Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.
New on the Short Circuit podcast: Steve Lehto provides a free diagnostic on license-plate-holder law.
- We can neither confirm nor deny whether six federal agencies properly used Glomar non-responses about the existence of certain documents in response to FOIA requests. But we will say there seems to be no shredding of national security as an excuse for inaction in this D.C. Circuit opinion.
- The Stored Communications Act allows the government to subpoena social-media companies for user data, and it even allows those subpoenas to be kept secret from the user—but only if a court determines that certain statutory conditions justifying secrecy are met. The government: So when we subpoena X in this investigation, can we just be the ones to decide which subpoenas are secret instead of the court? D.D.C.: Okay. D.C. Circuit: Not okay.
- Starbucks baristas seek to decertify their union. When the NLRB refuses to grant their petition, the baristas sue, alleging that the NLRB’s tenure protections are unconstitutional. NLRB: You know what, we agree. D.C. Circuit: And since you both agree, there’s nothing for us to adjudicate and no standing.
- After the FBI raids a private safe-deposit company without probable cause to search the contents of the individual boxes, the FBI searches the boxes anyway and tries to forfeit the contents. Much meritorious litigation ensues, and the Ninth Circuit says that this is very bad. In another case, an innocent box holder brings a putative class challenge to the FBI’s practice of issuing threadbare forfeiture notices that don’t tell property owners what the supposed crime is. The government promptly moots her individual case by returning the $40k it took from her. D.C. Circuit: And because there was no proper appeal of the denial of class certification, the rest of the case is over too. (Ed. note: The lawyers on this case are still handsome and good.) (2d ed. note: This is an IJ case.)
- This sad D.C. Circuit case about child slavery on cocoa farms in Côte d’Ivoire holds that the child plaintiffs didn’t plead a plausible connection to defendants like Hershey and Mars. “The Plaintiffs in this case deserve the greatest sympathy, and the people who took away their childhoods deserve the greatest condemnation.” But no causation is still no causation.
- Did you know that, since 1922, baseball—alone among sports—has been exempt from federal antitrust laws, without any basis in statutory text? This was last reaffirmed in a 1972 Supreme Court decision, where two concurring justices took the unusual step of refusing to join the opening facts section of the opinion because Justice Blackmun’s paean to America’s pastime was so over-the-top. Anyway, the First Circuit says that antitrust exemption also holds in Puerto Rico—although territorial antitrust laws may nevertheless apply because there’s no interstate dimension to the purely local Puerto Rican baseball league.
- Jury finds a Massachusetts man is liable for human-rights violations when he was previously the despotic mayor of a town in Haiti. First Circuit: But the district court needs to consider anew whether Congress did—or even could—create a cause of action in the Torture Victim Protection Act to sue for torture and extrajudicial killings if they occur abroad solely among foreign nationals. Also, that statute doesn’t cover attempted extrajudicial killings.
- In which the Second Circuit issues a blockbuster ruling ordering the release of the Epstein files! (Not, to be clear, the Epstein files that have been in the news all week. Just some, but not all, of the filings in a defamation lawsuit against Epstein associate Ghislaine Maxwell. But still, that first sentence was exciting for a minute there, wasn’t it?)
- New York boy disappears in 1979. Over 30 years later, a man with low IQ and a long history of mental illness and hallucinations is prosecuted for murder and kidnapping based on his confession—which occurred only after many hours of interrogations and before Miranda warnings, but which he repeated after being Mirandized. One jury hangs, and another convicts only after several
Article from Reason.com
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