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.)
It's no easy feat to provide an account of judicial review that is novel, theoretically sound, and useful—but Professor Tara Smith has succeeded in doing so. In "Reason's Republic," recently published in the New York University Journal of Law & Liberty, Assistant Director of the Center for Judicial Engagement Evan Bernick reviews Smith's important book, Judicial Review in an Objective Legal System.
- Upset with the Department of Justice's Office of Legal Counsel for its recalcitrance in releasing copies of its legal opinions to the public, a nonprofit files suit under the Administrative Procedure Act, seeking an injunction requiring disclosure. D.C. Circuit: You could get almost all of what you want under the Freedom of Information Act, so this case is dismissed.
- The police officer in this First Circuit case is not entitled to qualified immunity, but we are all entitled to a Judge Selya vocab quiz: pavane, pellucid, recondite, Janus-like, paint the lily, and nystagmus.
- Should young refugees who speak almost no English be allowed to transfer from the school to which they were assigned—which focuses on students with behavioral problems—to a school designed primarily to teach language skills to students in exactly their situation? Not allowing the transfer would likely violate federal law, says the Third Circuit.
- Fairfax, Va., bank employee convicted of mortgage fraud. Did prosecutors' pretrial seizure of her assets, including those not tainted by fraud, violate her Sixth Amendment right to counsel? No, says the Fourth Circuit; she may have had to go heavily into debt, but she retained the counsel of her choice.
- Soon after purchasing a used Ford truck with 116,000 miles on it, septuagenarian crashes it, sustaining serious injuries. Allegation: The truck accelerated uncontrollably and did not respond to the brakes. Fourth Circuit: Neither testing nor the scientific literature supports the motorist's expert's theory (that design flaws caused a malfunction), so his testimony should not have been allowed in. Ford needn't pay the $3 million the jury awarded the motorist.
- Navasota, Tex., prison for geriatric and medically infirm inmates is sweltering in summer, and the drinking water contains arsenic in quantities deemed unacceptable by the EPA. District Court: Get them potable water. Fifth Circuit: We'll not entertain the state's appeal of the district court's (now-expired) order.
- Exonerated after 35 years in prison, man sues city of Detroit and several former police officers, alleging that they failed to disclose fingerprint evidence that implicated another person. Sixth Circuit: But you failed to prove that the cops, rather than the prosecutor, are responsible for the failure to disclose this evidence, so you lose.
- Elkhart County, Ind., fingerprint "expert" fails to disclose that he is not actually trained as an expert. Woman, wrongly convicted of murder on the basis of his testimony, sues the so-called expert after spending seven years in prison. Seventh Circuit: Qualified immunity. The expert had no reason to think he was required to disclose his lack of training.
- A 2015 Indiana law requires out-of-state manufacturers of "e-liquid"—the substance consumed in e-cigarettes—to abide by stringent security, manufacturing and audit requirements. Seventh Circuit: Over 200 years of dormant Commerce Clause precedent says that Indiana can't do that.
- Jury awards $1 million in damages to man wrongly convicted of Milwaukee murder on the basis of a totally made-up confession. Trial court invalidates the verdict, citing "mixed signals" from appellate courts about whether fabrication of evidence violates due process. Seventh Circuit: Convictions premised on deliberately falsified evidence always violate due process. Verdict reinstated.
- Allegation: Inmate with brain tumor asks to be assigned to lower bunk, is ignored. He falls from the top bunk, breaking his back. After surgery, he returns to prison in severe pain and in a back brace—and is returned to top bunk, which seriously aggravates his condition. Seventh Circuit: The guard and warden who ignored his many requests for help weren't responsible for bunk assignments. His estate can't sue them. Judge Posner, dissenting: "A dog would have deserved better treatment" than the inmate received.
- District Court: Although I have been reversed four times for granting summary judgment to prison officials in excessive-force cases, in each case the jury ultimately ruled for the prison officials. So my record is "ultimately very good," and I will grant summary judgment once again in the instant case, as no jury could believe this prisoner's testimony. Ninth Circuit: That's not how this works. We are sending the case back for trial before a different judge.
- Bernalillo County, N.M., officer stops man carrying pain pills into courthouse. A prescription is produced, but it's over a year old. The officer arrests him. (All charges are dismissed.) Can he sue the officer for false arrest? He cannot, says the Tenth Circuit.
- Orlando, Fla., police order man riding bike after dark without a (legally required) light to stop. He does not stop, so an officer knocks him off the bike, and a police dog bites him. Excessive force? Eleventh Circuit: Qualified immunity.
- Jury sends questions to judge during deliberations, ultimately convicts defendant of 247 felonies related to Medicaid fraud. Eleventh Circuit: One of the judge's answers to the jury was prejudiced in favor of the prosecution, was not disclosed to the parties and was filed after trial in such a way as to make it extremely difficult for counsel to find. So no penalty for finding it late, and 53 counts must be tossed out.
- And in en banc news, the Ninth Circuit will not reconsider its holding that federal law preempts Arizona's ban on granting drivers' licenses to young illegal immigrants who were to have been spared deportation pursuant to an executive order by President Obama. Dissent: Executive power favors the party, or perhaps simply the person, who wields it.
Friends, if you enjoy the occasional donnybrook, perhaps an upcoming debate on the merits of judicial engagement, sponsored by the Manhattan Institute in New York City on Thursday, February 9, will appeal to you. Clark Neily, director of the Center for Judicial Engagement, will defend the proposition that the judiciary should be less deferential to the other branches of government against the estimable Mark Pulliam, contributing editor to the Library of Law and Liberty. Click here for more information.