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.
Next week, the Supreme Court will consider whether to grant review to an IJ cert petition asking whether Maine can exclude families from a generally available student-aid program solely because they use that aid to send their children to schools that provide religious instruction. Click here to read more.
- Fraudster with a tale about an emerald in South America, among other tales, scams 46 people. Which gives Judge Selya of the First Circuit occasion to give us this vocab quiz: hornswoggle, immurement, devoir, pellucid, esurient.
- In 1959, a toy developer looking for an idea to celebrate the Milton Bradley Company's upcoming centennial stumbled upon a game created by Milton Bradley himself in 1860 called The Checkered Game of Life. He paired up with a game designer to create an updated version, which eventually became the hit Game of Life. As might be expected, the founders clashed over who deserved credit for creating the game. And in the latest judicial chapter of the dispute, the First Circuit determines that, because the
designerdeveloper bore the costs of creating the game, the toy developerdesigner couldn't reassert control over the copyright.
- Missing deadlines, ignoring discovery, citing excluded materials, filing a 9,000-page opposition, lying to the court—the Third Circuit catalogues a menagerie of bad lawyer behavior. In related news, the Third Circuit also explains the law of sanctions.
- Under the Hatch Act, on-duty federal employees cannot engage in political activity. A 2018 federal advisory opinion suggested that political activity included using terms like "#resistance" and arguing for or against the impeachment of Donald Trump. Could that be a First Amendment violation? Fourth Circuit: Here is the fascinating history of the non-partisan civil service from 1791 to the current version of the Hatch Act in 1993. Anyway, Donald Trump isn't the president, the advisory opinion was withdrawn, and the case is moot.
- Fairfax County, Va. high school student is sexually assaulted on the band bus. The school is informed and makes several accommodations for the victim, but ultimately decides that the event was not sexual assault and does not discipline the offending student. The victim sues under Title IX, and a jury returns a verdict for the school, concluding that the school lacked actual notice of the assault. Fourth Circuit: They absolutely had notice; remand for a new trial on deliberate indifference. Dissent: They had notice after-the-fact, and it never recurred. How can there be deliberate indifference?
- North Carolina law has criminalized abortion, subject to certain exceptions, for the past 140 years. The state amended these exceptions in 1967 (to allow abortions in the case of a medical emergency), 1973 (to allow abortions before the 20th week of pregnancy), and 2015 (to, among other things, narrow what constitutes a medical emergency and who may perform abortions). The state has not prosecuted any abortion provider under these statutes since the 1973 amendments. State: So that means that abortion providers can't challenge the 2015 amendments, right? Fourth Circuit: Wrong.
- Man convicted of a sexual offense involving a minor is imprisoned in Augusta County, Va. For six years, he enjoyed in-person visitation with his daughter without incident. But the prison changed its policies, prohibiting such visits unless a prison official grants an exemption—and refused to grant one to this man without explaining why. Fourth Circuit: The whole point of prison is that the inmate must surrender many of the liberties and privileges other people get. This doesn't violate his right to associate with his daughter. (Or his other rights, for that matter.)
- If courts allow cameras in the courtroom, can they make it a crime to publicly broadcast the resulting video recordings? Not unless they can satisfy strict scrutiny, says the Fourth Circuit. A lower level of scrutiny might apply to a ban on live broadcasts, but the prohibition here prohibits any broadcasting whatsoever of these court recordings.
- Fourth Circuit: Sure, the county's pesticide spray killed all your bees, but the gov't's action has to be intentional to trigger the Takings Clause, and this was more of what we lawyers call a whoopsie.
- Federal law imposes liability on anyone who knowingly provides substantial assistance to a person who commits an act of international terrorism, which, the Fifth Circuit notes, doesn't mean victims of domestic terrorism get to sue Google for hosting Hamas videos.
- When does corporal punishment in public schools become so excessive it violates substantive due process? Trick question: Never, says the Fifth Circuit, dismissing the constitutional claims of a first grader who was allegedly held in a choke hold by a teacher for several minutes. (Judge Wiener, who also wrote the majority opinion, specially concurring: We are required to follow Fifth Circuit precedent here, but that precedent is nuts.)
- Wheelchair user in Hinds County, Miss. sues because his disability effectively bars him from serving on a jury in a handicap-inaccessible courthouse. The trial court agrees that the man is excluded but then holds that there's no standing because any future jury service is speculative. Fifth Circuit: Reversed. It's not a big county. He'll probably get jury duty again.
- Man seeking to restart Akron, Ohio's Scared Straight Program impersonates a police officer to gain access to public elementary school. He places children in handcuffs, forces them to exercise, and violently batters a kid. He's eventually arrested and charged with 50 crimes, and the parents of two children he abuses sue the school and its officials. Sixth Circuit: The impersonator was the one who caused the harm—the school officials' failure to protect the kids didn't violate their due-process rights.
- Greenleaf Township, Mich. officials intentionally commit an open-meetings violation. So Michigan law makes them personally liable for $500 plus "actual" attorney fees. But do they really owe $137k in fees for a claim worth just $500? Sixth Circuit: Rewarding the attorneys who bring these cases encourages officials to follow the law. And "actual" means "actual." Pay up.
- Here's a lineup you don't see every day: Two judges concur in this Sixth Circuit opinion, and the author of the opinion files a separate reply. (The upshot: The district court needs to better explain why it awarded a criminal defendant a six-level sentencing enhancement, but two members of the panel seem to think that will be an easy task.)
- And here, in the remote reaches of the Ninth Circuit, we have that rara avis: the Concurrence Dubitante. Witness as the Dubitante studies a conflict between tribal sovereign immunity and a California cigarette tax. Like its cousin, the Common Concurrence, the Dubitante expresses its agreement with the more powerful Majority, but with the uncertain, somewhat hesitant gait that is so characteristic of this exotic opinion.
- Allegation: In the wake of the Cambridge Analytica scandal about improper data harvesting at Facebook, Google discovered a problem of its own that exposed private user data to third-party developers. Google fixed the problem but didn't disclose it in regulatory filings to not draw attention from Congress. Instead, the 10-Qs said things like "There have been no material changes to our risk factors." Securities fraud? Could be, holds the Ninth Circuit. Especially for a business built on public trust. Case undismissed.
- American Samoa is a U.S. territory, but people born in American Samoa are considered U.S. nationals, not U.S. citizens. Does this violate the Citizenship Clause of the 14th Amendment, which extends citizenship to all those born "in the United States"? In a fascinating trip through history, three members of the Tenth Circuit conclude no, maybe (but also no), and yes.
- This convicted sex offender was found living within 2,000 feet of a school and, as a consequence, was hit with two consecutive life sentences. Tenth Circuit: Constitutional or not, the petition's challenge to those sentences is time-barred. Dissent: The majority takes an unnecessarily cramped view of the petition and allows a miscarriage of justice to continue.
- In the course of determining that a former University of Denver student can press forward with his sex-discrimination challenge to a sexual misconduct investigation, the Tenth Circuit addresses a burgeoning circuit split concerning the proper analytical framework for such claims. (The question, the court holds, is whether sex was a "motivating favor in a university's disciplinary decision.")
Friends, getting permission to operate a business in Washington, D.C. is a daunting task. With over 100 categories of licenses, duplicative requirements, outdated rules (some dating back to the 1890s), exorbitant and uncertain fees, and – above all – complexity that almost cannot be overstated, D.C.'s code and regulations just ain't good government. But this month, D.C. Councilmember Brooke Pinto introduced legislation that will create a clear and affordable path to business licensing and registration. Click here to learn more.