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.
While he was on the campaign trail, President Biden told voters that he would allow states to "continue to make their own choices" on marijuana legalization. So just why is the FBI trying to forfeit nearly $1.1 mil from California-legal cannabis businesses? Read all about IJ's latest forfeiture case in the Los Angeles Times.
- Plaintiffs: Various tech companies treated us badly because they didn't like what we had to say about vaccines. And they did this because Congressman Adam Schiff sent them a letter! D.C. Circuit: You've established that exactly one of those things is true. Case dismissed.
- The worst part of having the Venezuelan government nationalize your manufacturing company is having to figure out what counts as effective service under the Hague Convention after you sue the Venezuelan government for nationalizing your manufacturing company, as this D.C. Circuit opinion illustrates. (Ed. note: That is probably not the worst part.)
- DEA administratively subpoenas the program manager for New Hampshire's Prescription Drug Monitoring Program, demanding an individual's PDMP-kept prescription-drug records. Program manager: Pound sand. Your statute says you can subpoena "persons" and here, you're really subpoenaing the State of New Hampshire, which isn't a "person." First Circuit: All your theories are wrong. The subpoena was against you, not the state, and even if it were against the state, that'd be okay too. Plus, the rare First Circuit vocab nugget from a jurist other than Judge Selya: "semble." (Separately, First Circuit—Courier font? Still? Why? Is it because of the Massachusetts state courts? You don't have to stick with them on this. And this wouldn't be the first time you broke with the Massachusetts SJC on a matter of pressing nationwide significance. Remember when you split with them on the Fourth Amendment's protections for cell-phone data? And then the Supreme Court said you were in the right? You could do the same here, but with fonts.)
- Under the leadership of El Chapo, the Sinaloa Cartel supplied more illegal drugs to the U.S. than anyone in history, employing techniques such as murder, kidnapping, torture, and bribery. Mexico extradited the kingpin to the U.S. in 2017, where he was convicted of ten offenses and sentenced to five terms of life imprisonment. El Chapo: Here are ten reasons my convictions should be overturned (spanning the usual to the less typical, such as the indictment violated the extradition treaty between the U.S. and Mexico and that his attorney had a conflict of interest (made public by the attorney's sexual relationship with another client)). Second Circuit: No, ten times over.
- Hayley Paige wedding dresses are a $220 mil business for JLM Couture, with the designer appearing on "Say Yes to the Dress" and running popular social-media accounts. Yikes! Things start to sour in 2019; Hayley Paige Gutman (the designer) locks JLM out of the social-media accounts and starts outside work. JLM: The contract has a noncompete and gives us the right to the name and its derivatives. Second Circuit (over two partial dissents): The noncompete and name-ownership portions of the contract are enforceable. But ownership of the social-media accounts is fuzzy, and it's too soon to assign them to JLM.
- A pair of school mask-mandate cases from the Fourth and Eighth circuits (with dissents in both): South Carolina's law prohibiting the use of state funds to impose mask mandates survives (plaintiffs lack standing), while Iowa's similar prohibition is enjoined (for running afoul of the Rehabilitation Act).
- The Fourth Circuit is known for its cordiality—they shake hands with the lawyers after each argument—and that tradition is on full display in this False Claims Act decision. Majority: "We thank our friend for his thoughtful dissent," which takes a view that "is not sustainable under law or under any notion of notice and due process with which we are familiar." Dissent: "With respect for my colleagues in the majority," this opinion is further evidence for "[t]hose who believe that some judicial decisions usurp the power of elected legislatures by making the law rather than merely interpreting it" and the majority's "legal hand-waving cannot cover the stench here."
- When a pregnant teenager fell in the shower and broke her tailbone, her doctor prescribed her opioids. Later, a doctor for whom she worked gave her blank prescriptions and allowed her to write her own. Soon, she was hopelessly addicted, forging prescriptions, taking up to 80 pills a day, and selling pills. She gets caught and is sentenced to 210 months in prison. Fourth Circuit (en banc): And she needs to be resentenced for ineffective assistance of counsel; her lawyer inexplicably waived multiple meritorious objections to the sentencing calculation. Dissent: Would be nice to hear his side of things, which is why we normally handle this on collateral review, not direct appeal.
- The Wayback Machine is an amazing free resource that archives more than 651 billion web pages. But for all that, it is not—per the Fifth Circuit—so obviously reliable that its contents are subject to judicial notice.
