The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Short Circuit: A Roundup of Recent Federal Court Decisions

John, Paul, George, and Ringo; foreign agents; and warrantless home searches.


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

New SCOTUS victory! Friends, it is very bad and wrong for gov't officials to arrest people in retaliation for their speech, and yesterday the Supreme Court issued a deeply important ruling on what kinds of evidence can be used to prove up a retaliatory arrest claim. The Fifth Circuit had held it wasn't enough that our client, Sylvia Gonzalez, was jailed for a "crime" that never results in arrest via irregular and inappropriate procedures after she championed a petition to oust Castle Hills, Tex.'s city manager. In vacating that ruling, SCOTUS ensured that people slimed, falsely accused, and jailed in retaliation for speaking out against the authorities can have their day in court. Click here to learn more.

New on the Bound By Oath podcast: In Kelo v. New London (2005), the Supreme Court allowed officials to seize and raze an entire neighborhood of well-maintained homes and businesses in the hopes that someone else could build fancier homes and businesses. On this episode, we ask: what, if anything, is left of the Fifth Amendment's prohibition on using eminent domain to take property from Person A merely to give it to Person B?

  • In 2017, at the behest of the Chinese government, U.S. casino magnate Steve Wynn lobbied Donald Trump to extradite a Chinese businessman. Trump demurred—reportedly after learning that the businessman was a Mar-a-Lago member—and Wynn told the Chinese he couldn't help anymore. The following year, the feds told Wynn he was required to register as a foreign agent. Wynn refused, and in 2022 the feds sued to compel Wynn's registration. D.C. Circuit: Registration is only required for someone who is a foreign agent. Wynn was a foreign agent. Case dismissed.
  • The Digital Performance Right in Sound Recordings Act of 1995 entitles recording artists featured on sound recordings to a 45 percent share of certain royalties generated by the recordings. When the former lead singer of the wildly popular Puerto Rican band El Gran Combo asks for his share, the record label protests that he is not the recording artist—El Gran Combo (owned by the label) is the recording artist. First Circuit: "If you think that Paul, John, George, and Ringo were 'the recording artist[s] . . . featured' on the White Album—even though that iconic record's cover mentioned none of The Beatles by name—then you will not be surprised by the analysis that follows."
  • A procedural rat king in which the litigants in a False Claims Act suit back in 2010 file a bunch of summary-judgment documents under temporary seal, settle the case before the trial court rules on the summary-judgment motions, and never get around to asking to permanently seal the temporarily sealed documents. After which, in 2023, a documentarian demands access to the still-sealed records. District court: I never ruled on the summary-judgment motions, so there's no public right of access to the materials. Fourth Circuit: No way. "The public has an interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves." Remanded, so the district court can consider whether keeping the documents under seal is justified by a compelling governmental interest.
  • Cuba's Arechabala family started producing rum in the 1930s that it exported to the U.S. under the Havana Club trademark. Following the Cuban Revolution, the Castro-led gov't stole the family's assets, including the Havana Club trademark. The family's trademark expired (a trademark has to be renewed every ten years via paperwork and fees), and a Cuban-gov't-owned company registered the trademark for itself. The Cuba-owned company missed its renewal in 2006 because of a trade embargo—but the feds let the company renew anyway. Bacardi, which bought the family's interest in the trademark and has been fighting to reclaim it for 20 years, sued the feds. District court: There's no judicial review of an agency decision to renew a trademark. Fourth Circuit: Oh yes there is.
  • In 2020, USA Today published a deep dive into sexual misconduct allegations in the LSU athletic department, including that the school swept rape and dating violence allegations against star football players under the rug. Seven years before, the school had hired a law firm to conduct a Title IX investigation into sexual harassment allegations against its football coach. The report was kept confidential, allegations privately settled, and the coach "cleared of any wrongdoing" while being urged to refrain from one-on-one contact with students. Following the USA Today article, an athletic director sued the school's board of supervisors (raising Title VII and IX claims) and two partners at the firm who conducted the investigation (alleging that the partners were part of a RICO scheme to suppress the complaints). Fifth Circuit (2023): No RICO. While that appeal was pending, discovery continued apace on the Title VII and IX claims, and the district court compelled the depositions of the partners and the disclosure of documents from the 2013 report under the crime-fraud exception to attorney-client privilege. Fifth Circuit (2024): There's no crime, so no crime-fraud exception.
