The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal
Predatory incursion, financial fraud, and taking your gun to a fandango.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition! According to the Alaska Supreme Court, it's a-okay to forfeit bush pilot Ken Jouppi's $95,000 airplane over a passenger's six-pack of Budweiser. According to us, that's wrong. And sharpens a division among the state and federal courts. And is a compelling candidate for Supreme Court review. Sit back, relax, and enjoy this breezy read about the most excessively fine clause in the Constitution.
- In March 2025, the EPA cancels "Green New Deal" grants for clean-energy infrastructure. The grantees sue in the federal district court in D.C., which issues a preliminary injunction. D.C. Circuit (over a dissent): Yeah, but the legitimate claims are just "the gov't didn't pay me." That's breach of contract, so get thee to the Court of Federal Claims. (Which is like an eight-minute drive up Pennsylvania Avenue, but, legally, they're worlds apart.)
- Liars and deltas and rands, oh my! For a federal appeals court, the Second Circuit has a pretty lively tale of financial fraud involving a trader trying to shave 0.6% off the dollar–rand exchange rate to trigger an option worth $20 million. Your editor, who needs to get ready for a moot, doesn't feel like summarizing all six of the trader's claims on appeal. But when the court quotes him early on as telling a subordinate "to start fucking around," reversal seems like a risky bet.
- In prison-condition news from the Second Circuit, qualified immunity is still hard to overcome. If the prison offers zero penological justification for denying access to a Native American religious service, yeah, maybe that claim can get through. Unclear, though, whether the prisoners cared more about that than the quasi-solitary confinement and the toilets that stop flushing for hours.
- Elon Musk fired thousands of employees when he took over X (formerly, and forever in our hearts, Twitter). Former employees have claims that (per an arbitration agreement) they try to arbitrate. X disagrees about how much it has to pay toward the arbitration and only ponies up half, so no arbitrator is appointed. District court: That's failure to arbitrate. Second Circuit: Really better for the arbitrator to decide that.
- In which the Third Circuit holds that Rooker-Feldman applies the same way in bankruptcy courts as in any other federal court, i.e., never.
- In 2022, Congress enacted a law directing the Centers for Medicare and Medicaid Services to negotiate drug prices for certain drugs that lack a generic competitor. Drug companies sue, alleging that the law is an unconstitutional taking of property, compels speech, and imposes unconstitutional conditions on participation. Third Circuit: Companies are free not to participate in Medicare Part D. Dissent: Companies that make that choice face excise taxes of up to 1,900%, which means their freedom not to participate is illusory.
- New Jersey man—charged as a felon in possession—refuses to enter into stipulation regarding an earlier conviction, despite his lawyer's advice that he do so. So the judge allows the gov't to introduce evidence about that previous conviction to prove elements of the crime. The man is found guilty and appeals, arguing that the district court abused its discretion by allowing in the evidence despite his lawyer's offer to stipulate. Third Circuit: The Sixth Amendment gives you the right to "assistance" of counsel, but if you overrule your counsel, that's on you.
- In honor of the late Judge Bruce Selya, we share this admiralty decision out of the Fourth Circuit, which taught your summarist a new vocabulary word: Allision, n., a collision between a ship and a stationary object. E.g., "The tugboat owner's invocation of the Exoneration and Limitation of Liability act to limit its liability for the tug's allision with a Maryland bridge was not barred by sovereign immunity."
- In 2022, Nigerian man is tricked into a terrorist camp, where he serves as a line cook for several months before escaping. He ends up in the U.S. and requests asylum. But must he be deported for having provided "material support" to terrorists? Fourth Circuit: Converting pre-purchased raw ingredients into food isn't really material support. Dissent: "An army marches on its stomach"! Majority: "Our good colleague apparently enjoys bombast for law—wielding rhetorical flourishes about Napoleon's alleged digestive wisdom." (Meanwhile, the gentleman was removed to Nigeria in April 2025; whether Immigration and Customs Enforcement should now facilitate his return is left to the agency's discretion.)
- Maryland initially makes its new cannabis licenses available only to "social equity applicants." Among various other criteria, a social equity applicant includes companies that are at least 65% owned by folks who went to a Maryland college where at least 40% of students were eligible for Pell Grants. Californian: I went to a California college that fits that description. Maryland: No dice. Fourth Circuit: No Dormant Commerce Clause violation here. That the only qualifying universities are in Maryland does not require Maryland residency.
- "Predatory incursion" may sound like a pulp fiction novel with an odd mix of humans and animals on the cover. In fact, it's been in U.S. law since the Directory governed France. And if it happens the President can swiftly kick "alien enemies" out of the country. But has it or an "invasion" happened? Fifth Circuit: Stop trying to make predatory incursion happen; it's not going to happen. Oldham, J. (dissenting): I'm more a post-Directory kind of judge.
