Speedy trials, political advertising, and horseracing.

John Ross · March 10, 2023

This week on the Short Circuit podcast: Live at Georgetown Law, an all-star panel, including UCLA Law Professor Joanna Schwartz, discusses police accountability and Schwartz’s new book, Shielded: How the Police Became Untouchable.

Last week on the Short Circuit podcast: Live at SMU Law, an all-star panel talks gun rights after Bruen, baby powder bankruptcy, and vaping regulations.

  • D.C. Circuit: Airplane seats might be small, but there’s no reason to think they’re dangerously small. So no compelling the FAA to regulate seat size. (Low-key implication for emergencies: a few extra seconds getting out of a small seat won’t matter because you’re going to die stuck in the aisle.)
  • Compare Notice of the U.S. Court of Appeals for the D.C. Circuit (Jan. 26, 2010) (explaining that “the court strongly urges parties to limit the use of acronyms”), with Int’l Org. of Masters, Mates & Pilots, ILA, AFL-CIO v. Nat’l Labor Relations Bd., No. 21-1249 (D.C. Cir. Mar. 3, 2023) (considering ulp charges brought by IOM on behalf of LDOs and vacating NLRB decision turning on argument about CBA not presented to ALJ).
  • Weekly vocab quiz from Judge Selya of the First Circuit: armamentarium, crucible, decretory. (Bonus Judge Selya Shakespeare precision: “to paint the lily.”)
  • From footnote nine of this Second Circuit opinion, you get the sense that Judge Cabranes doesn’t think it should take 26 pages and a chart to explain why a racketeer who shot and killed someone committed a “crime of violence.”
  • If Americans cared about soccer the way they care about baseball, the Second Circuit wouldn’t be allowing antitrust claims against FIFA to proceed to discovery.
  • Is the Federal Election Campaign Act regular-levels of complicated or is it tax-levels of complicated? Defendant—an associate of associates of Rudolph Giuliani—convicted of conspiring to funnel illegal contributions from a Russian national to American politicians: It’s tax-levels of complicated, of course, so the district court erred in instructing the jury that it could find my violation “knowing and willful” without finding that I had the intent to violate FECA specifically. Second Circuit: Incorrect. Conviction affirmed. (And unlike Robert Bork, the court resisted the impulse to include any scatological puns about “FECA[L] matter.”)
  • A six-thousand-year-old Anatolian statuette has been circulating on the antiquities market since at least 1961 and sold at Christie’s in 2017 for $12.7 million. Republic of Turkey sues Christie’s, the statuette’s owner, and the statuette itself (in rem). Turkey: It’s ours! Second Circuit: No. Under a 1906 Turkish decree, Turkey can claim ownership only if the statuette was found within and exported from Turkey’s borders after 1906. And that question raises a boatload of tricky issues about the parties’ respective burdens of proof, which the district court got wrong. But no matter: Turkey slept on its rights for decades before trying to claim the statuette, so the doctrine of laches applies. Concurrence: which—just to be clear—is why all that other stuff we just said about burden-shifting is 100% dicta.
  • Texas man sues the Lewisville Independent School District and seven school board members, alleging that the district’s at-large election system violated Section 2 of the Voting Rights Act by diluting the votes of non-white minorities within the district. District Court: Well, this seems like a run-of-the-mill . . . NOW HOLD ON A DAMN MINUTE! The plaintiff is white?! What possible interest could he have in these issues?! Attorneys’ fees to the government for this utterly frivolous lawsuit! Fifth Circuit: Let’s just say the standing issues in this case are a bit more nuanced than that. No fees for simply bringing the claim.
  • In which Samsung learns the hard way that if you wait for three years of litigation to elapse before deciding you’d like to enforce your clickwrap arbitration agreement, the Third Circuit will not be sympathetic.
  • “When Allen invited Eric to invest [in breeding race horses], he cautioned Eric that though he might lose all his money, he would at least meet people he would never meet otherwise. Eric called the predictions ‘prophetic.’” Third Circuit: And since he didn’t really expect to profit, this was more of a hobby than a business, which has some tax implications.
