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.
In 2020, police in the city of Brookside, Ala., made more misdemeanor arrests than the number of residents. Over two years, revenue from fines and forfeitures increased more than 640 percent. But it's not the result of a sudden crime spree; it's taxation by citation. And now, it's IJ's latest class action. IJ Senior Attorney Bill Maurer has more in today's Washington Post.
- Readers may recall the controversy over the Department of Commerce's "contrived" campaign to add a citizenship question to the census. Are documents concerning census-related-backchanneling between Commerce and the DOJ required to be disclosed under FOIA? DOJ: Deliberative process privilege! District court: But Attorney General Sessions made his decision to request the citizenship question before the documents at issue were written, so those documents couldn't be "predecisional" (a requirement for the privilege to attach). D.C. Circuit: Yes, the documents postdated the bottom-line decision, but they related to how to articulate that decision. So DOJ gets to keep (most of) them secret.
- Federal judge in Puerto Rico appears to have a habit of varying upwards (that is, imposing sentences higher than recommended by the sentencing guidelines) in machine-gun-possession cases based on a sense that machine-gun-related crime is a bigger problem on the island than elsewhere in the United States. First Circuit: Those generic "community characteristics" cannot be the exclusive basis for varying upwards from the guidelines. Forty-eight-month sentence vacated and case remanded for resentencing withing the advisory prison range of 24 to 30 months. Concurrence: "my colleagues have effectively deprived district judges of the ability to align sentences with the perceived level of crimes in their communities, and hence with the requisite need for deterrence." But this result seems compelled by our precedent.
- Did Congress, through the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), abrogate the Eleventh Amendment immunity of the Financial Oversight and Management Board for Puerto Rico? First Circuit: Yes. So the Centro de Periodismo Investigativo (a nonprofit media organization) can sue the Board in federal court to seek disclosure of various agency documents under the Puerto Rico Constitution. Dissent: No way. (If Pennhurst piques your interest, this opinion may be worth a read. If not, maybe keep scrolling.)
- Participant in a New York armed robbery is sentenced to 100 months' imprisonment plus five years of supervised release, during which he cannot commit a new crime or else he'll go back to the clink. Alas, he commits more crimes, including assaulting his ex-girlfriend. But when she refuses to testify at his revocation hearing, the court relies on her signed statement to police and revokes his supervised release, sending him back for 28 months. Second Circuit: Seems fine. Dissent: He was sentenced to federal prison without a federal indictment for the assault, without the ability to confront accusers, without a jury trial, and without being found guilty beyond a reasonable doubt. None of this is okay, even if our circuit precedent says it is.
- New York man's debts are discharged in bankruptcy, including his mortgage. Nevertheless, his mortgage servicer continues to try to collect. He reopens the proceedings and obtains contempt sanctions against the servicer, which appeals and loses. District court: But no appellate attorneys' fees for the man, as the bankruptcy court lacks authority to grant them. Second Circuit: Contempt powers include assessing attorneys' fees. And while you're calculating those fees, consider whether he's entitled to fees for this appeal, too.
- Over an eight-day period in late 1979 and early 1980, two men went on a "Kill for Thrill" spree in western Pennsylvania, torturing and murdering their victims. Both were sentenced to death. One died in prison of natural causes. The other has been litigating habeas petitions since 1986. Third Circuit: His conviction and sentence stand. Dissent: Reviewing the records of his horrific childhood would've indicated to an effective attorney that a brain-damage test was necessary. His sentence should be vacated.
- Haitian man flees political violence, ultimately making his way to the U.S. But he didn't enter legally, and U.S. officials want him gone. Unlike many, he's able to hire an attorney to represent him. But the attorney provides only scant documentary evidence and fails to prepare the man for his hearing. He loses. Third Circuit: Ineffective assistance of counsel = new hearing.
- After Texas man dies in a crash with a semi-truck, his common-law wife sues the trucking company. Twist! Another plaintiff intervenes … a woman who also claims to be the man's common-law wife. During litigation the trucking company goes into bankruptcy and defaults on the lawsuit, leading both maybe-spouses to move for judgment. Can both get paid? Fifth Circuit: Texas doesn't recognize bigamy, so no. The man's first common-law wife wins.
- Safe to say that the Fifth Circuit is not impressed with this immigration lawyer, whose "repeated delays have resulted in a situation where Daughter must now effectively proceed as a minor orphan since Mother has died from a prolonged illness" (emphasis in original).
- In which the Eighth Circuit applies the ancient legal maxim "laches nihilum prohibet, socii," which means "laches doesn't prohibit anything, you guys" and is no less true for the fact that we made it up just now.
- Come for two opinions from this Eighth Circuit panel sparring over whether changed circumstances require it to vacate a preliminary injunction against Iowa's ban on mandatory public-school masking, stay for both of those opinions low-key agreeing that the ban doesn't affect these plaintiffs' children anyway.
- This Ninth Circuit case reviewing a denial of asylum is simultaneously so simple that it did not require oral argument and so complex that the three-judge panel generated four different opinions.
- Manufacturer of cannabis-derived vaping products sues a competitor for selling counterfeit versions of its trademarked products. The competitor concedes that it counterfeited the products but argues that the manufacturer cannot have a valid trademark, because marijuana remains illegal under federal law. Ninth Circuit: But this product isn't marijuana, it's hemp, which the 2018 Farm Act defines as containing less than 0.3% delta-9 THC by weight (it doesn't say anything about delta-8 THC, an isomer of delta-9 THC, which these products are loaded with).
- The American Rescue Plan Act gives money to states to help mitigate the effects of the COVID-19 pandemic, but prohibits states from using the money to offset tax cuts. Arizona sues, alleging that the law violates the Spending Clause and the 10th Amendment. But there's no concrete dispute between the parties yet. Does Arizona have standing? Ninth Circuit: Yes. Arizona has validly alleged a harm to its sovereign interest in being free from federal coercion over its tax policy.
- The Constitution guarantees criminal defendants the right to a public trial, but is it a sufficient substitute to provide a live audio stream at the height of the COVID-19 pandemic? Ninth Circuit: The Constitution required the district court to pivot to video, not just audio, streaming. Conviction vacated and case remanded for a new trial either in public or on, like, TikTok or something.
- Eleventh Circuit: This lawsuit seeking to prevent the city of Pensacola, Fla., from removing a Confederate monument may be a "topsy-turvy procedural mess," but its resolution is simplified by the fact that "the plaintiffs ultimately being sad about the cenotaph being taken down does not give rise to standing."
This week, the Tennessee Supreme Court rejected the lead claim in a lawsuit challenging the constitutionality of the Tennessee Education Savings Account Pilot Program, giving thousands of low- and middle-income families in Tennessee the ability to direct their children's educations as they see fit. The Institute for Justice, joined by the Beacon Center of Tennessee, intervened in the lawsuit on behalf of Tennessee parents to defend the ESA program's constitutionality against legal claims pressed by the governments of Nashville and Shelby County. The opinion from the Tennessee Supreme Court reverses the Court of Appeals and vacates the Chancery Court's 2020 ruling that held the program violated the Tennessee Constitution's Home Rule Amendment. Click here to learn more.