Short Circuit: A Roundup of Recent Federal Court Decisions

Capital punishment, Confederate statues, and common law

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Friends, on September 3, 2021, the Institute for Justice marks its 30th Anniversary! To celebrate this milestone, our "IJ Works Wonders" series looks back on IJ cases that fundamentally transformed the law and the lives of our clients. Check out the first entry here, with more to come soon! Now on to the show…

  • That wooshing sound you hear is the collective sigh of relief of every federal employee reacting to the news, via this DC Circuit opinion, that their internet browsing histories are not subject to FOIA.
  • First Circuit: Here's 141 pages of Judge Selya upholding the convictions of several pharmaceutical executives for paying kickbacks to doctors who prescribed their under-the-tongue opiate medication. And with an opinion that long, you know this week's Judge Selya Vocab Quiz is gonna be a banger: ethologist, gallimaufry, cashiered, transmogrified, fandango, dysphagia, immurement, kaleidoscopic, tamisage, titration, equipoise, encincture, repastinates, impuissant, condonation, vouchsafed, sanguine, verity, calumnized, iterative, congener, dissembling.
  • Second Circuit: In which Andy Warhol violates copyright from beyond the grave.
  • The NYU Law Review has 50 student spots, 12 of which are allocated by the Law Review's Diversity Committee, which takes into consideration factors such as race, religion, gender, and sexual orientation in divvying up its 12 spots. The Law Review also considers race and sex during its article-selection process. A group that opposes such preferences sues, alleging that these policies have harmed its members. Second Circuit: Which ones? Plaintiffs: We're not telling. Second Circuit: No associational standing.
  • New York Attorney General sues anti-abortion protestors for violating the Freedom of Access to Clinic Entrances Act and seeks a preliminary injunction. The district court denies the PI. Second Circuit: We might have decided this one differently, but it's an abuse of discretion standard, so what can you do?
  • Who could have known way back in 1999 that a forensic examiner has to turn over exculpatory ballistic evidence to defense counsel? Second Circuit: You, Mr. Forensic Examiner. You could have. So the guys who served more than 17 years in prison for a robbery and murder they didn't commit get to sue you.
  • Listen up Fed Courts nerds! Third Circuit: "The question that confronts us on appeal is whether a party appealing from the decision of a territorial court must establish Article III standing when invoking our jurisdiction, even though Article III standing is not required before the territorial courts."
  • If you're a criminal defense lawyer, prepare to scream internally when you read this case from the Third Circuit, denying a new trial to a guy who thought he'd just talk to the cops a little bit about where he got the fentanyl, but not about the folks who died of overdose using the fentanyl.
  • A high school teacher fired for refusing to use a student's preferred pronouns? Sounds pretty juicy. Be a shame if the opinion were about . . . federal removal jurisdiction. Fourth Circuit: The teacher brought only state causes of action, and the fact that the school might be able to invoke Title IX as a defense is not an independent basis for federal jurisdiction.
  • There are 19 separate issues in this appeal from the death sentence given to Dylann Roof, who shot and killed nine members of the Mother Emanuel Church in Charleston, South Carolina. Fourth Circuit: There's only so much you can do for a guy who admits to remorselessly slaughtering churchgoers and leaving one alive to tell the tale. (NB: All judges on the Fourth Circuit recused themselves, so the panel was made up of designees from Third, Sixth, and Eighth Circuits.)
  • It's not our field but, if you plan on becoming a pimp, consider not recording a bunch of rap videos talking about how much you love pimping, because, per the Fifth Circuit, they might make an appearance at your federal trial for sex trafficking of a minor.
  • The Albert Sidney Johnston chapter of the United Daughters of the Confederacy sues the City of San Antonio for removing a Confederate statue, seeks to distinguish bad case law involving the same statue by citing an 1899 document they claim gave them a property interest in the statue and a (presumably not super-PC) time capsule buried under it. Fifth Circuit: "But, the difficulty for the ASJ chapter is twofold. Not only is its theory unpersuasive and incorrect, but also—even if there had been a transfer of some right to the land—the ASJ chapter was not the recipient of any such conveyance."
  • Sitting en banc, the Sixth Circuit rejects (over multiple dissents) a Batson challenge to the 35-year-old conviction of a Kentucky man for robbing, raping, and murdering two high school students.
  • A Michigan inmate working as a laundry porter suffers severe injuries when a laundry cart weighing as much as 400 pounds fell on her from a truck. Can she bring an Eighth Amendment claim? Sixth Circuit: Sure can. Dissent: This is state tort law, not a federal constitutional case.