  • In 1983, North Carolina sheriffs—acting on a tip—interrogate Henry McCollum, a 19-year-old with an IQ of 56, about the rape and murder of an 11-year-old girl. After hours of interrogation, he confesses and implicates four others, including his 15-year-old half-brother, Leon Brown, who has an IQ of 55. Following a similar interrogation in which he’s threatened with the gas chamber, Leon also confesses. They’re convicted and serve 31 years in prison before DNA evidence conclusively proves that the true perpetrator was a guy who lived near the field where the body was found, who had previously been tried for the rape and murder of a young girl, and who was actively being investigated for another rape and murder of a young girl that occurred shortly after Henry and Leon were arrested—none of which was made known to defense counsel. Suing for their wrongful incarceration, the two receive $100+ mil in damages. Fourth Circuit: Remanded with instructions to string the defendants from a gibbet (just kidding, but you do have to reduce damages award to remove prejudgment interest and offset earlier settlements).
  • The Texas-based corporate creators of the “Read a Million Words Campaign” are extremely touchy about their intellectual property. To wit: They sue a Texas public school district and a charter school corporation under the Lanham Act when both similarly encourage young readers to become “Millionaire” readers by breaking the seven-digit mark. Fifth Circuit: No likelihood of confusion, so no claims. Concurrence: While we’re at it, it’s pretty weird that the district court held that a private charter school corporation enjoys state sovereign immunity but that a public school district does not. That suggests the “arm of the state” test we use for determining those things might need revisiting.
  • Notorious 89-year-old Boston gang boss James “Whitey” Bulger is found beaten to death less than 14 hours after being placed in general population at a new prison. Cause of death was a “lock in a sock” bludgeoning weapon, allegedly used by rival mafia inmates. His estate sues the several prison employees under Bivens and the United States via the FTCA. District court: Dismissed. I’m not expanding Bivens, and safeguarding prisoners is a “discretionary function exception” to the FTCA. Fourth Circuit: It is well established that the Bivens doctrine applies to people named Bivens, not Whitey.Affirmed.
  • Thanks to the Fourth Circuit you can now call the cheese in your fondue “Gruyère” even if it’s made in, say, Wisconsin, and not the Gruyère region of Switzerland and France (even though, explains the court, it “originated in the district of La Gruyère in the Canton of Fribourg, Switzerland in 1115 AD”).
  • Courtesy of the world’s creepiest incarcerated older brother, the Fourth Circuit has an opportunity to do a deep dive into relevance vs. unfair prejudice under Federal Rule of Evidence 403.
  • Congress gives a private organization the power to propose rules for the horseracing industry with a limited role for the FTC to reject them. With facts like those there’s a 10-1 chance it violates the nondelegation doctrine. And after trotting out the lawyers it was off to the races, with the Fifth Circuit declaring the law unconstitutional (as we discussed on the podcast). But, just as a parallel race was setting up for a photo finish, Congress amended the law. Thus the Sixth Circuit rejected the challenge, although it hinted that if it weren’t for the amendment the plaintiffs would be in the money.
  • Cops find a gun on a man during a traffic stop in Gary, Ind. (named for Elbert Gary of judiciary fame). He has two previous “violent felonies” under state law and eight convictions for Hobbs Act robbery. Are those “violent felonies” too, exposing him to an enhanced sentence under the Armed Career Criminal Act? Seventh Circuit: We have eight pieces of very bad news for you.
  • Coming soon from CBS and the Eighth Circuit—CSI: Omaha
  • Sixteen-year-old South Dakotan participates in violent assault, then agrees to a plea deal that recommends probation, but he’s sentenced to a year in prison after several violations of his pretrial release conditions (including another assault). But wait! The federal speedy-trial rule for juveniles requires trial within 30 days, and the defendant was in federal custody for 49 days following his original arrest and even moved to dismiss on those grounds before taking the plea. Eighth Circuit: We don’t have to decide if that seemingly crystal clear speedy-trial violation would have helped you, because you waived your right to appeal that as part of the plea deal.
