The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Amazon's algorithm, involuntary commitment, and anti-malaria medicine.


Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: IJ attorney and special guest host Josh Windham interviews Anthony Sanders, your regular host, about his smashing new book Baby Ninth Amendments.

And less new but still pretty new on the Short Circuit podcast: a special episode on the unwritten UK Constitution with two sceptical scholars from across the pond.

  • Man is involuntarily committed after threatening to kill a U.S. congressman. Years later, he's conditionally discharged, and though he breaks lots of rules at his halfway house, it's not obvious the violations mean he's especially likely to be dangerous to the public. Recommit him? Fourth Circuit: "While there have been profound developments in the science of risk assessment in the past three decades, they are unmatched by updated, corresponding legal guidance respecting how the inquiry ought to proceed for those under a federal civil commitment order. We thus write at some length."
  • Indian sailor working for Singaporean company contracts malaria in Gabon leading to the amputation of his gangrenous toes in Rio de Janeiro before his eventual return to India. He sues under the Jones Act, alleging that when the ship put into Savannah, Ga., it failed to stock up on anti-malarial medicine. The company evades process for 15 months before suing him in India, where he is denied a lawyer and jailed for continuing his American suit. Fifth Circuit (over a dissent): The district court properly enjoined the shipping company from continuing its suit in India.
  • This week on Nondelegation Doctrine Watch we journey to the Sixth Circuit, where a coalition of consumers, a nonprofit, and a carrier challenged how the FCC funds the Universal Service Program, Congress's method of ensuring all Americans can reach out and touch someone. The challengers claimed the scheme lacks an "intelligible principle" and that the outfit that calculates the program's fees is a private entity impermissibly wielding government power. To their arguments the court replied: "We disagree and DENY the petition for review."
  • Man who served as a lookout during a string of armed robberies of Detroit-area RadioShacks and T-Mobile stores wins at SCOTUS! The gov't's acquisition of his cell-site records was unconstitutional. But! Due to the good-faith exception to the exclusionary rule, his conviction is affirmed. And, due to the lack of a full retroactivity clause in the First Step Act, his 116-year sentence—which would be a 25-year sentence today—is affirmed, says the Sixth Circuit.
  • Pretrial detainee in a Cincinnati jail has a severe medical episode resulting from his sickle cell disease. Rather than send him to the hospital, jail personnel put him in a restraint chair alone in a room and then violate jail policy by insufficiently checking on him. They find him dead four hours later, and his family sues everyone involved. Sixth Circuit: Deliberate-indifference claims should go to the jury against the nurse and guard most culpable, but everybody else gets qualified or municipal immunity.
  • In which the Seventh Circuit gives some grief to a district court that should have held a hearing on whether an aggrieved prisoner could have appealed a grievance decision he says he never got.
  • Illinois prisoner: I spent an extra year in prison because correctional officials couldn't be bothered to do their job of approving my place to live on parole. Correctional officials: Why the Heck should we be held responsible? They're not just avoiding a mild swear, but invoking a doctrine that prevents civil-rights plaintiffs from bringing claims that would call into question the validity of their sentence. Seventh Circuit: This doctrine can be heckin' confusing, but it doesn't apply to the claims here against the dilatory officials. Those claims don't question the prolonged imprisonment itself, but just seek compensation for the bad behavior that caused it.
  • Missouri police see truck leaving suspected drug house and radio for another officer to stop the truck. An officer pulls the truck over for having expired tags, discovers that the driver's license is expired and he has no proof of insurance, and soon thereafter discovers six pounds of meth. Wait a second! The truck's tags weren't expired! They were good for another month! Eighth Circuit: The initial stop violated the Fourth Amendment, but that's okay because it was an honest mistake and the guy had an expired license. Concurrence: Nonsense! The stop was fine because he was seen leaving a drug house. Dissent: The stop was unconstitutional and the drugs should be suppressed.
  • In 2021, Senator Elizabeth Warren sent a letter to online retailer Amazon, chiding them for their algorithm's recommendation of The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal. The book's publisher and authors (including Dr. Joseph Mercola and Robert F. Kennedy, Jr.) sue, alleging that Sen. Warren violated their First Amendment rights. The district court denies a preliminary injunction and the plaintiffs appeal. Ninth Circuit: The First Amendment prohibits the government from coercing booksellers to stop promoting a book, but this was more in the nature of persuasion.
  • A handy shortcut for figuring out whether the Rooker-Feldman doctrine bars a case is to ask whether the plaintiff's name is William Rooker or Marc Feldman. If it isn't either of those, you're probably safe. So it is in this case out of the Tenth Circuit, in which the court holds that the Rooker-Feldman doctrine does not bar a class action brought by former Oklahoma criminal defendants who allege that the drug/alcohol treatment program into which they were diverted was basically just slave labor for private companies.
  • And in en banc news, the Sixth Circuit will not reconsider its decision that the American Rescue Plan Act of 2021 is unconstitutionally vague in how it forbids states from lowering taxes to offset the receipt of federal money. Statement Regarding the Denial: The panel was right, and the dissental is wrong. And I'm going to call it a dissental. A lot. Like almost a dozen times. Because dissental is a word. Dissent: This is a dissent. The official heading calls it a dissent. I think the petition for en banc review should be granted. And I do not use "dissental" at all.

Don and Sally Garrett live on land in Sparta, Ga. that's been in Don's family since the 1800s. Their neighbors, Blaine and Diane Smith, live on land that was once part of a cotton plantation where Blaine's great-grandmother was born a slave and that has been in the family since the 1920s. Their land is not for sale. But a private company that operates a rock quarry nearby wants to use eminent domain to build a new railroad line right through the heart of their properties and those of over a dozen others. But is a railroad spur (operated by a different private company) that only services one customer a public use? This week, IJ joined forces with the Garretts and Smiths and urged the Georgia Public Service Commission to say no and deny the railroad the authority to use the state's power of eminent domain. Click here to learn more.