  • Parking cops in Saginaw, Mich. mark tires with chalk to identify people who overstay the parking limits. The Sixth Circuit has already held that this is a Fourth Amendment search and that neither the community-caretaking nor the automobile exceptions to the Fourth Amendment apply. But what about the administrative-search exemption? Sixth Circuit: Strike three.
  • Seventh Circuit: Stop applying Rooker-Feldman!
  • We got ourselves a real Ship of Theseus situation in this Seventh Circuit case about whether refurbished trucks were merely old trucks that had been repaired or new trucks that had been manufactured, a question relevant to a federal excise-tax safe harbor.
  • Eighth Circuit: Nebraska Public Power District tilts at windmills, and you know how that normally goes.
  • Private Minnesota juvenile detention facility "confine[s] fifteen-year-old Jane Doe in its residential correctional unit where an employee sexually assaulted her for three days. No one intervened." Do the facility's employees (and the facility itself) count as state actors under Section 1983? Eighth Circuit: Yes (over a dissent).
  • Facing a putative class action lawsuit over age discrimination, dating app Tinder settles by agreeing to give out free "Super Likes" along with making small cash payments to some users and over a million smackers to the plaintiffs' lawyers. Ninth Circuit: Maybe take a second look at this one. (Dissent: The value of the settlement was low, but the majority fails to appreciate that the claims the class was settling were exceedingly lame.)
  • In which the Ninth Circuit demonstrates a deep knowledge of the history of copyright law but perhaps a deeper knowledge of the chart-topping hits of the 1960s and '70s.
  • Opinions that begin by acknowledging that the right at stake has been "well accepted for more than fifty years" usually don't end by awarding qualified immunity on all counts, but this Ninth Circuit case pulls off the U-turn in a tidy 20 pages.
  • A federal agent might have been negligent in leaving his loaded gun in his car, the Ninth Circuit says, but that doesn't mean he was the proximate cause of death when the gun was stolen and then subsequently used in an unrelated shooting.
  • Weighing in on a circuit split that may be resolved in the coming Supreme Court term, two-thirds of this Ninth Circuit panel holds that federal law allows plaintiffs to claim that facially neutral policies have a disparate impact on people with disabilities.
  • In early 2017, the VDARE Foundation—an organization that says it "seeks to 'influence public debate and discussion on the issues of immigration and the future of the United States as a viable nation-state'"—reserved a resort in Colorado Springs for a future conference. Shortly after violence erupted in Charlottesville, Va. in August 2017, the mayor of Colorado Springs publicly stated that the city "will not provide any support or resources" for events like VDARE's upcoming conference. The resort promptly cancels VDARE's reservation, and VDARE sues Colorado Springs and its mayor for violating its First Amendment rights. Tenth Circuit: No dice. There's no reason to believe the resort canceled the event because the city ordered it to. Dissent: It's at least plausible the city was threatening to withhold police and fire-protection services to deter VDARE's speech.
  • During a heated argument in Yellowstone National Park, one camper points a gun at another. Federal prosecutors dust off the Assimilative Crimes Act of 1825 and charge the gun-toting camper with violating a Wyoming state assault statute. Tenth Circuit: While there are some circumstances where state law applies in federal parks, this isn't one of them. Congress has passed its own assault statute, which applies instead. (Still no word on Professor Brian Kalt's "Perfect Crime.")
  • Deputy sheriff for LeFlore County, Okla. conducts a traffic stop, during which he strikes the motorist in the face and kicks him in the ribs. Motorist sues the deputy and the county board. After jury trial, he's ultimately awarded $3 mil in damages. County and deputy: But there were problems with the motorist's claims notice and the damages were too much and the motorist's lawyer engaged in misconduct and lots of other things went wrong. Tenth Circuit: Affirmed.
  • Is walking on the beach analogous to erecting a maypole and dancing around it? Join us, as the Eleventh Circuit takes us on a jaunt through the English Common Law and the concept of "customary use" after the town of Redington Beach, Fla. passes an ordinance granting the public access to certain "dry sand beaches," and owners of beachfront property sue, alleging an unlawful taking.
  • Eleventh Circuit: "It is sometimes said that the only way to find out if you can trust someone is to trust them. As this case proves, there is much truth in that adage." (Spoiler: Trusting this guy was a mistake).
  • And in en banc news, the Eleventh Circuit will rehear its earlier ruling that a Florida high school's policy regarding bathroom access for transgender students violates both Title IX and the Equal Protection Clause. Probably gonna be a snooze-fest, right?
  • Friends, in one of last week's summaries, your editor was so eager to make a cheeky joke about whether the First Amendment was elastic enough to protect the dancers and patrons at Texas "latex clubs" from a $5 "pole tax" that he shamefully got the holding of the case precisely backwards. Per the Fifth Circuit, you can rest assured that the First Amendment is indeed sufficiently rubbery. We regret the error.

