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.)
Last month marked the 214th anniversary of the Supreme Court's decision in Marbury v. Madison, best known for its affirmation of the duty of judicial review. Evan Bernick of the Center for Judicial Engagement takes the occasion to dispel the myth—taught to generations of law students—that Marbury was a mere power grab by the Court and to explain why the Court's decision rests on firm constitutional ground. Click here to read.
This week on the podcast: Maryland's "assault weapons" ban, Iowa State discriminates against a pro-marijuana legalization student group, and more.
- Is the prohibition on "making a harangue or oration" in the Supreme Court building unconstitutionally vague? D.C. Circuit: Nope. Protestors should have known that making disruptive speeches while court is in session is clearly proscribed, and there's no doubt that they made such speeches. "Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: 'Don't talk to me sitting in that chair! . . . When you're addressing this court, you'll rise and speak to me in a clear, intelligible voice.')."
- Eighth Circuit (2013): The EPA imposed new rules for municipal water-treatment facilities without going through proper notice and comment and in excess of statutory authority. Strike them. EPA: Sure thing. But we're still enforcing them outside of Eighth Circuit. New petitioners: Can't do that. D.C. Circuit: You have to sue in district court first.
- Friend of Boston Marathon bomber lies about his visit to the then-suspect's dorm room three days after the bombing with two other friends, who removed evidence. Friend: I didn't know making false statements to investigators was illegal. First Circuit: Conviction affirmed.
- While recreating at Watertown, Mass. country club, bank executive informs friend that purchasing shares in another bank may prove advantageous. It does, at least until regulators come calling. First Circuit: Notably, this is the second insider-trading scheme hatched at the club in recent years. The friend's conviction is affirmed.
- First Circuit: Irish can sue government officials for injuries caused by Lord.
- FBI agents pose as Italian Mafiosi, arrange drug deal with cousin of then-leader of Sinaloa drug cartel, "El Chapo." First Circuit: Conviction affirmed for cartel member (a purported lawyer with ties to Mexico's ruling party) who took part in the meetings and monitored a drug shipment to Spain.
- New York City requires pet shop owners to purchase cats and dogs directly from breeders (as opposed to through distributors), which allegedly puts out-of-state breeders, who rely on distributors to reach NYC's market, at a disadvantage. A violation of the dormant Commerce Clause? The Second Circuit says no.
- Philadelphia judge presiding over 1998 murder trial calls the victim's family into her chambers after learning they had criticized her on their website (quoting the late actor Charlton Heston's characterizations of her as soft on crime), offers to recuse herself if they're not happy with her. They assure her they're pleased, offer to let her provide commentary for the website. Defendant's lawyer does not object; defendant is convicted. Third Circuit: Ineffective assistance of counsel. New trial or let him go.
- The only credible evidence placing man at scene of 1997 Memphis, Tenn. murder comes from prosecution witness who lied under oath about receiving payment from the gov't. Prosecutors do not correct the record. Sixth Circuit: New trial or let the man—who had been on death row—go.
- Did federal regulators act arbitrarily and capriciously by failing to require, as plaintiffs urged, egg cartons to be affixed with one of the following labels: "Free-Range Eggs," "Cage-Free Eggs," and "Eggs from Caged Hens"? They did not, says the Ninth Circuit.
- Officer stops speeding vehicle approaching Wichita, Kan., finds the occupants suspicious because: the driver appears nervous; the passenger avers that the back seat is messy, but it's not; they have implausible travel plans. He issues a warning and makes to leave, but doubles back and asks for consent to search the vehicle. The occupants refuse. Twenty minutes later, a drug doggie arrives; it detects contraband. Tenth Circuit: Suppress the evidence.
- Houseboat-dwelling Riviera Beach, Fla. resident sues city over officials' plan to use eminent domain to seize up to 800 acres of waterfront homes and businesses for private development project. Officials cite him for making routine repairs to his boat, failing to muzzle his 10-pound dog on walk. He's arrested at a council meeting after accusing officials of corruption. False arrest? Eleventh Circuit: A jury said no, and we see no error. (The eminent domain plan died after Florida legislators banned such takings and IJ filed suit to stop officials from proceeding in spite of the ban.)
- Mom spanks 12-year-old daughter with wooden spoon, causing bruising. Bam! Mom is placed on California's child-abuse index. California court (2014): In preventing the daughter from testifying in mom's defense (so as to contradict social workers' damning but allegedly false testimony), a hearing officer erred. California court (2017): The mother is entitled to recover her costs.
- And in en banc news, the Sixth Circuit will reconsider its holding that Jackson County, Mich. commissioners' practice of opening public meetings with a Christian prayer falls afoul of the Establishment Clause.
In Colorado, if city officials want to use eminent domain to take property for private use (a high-end shopping mall in the instant case), they must first declare it blighted. Officials are not, however, required to notify property owners that their property has been declared blighted, that the blight designation triggers the eminent domain power, or that there is an exclusive 30-day window to challenge the designation. The Tenth Circuit will soon consider whether the U.S. Constitution demands such notice or, as the district court held, owners can be expected to familiarize themselves with the details of state takings law on their own. Click here to read an IJ amicus brief urging the court to require notice.