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.
New on the Short Circuit podcast: Drones over Baltimore and privileges or immunities in Washington state.
- Bail-bond companies sue the Department of Homeland Security, alleging that the agency's procedures for collecting on immigration bonds violate the agency's own regulations and due process to boot. Among other things, the procedures give the agency the benefit of mail delays in both directions—with the 33-day period to file an appeal beginning to run as soon as the decision is mailed, and appeals timely only if received back by the agency before the period is up. D.C. Circuit: No problem here.
- A college in Boston—well, not in Boston, nearby (no, not Tufts)—considers a number of factors in deciding whom to admit to its incoming freshman classes, one of which is a "personal rating" on which Asian American applicants consistently score lower than white applicants. Evidence of illegal racial discrimination? First Circuit: Being Asian American is merely correlated with Harvard's assigning a lower personal rating. Who can say which way the causation runs?
- Religious groups challenge New York Governor Andrew Cuomo's executive order on COVID-19, alleging that it discriminates against religion by restricting attendance at worship services. A Free Exercise violation? Second Circuit: No preliminary injunction pending appeal. The order actually treats churches better than other "non-essential businesses," like casinos and gyms. Dissent: Yeah, but it treats them worse than "essential" business, like pet shops and liquor stores.
- In a 55-page opinion filed only four days after briefing finished, the Third Circuit finds that none of the plaintiffs before it has standing to challenge Pennsylvania's procedures for late-received mail ballots.
- Another case in the annals of "bad things can flow from voluntarily talking to the police." Alvarado, Tex. police approach a man at a gas station and ask if the trailer he's pulling has a VIN. (It does not, as it's homemade.) Because he continues to answer their questions and they do not prevent him from leaving, says the Fifth Circuit, the Fourth Amendment does not apply to the stop. And their subsequent seizure of the trailer is acceptable because trailers must have VINs.
- Pursuant to a warrant, Monroe, La. police get GPS coordinates of a suspected drug dealer's cell phone while she is en route from Houston. They pull the car over, seize four pounds of meth and the cell phone, and arrest both the woman and her boyfriend. He is convicted, argues that the warrant was defective. Fifth Circuit (after a brief primer on search and seizure history, past the Tudors): Ah, but the warrant was for your girlfriend's cell phone, not yours, and you don't have standing to challenge a warrant for someone else's property.
- Man is shot, killed outside a New Orleans grocery store. Eyewitness identifies a man as the shooter and testifies at trial, and the man is convicted. Yikes! The witness's statements are inconsistent; he lied on the stand about his previous convictions, including neglecting to mention one for lying on a gun application; and prosecutors failed to turn over evidence about that conviction. Fifth Circuit: No biggie. That evidence wasn't material, and the witness's evidence was corroborated by other evidence.
- In a case involving a fraudulent student loan application, prosecutor tells the jury that "[a]ll of us in society pay for fraud" in the form of higher interest rates. Sixth Circuit: We prohibit "Golden Rule" arguments that invite jurors to place themselves in a victim's shoes, and here the prosecutor went a step further—suggesting the jurors were themselves among the victims. That was improper. But given the strength of the evidence and the defendant's failure to object at trial, the conviction nonetheless stands.
- Former professor at University of Tennessee sues the school under Title VII for creating a hostile work environment and for retaliating against him. Key allegations: A parcel was sent to me and addressed to "Dr. Penis," and when I complained, the school retaliated against me. (Years later, a former student-employee admitted that he had mislabeled the parcel as a jape, a mere jape.) Sixth Circuit: No Title VII violations here.
- The Randolph-Sheppard Act grants blind persons priority to operate vending facilities at certain government properties. And to the Seventh Circuit falls the task of adjudicating the claims of two rivals, each of whom wished to run the vending machines at two Wisconsin correctional facilities.
- Knottiness abounds as the Seventh Circuit untangles whether a federal trial judge erred in making an Indiana defendant's 36-year prison sentence (for a 2015 kidnapping) consecutive to a 62-year prison sentence imposed by a state court (for a 2014 home invasion). Seventh Circuit: The trial judge did not err.
- Following a lengthy class action suit about overheated dishwashers, the parties settle. Much of the settlement involves coupons for the purchase of new dishwashers. And under the Class Action Fairness Act—which views "coupon settlements" with a skeptical eye—the Ninth Circuit holds that the trial court erred in awarding class counsel $14.8 million in attorney's fees.
- Taxi permits ("medallions") in San Francisco, Cal., cost a staggering $250,000, and recent medallion purchasers have found their medallions a poor investment due to competition from Uber, Lyft, and other ride-sharing services. To give the newer medallion purchasers a hand, San Francisco passes rules favoring those recent purchasers over older ones. (Newer purchasers, for example, get priority for lucrative airport pick-up rides.) Older purchasers sue. Ninth Circuit: The rules survive rational basis review. "Softening the economic fallout for [newer] medallion holders is a permissible state purpose and not a 'naked attempt to raise a fortress' around them to insulate them from competition."
- Following a compliance inspection, the Bureau of Alcohol, Tobacco, Firearms, and Explosives finds that a firearms dealer in Oklahoma City often failed to keep proper records of its gun sales and sometimes failed to conduct background checks on buyers. License revoked. Dealer: But wait, the violations were not "willful." Tenth Circuit: The dealer knew of its legal obligations and was indifferent to them, so the violations were indeed willful.
- "The civilly committed may not be punished merely because they are civilly committed." So begins an Eleventh Circuit opinion, which concludes that a civilly committed individual stated a claim under the Fourteenth Amendment. Among other things, the plaintiff alleged that guards denied him access to a bathroom during a 600-mile trip to a court hearing, with the result that he travelled 300 miles sitting in his own excrement.
You've heard about "judicial engagement," the idea that judges shouldn't put a thumb on the scale in favor of the government. But what does that actually mean in practice? IJ Judicial Engagement Fellow Adam Shelton recently concluded a series of essays on that exact question, focusing on each of IJ's pillars with posts on economic liberty, free speech, private property, educational choice, and wrapping it all together, immunity and accountability. Read one or all of these to learn a bit more about how courts apply our constitutional protections to government abuses—and how that application sometimes takes our rights seriously, and sometimes treats them like roadblocks on the way to judicial abdication.