Fifty years ago, the U.S. Supreme Court laid out a straightforward rule for when a person can intervene alongside the government in a federal lawsuit: The Applicant need only show that the government "may be" providing "inadequate" representation. How closely have lower courts followed that rule? Not very, with profound consequences for public-interest law firms like IJ. That's why last week we filed an amicus brief in support of certiorari in FIRE v. Victim Rights Law Center (No. 21-84), urging the Court to take up this issue and reaffirm the intervention standards that make much of our work possible.

NEXT: Eric Goldman & Jess Miers, "Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “A federal agent might have been negligent in leaving his loaded gun in his car, the Ninth Circuit says, but that doesn’t mean he was the proximate cause of death when the gun was stolen and then subsequently used in an unrelated shooting.”

    And yet, I’m quite sure the 9th would be more than happy to allow someone to sue a gun manufacturer who’s legally sold product was used to shoot them.

    1. You really don’t see the difference between those two scenarios – Failing to safeguard a weapon (perhaps accidentally) and actively marketing and selling weapons?

      1. The browsing history of a federal employee is a record. The decision is a denial of reality. If you want to browse child porn on Tor and fentanyl suppliers on Google, do it on your personal cell phone, not at government expense, and not on government time.

        1. Wrong thread Spanky.

        2. Well that’s suspiciously specific.

          1. He’s on his own time, presumably.

        3. “The browsing history of a federal employee is a record.”

          It’s not a record that is routinely kept. The government would have to take extraordinary measures to collect this “record” in order to give it to anyone.

      2. “You really don’t see the difference between those two scenarios – Failing to safeguard a weapon (perhaps accidentally) and actively marketing and selling weapons?”

        Well, one difference is that the former is more likely to result in the gun falling into the hands of criminals. But neither is the proximate cause of death in a case like this.

      3. And you, apded, really don’t see the reason why a manufacturer shouldn’t be held liable for a firearm which was improperly and illegally used, when the sale itself followed all relevant laws?

        Your inner gun-control nutcase is showing.

      4. You really think there is a difference between these two scenarios – Suing gun manufacturers when a criminal uses their legally made and sold product to harm others and suing auto makers when their legally made and sold product is used by a drunk driver to harm others?

      5. > actively marketing and selling weapons?

        Sold only through federally licensed firearms dealers. Vs left unattended in a car.

        1. You believe the only way to buy a gun is from a federally-licensed firearms dealer?

      6. Failing to safeguard a weapon (perhaps accidentally) and actively marketing and selling weapons?

        The first is not legally protected, the second is protected by the 2nd Amendment to the US Constituiton

        because you can’t “keep and bear arms” if companies aren’t allowed to market and sell them.

        So yes, I can see a difference. But it weighs against you, not for you

        1. The 2A protects the right to “keep” and “bear” arms. It is entirely silent on “manufacturing” and “marketing” them. Or even “using” them, for that matter.

      7. Manufacturers have a tradition of trying to sell the products they make.

        Gun manufacturers can only sell to the public thru gun dealers, that are licensed and regulated by the government, and the gun dealers can only sell to customers that can pass a federal background check.

    2. But hadn’t the opiod manufacturers being sued also complied with all laws in the selling of their product? I believe the legal theory is that if you know that your product is killing people, you have a duty to take steps to try to rein it in. And if you’re going to rake in profits over people’s dead bodies, maybe you should contribute to paying for the carnage.

