[Eugene Volokh] Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

Is judicial engagement little more than a camouflaged appeal for more libertarian judicial outcomes? Not a bit of it, argues Evan Bernick of the Center for Judicial Engagement, responding to a critique of his lead essay over at Cato Unbound. Click here to read more.

The Center for Judicial Engagement just released its second installment of an annual review that probes particularly soaring examples of judicial engagement and particularly searing examples of judicial abdication. It’s a congenial read for the convivial reader. Click here to read.

And click here to give last week’s podcast a listen.

• Patent holder: You know how people go through their mail and throw out junk based on who sent it? We own the idea of doing that with a computer. Federal Circuit: That is not a patentable idea. Concurrence: And even if it were, the asserted patents would disrupt a huge amount of online communication — and are therefore barred by the First Amendment.
• Allegation: The NSA is collecting all or nearly all private messages between U.S. citizens communicated via Google, Yahoo, Microsoft, and other companies’ services. Gov’t: Not so. The program only targets specific foreigners located overseas. Third Circuit: Plaintiff has sufficiently alleged harm to his interests, which is not to say he has standing to proceed. On remand, the district court may wish to allow for some limited discovery that might shed light on the scope of the program.
• State investigator obtains indictment of nurse for neglecting patient at Frankfort, Ky. facility by testifying falsely to grand jury. (Among other things, he said she had not ordered lab tests that she had indeed ordered.) A state judge dismisses the case. Can she sue the investigator? Sixth Circuit: Absolute immunity.
• The U.S. admitted 10,000 Syrian refugees this year. Fearing terrorists might be among them, the governor of Indiana banned them from settling in the state. Seventh Circuit: There’s no evidence for the guv’s “nightmare speculation.” Indeed, Syrians admitted in 2015 have settled in Indiana (and other states) without incident. So no enforcing the ban while the suit proceeds.
• Allegation: Among other indiscretions, U.S. Fish and Wildlife researcher gave voice to prurient thoughts about student while the two were alone in Alaskan wilderness. After the trip, the student arrived in Minnesota to start Ph.D. program and discovered she’d been assigned to share an office with the researcher, where pestering persisted. Researcher: The university didn’t provide me sexual-harassment training, so she can’t sue me. Eighth Circuit: Not so. No qualified immunity.
• In which the Eighth Circuit affirms a 25-year sentence for former acting director of cybersecurity at the U.S. Dept. of Health and Human Services, who accessed child pornography on a website seized and then briefly run by the FBI.
• After it emerged that hundreds of graduates of U.S. academy for foreign military personnel committed atrocities abroad, activists began tracking graduates’ careers and Congress mandated reforms. In 2005, however, the DoD ceased its practice of releasing names of students and instructors. Ninth Circuit: Out of legitimate concern for their well-being. Dissent: The gov’t introduced no evidence to justify its concern, and now there’s no verifying officials’ assurances that the reforms are working.
• Years ago, Elbert County, Colo. officials discovered that they had lost their zoning regulations and map. Instead of re-passing a zoning code, they just had a county planner do his best to recreate the lost documents, without holding the public hearing required by Colorado law for zoning-law changes. Aggrieved property owners sued for due-process violations after discovering they’d been spending lots of money complying with a zoning code that nobody had actually adopted. Tenth Circuit: The county may w