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.
It's a tale of two cases. In 1905, the Supreme Court issued two landmark opinions reviewing state legislation under the Fourteenth Amendment. Today, Lochner v. New York is reviled by academics and judges alike—a supposed example of "judicial activism" gone awry. Meanwhile, Jacobson v. Massachusetts is held up as a model of "restraint"—and a key precedent supporting government's power to address the COVID-19 pandemic. And yet, IJ's Anthony Sanders explains, the two opinions have more in common than it might seem. Click here for the surprising and illuminating discussion.
New on the Short Circuit podcast: Special guest Steve Vladeck of UT Law joins the panel to talk the Declaratory Judgment Act.
- Scheming to build a housing development that Bloomingburg, NY residents oppose, developer arranges for fraudulent votes in a bid to seize control of the village government. It's voter fraud in a purely local election. Second Circuit: Ah, but the false voter registrations could have been used in later federal elections. Federal conviction affirmed.
- Target of IRS summons—who allegedly controlled offshore accounts through trusts for which he was both trustee and beneficiary—claims that order to produce documents violates his Fifth Amendment right against self-incrimination. Second Circuit: A trust, like a corporation, is a collective entity that has no such Fifth Amendment right. Produce those docs.
- Despite four motions to let him out, mentally disabled Pennsylvania man is detained for nine years pending a homicide trial that never happens. Can he bring an Americans with Disabilities Act claim against the clerk's office for not doing something to get his case resolved? Third Circuit (over a dissent): Nope. He was detained because of judging, and you can't sue about that. But we recognize the human suffering. (Other claims not on appeal might do better.)
- Texas allows mail-in voting for anyone 65 or older. The district court entered a preliminary injunction requiring that all voters—regardless of age—be allowed to vote by mail. Fifth Circuit: Plaintiffs defend the injunction on the ground that the law violates the 26th Amendment, which prohibits laws that "deny" or "abridge" the right to vote "on account of age." But a law that makes it easier for older people to vote does not "abridge" the rights of younger people (pandemic notwithstanding). Still, plaintiffs may pursue other theories on remand.
- Purportedly enforcing a general policy against dyed hair, school dean allegedly singles out an African American boy for discipline and ridicule—calling him a "thug" and a "fool," asking if the student "was gay with 'that mess' in his head," discouraging other students from speaking with him, and even encouraging another student to concoct a false allegation of sexual assault. Fifth Circuit: All of which should have been enough to get this case past a motion to dismiss.
- What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.
- Allegation: Cleveland social workers fail to prevent a woman from abusing and eventually killing her disabled daughter. But there is still no right to protection from private harm, reminds the Sixth Circuit, so no suing the social workers for what they didn't do. But claims that they interviewed the girl in front of her abusers and thus actively put her at risk? Those claims can proceed.
- In which the Sixth Circuit confirms that, when the Supreme Court tells courts to apply strict scrutiny to content-based sign restrictions, the Supreme Court means what it says.
- "This case is the swan song in an epic saga of unending war over trade secrets and the unlawful sales of sails. Unlike the model of the Iliad, it was ended not by men in a horse but by men in robes." And, with that, the Sixth Circuit affirms the judgment in this honestly otherwise pretty boring contract dispute.
- Prisoners in Cook County, Ill. sue over prison efforts to control the spread of COVID-19. Trial court grants a preliminary injunction ordering the sheriff to take a variety of safety measures, including the elimination of "double celling" and group housing. Seventh Circuit: The requirement for socially distanced housing went too far, but the rest of the injunction was reasonable and well supported.
- Following a 1992 double murder, Chicago detectives use physical and psychological coercion to extract false confessions from suspects. Detectives manufacture other false evidence too. Sentenced to life imprisonment, one of the suspects spends 21 years behind bars before being exonerated. Upon release, he sues the detectives (among others). And the jury's finding of liability—paired with a $13 million damages award—is affirmed, holds the Seventh Circuit.
- Taxpayers believe a 2008 county tax assessment violated their equal protection rights. After a decade spent trying to pursue the claim in state court, they sued in federal court. And were promptly dismissed because state courts provide a "plain, speedy and efficient remedy." Seventh Circuit: We reversed and remanded in January, and yet the district court has taken no further action in this case—evidently waiting to see if the Supreme Court will grant certiorari. Our mandate said the case should proceed, so now we grant mandamus.
- Kansas City, Mo. man is hit with felon-in-possession charge after being caught with a shotgun. Feds offer a plea deal under which both sides would request a sentence of between 70 and 87 months. Judge chimes in with comments like "[t]hat's probably worse than if he got convicted, right?" Judge also advises the defendant that the federal system "sucks" and is "really harsh" and that pleading guilty would mean he'd be sentenced by a less lenient judge. Man rejects plea, gets convicted, and is sentenced to 92 months' imprisonment. Eighth Circuit: The district court plainly erred by inserting itself into the plea-bargain process. Sentence vacated and case remanded for resentencing before a different judge.