      Here’s what I would say to all three (automobile, gun and opiod manufacturers): Negligence should be a jury question. Period. We should not have favored industries that can ignore the bad things their products do with no accountability. So the fact that you sold your product legally should be something the jury can consider, but it’s not dispositive. That you knew that people would die from the sale of your product, and you did nothing beyond the bare legal requirements about it, is also something the jury can consider.

      1. Forgot to say: I would also require plaintiffs to articulate what they believe the manufacturers should have done differently that would have changed the outcome, and would grant summary judgment in cases where the plaintiffs could not do so.

        1. If you manufacture, say, a lawn mower that, while being used properly, can emit a projectile at great speed that can harm people who are standing near where the product is being used, you can have liability for injuries that result from poor engineering. The legal principle is “strict liability” and attaches just from manufacturing a dangerous product.

      2. The problem is the gun industry is not a high margin one. The cost of litigation is the point of the lawsuits. Not to win, but to bankrupt the companies.

        We don’t blame Ford when a drunk driver uses one of their trucks to kill passengers in another car. How is Glock liable for pistols sold under the regime put in place and administered by the Feds and the various states?

        1. The question would be whether the gun industry could do anything to reduce the number of people being killed by their product. I honestly don’t know the answer to that question. If the answer is yes, then they ought to be doing it; if the answer is no, then there would quickly be precedent to that effect, making suits against gun manufacturers not-viable based on general tort principles, and providing a basis for sanctions against any attorneys who kept filing them after that.

          I get that litigation is expensive, but so are funerals. And under the current regime, gun manufacturers basically have no liability no matter what, and that’s not good either.

          1. They have liability if they sell a defective product.

            And they should have liability if they knowingly sell a gun to someone legally barred from possessing a gun, or who states they are planning to use it for an illegal purpose.

            It’s a constitutional right to keep and bear arms, burdening manufacturing of constitutionally protected guns, is also unconstitutional.

            It’s already been established that burdening the constitutional right of abortions by imposing waiting periods, or impeding clinic access, or overregulation of abortion clinics is unconstitutional, same principle for guns.

            1. How do you feel about litigation against the tobacco companies? Their products were legal.

              Your abortion example would be more persuasive if Congress passed legislation making it impossible to sue abortion providers, which they have not done. No industry should have a free pass from liability. The same tort principles should apply to everyone.

              1. I think the litigation against the tobacco companies was abusive, and it actually tended to be futile until some trial lawyers colluded with state legislators to write laws that essentially forbid the tobacco companies from raising the defense that had always worked in the past: That everybody damned well knew that smoking was terrible for your health, so any health risk was voluntarily assumed.

                1. ” That everybody damned well knew that smoking was terrible for your health, so any health risk was voluntarily assumed.”

                  Except that everybody didn’t know that, because the tobacco industry kept paying researchers to say that smoking didn’t raise any health issues at all, and the people who wanted to keep using tobacco products were happy to hear what they wanted to hear.

              2. Congress hasn’t made it impossible to sue gun manufacturers.

                They made it impossible to sue gun manufacturers for somebody else’s act.

                In much the same way GM can’t be sued if you buy one of their cars, and then run somebody over with it.

                In much the same way Louisville Slugger can’t be sued if you buy one of their baseball bats, and use it to bust somebody’s skull.

                In the same way Clorox can’t be sued if you buy bleach and throw it in somebody’s face.

                There isn’t any other industry in America which is threatened with lawsuits for lawfully selling a product which is subsequently used in a criminal manner. The only reason the firearms industry is faced with these lawsuits is that some anti-gun lawyers hatched a plot to bankrupt the industry with the legal costs of successfully defending against frivolous lawsuits.

                1. Assuming for the sake of argument the premise behind lawsuits against gun manufacturers, they weren’t being sued for someone else’s bad acts. They were being sued for their own negligence in not being more careful in who they sold to. Which sounds like a jury question to me.

                  There was an Alabama case against an insurance company that sold life insurance to someone who took out a policy on someone she wasn’t related to and who then murdered the person to collect the insurance. The murderer was executed, but the civil courts allowed a lawsuit against the insurance company on the ground that it should have been suspicious of someone wanting to take out life insurance on someone they had no connection to. The sale of the policy was legal but the courts still held the sale was negligent. How is that different from a negligent gun sale?

