Enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of folks at the Institute for Justice.
Alaska’s sparse population creates unique educational challenges. To address these, states created “correspondence programs,” in which a student’s public school uses post offices or floatplanes to deliver lessons and then receive and grade assignments. In 1997 and again in 2014, the law was expanded to give parents more freedom to design their children’s curriculum and receive reimbursement for certain educational expenses, including tuition at nonpublic schools. But now the program is under attack, and IJ has teamed up with a group of Alaska families who benefit from the program to defend it in court.
- FOIA allows agencies to withhold “confidential” and “commercial” information, but could that category possibly include the bare names of contractors selling death penalty drugs to the Bureau of Prisons? DC Circuit: Maybe, but not on this record. (Collaboration: but note that “maybe” does not mean “yes”)
- Pro tip from the Second Circuit: The George Costanza defense (“Was it wrong? Shouldn’t I have done it?”) is a weak basis on which to withdraw your guilty plea to extortion for threatening to publish nude photos of your ex. Girlfriend unless she takes you back.
- Third Circuit: “Statutory silence, like awkward silence, induces speech.” But, we’re reminded, silence from Congress demands a different response than silence from one’s Tinder date.
- In a plan clearly designed to frustrate the authors of the accurate summary of appellate decisions, Johnson & Johnson, facing hundreds of thousands of lawsuits over the (potential) negative health effects of its baby powder, created a new corporation in which it distributed its baby-powder. Business, all liability from baby-powder lawsuits, and also promises to indemnify from those lawsuits. Then, the new corporation files for bankruptcy to facilitate an orderly distribution of money to creditors. Can they do it? Third Circuit: It’s bankruptcy, and that giant promise to pay for damages seems to keep the new corporation’s bank from collapsing. Petition dismissed.
- In which the Third Circuit adopted Webster’s definition of the word “if,” if you’re into that sort of thing.
- There are likely lawyers who have been champing at the bit to see what the Third Circuit is going to say about issue blocking and how case law applies to multi-district litigation regarding price-fixing in the drywall industry. If you are one of them, we are happy for you.
- If anyone loves precision in English usage, it’s Brian Garner. But if there’s anyone else, it’s your short-circuit editor. So thanks to this Fourth Circuit panel that a doctor’s statement that he “misread” test results can be defamatory when everyone agrees that he actually did. did not Read test results (and may be medically justified not to). SNOOTs of the world, unite!
- Does insurance that covers “direct physical loss or damage” to property cover business interruptions caused by COVID-19, since you know, covid viruses are physical things that can touch things? The Fifth Circuit again held “no.”
- Usually these kinds of incidents fly under the radar, but when you subscribe to Short Circuit, you can be sure you’ll hear about it when the Fifth Circuit finds that the Second Amendment protects people’s rights to keep and bear arms subject to domestic violence restraining orders.
- Sixth Circuit: Public employees have a First Amendment right to speak on matters of public concern. But depending on the speech—”Tamir Rice should have been shot and I’m glad he’s dead”—they may not necessarily be public servants.
- Forklift driver hits a bump in a warehouse. He falls to the floor and stops. A forklift does not. Now one step short, he sued the forklift manufacturer. His expert wants to testify that the accident could have been prevented by this safety device called the “door”. DISTRICT COURT: Sorry, under Daubert Tests that have excluded experts. Seventh Circuit: Yes, but literally all district courts have said, that’s not enough to exclude.
- The DEA seized $146,000 in cash from a man’s car After receiving the forfeiture notice, the man’s attorney sent the papers. But, oops! It was the wrong paperwork that forced the government to go to court, an “apology” rather than a “claim”. After the deadline passed, he filed the case anyway. District Court: I do not have subject matter jurisdiction. Seventh Circuit: In fact, the court had presumptive jurisdiction. But the government won.
- The man is stopped by police outside a Los Angeles housing complex, who jump him, find the car keys, drive to a nearby parking lot and click the keys until they find the car — complete with a handgun under the front seat. A Fourth Amendment violation? Ninth Circuit: Yes, but an innocuous one as to the most serious manslaughter (Hobbs Act robbery and conspiracy). But he should keep aside the other pratyaya (naming of weapons).
- In that the Ninth Circuit took a deep dive into the traditional fishing practices of the Metlakatkan Indian community and concluded that an 1891 statute protected the Metlakatkans’ non-exclusive off-reservation fishing rights where they have fished since time immemorial. So does Alaska’s attempt to restrict Metlakatkan fishing in certain areas violate that right? The District Court should issue it on remand.
- Alaska Airlines and Horizon Air Industries provide paid leave for jury duty, bereavement, and sick leave, but not short-term military leave. Violation of the Uniformed Services Employment and Reemployment Rights Act? Ninth Circuit: Yes, maybe. There should be a class action lawsuit against these pilots.
- A daunting aspect of Eighth Amendment death penalty litigation is that an inmate challenging the manner of his execution must offer his preferred alternative. Here, a murderer on Georgia’s death row has proposed a firing squad instead of lethal injection because, he says, he is taking drugs that would render sedatives ineffective and has venous conditions that would make the injection process inhumane. Eleventh Circuit (after being reversed by the Supreme Court on a procedural issue): firing squad is a valid alternative, and drug-related claims are both timely and effective. But more data is needed to support vein-related claims.
- Indigent prisoners can usually file federal civil-rights lawsuits without paying court fees. But the Prison Litigation Reform Act prevents repeat lawsuits by taking away that privilege after “three strikes” for lawsuits that are frivolous, malicious, or fail to state a claim. If a case is dismissed for failure of administrative remedies, is that a “strike”? Eleventh Circuit (en banc): Only if the case is dismissed because the failure to discharge was apparent on the face of the complaint, if the defendant is not required to present evidence. Agreement with District Court: Stop filling in a check-box about inmate fatigue because cases don’t usually work that way and exhaustion is more complicated than a yes/no answer.
- And in En Banc News, the Ninth Circuit will not reconsider its opinion that “and” does not mean “or” in a case about the 2018 Phase I Act.
- And in more en banc news, the Fifth Circuit will not reconsider its opinion that affirmed a denial of qualified immunity when Louisiana inmates were held in custody months after serving their sentences. Seven justices voted for the rehearing, but none explained why.
- And in more Banks news, the D.C. Circuit won’t reconsider its opinion upholding a rule allowing non-immigrant students to work post-graduation in the United States. Two judges held that the rule could not be squared with the text of the Immigration and Nationality Act, but the case required five to grant. (Edit: Why weren’t six votes necessary when the DC Circuit has ten active judges? Two of the judges did not participate, so petitioners needed five of the eight.)
- And in an amicus brief, IJ is urging the Supreme Court to reverse a Sixth Circuit decision that interpreted a federal statute to allow the IRS to subpoena—without notice or opportunity to object—any innocent third-party financial records that the IRS believes . may be Help someone else collect unpaid taxes. We think the Fourth Amendment might have something to say about that.
Guys, do you like donuts? Well, if you’re passing through Conway, New Hampshire, you can stop at Leavitt’s Country Bakery to sample what local news calls the best donuts in the state. You’ll be able to spot it by the mural painted on its facade by local art students … unless city zoning officials get their way. They decided that the mural was not a mural at all, but an illegal sign. Why? Because the mural depicts baked goods – if it depicted something else, it would be perfectly legal. But government officials can’t tell people what they can and can’t paint, which is why IJ teamed up with bakery owner Sean Young to defend his First Amendment rights.