An overview of recent Federal Court decisions


Please enjoy the latest edition of Short circuit, a weekly article from the Institute for Justice.

My friends, on Wednesday, December 8, the Supreme Court will hear Carson vs. Makin, an IJ case, and determine whether states that offer tuition assistance to families to use in private schools can prevent those families from choosing schools that teach religion. Click here to learn more. Or maybe Click here for a podcast where we do our best to persuade skeptics of the virtues of school choice.

  • After searching unsuccessfully for an unredacted copy of the 2016 Mueller report via a FOIA request, the media outlet Buzzfeed is suing the Justice Department. On appeal, Buzzfeed only challenges the district court’s decision to keep reporting on unidentified individuals— * cough * Don Jr. * cough * – involved but not charged with campaign funding violations. DC circuit: Buzzfeed can’t get most of what it wants, but it can get the detailed discussion of DOJ billing decisions.
  • When the M / V Galani struck the M / V Marina in the Paros-Antiparos Strait, a woman named Curtis with the most serious injuries sued the United States. Faced with the disaster, the master of Galani claimed the forum non conveniens. The First circuit say no and that’s how it would be; so here in the United States he defends.
  • In which the First circuit reminds young people that while they have the right to be fools in the First Amendment, there are limits to their right to be fools in public school.
  • Has a company failed to effectively enforce safety rules by failing to discipline an employee who obeyed a supervisor’s order to enter a dangerous trench? (This disciplined the supervisor.) OSHA: Close call, but yes. Fifth circuit: Affirmed. Dissent: Close call? Closer to a disturbed call.
  • Parents of disabled children are challenging Texas ordinance banning mask warrants. District Court: The mask and warrant ban violates the ADA and cannot be enforced. Fifth circuit: The ban on the ban may not take effect until we examine it in more detail.
  • In 1988, three women were abducted and sexually assaulted near Miami Township, Ohio. Detectives rule out a tip regarding a GM security guard, which came from a vindictive supervisor and did not match evidence of the crimes. A new detective takes over the investigation, replaces the original report eliminating the guard as a suspect with a report identifying the guard as a key suspect, creates a bad set of photos, and fabricates evidence. The guard is sentenced, spends more than 20 years in prison before being exempt. He pursues. Detective: Qualified immunity? Sixth circuit: Claims can go to trial.
  • In the news that deals serious blows to the ego, the Sixth circuit argues that a Michigan lawyer did not allege that he had a real prospect of “seducing[ing or] debauchery[ing] any single woman “and therefore has no standing to challenge a Michigan law prohibiting her from doing so.
  • After the Oakland Raiders moved to Las Vegas, Oakland sued the franchise, the NFL, and all other NFL teams for violating antitrust law by engaging in a group boycott and fixing the prices. Ninth circuit: Well, there is no group boycott because the Raiders were the only team that refused to do business with you. And you don’t have antitrust rights for the pricing allegation. Competition: antitrust standing? ! Their theory is that if the NFL had more lenient rules for league expansion then there would be more nominations for new teams, the NFL would admit more teams, one team would already occupy Las Vegas, and thus the Raiders couldn’t have found a better host city. It’s so speculative that they don’t even have constitutional status.
  • Opinions abound in this decision of the en banc Ninth circuit maintaining the California ban on “high capacity” magazines (that is, those capable of holding more than 10 cartridges). Judge VanDyke is “respectfully” dissenting, noting that the Circuit’s Second Amendment rulings together imply the “ludicrous” result that “the right to” keep and bear arms “means, at most, you might own a janky handgun and 2.2 rounds of ammo, and only in your locked house. “
  • Title VII prohibits employers from retaliating against employees who object to employer conduct that they believe reasonably violates Title VII. But can their belief still be reasonable if they are completely wrong about the law? Two thirds of this Tenth Circuit panel sometimes says!
  • After a very technical analysis of Article 204 of the 1974 Trade Law, the United States International Trade Tribunal notes that the imposition of certain tariffs on imported solar modules “does not fall under the delegated authority of the president”. (Read more about this neat little Article III tribunal, and the latest news on Trump-Biden tariffs, on the most recent Podcast on the short circuit.)
  • And in the news bench, the Fifth circuit knock over a panel decision which suspended a district court injunction over a policy allowing federal officials to prioritize, without express permission from Congress, illegal immigrants to be investigated and deported. The policy is pending appeal.
  • And in more news on the bench, the Sixth circuit will reconsider her decision upholding a preliminary injunction from a Tennessee law which prohibits all abortions when a doctor “knows” that it is “because” of race, sex or a diagnosis of fetal trisomy and, also, which prohibits all abortions once a fetal heartbeat is detected. (And if it’s canceled, at six weeks. And if it’s canceled, eight weeks. And if it’s canceled, ten weeks. And so on up to 24 weeks.)
  • And in other news in the bank, the Sixth circuit will not reconsider her decision send a jury the question of whether Scott County, Tennessee can be held responsible for refusing to take medication to a remand person who has suffered numerous seizures and has been drinking in the toilet. Judge Readler, disagreeing with the denial of review, warns against “transforming constitutional prohibitions against punishment into an” autonomous right to be free from medical malpractice in prison. “

Highway robbery! Earlier this year, Nevada Highway Patrol agents seized the life savings of IJ’s client, Stephen Lara, by the side of the road. He was not given a ticket or warning, let alone arrested or charged with a crime. Click here to look at body camera footage of the stop and ask if the highway patrol is really for the purpose of protecting and serving or, say, to rip off law-abiding people. Then Click here to learn more about Stephen’s challenge to the Nevada Highway Patrol’s participation in the federal “fair share” program, which allows state agencies to evade state law and process confiscations under of federal law.


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