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.
- You know how sometimes you just can't get that last bit of whatever out of the bottle? Well, plaintiffs' attorneys hear you, and they are suing L'Oréal about it, because an ounce of eye cream should mean an ounce of eye cream you can actually use, goddammit. But the case has a wrinkle that won't go away—strict federal law that dictates exactly what cosmetics containers must say. So, holds the Second Circuit, there's no arguing that L'Oréal must better label the amount of its products.
- Facing massive budget shortfalls, the Nassau County Interim Finance Authority puts a freeze on all raises for employees of Nassau County, New York. Union members—whose collective-bargaining agreement requires raises—sue, alleging that NIFA's actions violate the Contracts Clause. The county, they claim, faces only a "paper crisis" caused by NIFA's insistence that the county start using Generally Accepted Accounting Principles. Second Circuit: Whether judged against the GAAP-calculated $176 mil budget deficit or the non-GAAP $49 mil deficit, the wage freeze was reasonable and necessary. Concurrence: I totally agree, which is why I don't join the majority's disquisition on other aspects of Contracts Clause jurisprudence.
- Accusations of impropriety fly back and forth between the majority and the dissents in a pair of (en banc) Fourth Circuit decisions addressing whether an Emoluments Clause suit may proceed against Donald Trump in either his official or individual capacity.
- Student seeking to join LSU fraternity dies after a night of hazing that saw his blood alcohol level reach .496. Can his parents sue the school? LSU: We realize Fifth Circuit precedent says we waived sovereign immunity by virtue of accepting federal funds—a precedent set 20 years ago in a case about our lack of women's soccer and softball programs. But a Supreme Court decision about Obamacare has changed things. Fifth Circuit: Not so. The suit shall proceed.
- Woman returns home from trip to amusement park with her granddaughter to find Detroit police have raided her home (based on tip from confidential informant). No drugs are found, and the woman is charged with no crime. But during the raid police killed her dog, a Labrador Retriever named Mandy, whose body they disposed of in a landfill. Sixth Circuit: Might could be the officer who shot the dog—who, by the way, has shot 80 to 90 dogs during the 3,000 drug raids he's participated in—used excessive force.
- Looking to arrest Detroit-area fugitive who goes by the alias Marvin Seals, police instead arrest Marvin Seales. Despite Seales's repeated protestations of innocence, it takes police 15 days to realize their goof. A jury later awards him $3.5 mil in a lawsuit against the arresting officer. Sixth Circuit: Jail officials may be on the hook, but the arresting officer isn't. He had probable cause and handled the case for less than three hours.
- ATF agent fires into vehicle in St. Louis parking lot, kills a passenger. Was the car heading toward agents? Was the car already disabled when the agent fired? Passenger's mother: The fact that the ATF destroyed video that might have shed some light should mean some inferences are drawn against the feds. Eighth Circuit: Nope. There's no evidence the video was destroyed in bad faith.
- In 2014, California sent letters to seven health insurers, instructing them that they must immediately include coverage for legal abortions. Ninth Circuit: And the Skyline Wesleyan Church—which must now buy insurance that covers abortion services—has standing to challenge that policy as a violation of its Free Exercise rights.
- Woman serving a prison term in Colorado is transferred to a community corrections program. One of the conditions of being in the program is that participants stay employed. But the woman suffers from spinal stenosis, which is aggravated after she falls in the shower. Community corrections program: Given your disability, we don't think you'll be able to hold down a job, so back to prison you must go. Tenth Circuit: The woman's claims under the Americans with Disabilities Act and the Rehabilitation Act can proceed.
- In 1893, the Supreme Court famously elevated common speech over botanical accuracy when it held that tomatoes are vegetables. Now the Eleventh Circuit holds that spiders are insects. Your editors, with their strong feelings about usage, weep quietly. As does, we imagine, the plaintiff, who, thanks to an "insect" exclusion, was not insured after he moved into his new house in Alabama, only to discover that it was infested with deadly spiders. [Clarification: The homeowner knew about the spiders before buying the policy. Our apologies.]
- Police officer fires into vehicle on Brighton, Ala. street, kills a passenger. Was the passenger unarmed and nonthreatening or reaching for a gun? District court: Qualified immunity. Eleventh Circuit: No, the case can proceed.
- Utah's drug dogs may be very good pups, but the state's training program is so flawed that they can't be trusted to reliably alert to the presence of drugs. So holds the U.S. District Court for the District of Utah. (And in this particular case, K9 "Tank" didn't alert at all, making the resulting search of a suspect's car all the more eyebrow raising.)
- After Wisconsin's top health official orders residents to stay home on pain of fines or imprisonment, the legislature says, not so fast: follow procedures applicable to an emergency if you want to pass such a sweeping rule. The Wisconsin Supreme Court agrees—and strikes down the order.
Jay Singleton is an eye surgeon in North Carolina who wants to save his patients money. For years, Dr. Singleton has wanted to offer procedures at his office for thousands less than the nearby hospital. And he has all the equipment he needs to start operating—if he were legally allowed to. Unfortunately, North Carolina has a certificate-of-need (CON) law for healthcare services, which means Dr. Singleton can't operate in his office unless the state projects a "need" for a new operating room in his area. Because the state has projected no "need" through at least 2022, Dr. Singleton's patients lose, while the hospital down the street (the only nearby provider with a CON) wins. Now Dr. Singleton is challenging the CON law in state court, arguing that the law grants existing providers an unconstitutional monopoly and does nothing to protect patient health. Click here to learn more.