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.)
In "The Permission Society," Timothy Sandefur, the Goldwater Institute's Vice President for Litigation, argues that our legal landscape is shaped by the notion that normal, mature adults are helpless or dangerous when left free to act without first obtaining government permission. Click here to read IJ attorney Josh Windham's book review, which explores the origins and nature of the permission society, how it conflicts with our founding philosophy and what we can do to move to a free society.
- Under the District of Columbia's "post-and-forfeit statute," individuals arrested for certain misdemeanors can resolve them immediately by paying a relatively small sum, typically between $25 and $50, but in doing so waive their right to a hearing. Is this such a sweet deal that it coerces people into surrendering their rights, violating due process? D.C. Circuit: Nope.
- In the latest decision in a long-running RICO suit that is now almost old enough to buy cigarettes itself, the D.C. Circuit almost entirely upholds corrective cigarette warning labels ordered by the district court.
- Amtrak fires Amtrak police officer who allegedly lied to investigators, telling them she is but a tenant in a home that she in fact co-owns with a superior officer, who has been assigning her lucrative assignments. Arbitrator: Reinstate her with back pay; investigators failed to record their interview with her, violating the "Police Officers' Bill of Rights." D.C. Circuit (over a dissent): The collective bargaining agreement that produced the bill of rights cannot alter the Amtrak Inspector General's investigatory authority. The arbitrator's award should be set aside.
- Can the DOJ put the kibosh on "the largest proposed merger in the history of the health insurance industry"? With some sharp back and forth, two thirds of a D.C. Circuit panel say yes. Fast track to SCOTUS?
- Counsel negotiates plea deal that will not result in automatic deportation for Jamaican immigrant who sold knock-off merchandise. Yikes! Counsel applied the wrong statute; he's subject to mandatory deportation. District court: Too bad. Fourth Circuit: Conviction vacated.
- Math problem: Defendant is sentenced to life in prison. Subsequent changes in the law, which apply retroactively, call for a sentence of 120 to 137 months, so defendant petitions for habeas relief. Before habeas is resolved, but after defendant has served 140 months, the president commutes his sentence to 200 months. Question: When does defendant get out of prison? En banc Fourth Circuit (over a dissent): Five years after the commutation. (Commutation moots the habeas proceedings . . . get it?)
- Readers may recall Tenaha, Tex., officials' particularly opprobrious abuse of asset forfeiture, which got a write-up in The New Yorker. This week, the Fifth Circuit shares additional details that were news to the editorial staff: During the investigation of the city's forfeiture practices, the city marshal bugged other officials' offices, including the mayor. He was also stealing drugs from the evidence room and selling them.
- Man: I feel a sincere religious calling to distribute heroin to "the sick, lost, blind, lame, deaf, and dead members of Gods' [sic] Kingdom." The gov't can't prosecute me for practicing my religion. Eighth Circuit: No, it can.
- Do recent changes to Arkansas's ballot-access law make it unconstitutionally hard for independent candidates to get on the ballot? Eighth Circuit: Perhaps, but we need more facts. Dissent: The state already had a chance to present facts and it blew it. So, yes, the law is unconstitutional.
- Can Berkeley, Calif., officials require cellphone retailers to warn consumers that their phones might cause users to exceed federal guidelines for exposure to RF radiation? A Ninth Circuit panel majority says that the warnings are technically accurate summaries of said guidelines and therefore constitutional, but the dissent observes that the warnings are clearly designed to scare the bejeebers out of people even though the record evidence reveals no reason to think this level of exposure provides any reason to bestir one's bejeebers.
- Fresno County, Calif., public school system pays female "math consultant" less than male counterparts; one colleague who has less experience makes over $10k more. An Equal Pay Act violation? Ninth Circuit: His salary at his previous job was higher than hers, so not necessarily. (Plaintiff is now paid as much as male colleagues due to change in state law that took effect this year.)
- New Mexico law forbids the release of non-domesticated animals into the wild without a permit, and state officials have declined to grant one to federal officials' who wish to release Mexican gray wolf pups. Feds: We're just going to release them. Tenth Circuit: Don't see why not.
- Defense attorney returns late from lunch break, misses seven minutes of trial; his client (a middle school teacher) is convicted of sex crimes involving minors. Which violates the Sixth Amendment, but the error was harmless here, so no need for a new trial, says the majority of the Eleventh Circuit, sitting en banc.
- Allegation: With the assistance of a data-analytics company, CNN tracks its mobile-app users' online behavior across devices and platforms, gathering much personal information along the way. A violation of the Video Privacy Protection Act? The Eleventh Circuit says no.
- Jury: Mobile County, Ala., official is off the hook for a variety of felony public corruption charges. But in giving a mayoral candidate the county's list of motorists' email addresses, so that the campaign could email them, the official violated the Driver's Privacy Protection Act. Eleventh Circuit (over a dissent): Conviction affirmed. She must pay a $5k fine.
After his wife got a red-light-camera ticket, Oregonian Mats Järlström became interested in how yellow lights are timed. Mats has a math and science background, and he concluded that the standard yellow-light formula is incomplete. He spoke publicly about his ideas, including at a national transportation conference. But Oregon's engineer-licensing board had heard enough. They subjected Mats to a two-year investigation and fined him $500 for "critiquing" traffic-light timing and speaking publicly about "algorithms" without a license. A First Amendment problem? Absolutely. Last week, Mats filed suit to vindicate his right to debate technical topics without first getting permission from the government. Click here to read more.