- Forty-seven states and the District of Columbia use a winner-take-all system for apportioning their votes in the Electoral College. Represented by super-lawyer David Boies, California voters sue, alleging that the system violates equal protection by rendering the votes of the losing party meaningless; they should get some of the electoral votes, too. Ninth Circuit: SCOTUS blessed this arrangement decades ago.
- The musical Jersey Boys recounts the rise to fame of the Four Seasons, the band responsible for the high-pitched caterwauling in "Walk Like a Man" and "Big Girls Don't Cry." After the show becomes a smash hit, the owner of copyright in an unpublished autobiography of one of the band members sues, alleging that the musical is too similar to the book. Ninth Circuit: This was a really long and expensive case that could have been resolved by the most basic proposition of copyright law: Facts aren't copyrightable.
- Volkswagen, which at one point owned 70% of the U.S. passenger-car diesel market, used software to cheat on diesel emissions tests for years. Several executives went to prison, and the company paid billions in fines. The company agreed to settle the class action by reimbursing owners and lessees and removing the polluting autos from the road. But not all cars are eligible for compensation; the company won't pay for those bought from junkyards or salvage yards with branded titles. And the company needn't pay for cars bought at insurance auctions with branded titles, either, says the Ninth Circuit.
- While on a cross-country motorcycle trip, man's bike breaks down in an isolated town in Garfield County, Utah. Yikes! He's arrested on suspicion of stealing $20 from a local convenience store—money that, it turns out, was never stolen in the first place—and suffers long-term nerve damage from being handcuffed. He's forced to hitchhike 95 miles back from the jail to his motorcycle but finds the bike vandalized and his possessions stolen. Tenth Circuit: No qualified immunity here.
- Congress passed the Ute Partition Act in 1954 to terminate federal supervision of "mixed-blood members" of the tribe. Those with less than 50% Ute ancestry received some tribal assets and were stripped from the rolls and unable to invoke federal Indian laws. Man who falls within this group seeks to avoid state-court prosecution for speeding in Indian Country, argues that he has Indian status, notwithstanding the 66-year-old law. Tenth Circuit: Alas, the law says what it says.
- Navajo man is charged with assaulting another Navajo man within Indian country. Federal law applies, and the man accordingly receives a substantially higher sentence than he would have received under state law. Tenth Circuit: We are sympathetic to the concern that Native Americans receive higher sentences for assault because they are disproportionately subject to federal criminal jurisdiction. But, under our precedent, the district court properly declined to consider that disparity at sentencing.
- Hedge-fund gent and his wife rack up millions of dollars in tax debt. Throughout the 2000s, they make low-ball settlement offers to the IRS while spending millions on a personal chef, a rental home in Aspen, charitable donations, and other such luxuries. Bankruptcy ensues. Bankruptcy court: Your tax debt is nondischargeable because you willfully attempted to evade liability. District court: Indeed. Eleventh Circuit: Indeed.
- Registered sex offenders, driven to homelessness by restrictions on where they can live, sue challenging the restrictions as ex post facto laws. Eleventh Circuit: Totally OK to decide the case based on the fact that your lawyers said they were bringing a "facial" challenge and not an "as-applied" challenge.
- Florida, in 2018, restored the voting rights of convicted felons. But with a catch. Restoration was conditioned on paying off all fines, fees, costs, and restitution. Eleventh Circuit (on initial hearing en banc): States may restrict voting by felons in ways that would be impermissible for other citizens, and Florida, here, permissibly distinguished between felons who have completed their sentences and those who have not. Dissent: So much is profoundly wrong with the majority opinion that it is difficult to know where to begin.
- And, in en banc news, the Ninth Circuit will not reconsider its earlier decision upholding a federal law that prohibits possession of firearms by those involuntarily committed to mental institutions—regardless of the passage of time or the individual's current mental health. Eight judges dissent, with three writing separately, to affirm that the Second Amendment is not a second-class right.
Just last week, IJ filed suit in New Hampshire to enforce the Supreme Court's recent decision granting IJ a victory—and prohibiting government discrimination against religious schools—in Espinoza v. Montana Department of Revenue. But that's not all! This week, IJ again filed suit to enforce Espinoza—this time in Vermont. Vermont subsidizes private schools for students in rural districts that don't operate full K–12 public schools but excludes private religious schools from the program. That violates Espinoza, and IJ is on the case to make sure that states follow the decision. Learn more here.