionally limited government. Click here to read. This week's podcast features IJ litigator Robert Everett Johnson. Read on, friends.
- Mattoon, Ill. company may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers' sexually and racially demeaning behavior.
- Satellite-TV technicians criticize their employer on local news. NLRB: Which is protected activity. D.C. Circuit: So they shouldn't have been fired. Dissent: But they lied, saying that management told them to tell customers that equipment would explode unless customers purchased unnecessary service. (Such a statement had been uttered—but was clearly in jest.)
- Allegation: Adherents of Orthodox/Hasidic Jewish faith, who make up the majority of East Ramapo, N.Y. school board, redirected public money to Hasidic schools, necessitating drastic cuts in public-school programs (like advanced classes). Second Circuit (over a dissent): Public-school students were not subjected to religious messages and so lack standing to bring suit under the Establishment Clause.
- To obtain tax abatements from Jersey City, N.J., property developers must employ union labor. District court: City officials, in doling out subsidies, are acting as market participants and not regulators, so plaintiffs (developers who employ non-union labor) can't press their claims. Third Circuit: Not so.
- Somerset County, N.J. task force members investigating drug deal knew that their suspect had been arrested just prior to the deal. Third Circuit: Detectives had no obligation to confirm he'd been released in time to commit the crime (he hadn't) because other evidence pointed to his involvement. (He shares an unusual nickname with the real perp, and an informant fingered him.)
- Round Rock, Tex. police officers pull morbidly obese, intoxicated man from his truck after he declines to exit. He falls and breaks his back, rendering him a quadriplegic. He dies some months later. Fifth Circuit: Yanking on his arms was not unreasonable force, and officers reasonably expected him to land on his feet. Qualified immunity.
- Allegation: Hunt County, Tex. officer identifies innocent man (who shares assault suspect's name) in computer database, puts innocent man in incident report. The man spends 16 days in jail before charges are dropped. Fifth Circuit (over a dissent): No qualified immunity.
- Minorities in Ohio are no more likely than whites to use absentee or provisional ballots, says the Sixth Circuit, so new voting rules that (among other things) are less forgiving of discrepancies between voters' registration records and info submitted on their ballots (like home addresses) are not an undue burden on their right to vote. Dissent: The relevant inquiry is whether minorities are more likely to have their ballots rejected because of the new rules, and they are—an outcome the rules' proponents certainly intended.
- Man's wife runs off with their money, another man. He's briefly involuntarily committed but has now had a clean bill of mental health for 30 years. Nevertheless, Hillsdale County, Mich. officials forbid him from purchasing a gun. Sixth Circuit, sitting en banc: The gov't must produce some evidence he's dangerous.
- Jail video: Arrestee who momentarily removed his hand from a wall during a patdown is roughly taken to ground, where six Genesee County, Mich. officers pummel him, break his facial bones, and tear his rotator cuff. Sixth Circuit: No qualified immunity.
- U.S. forces anticipate Japan's strategy at the Battle of Midway and win decisive victory thanks to having cracked Japanese codes, a fact soon publicized by the Chicago Tribune. A grand jury investigated the leak, but no charges were filed. Historian: It's been over 70 years. Can we unseal the grand jury's files now? DOJ: There's no national-security issue, but no. Seventh Circuit (over a dissent): Unseal the files.
- To obtain permission to discharge animal waste into U.S. waters, one must file an application with the EPA (or a state regulator). By law, these applications must be made public. Did the EPA nonetheless violate pork producers' privacy by revealing their home addresses and other identifying info from their applications to environmentalists? Eighth Circuit: The producers certainly have standing to make that case.
- Allegation: Pretrial detainee (accused of nonviolent crime) shackled to bed after giving birth and while being transported to and from hospital. Ninth Circuit: A jury should determine whether Maricopa County, Ariz. policy that mandated such treatment is cruel and unusual. (State legislators have since banned shackles in such situations.)
- Though plastic needle guides used in prostate biopsies are meant for single use only, Henderson, Nev. urologist reuses them on multiple patients. Ninth Circuit: Patients' use of medical equipment at a doctor's office isn't quite the same as an ordinary, over-the-counter purchase, but the needle guides were still "held for sale" in a commercial transaction. So this is a federal case. Conviction affirmed.
- Hidalgo County, N.M. district attorney authorizes police to take motorist to hospital for cavity search. Two digital probes, three enemas, two X-rays, and one colonoscopy later: no drugs. (Hospital to motorist: That'll be $6k, thanks.) Tenth Circuit: The motorist cannot sue the DA, as an officer's affidavit sufficiently established probable cause.
- Mobile, Ala. company rescinds employment offer to woman who declined to take out her African-style hair braids. EEOC: Which is racial discrimination. Eleventh Circuit: It is not.