- Man dining at a Waffle House in Terrytown, La., elides into a verbal altercation with another customer. He then pulls a green pistol from his backpack, making his conversation partner fear for his life. Two weeks later a cop finds out the suspect is at his girlfriend's apartment, where he seems to also be living. Cop obtains a search warrant. In the search they then find a gun, drugs, and ammo. Suppress the evidence? Fifth Circuit: Yes. You had probable cause he did a bad thing at the Waffle House but "probable cause to arrest is not probable cause to search." Warrant was threadbare and exclusionary rule applies. Dissent: C'mon, the guy was living there.
- Louisiana pretrial detainee with a prosthetic eye tells the jailers about his chronic condition. At first medical staff help him and schedule a follow-up "wound care appointment." But then no one comes to bring him to it. Weeks go by. The detainee complains, but all looks fine after a deputy falsifies a form where it looks like the detainee refused medical treatment. Eventually he files a pro se complaint. District court: This seems fine. Fifth Circuit: Not so fine. Case undismissed.
- If you thought there was no way the Fifth Circuit was going to find that some provisions in a new Texas voting law violated the Voting Rights Act then you were right (although over a dissent).
- Illinois prohibits those with concealed-carry licenses from carrying on public transportation. A Second Amendment violation? Seventh Circuit: Nope, there were historical limitations on the right to carry guns in confined, crowded spaces, such as New Mexico's 1852 prohibition on carrying arms at any "Ball or Fandango."
- Today in implausible exculpatory arguments, Illinois man convicted of being a felon in possession argues—among other things—that he was trying to hide drugs above a ceiling tile in a gas-station bathroom and it is a total coincidence that a gun was also found there. Seventh Circuit: Not buying it. Nor did you have a privacy interest in the unlocked, out-of-order bathroom.
- Minnesota enacts a law that prohibits employers from taking any adverse employment action against an employee for declining to attend meetings or receive communications from their employer about religious or political matters. Companies that would like to hold meetings with their employees—probably to discuss unionization—sue, alleging the law violates the First Amendment. State AG: I'm not planning to enforce the law at present. Eighth Circuit (over a dissent): Oh, well then case dismissed.
- A "sideshow" is an informal and usually illegal demonstration of automotive stunts often held at public intersections. Alameda County, Calif., not content with existing law banning the reckless driving, adopts an ordinance prohibiting people from watching sideshows within 200 feet. Reporter who writes about sideshows challenges the law as applied to his reporting. District court: The First Amendment does not apply to his newsgathering and reporting activities. Ninth Circuit: Incorrect. Preliminary injunction granted.
- Since 2021, more than 600k Venezuelans living in the country have received Temporary Protected Status, allowing them to live and work in the United States for renewable periods of six to 18 months. On Jan. 17, 2025, outgoing DHS Secretary Alejandro Mayorkas extends the TPS designation for 18 months. Seventeen days later, newly confirmed DHS Secretary Kristi Noem vacates the extension. Lawsuits ensue and a district court enjoins the purported vacatur. Ninth Circuit: And correctly so. The law does not permit granted extensions to be revoked.
- Defendant: My machineguns are protected by the Second Amendment because machineguns are commonly used for self-defense! Tenth Circuit: No, they aren't.
- Does the Second Amendment permit the gov't to forbid a person under indictment from receiving firearms? Tenth Circuit: Yup! At the Founding, the gov't could throw the indicted person in jail and totally disarm them, which seems, y'know, worse than this. [Editor: D'oh! Thanks to commenter ducksalad for catching a now-fixed flub in this one.]
- In which the Tenth Circuit reminds us that a plaintiff mounting a pre-enforcement challenge to a statute only needs to establish that he might be prosecuted under the statute, not that he would actually be guilty.
- In circuit-split news, the Tenth Circuit holds that the federal income tax is not unconstitutional, so there's still no circuit split about that.
- Come for the Eleventh Circuit's holding that professor/lawyer/gadfly Alan Dershowitz cannot show actual malice by pointing to internal meetings and emails in which CNN employees all seemed to act like they thought their reporting was true. Stay for dueling concurrences about whether the Supreme Court should chuck the actual-malice standard entirely.
- How many times may a citizen call 911 without being arrested for calling 911 for the purpose of harassment? Your summarist will not venture a guess, but this Eleventh Circuit opinion suggests the number is perhaps less than "a gazillion."
- And in en banc news, the Fifth Circuit will reconsider its opinion affirming a preliminary injunction against Texas's SB 4, a law criminalizes both reentry into Texas by certain aliens and border crossings at any location other than a federal port of entry. But will the en banc court base its ruling on standing? Sovereign immunity? Federal preemption? Invasion? Only time will tell.
For 24 years, Gene and Debbie Weierbach have run an auto repair shop in their garage on a secluded, 16-acre piece of land in North Whitehall, Pa. No neighbor has ever complained, and the home business allows the Weierbachs to look after their adult son, who has severe autism. But when Gene told a bumptious township supervisor that he might be happy if he took his business elsewhere, the supervisor got the township to issue a cease-and-desist order, commanding the Weierbachs to shut down their shop. Now they've joined with IJ to fight back. Read more here!