                  1. All you’re doing here is rationalizing abusive lawsuits because you don’t like the industry that would be sued. The causation here is too remote for legal liability. The manufacturers sell to licensed dealers, who sell to people who pass background checks. Yes, some (small!) percentage of the guns get used in crimes eventually, just as some percentage of cars are used in vehicular homicides.

                    In your insurance example, the insurance company knew who’d be buying the policy, and had some articulable basis for suspicion. Nothing like that is present in the gun lawsuits.

                    You’d never apply this reasoning to an industry you didn’t mean ill.

                    In fact, these lawsuits were all losers, and predictably so.

                    So, why the Lawful Commerce act? Because the group promoting the lawsuits expressed an intent to bankrupt the industry with legal costs even though they’d lose every last lawsuit.

                    It was purely abusive litigation aimed at imposing process costs. That’s all.

                    1. Then you have a robust rule for sanctioning lawyers who bring frivolous lawsuits. Talk to Trump’s lawyers about that; I’m sure they could give you some pointers.

                      I’m not as hostile to guns as some here; I grew up around guns, I’ve owned guns, and I’m fine with private ownership of guns. Some people may really be trying to close down gun manufacturers; I’m not one of them.

                      My view is that for something as dangerous as a gun, that kills tens of thousands of people annually, you need either strong regulation or a robust tort system, but not neither one. Is there more that the gun industry could do to reduce the carnage? Probably. And having a round of litigation about it to figure that question out may not be a bad idea. And I’m highly skeptical that I could obtain other dangerous products — cyanide, for example, or arsenic, or dynamite — without being looked over pretty carefully by the manufacturer specifically because of tort liability. Even though all of those things have perfectly legitimate applications.

                      You basically don’t want any interference, no matter how reasonable, with the gun industry’s ability to make huge profits with no incentive to take such steps as they can. My view is that you don’t discriminate against the gun industry, but you don’t give it more favorable treatment than other industries get either.

                    2. “My view is that for something as dangerous as a gun, that kills tens of thousands of people annually, you need either strong regulation or a robust tort system, but not neither one.”

                      We have both. And both are aimed at the people actually doing the harm.

                      That’s the problem here: You’re treating the guy actually pointing the gun and pulling the trigger as though he had no agency, was just a falling domino. When he’s the real problem.

                      We’re not talking about guns going off when they’re dropped, or exploding in people’s hands. THAT the Lawful Commerce act provides no protection for at all.

                      We’re talking about volitional acts, crimes. And the proper place to point regulation to reduce crime is at criminals, and especially when you’re dealing with something implicating a constitutional right.

                      Where’s your constitutional right to poisons, or explosives? You’re trying, and very conspicuously, to approach this topic as though there weren’t any constitutional right involved. And people who value that constitutional right have no reason to tolerate that approach.

                      As the Supreme court remarked in, I think McDonald, we have already decided whether this right is worth the risk, and the 2nd amendment embodies the decision that it is. Barring repeal of the 2nd amendment, risk as an excuse for infringing this right is off the table, it’s already been considered and rejected.

                    3. But acknowledging the culpability of the actual criminals does not preclude expecting the gun industry to have protocols in place that make it more difficult for the bad guys to get guns. You talk like it’s either or when it should be both.

                    4. K_2, gun manufacturers do not sell guns directly to criminals – or any other private individual, as far as I’ve ever been able to tell. For example, directly from Colt’s website: “Colt’s Manufacturing Company does not sell firearms directly to consumers.”

                      So, the gun manufacturers sell only to Federally licensed gun retailers, who in turn sell guns to consumers that can pass a state/federal background check (sometimes even more).

                      At exactly what point in this process do you think the gun manufacturers should institute additional “protocols”, and how will those prevent “bad guys” from getting guns?

                    5. It’s entirely possible that you’re right and there’s nothing that the manufacturers can do that they’re not doing already, in which case the best thing that could happen for them, from a public relations standpoint, would be to take some discovery and hear a summary judgment motion. Remember, I’m not saying the plaintiffs should win; just that they should be allowed to test their theory in court. And if the litigation becomes vexatious, I would support sanctions against the plaintiff attorneys. Again, the Trump lawyers just found out that there is an outer limit to how abusive of the process one can be.

