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 Wednesday, December 8, the Supreme Court will hear Carson v. Makin, an IJ case, and consider whether states that offer tuition assistance to families for use at private schools can bar those families from choosing schools that teach religion. Click here to learn more. Or perhaps click here for a podcast where we do our goshdarn level best to persuade skeptics of the virtues of school choice.
- After unsuccessfully seeking an unredacted copy of the 2016 Mueller Report through a FOIA request, the media outlet Buzzfeed sues the Department of Justice. On appeal, Buzzfeed challenges only the district court's decision to uphold the redaction of information about unidentified individuals—*cough* Don Jr. *cough*—implicated in but not charged with campaign finance violations. D.C. Circuit: Buzzfeed can't get most of what it wants, but it can get the detailed discussion of DOJ's charging decisions.
- When the M/V Galani hit the M/V Marina in the Paros-Antiparos Strait, a woman named Curtis with wounds most injurious brought suit in the United States. Facing disaster, the Galani's master claimed forum non conveniens. The First Circuit said no and that's how it would go; so here in the States he defends.
- In which the First Circuit reminds young people that, although they have a First Amendment right to be jerks, there are limits to their right to be jerks in public school.
- Did a company fail to effectively enforce safety rules by not disciplining an employee who obeyed his direct supervisor's order to go into an unsafe trench? (It disciplined the supervisor.) OSHA: Close call, but yes. Fifth Circuit: Affirmed. Dissent: Close call? Closer to a deranged call.
- Parents of children with disabilities challenge Texas's order prohibiting mask mandates. District court: The mask-mandate ban violates the ADA and may not be enforced. Fifth Circuit: The ban's ban may not take effect while we consider it more fully.
- In 1988, three women are abducted, sexually assaulted around Miami Township, Ohio. Detectives rule out a tip about a GM security guard, which came in from a vindictive supervisor and didn't match the evidence of the crimes. A new detective takes over the investigation, replaces the original report eliminating the guard as a suspect with a report identifying the guard as a key suspect, creates a bad photo lineup, and fabricates evidence. The guard is convicted, spends over 20 years in prison before he's exonerated. He sues. Detective: Qualified immunity? Sixth Circuit: The claims can go to trial.
- In serious-blows-to-the-ego news, the Sixth Circuit holds that a Michigan lawyer has failed to allege that he has any real prospect of "seduc[ing or] debauch[ing] any unmarried woman" and thus lacks standing to challenge a Michigan statute forbidding him from so doing.
- After the Oakland Raiders relocated to Las Vegas, Oakland sued the franchise, the NFL, and every other NFL team for violating antitrust law by engaging in a group boycott and price-fixing. Ninth Circuit: Well, there's no group boycott because the Raiders were the only team that refused to do business with you. And you don't have antitrust standing for the price-fixing claim. Concurrence: Antitrust standing?! Their theory is that if the NFL had more lenient rules for league expansion, then there would be more applications for new teams, the NFL would admit more teams, a team would already occupy Las Vegas, and thus the Raiders would not have been able to find a better host city. That's so speculative they don't even have constitutional standing.
- Opinions abound in this ruling from the en banc Ninth Circuit upholding California's ban on "high-capacity" magazines (i.e., those capable of holding more than 10 rounds). Judge VanDyke "respectfully" dissents, noting that the Circuit's Second Amendment decisions together imply the "ridiculous" result that "the right to 'keep and bear arms' means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key."
- Title VII forbids employers from retaliating against employees for opposing employer conduct they reasonably believe violates Title VII. But can their belief still be reasonable if they're just flat-out wrong on the law? Two-thirds of this Tenth Circuit panel says sometimes!
- After some highly technical parsing of Section 204 of the Trade Act of 1974, the U.S. Court of International Trade finds that the imposition of certain tariffs on imported solar modules to be "outside the President's delegated authority." (Learn more about this neat little Article III court, and the latest on the Trump-Biden tariffs, on the most recent Short Circuit podcast.)
- And in en banc news, the Fifth Circuit reverses a panel decision that stayed a district court's injunction of a policy permitting federal officials to prioritize, without explicit authorization from Congress, which illegal immigrants to investigate and deport. The policy is on hold pending appeal.
- And in more en banc news, the Sixth Circuit will reconsider its decision upholding a preliminary injunction of a Tennessee law that bans any abortion when a physician "knows" it's "because of" the fetus's race, sex, or Down syndrome diagnosis and, also, that prohibits any abortion once a fetal heartbeat is detected. (And if that is struck down, at six weeks. And if that is struck down, eight weeks. And if that is struck down, ten weeks. And so on through 24 weeks.)
- And in further en banc news, the Sixth Circuit will not reconsider its decision sending to a jury the question of whether Scott County, Tenn. can be held liable for denying medication to a pretrial detainee who suffered a slew of seizures and drank out of a toilet. Judge Readler, dissenting from denial of review, cautions against "transforming constitutional prohibitions against punishment into a 'freestanding right to be free from jailhouse medical malpractice.'"
Highway robbery! Earlier this year, Nevada Highway Patrol officers seized IJ client Stephen Lara's life savings on the side of the road. He was not ticketed or given a warning—much less arrested or charged with a crime. Click here to watch bodycam footage of the stop and query whether the highway patrol is really in the business of protecting and serving or, say, ripping off law-abiding folks. And then click here to read about Stephen's challenge to the Nevada Highway Patrol's participation in the federal "equitable sharing" program, which lets state agencies evade state law and process forfeitures under federal law.