  • Like sands through the hourglass, so are the appeals of the Fifth Circuit. Last time we encountered an ongoing challenge to a new CFPB-credit-card rule a Fifth Circuit panel mandamized the district court because it lacked jurisdiction to transfer the case to the District of Columbia. It also suggested that district courts should stay their transfer orders a teeny-weeny bit to give time for an appeal. District court (after remand): I'm transferring this puppy again and I ain't staying nuthin'. Plaintiffs (later that night): Um, stay please. Fifth Circuit (after another appeal): Mandamus! Transfer was not complete because it wasn't docketed yet in D.C.
  • Texas inmate: Prison guards sodomized me with a pencil, which ruptured my colon. Guards: Did not! Fifth Circuit (unpublished): He did indeed exhaust his administrative remedies before filing suit. Case un-dismissed.
  • Voting rights activists challenge a Texas election law, suing, among others, the Texas AG. Separately, the Texas Court of Criminal Appeals (2021) says it violates the Texas Constitution to give the AG primary enforcement powers. District attorneys have those. Activists: Oh, OK, we'll amend our complaint and sue the DA for Harris County. Harris County DA: "Sovereign immunity!" Fifth Circuit (2024): Exactly. Even though the DA can enforce these voting rules she doesn't have to so she's not the proper party to sue, even though the state court implied you really shouldn't be suing anyone else. "This is not absurd."
  • Following the Supreme Court's 2020 ruling in Bostock v. Clayton County that Title VII prohibits discrimination on the basis of sexual orientation or gender identity, the Department of Education published a new interpretation of Title IX in 2021, holding that Title IX's prohibition of sex discrimination in educational programs that receive federal funds similarly prohibits discrimination based on sexual orientation or gender identity. Twenty states sue and are granted a preliminary injunction. Sixth Circuit: Affirmed. The new interpretation should have gone through notice and comment. Dissent: The new interpretation doesn't have the force of law, so there's no standing.
  • Starting in at least 2007, Oklahoma has allowed transgender people to obtain Oklahoma birth certificates with amended sex designations. In 2021, the governor issued an executive order directing the Department of Health to stop amending sex designations. Three transgender Oklahomans sue. Tenth Circuit: This is sex discrimination and thus might get heightened scrutiny, but it fails even rational-basis scrutiny. Dissent: It's not clear that all discrimination against transgender people is sex discrimination, but it doesn't really matter because, yeah, it fails rational-basis scrutiny.
  • In which the Eleventh Circuit explains that you can have Fourth Amendment protection from warrantless searches of your home or you can live with your boyfriend who's on probation, but you definitely can't do both.
  • Honduran citizen is nabbed by border patrol a day after crossing the Rio Grande illegally. She (or, more precisely, her Miami-based boyfriend, with whom she planned to live) gives agents the address where she plans to live. But the address contains a small but critical error: a missing "SW." So when immigration officials eventually mail out a notice setting the date and time for the woman's removal hearing she doesn't receive it. Yikes! She doesn't show up for the hearing and is ordered removed in absentia. Woman (sixteen years later): Since I never received the notice, the removal proceedings should be reopened. Eleventh Circuit: Nope. The burden was on you to provide the correct address.
  • And in en banc news, the Sixth Circuit is going to reconsider its decision telling Ohio's AG to certify a proposed state constitutional amendment to eliminate qualified immunity (and other immunities) so that its sponsors can begin collecting signatures. (The AG had declined to certify it six times, finding various reasons why the summary of the amendment wasn't "fair and truthful.")

New case! Last year, Arkansas legislators created the Education Freedom Accounts program, which provides up to $6.8k per student to cover certain education expenses, including private school tuition, tutoring, and therapy. Though eventually all students will be eligible for the program, currently it is only available to students with a disability, current or former foster care children, the children of military members and first responders, and more. Sadly, however, the program is the target of a lawsuit, and IJ is intervening on behalf of families to defend it. "Before I received my Education Freedom Account, my son was being bullied and struggling academically, but now I have the resources to put him into a school where he's thriving," said Erika Lara. "Taking away this program would put my son's academic and social progress in jeopardy." Click here to learn more.