                      Now, as far as what I would do if I were the gun manufacturers, I would not say, “Oh, it’s the responsibility of the actual sellers.” I would say that for a seller, having a license is the starting point, not the end point. I would want to know what protocols the sellers have in place to limit the ability of the bad guys to get guns. If, for example, someone has purchased 10 large-magazine guns in the past month, does that raise suspicions? Are questions asked if someone is buying large quantities of guns known to be favored by gang bangers, or school shooters?

                      No seller is going to sell me cyanide, despite its having lots of legitimate uses, without knowing who I am and what I’m planning to use it for, and that the quantity I’m trying to buy is appropriate to whatever I’m using it for. What is so awful about taking the same approach to gun sales?

                    6. “At exactly what point in this process do you think the gun manufacturers should institute additional “protocols”, and how will those prevent “bad guys” from getting guns?”

                      As I recall, the argument in at least one of the lawsuits was that the manufacturers should look at local crime rates, and refuse to allow their products to be sold anywhere that had high crime.

                    7. “We’re talking about volitional acts, crimes. And the proper place to point regulation to reduce crime is at criminals, and especially when you’re dealing with something implicating a constitutional right.”

                      So you’re OK with having them infringe someone’s Constitutional rights as long as it isn’t yours, then?

                  2. Assuming for the sake of argument the premise behind lawsuits against gun manufacturers, they weren’t being sued for someone else’s bad acts. They were being sued for their own negligence in not being more careful in who they sold to.

                    No, that’s not correct.

                2. “Congress hasn’t made it impossible to sue gun manufacturers.

                  They made it impossible to sue gun manufacturers for somebody else’s act.”

                  Except that manufacturing a product that is deadly when used as intended isn’t “somebody else’s act”.

      3. Here’s what I hate about the litigation against opioid manufacturers (and the complaint holds for tobacco, too). I can imagine some responsibility for the public health costs states incur. But you know who else is responsible for those? The doctors that prescribe them. Why aren’t they assigned a share of liability? You know who else is responsible for those? The people who are actually abusing the drugs and ODing and winding up in ERs. Why aren’t they assigned a share of liability? Why not the pharmacies? Why not the people who are lying and cheating to get extra opioids into the hands of people who can’t legally obtain them?

        All of those actors bear responsibility too, yet their share is never calculated. If I were on a jury and asked that question, I think I would wind up somewhere in the realm of 80% on the individual who took the drugs, 19% divvied up among people actually closer in the causal chain like the prescribing doctor and the pharmacist and the dealer, and 1% for the manufacturer.

        Another point – states don’t HAVE to bear these costs. That’s a choice.

        1. “I think I would wind up somewhere in the realm of 80% on the individual who took the drugs, 19% divvied up among people actually closer in the causal chain”

          Then you aren’t smart enough to serve on a jury. Without the Doctors prescribing those drugs, and the companies making them incredibly addictive in the first place, the end-user doesn’t get their hands on the drug, and thus don’t become addicted.

          1. I’m sorry, perhaps I misunderstand you – are you saying that you think the pharmaceutical companies deliberately modify their prescription products to be unnecessarily addictive?

          2. “and the companies making them incredibly addictive in the first place”

            Geeze, we’re not talking about Thionite. Most people who take opiates to treat real pain never get addicted, and just stop using them once they don’t need them anymore.

            And what Toranth said. What, do you think the drug companies are deliberately creating addicts? Bah, they’d rather opiates weren’t addictive at all, then they could sell them over the counter.

            1. ” What, do you think the drug companies are deliberately creating addicts?”

              Yes. Absolutely yes. Although they wish those “repeat customers” were more loyal to their brand, and less willing to switch to other opiates.

        2. ” you know who else is responsible for those? The doctors that prescribe them.”

          So marketing opioids to doctors as being “less habit-forming” is fraud, no? Whether the doctor uses the drug themselves or relies on the marketing materials provided by the manufacturers to prescribe it to people who may, y’know, form a habit. That’s what got Purdue Pharma and the Sacklers in trouble with all those states’ attorneys general (I hope that’s the proper formation of the possessive plural).

  2. “public-interest law firms like IJ”

    “public-interest” meaning the views of the donors to IJ.

    Who elected IJ to represent me?

