The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Short Circuit: A roundup of recent federal court decisions


When the government deregulates an industry, should that be considered a "taking?" Miffed that their medallions were no longer so lucrative, several taxi drivers in Atlanta claimed the state of Georgia was responsible for the drop in medallion value when the state eased restrictions for Uber and Lyft. Writing at, IJ Communications Associate Nick Sibilla delves into a unanimous decision by the Georgia Supreme Court that rejected that "taking" claim and the taxi drivers' demand for "compensation." Click here to read the whole piece.

On the latest podcast: A spooky cellphone warning, a sign on a stick, a "ruminating" judge, and an update from the civil forfeiture hotbed of Tenaha, Tex. Click here for iTunes.

  • After all claims were paid in a class action by Native American farmers and ranchers against the Department of Agriculture, $380 million of the settlement fund was left, so plaintiffs and the feds agreed to distribute the money to nonprofits that benefit Native American farmers. Does this violate the Appropriations Clause? D.C. Circuit: Class objectors waived this claim. Dissent: Giving away hundreds of millions of taxpayer dollars without congressional authorization totally violates the Appropriations Clause.
  • Members of a Las Vegas bartenders union try to revoke membership, which must be done within 15 days of the anniversary of the date they signed their dues-checkoff authorization. But the union won't tell you that date over the phone (except when they're calling to tell you that you missed the deadline). An unfair labor practice? D.C. Circuit: Demanding requests in writing is efficient and helps preserve privacy, so no.
  • The CEO of, a website where naughty services may be procured, challenges a congressional subpoena against him. In the meantime, Congress wraps up its investigation, publishes its report, and moves on with business. Is the case moot or can the federal courts order Congress to return or destroy the subpoenaed documents? D.C. Circuit: Such an order would violate the Speech or Debate Clause, so, yes, it's moot.
  • Houston police approach a home with its front door open. When the family dog confronts them, the officers shoot the dog three times, killing him. Are the officers immune from suit? Maybe not, says the Fifth Circuit, because the killing of a family pet is a "seizure" of an "effect" within the meaning of the Fourth Amendment.
  • Federal law treats "receipt" and "possession" of child pornography differently, allowing far more severe punishment for "receipt." Over a dissent from Judge Merritt—who notes that the separate crimes involve essentially identical conduct and that the U.S. Sentencing Commission and Department of Justice have criticized the distinction—the Sixth Circuit says, "No constitutional problem."
  • A Bitcoin-demanding hacker going by the nom de guerre "Dr. Evil" is undone by Secret Service sleuthing and, crucially, "two photos of cats" in this Sixth Circuit page-turner.
  • After man tells repo agent to "get the hell off my porch," repo agent calls the cops—who barge into the home without a warrant and arrest the man for aggravated assault (charges that were later dropped). A jury later awards the man $30,000 for violations of his constitutional rights. Seventh Circuit: Pay that man's lawyers some more attorneys' fees.
  • Police respond to call concerning man dressed in military uniform, armed with rifle, flipping off cars along the highway. When they arrive, they find the man in vintage military clothing, rifle slung over his shoulder, muzzle pointed toward the ground. They yell for him to drop the gun, at which point he grabs the muzzle with one hand and begins moving the other. Police fire a single shot, killing him, and later learn that the "rifle" was a pellet gun and the sling was buttoned under an epaulet, which he was trying to unbutton to drop the weapon. Family says excessive force. Eighth Circuit says qualified immunity.
  • After Ninth Circuit ruling that prison officials may inspect, but not read, inmates' outgoing legal mail, Arizona Department of Corrections defends its mail practices with seemingly airtight argument: "We're just looking at each page and reading a few words here and there—it's not like we're reading the stuff line-by-line." Ninth Circuit says, "Umm, no."
  • Has the word "google" so thoroughly passed into common parlance that, like aspirin and thermos before it, it no longer qualifies for trademark protection? Not on this record, says the Ninth Circuit: People may use the verb "google" to mean "search on the internet," but the evidence in this case (consisting of expert testimony and T-Pain lyrics) doesn't show that the public understands it as a generic term for services like Internet search engines.
  • Convicted felon is injured while in federal prison and ultimately settles a tort suit against the United States. Is this a material change in his economic circumstances that lets a federal court change the terms of the restitution order that was entered along with his original conviction? This Tenth Circuit panel uses pretty charts to say "yes."

Last Tuesday, Little Rock's taxicab monopoly officially became history when entrepreneur Ken Leininger obtained permits for his taxi business. That marked the first time in 16 years that a new taxi company opened up shop in Little Rock. Under the city's old law, Leininger was barred from operating unless he could prove there was a "necessity" for his company and that he wouldn't swipe any customers from Little Rock's only taxi business. But with help from the Institute for Justice, Leininger secured a landmark victory when a judge ruled that Little Rock violated the Arkansas Constitution, which outlaws monopolies for being "contrary to the genius of a republic." Read more about the case.