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: IJ attorneys Jeff Rowes and Diana Simpson talk judicial activism on Skid Row and insuring lost business income during the pandemic.
- Just in time for Spooky Season, the Second Circuit reanimates screenwriter Victor Miller's copyright in the horror blockbuster Friday the 13th, holding that Miller was an independent contractor—not an employee—when he wrote The Long Night at Camp Blood, a script that has "since spawned eleven sequels, among other [extremely] derivative products."
- For decades, Indian Health Service pediatrician sexually abuses his patients. Must the IHS turn over a report that details the agency's numerous failures—in the pediatrician's case and others—to the press? IHS: Nope, the report is a "medical quality assurance record" and so is exempt from the Freedom of Information Act. Second Circuit: Turn it over.
- Appellant: 16 years ago, the SEC refused to settle my civil-enforcement case unless I promised never to criticize them for prosecuting me. I agreed way back then, but now I want out. Second Circuit: Dammit, Jim, we're an appeals court, not a time machine!
- Searcy, Ark. man is arrested for murder based on a warrant affidavit that included witness's incriminating testimony, but not his later recantations. Eighth Circuit: No qualified immunity for three police officers. The prosecutor may have advised in drafting the affidavit, and the magistrate may have issued the warrant, but it was the officers who crafted and signed the "misleading" document.
- Allegation: Vancouver, Wash. police chief repeatedly investigates one of his officers to delay her promotion to sergeant. Officer: This was gender discrimination. Chief: Even if there's proof I was motivated by her gender, she still has to identify similarly situated men I've treated differently. Ninth Circuit: The chief is "profoundly mistaken." No QI.
- Douglas Adams' fictional detective Dirk Gently believed in the "fundamental interconnectedness of all things." So he would have loved this lawsuit by the City of Oakland, Calif. against Wells Fargo, alleging that its discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates, which in turn drove down the assessed value of properties, which in turn led to reduced property-tax revenue and increased municipal expenditures. At the very least, he probably would have liked it more than the en banc Ninth Circuit, which takes a less holistic view of proximate causation.
- Environmental group sues Vacaville, Calif. because its drinking water contains hexavalent chromium (that stuff from the 2000 Julia Roberts blockbuster Erin Brockovich). Their theory? When you turn on the tap, that's the city "transporting" "solid waste" that wood-treatment facilities buried in the ground 40–50 years ago. Ninth Circuit: Sounds like a valid cause of action. Dissent: It is not. And besides being wrong, Plaintiff waived this argument by not presenting it below.
- Nevada inmate is brought up on disciplinary charges for smuggling meth into prison in hidden compartments in envelopes. The inmate—who claims to have been framed—requests to inspect the envelopes, which is denied. He's found guilty, delaying his consideration for parole by two years. Ninth Circuit: Which, if true, violated his clearly established rights under the Due Process Clause. Dissent: Well now it's clearly established.
- Colorado man guilty of sexual assault faces two punishment possibilities: 24 years behind bars, or an indeterminate period lasting anywhere from one day to life. The court chose the latter. Man: I've now been imprisoned for over 37 years—give me a new hearing to keep confining me. Tenth Circuit: No. Dissent: This is a commitment, not a sentence, and commitments (whether civil or criminal) require hearings.
- In providing the Pulse nightclub shooter access to jihadist content, did Facebook, Twitter, and YouTube aid and abet international terrorism? Eleventh Circuit: No. It was neither international in scope (the shooter was radicalized and then acted in Florida), nor planned by ISIS (despite claiming credit afterward), so no international terrorism—and thus nothing to aid and abet—under the Anti-Terrorism Act.
- Alpharetta, Ga. is home to the Old Soldiers Day Parade, a gov't funded event honoring "all war veterans … who have defended the right and freedoms enjoyed by everyone in the United States of America." The Sons of Confederate Veterans asks to participate, a request that is granted so long as they do not fly the Confederate battle flag. They sue, alleging a First Amendment violation. Eleventh Circuit: The parade is government speech, and "governments are not obliged … to permit the presence of a rebellious army's battle flag in the pro-veterans parades that they fund and organize."
After a long battle with addiction, Rudy Carey completed rehab 14 years ago, turned his life around, and found his calling as a substance-abuse counselor. But in 2018, state officials told the Fredericksburg, Va. facility where he'd worked for five years that it was illegal for someone with his old criminal record to work as a substance-abuse counselor anywhere in the state. So this week, Rudy teamed up with IJ to challenge the state's ban in federal court. Laws, at a minimum, must be rational. And barring well-qualified counselors like Rudy because of old and irrelevant offenses without regard to their present-day circumstances is anything but. Click here to learn more.