    1. No, it doesn’t mean the views of the donors to IJ.

      And I elected IJ to represent you.

  3. Good lord, the 8th Circuit juvenile detention dissent was lawyer/judge brain at its peak.

    I really dislike Judge Selya’s vocab usage. His theory that his unusual or archaic words are precise and always clear from context doesn’t change the fact that there are usually more clear ways to say what he’s saying. No one needs to use “repastinates” (a word my phone does not recognize) in an opinion. FWIW Garner agrees with me.

    Standard complaint about First Circuit typography.

    1. Agreed on repastinate. But on the other hand, half the words Short Circuit listed in the Quiz aren’t rare at all. I’d expect a good high school grad to know verity, dissembling, or iterative.

    2. Congrats, your comment is #3 on Google’s search for repastinates.

  4. “anti-abortion protestors”

    Didn’t you read the stylebook? They’re anti-choice protesters or anti-reproductive-rights protesters.

    Next thing you know, you’ll be calling them pro-life. Sheesh.

    1. Approximate number of “pro-life” protesters willing to let unviable fetuses be transplanted into their bodies: 0.

  5. “thought he’d just talk to the cops a little bit”

    The drug-dealers aren’t sending us their best.

  6. “Facing a putative class action lawsuit over age discrimination, dating app Tinder settles”

    “I’m sorry, sir, but Bertha here has seniority.”

    1. The lawyers take over a million while class members get “free Superlikes”.

      This is even better than my goto sarcasm where lawyers take millions and class members get a
      coupon for free fries at their next visit.

  7. Does anyone know why Massiah wasn’t raised in the Third Circuit “Miranda” case? I thought if he was already indicted that is a sixth amendment issue, not a fifth amendment.

  8. …where an employee sexually assaulted her for three days.

    Damn, that’s some serious stamina!

    Nitpick, “for three days” and “repeatedly over three days” do not mean the same thing.

    1. Double Nitpick, unless you were there, you don’t really know which one is more accurate.

  9. Roof’s death penalty was imposed under federal civil rights laws based on his race- and religion-based motivations in committing his murders. The state had parallel capital charges that Roof pleaded out to life in exchange for escaping the possibility of multiple death sentences on those capital murder charges. So this Fourth Circuit decision was on direct appeal. There won’t be the usual round of state trial and appellate court habeas petitions, nor a further federal review of the denial of habeas by those state courts. And there’s nobody left from the Fourth Circuit to entertain a petition for rehearing en banc. So it appears that Roof’s next — and probably last — potential challenge to the death sentence just affirmed by the Fourth Circuit panel (comprising only visiting judges) is a cert petition to the SCOTUS.

    Even if cert were to be denied during the upcoming SCOTUS term, however, it’s unlikely that the Biden Administration will move forward with his execution, despite the blessing of all available courts. It’s clear from the record quotes in the opinion that Roof fully understood, even before the trial, that his only realistic hope of avoiding a death sentence is a presidential decision to refuse to enforce federal capital punishment laws.

    1. Assuming the SCOTUS denies a cert petition in connection with this week’s affirmance of his conviction on direct appeal, I suppose he might try to make one last bite at the apple via a federal habeas petition, complaining not of the state court system’s purported abridgement of his rights, but of the federal courts’ purported so doing. E.g., he could argue ineffective assistance of his current appellate counsel — although the opinion makes clear that his current appellate lawyers have been very creative and ambitious in trying to make the best of his disastrous situation, so the chances of something like that working are, IMHO, extremely slim to none.

  10. “…if you plan on becoming a pimp, consider not recording a bunch of rap videos talking about how much you love pimping…”

    So Johnny Cash, assuming he was still alive, would be charged with murder for singing “I shot a man in Reno, just to watch him die”?

    1. Sure, if he killed someone in Reno.

      1. Of course, Cash sang in the persona of a prisoner who was feeling bad about his crime – or at least feeling bad about being in prison for his crime.

        After all, the line after the one you quoted is “When I hear that [train] whistle blowing, I hang my head and cry”

        Not

        “I really got off on killing him, it’s something you should try.”

        1. But any attempt to distinguish “Folsom Prison Blues” from, say, “Straight outta Compton” is teh racist.

          1. Cash also did “Cocaine blues”, though his drug arrest was for a completely different drug.

      2. Especially if his girlfriend testifies that the song was autobiographical.

        1. If the girlfriend is willing to testify that he beat, robbed, raped, and pimped her out… what is the relevance of the song?

