The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
October is finally here—the leaves are changing, everything is pumpkin spice, and the deadline is fast approaching for law students to apply for IJ's Legal Intensive, a one-day crash course in public interest litigation the IJ way to be held at UCLA School of Law this November. Get those apps in by October 11!
- In 2018, the Trump administration repealed net neutrality rules implemented by the Obama administration, prompting a lawsuit by basically everyone who's ever used the word "telecommunication" in a sentence. D.C. Circuit: And here are three opinions spanning 186 pages explaining why that's allowed and what it means for similar efforts at the state level.
- Mail carrier hurts his back lifting a heavy tray and applies for workers' comp, which he collects for more than a decade. Uh oh! Photos on his ex-wife's Facebook page show him engaged in a variety of activities that he shouldn't be capable of, like riding a motorcycle. Did the trial court err by admitting the photos without having the ex-wife confirm their authenticity? First Circuit: Nope. The jurors were perfectly capable of determining whether the defendant was in the photos.
- Under the direction of former Attorney General Eric Holder, Department of Justice attorney investigates more than 100 allegations of abuse of detainees held overseas by the CIA, ultimately recommending formal investigation of only two incidents. The New York Times would very much like to see the memos detailing this investigation. DOJ: But they can't, because it's attorney work product. Second Circuit: That's mostly right, but Holder's public statements waived that privilege for some of the information.
- Apropos of nothing: The mere fact that something is hearsay does not mean that it can't be used in some government proceedings. Second Circuit: Such as immigration removal proceedings. (Also, if you find yourself arguing that you slashed a guy's face with a box cutter—and not a machete, as the police report states—your case is not going well.)
- This week, the Second Circuit taught your editor that when a multi-judge panel does something of its own accord, it may describe itself as acting nostra sponte (us lawyers would still use sua sponte to describe it). So tuck that one in the back of your brain if you think you may be an appellate court short-lister.
- In 2017, the Environmental Protection Agency approves a Louisiana plan to control regional haze. Sierra Club: Louisiana's plan doesn't do enough! Industry groups: Louisiana's plan does too much! Fifth Circuit: Like Baby Bear's porridge, Louisiana's plan is just right.
- Everybody procrastinates in this lawsuit alleging police misconduct in Chicago. Plaintiffs filed after the statute of limitations. The trial court didn't issue an opinion until two years after it issued an order dismissing the case, leading plaintiffs to appeal long after the deadline for doing so. But the city doesn't object until six months after the appeal is filed. Seventh Circuit: The city's untimely objection means we can hear the appeal, but the trial court got it right.
- In 2015, Santa Monica, Calif. banned short-term vacation rentals like Airbnb. They say it's to preserve the character of the community. Former Airbnb hostess claims it's to prop up declining revenue from the city's 14% hotel tax. A Dormant Commerce violation? Ninth Circuit: Even if the alleged benefits of the law "are all illusory or illegitimate," the plaintiff failed to show a significant burden on interstate commerce.
- Employees at McDonald's franchises sue McDonald's for various state labor law violations. Ninth Circuit (over a dissent): Well it sounds like the employees should take that up with their employers—the franchises.
- U.S. citizen wants to bring his wife from Vietnam to the U.S. under a program that allows sponsorship of close relatives. Problem: He has a child pornography conviction, which means he has to convince the government that he poses no risk to his wife. Citizenship and Immigration Services: We are not convinced. Eleventh Circuit: And the law gives the agency "sole and unreviewable" discretion to make that determination.
Speaking of autumn, next week is the First Monday in October, and SCOTUS nerds across the land are rejoicing the start of another Supreme Court term. This term, the Court will hear argument from IJ's educational choice team in Espinoza v. Montana Department of Revenue, a challenge to Montana's exclusion of religious private schools from a tax-credit scholarship program. Check out some of the more than 30 amicus briefs that groups—including the Department of Justice—have filed in support of our clients.