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.
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.