          1. Supporting evidence. He not only did it but publicly confessed to it.

            1. Confession, by way of describing vaguely similar activities in a fiction genre notorious for singers adopting personas that describe those same vaguely similar activities?

              The court does justify admitting one video where he seems to threaten one of his pimp buddies into not testifying, the same buddy he attempted to place all the blame on in his defense. The fact this video was made right after his arrest helps show how it may be relevant.

              But it doesn’t even try to justify the others, which were “rapping about violence and pimping, generally” and seemingly made before the crime in question. The same videos also describe how rich and famous the singers are; should this be considered evidence by the IRS of tax evasion? Instead the court says “Well, they aren’t justified, but we don’t think they were prejudicial, therefore no harm no foul, whatever.”

              I don’t see the point in including those videos except as an attempt to influence a jury’s views of the guy.

          2. “If the girlfriend is willing to testify that he beat, robbed, raped, and pimped her out… what is the relevance of the song?”

            Because he will presumably be doing everything he can to say the girlfriend is a liar who hates him and is making everything up. Then you bring in his own words about how much he loves doing exactly what the girlfriend is testifying he does, and it makes her testimony more believable. Actual trials aren’t about holding up one piece of evidence and saying “Welp, we’re done here!”

          3. “If the girlfriend is willing to testify that he beat, robbed, raped, and pimped her out… what is the relevance of the song?”

            He’s not charged with wanting to be a pimp. He’s charged with trafficking one specific victim. Another victim testifying that he did the same thing to her doesn’t prove that he did it to the identified victim. But confessing to it sure does.

  11. Regarding the perfect crime it seems the remedy is to declare the Wyoming district unconstitutional and try the prisoner in the Idaho district.

  12. Who could have known way back in 1999 that a forensic examiner has to turn over exculpatory ballistic evidence to defense counsel? Second Circuit: You, Mr. Forensic Examiner. You could have. So the guys who served more than 17 years in prison for a robbery and murder they didn’t commit get to sue you.

    Good. Correct decision

    1. Well, let’s hold out and see how that civil suit comes out.

  13. “In addition to Floridians’ constitutional right to public access, Florida law also recognizes customary use. This was reflected in court decisions recognizing that, for instance, the inhabitants
    of a parish could place a maypole on another’s property and dance around it, Hall v. Nottingham, 1 Ex. D. 1 (Eng. 1875), and that parish inhabitants could play games and sports on another’s property because of established custom, see Fitch v. Rawling, 2 H. Bl. 393, 126 Eng. Rep. 614 (C.P. 1795). English common law has
    long recognized use of another’s property based on longstanding customs.”

    Good lord I’m glad I don’t live in Florida.

    1. “Good lord I’m glad I don’t live in Florida.”

      I’m sure this is a common statement by lots of people who don’t live in Florida. For you specifically, though, how horrible it would be if you could count on the fact that the owner of land had long tolerated certain uses of that land by others.

      1. About now, I’m glad I don’t live in Louisiana.

  14. Second Circuit: In which Andy Warhol violates copyright from beyond the grave.

    This is misleading. Warhol infringed the copyright when he took the photo of the plaintiff without paying her and used it to create artwork. He was very much alive then.

    The artwork he created to this day the Andy Warhol foundation maintains a copyright in, and will sue you if you use it without paying a license.

    Is copyright too long? Yes.

    Do I sympathize with a foundation that makes millions on licensing a dead man’s work, when that work itself ripped off someone else? No.

    1. “This is misleading. Warhol infringed the copyright when he took the photo of the plaintiff without paying her and used it to create artwork. He was very much alive then.”

      Taking a picture of somebody without paying for them has nothing to do with copyright. Well, except that taking a photograph creates a copyright in the photograph. Even I know this, and I’m a bored non-lawyer.

      1. Yes, but you didn’t correctly parse what he wrote. Warhol didn’t take a photo of the plaintiff in the sense of creating the photograph of the person; he took a photo that had been created by someone else, and used that photo to create a derivative work.

        1. I see what you mean.
          Had the original been written better, I might have gotten it directly, without assistance.

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