  • Twitter wants to publish data on the aggregate numbers of national security subpoenas it’s received from the government to provide information on Twitter users, but government says reports must be redacted. Ninth Circuit: Strict scrutiny is usually strict in theory but fatal in fact, but this particular censorship is OK because otherwise the terrorists win. That assessment “depends principally” on classified materials, and it’s OK that Twitter’s lawyers aren’t allowed to see the evidence that dooms their case (see supra about the terrorists winning). Concurrence: I agree with the conclusion, but we probably shouldn’t rely on the secret evidence one side can’t see.
  • A private company runs an immigration detention center in Tacoma, Wash. under contract with ICE and pays confined immigrants less than $5 a day for their work. A class of the detained immigrants and Washington State sue for violations of Washington’s minimum wage law, and at trial they win $17.3 million in backpay and a $6 million unjust-enrichment award to the state. Company says the minimum-wage law doesn’t apply to it, so the awards must be overturned. Ninth Circuit: We’d rather the Washington Supreme Court answer the tricky questions of state law.
  • Ninth Circuit: Yo dawg, we heard San Francisco voters like political-advertising disclaimers, so we’re affirming disclaimers in your disclaimers so your ads can tell you who funded the funders who funded your ads.
  • Strive to live your life with the tenacity and self-confidence of the sovereign-citizen litigant in this Tenth Circuit case without, y’know, emulating any of the rest of it.
  • This Tenth Circuit case that yields three different opinions from the three-judge panel may not resolve much about what the Indian Self-Determination and Education Assistance Act means, but (in the words of the dissent) it “speaks volumes about Congress’s ability to draft a coherent statute.”
  • Sometimes property disputes hinge on boundary maps or title documents, but sometimes, as in this Tenth Circuit case, judges have to resort to the memoir of “Lew Young’s daughter Dixie,” who wrote a book about her 1920s childhood living near the disputed road.
  • Circuit split alert! For a state-law drug conviction to count as a predicate offense under the Armed Career Criminal Act, the state law cannot criminalize substances that aren’t illegal under federal law. But when do we compare state and federal law—when the state crime was committed, when the federal offense was committed, or when the defendant is sentenced for the federal crime? The Tenth Circuit, after surveying an existing split, chooses door number two.
  • The Speedy Trial Act says that a federal criminal defendant has a right to be tried within 70 days of his initial appearance, so this guy who had to wait almost a thousand days for his trial has a pretty good argument, right? Tenth Circuit: Wrong! (We won’t spoil the court’s reasoning for you, but it rhymes with “schmobal schmandemic.”)
  • Police: Our search of the defendant’s backpack was valid because our only alternative to impounding it would have been to abandon it in public. It’s not like we could just give it to the mysterious stranger who came up mere seconds after the defendant asked for his “girl” and who kept asking us to give it to her. She could have been anyone! Tenth Circuit: Or she could have been his girl. Evidence suppressed!
  • Eleventh Circuit: The Supreme Court says we need to look to history when evaluating the constitutionality of gun laws, such as Florida’s prohibition on the sale of firearms to 18-to-20-year-olds. And it turns out there were a bunch of Reconstruction Era laws that forbid this exact group from possessing handguns.
  • And in en banc news, there is no en banc news … yet.

We don’t like to toot our own horn (Ed.: A lie; we shamelessly do), but last Friday Virginia Gov. Glenn Youngkin signed legislation—inspired by an IJ model bill—that will recognize many out-of-state licenses, a reform that will let experienced workers operate freely in Virginia without having to complete duplicative training or tests. With the governor’s signature, Virginia is now the 20th state that has enacted some form of universal license recognition. Click here to learn more.