The Volokh Conspiracy

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

About The Volokh Conspiracy

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Debtors' prisons, evil schemes, and the Pottery Barn rule.

|

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

Lawyers! IJ is hiring, including this exciting new gig: Assistant General Counsel. If you're an experienced attorney who thrives in a fast-paced environment, enjoys tackling a wide variety of legal questions, and wants your work to support a powerful mission, this could be the perfect fit.

New on the Short Circuit podcast: Did an Ohio man need a permit for people to come to his house and pray?

  1. Who owns a rhinestone-adorned piano that was once the property of Liberace? The First Circuit sees no reason to disturb the jury's breach-of-bailment verdict: It belongs to the charitable foundation of the Gibson guitar company and not to the Rockland, Mass. piano retailer who says the foundation gave, rather than lent, it to him.
  2. District court (w/o a hearing and via one-paragraph order): This California-based cannabis entrepreneur lacks standing to challenge Rhode Island's licensing rules requiring majority in-state ownership/control and reserving social-equity slots for businesses majority-owned by people with Rhode Island-specific ties. First Circuit: The claims are ripe, not moot, she has standing, and similar Maine and New York laws have been invalidated on dormant commerce clause grounds in the meantime. Reversed and remanded for further proceedings—with haste!
  3. Luckily this newsletter is coming out the day after Thanksgiving, so none of you savages will be tempted to ruin family dinner by recounting the facts of this Second Circuit decision involving a (recently indicted) investment banker found liable under the Trafficking Victims Protection Act for committing extreme, non-consensual BDSM acts on women lured to his penthouse sex dungeon.
  4. Whoa Nelly! When it comes to antitrust the Sherman Act is the granddaddy of them all. But does it apply to the NCAA rule applying junior college years to Division I eligibility, nullifying that "restraint of trade"? In the case of a star defensive back Jett Elad—who entered the transfer portal and ended up at Rutgers U—that's a $500k name-image-and-likeness question. District court: Preliminary injunction and a first down! Third Circuit: Actually, it depends on the market, and everything's different after NCAA v. Alston (2021), so you need to run the new numbers. Penalties offset; replay the down on remand.
  5. Afghan vet suffering from PTSD goes on a bender in Roanoke, Va., shoots and severely injures a woman, breaks a guy's ankle, and is prosecuted in state court. A sentencing report and a hearing get a bunch of facts wrong about those incidents and his history but his counsel fails to object. Fourth Circuit: Sounds like ineffective assistance of counsel. Have a habeas. Remanded for resentencing. Dissent: Guys, habeas is harder than this.
  6. Under the Prison Litigation Reform Act, preliminary injunctions automatically expire after 90 days. Which is a bummer for the plaintiffs in this lawsuit against the Angola state penitentiary, who have now had a third consecutive appeal mooted by the automatic expiration of their preliminary injunction regarding the conditions under which they are forced to pick vegetables in the brutal Louisiana summer. Fifth Circuit (unpublished): We recognize it's not great, but at least the case is going to trial in February, before temperatures start rising in the spring.
  7. Sixth Circuit (majority): The Supreme Court has held that it's not a taking when the gov't takes pre-condemnation steps that happen to reduce the value of your property. Case dismissed! Dissent: Right, but it's never held that it's not a taking when the gov't undertakes an evil scheme to get your property on the cheap, and the complaint is squarely in evil-scheme territory.
  8. Allegation: Nashville city councilman, hoping to scuttle a tax-revolt referendum, gets a law firm that does business with the city to fire one of its lawyers in retaliation for his activity on the county election commission related to the referendum. Fired lawyer sues councilman and the law firm for First Amendment retaliation. Sixth Circuit: It's clearly established gov't officials can't try to get people fired for exercising their speech rights; no qualified immunity for councilman. But the law firm gets QI since the premise of the claim is that it's acting at the gov't's behest, and there's no clearly established law against firing somebody to placate a powerful client. Dissent: Private law firms shouldn't get QI.
  9. Lake County, Ind. probation officer rapes probationer (and later pleads guilty to one count of "official misconduct," yielding three years of home detention). Seventh Circuit: And in the civil litigation that ensued, summary judgment was rightly entered in favor of the officer's chief and the local supervising judge. Yes, those officials allowed the officer to resume supervising female probationers after learning of a different incident of alleged sexual misconduct. But they didn't know he was likely to escalate to full-on rape. (Separately, a jury returned a $750k verdict against the officer himself.)
  10. When a voting-information group asked New Mexico for voter rolls to post online, the state instead referred it for prosecution under a law restricting use/sharing of voter data and then denied further requests. The group sued, arguing, inter alia, that the law is preempted by the National Voter Registration Act. Tenth Circuit: Indeed. The NVRA authorizes the public to obtain, copy, and republish voter-list-maintenance records, including data extracted from the statewide database.
  11. In the 19th century, Alabama enshrined in its state constitution the elimination of its debtors' prisons. But lo! People are being locked up for falling behind on their garbage collection bills. Eleventh Circuit (unpublished): But the plaintiffs here challenged their jailing and the amount of bail, which were under the state's purview, not the city's, and you can't really sue the state under § 1983.
  12. Turns out the "Pottery Barn rule" is not actually that venerable tat-shop's policy. Who knew? The Eleventh Circuit, which mixes that apparent invention of Tom Friedman's with Monell liability. A mother alleges her son died of septic shock in jail due to an incompetent private contractor. Several other inmates died similarly. The sheriff even eventually tried to fire the contractor. But the county "doubled down and renewed" the contract. Those facts would constitute a policy making the county itself liable. Check out, and a jury trial, at register 4.
  13. Between his presidential terms, Donald Trump filed a lawsuit against dozens of defendants—including Hillary Clinton, the DNC, and the law firm Perkins Coie—raising a slew of claims related to the so-called Steele Dossier. The case is dismissed. But was it so frivolous that Trump and his lawyers should have been assess nearly $1 mil in sanctions? Eleventh Circuit (by a panel featuring G.W. Bush, Biden, and Trump appointees): Indeed it was.

Law students! Come work at IJ next summer. Applications are open and being reviewed on a rolling basis for the Dave Kennedy Fellowship, which gives a unique opportunity to dive into high-stakes civil rights litigation. As a Fellow, you'll help develop litigation strategies, draft critical legal documents, and even assist with U.S. Supreme Court petitions! With weekly programming, mentorship from top IJ litigators, and career-boosting opportunities, this is your chance to make a real difference. Applications are due by February 6th, with interviews starting soon! Apply today to one of our five offices in Arlington, Va.; Miami; Austin; Phoenix; or Seattle. These competitive, paid fellowships offer $8,000 for the 10-week program, so apply now and take the next step in your legal career!