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.
- Plaintiffs: Amtrak has started including an arbitration requirement in the terms and conditions of every ticket it sells, in violation (say we) of the Petition Clause, Article III of the Constitution, and all that is good and holy. D.C. Circuit: What say you guys fight about all this once Amtrak actually tries to make you arbitrate something? Case dismissed.
- Do three stray Supreme Court comments have the requisite Big Dicta Energy to control the outcome of this challenge to bond procedures used to detain noncitizens during the pendency of removal proceedings? First Circuit (over a dissent): They do indeed, and they tell us that class relief is unavailable.
- Nice elder-care facility you have there. Be a shame if someone mixed up patient identifying information (including patient wrist bands, door name plates, and dietary requirement documents), altered medical records, damaged or hid medical equipment, and vandalized laundry equipment. Third Circuit: A reasonable jury could infer that union members—who went on strike the next day—were responsible for the vandalism, but the unions themselves can't be held liable without clear evidence that they were directly involved. Dissent: That same jury could find that the unions' encouragement of "greater and more militant" activity immediately before the sabotage meets this standard.
- Pound, Va. inmate tussles with two prison guards, leaving all three injured. Inmate (2015): Roll the video—it shows I was shackled on the floor while the officers injured each other. Prison officials: Nah. We'll just believe the guards' testimony and strip you of nine months of good-time credit. Fourth Circuit (2019): Inmates facing the loss of good-time credit have a right to the video. Fourth Circuit (2021) (over a dissent): But that doesn't apply retroactively, so the inmate is out of luck.
- Internet troll Chuck Johnson—who once stated that he "agree[d] with [Holocaust revisionist] David Cole about Auschwitz and the gas chambers not being real" and that he "do[es] not and never ha[s] believed the six million figure" of Jews killed in the Holocaust—sues HuffPost for libel over an article calling him a Holocaust denier. Truth is an absolute defense? Fifth Circuit: Don't even need to get that far. HuffPost is based in New York and incorporated in Delaware; can't sue them in Texas just because that's where you read the article. Dissent: HuffPost isn't found in Texas by accident; it actively courts Texas readers and runs Texas-specific advertising. That's enough for jurisdiction.
- "The Wegbreits' rambling brief spans 78 pages yet somehow develops only two coherent arguments remotely related to the tax court's decision. And those two arguments are baseless." Not a great start for the Wegbreits or their lawyer, the latter of whom must show cause to the Seventh Circuit for why he shouldn't be sanctioned for filing a frivolous appeal (after having been warned about this sort of thing before).
- Another life tip via the Seventh Circuit: If you are going to steal tens of millions of dollars from a family whose assets you manage, naming your kids after your victims might be seen as "aggravating." 200-month sentence affirmed.
- Relatives of workers who died after allegedly contracting COVID-19 at Waterloo, Iowa pork processing facility in March and April 2020 sue Tyson Foods in state court for fraudulent misrepresentation and gross negligence. Tyson: The feds encouraged us to keep the plant open to keep grocery store shelves stocked, so this case should be removed to federal court. Eighth Circuit: Nope, it goes in state court.
- Google Street View provides panoramic street-level pictures from across the world, which it obtained from special camera cars. Google: Whoops, our cars also took substantive info, like passwords, photos, and documents, transmitted over unencrypted Wi-Fi. Much litigation ensues. A class action covering 60 million people settles for $13 mil, with the money going to attorneys' fees, various costs, and an assortment of nonprofits that promise to use the money "to promote the protection of Internet privacy"—and not a penny to the people whose privacy was violated. Ninth Circuit: That's fine. Concurrence: It's time for us to reconsider our precedent okaying monetary awards to third parties instead of damages for class members.
- After a jury finds St. Petersburg, Fla. oncology practice knowingly billed Medicare improperly on 214 occasions, defrauding the feds of a total of $755.54, the district court orders the practice to pay $1.17 mil ($350k of which goes to the practice's billing manager, who blew the whistle). An unconstitutionally excessive fine? Eleventh Circuit: It might be a "very harsh" fine. But it's not excessive. Two-judge concurrence: It seems like our precedent on what counts as excessive is too deferential to Congress—"a bit like letting the driver set the speed limit."
- And in en banc news, the Tenth Circuit will not reconsider its decision that individuals born in American Samoa are not U.S. citizens. Judge Bacharach, dissenting: "We bear an obligation to interpret the geographic scope of the Citizenship Clause based on the text and its historical context. When we do, there is only one answer: The Territory of American Samoa lies within the United States."
To comply with Pasadena, Texas's minimum parking ordinance, Azael Sepulveda, who runs a one-man, by-appointment-only auto repair business, must add 23 parking spaces outside his shop. That's a prohibitively expensive and totally unnecessary burden on Azael, who has a reputation for honest and high-quality service (don't take our word for it) and a YouTube channel with over 73k subscribers. So this month, IJ and Azael joined forces to challenge the law under the Texas Constitution. Click here to learn more.