- A few months back we shared with our readers the inspirational story of Texas A&M's original "12th Man," E. King Gill, and also the less-than-inspirational story of how Texas A&M straight-up stole a biography of Gill from its copyright owner. The first time around, the Fifth Circuit let the Aggies get away with it, holding that the school was entitled to sovereign immunity. But a bright spot appears! In this substituted opinion, the Fifth Circuit holds that they have no jurisdiction over an appeal by the Texas A&M employee most directly responsible for the theft, and the claims against him will thus go to trial.
- Lawyers spend thousands of hours litigating False Claims Act case that results in a settlement of more than $97 mil that expressly reserves the issue of attorney fees. The relators' share of that money was awarded to one relator and then distributed under a shared agreement to the other relators in the case. District Court: So no fees for the relators who received their money under the agreement instead of directly from the government. Sixth Circuit: Nothing in the statute requires that the relator get their share directly from the government to be entitled to fees. Everyone gets paid.
- In enacting the second round of the Paycheck Protection Program, the squares in Congress excluded strip clubs. Strip clubs: Which violates our First Amendment rights. District court: Sounds probably right—preliminary injunction! Seventh Circuit motions panel (Sept. 2021): Sounds probably wrong—preliminary injunction stayed. Seventh Circuit merits panel (Jan. 2022): Those motions-panel judges were sharp cookies—preliminary injunction vacated.
- Allegation: St. Louis, Mo. man was not protesting the acquittal of a police officer, was not involved in riotous behavior, and did not receive a dispersal order from officers. Yet, when he left his home near the scene of a protest, he was rounded up via officers' kettling technique, pepper sprayed, and arrested with zip ties (along with ~100 others). Eighth Circuit: No QI for the officers who participated in the kettling, even if they were following orders. And no QI for the supervisory officers who failed to intervene.
- University of Arizona student brings Title IX suit, alleging the university should be liable for taking insufficient steps to prevent physical abuse she suffered at the hands of her former boyfriend, a university football player who assaulted two former girlfriends (he's now serving five years). Ninth Circuit: No liability. The abuse took place at the player's off-campus apartment, where the university has no control. Dissent ("strong but respectful"): Players are only allowed to live off campus with university permission, and that's contingent on good behavior. They had plenty of control.
- Arizona inmate orders six rap/R&B CDs and two Nation of Islam texts. Prison declares the CDs unauthorized content because of the references to drugs, sex, and violence and declares the Nation of Islam texts unauthorized because they had previously been excluded for promoting racism and the superiority of one group. The inmate sues. District Court: All fine. Ninth Circuit: Not fine! The inmate has adequately alleged both that the unauthorized-content rule is enforced inconsistently (e.g., the prison library is full of romance novels) and that he sincerely believes the books are necessary for his observance of Ramadan.
- Are Roth IRAs excluded from Georgia debtors' bankruptcy estates? Bate your breath no longer, world. The Eleventh Circuit says yes.
- And in en banc news, the Eleventh Circuit will reconsider its decision striking down a 2014 Alabama law changing the judicial process by which a minor can obtain an abortion without parental consent so as to allow or require the participation of parents, the district attorney, and a guardian ad litem for the fetus, "transforming it from a proceeding that was designed to be more of an avuncular visit in chambers with the judge than an open court, call-your-first-witness affair."
- And in amicus brief news, IJ is asking the Supreme Court to affirm a Ninth Circuit ruling allowing constitutional claims to proceed against a CBP agent, who (among other things) allegedly assaulted a man after the man asked him to leave his property. In recent cases, the Court has suggested that such claims (which the Ninth Circuit found are the only remedy available to this plaintiff) are improper and ahistorical—a remnant of the "heady days" in the 1960s and '70s when the Court felt comfortable creating causes of action without the express approval of Congress. In the brief, however, we argue that claims for damages for violations of individual rights have always been a part of our legal system and that it's the Court's recent doctrine that is a break with tradition (and, moreover, that the Court should take the two IJ cases involving the same issue that are currently pending on cert). Click here to read the brief.
In 2015, then-Judge Gorsuch of the Tenth Circuit suggested that victims of government misconduct should look to state tort law rather than the Constitution to seek redress for their injuries: "Often, after all, there's no need to turn federal courts into common law courts and imagine a whole new tort jurisprudence under the rubric of § 1983 and the Constitution in order to vindicate fundamental rights when we have state courts ready and willing to vindicate those same rights using a deep and rich common law that's been battle tested through the centuries." This week, IJ released a study, 50 Shades of Government Immunity, that takes up that suggestion, examining each state's regime for civil rights enforcement—and finds them wanting. Click here to read it.