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.)

The growing bipartisan movement to rein in occupational licensing has claimed some important victories in recent weeks, writes IJ Communications Associate Nick Sibilla at, with the repeal of restrictions on hair braiders in New Hampshire and shampooers in Tennessee. Read more here.

  • Feds: Honest folks don’t accumulate stockpiles of cash or have family members schlep stockpiles on trains. Thus, a couple (charged with no crime) from whom we seek to forfeit $17.9k must have obtained it illicitly — or at least they haven’t shown they obtained it licitly. D.C. Circuit: It’s for a jury of laypeople to decide whether the couple’s story is really so suspicious.
  • Nazis loot Hungarian baron’s fine art collection. Do U.S. courts have jurisdiction to consider his heirs’ suit seeking recovery of or compensation for the trove, some of which is now displayed in several Hungarian museums? D.C. Circuit: Yes, for some of the pieces. For the rest — maybe. (Your editorial staff found the district court’s opinion interesting as well.)
  • Veteran coal miner believes biometric hand scanning, a newly introduced measure to track miners’ work hours, puts him in league with the Antichrist. He retires rather than submit to such scans. EEOC: The company failed to accommodate his sincere religious beliefs. Fourth Circuit: Pay him back wages but no need for punitive damages.
  • That (among other things) a Langley Park, Md. brothel made use of condoms manufactured out of state means the robbery of said brothel implicates interstate commerce, says the Fourth Circuit, so the robbery is a federal case.
  • Texas dentists who specialize in implant dentistry, dental anesthesiology, oral medicine, and orofacial pain would like to advertise that fact, but Texas law prohibits using the word “specialist” to refer to anything other than one of nine specialties recognized by the ADA. Fifth Circuit: Which is an unconstitutional restriction on commercial speech.
  • Plaintiff: The Fifth Amendment’s Takings Clause automatically waives the gov’t’s sovereign immunity, which means I get to bring my takings suit wherever I want. Fifth Circuit: You might think so, but binding precedent says the opposite, which means you belong in the Court of Federal Claims, not here.
  • Former inmates: Marion County, Ind., jail officials regularly delayed our release for up to three days — in part because officials used a computer system that didn’t work with the court and police systems; certify our class action. (Fun fact: That computer system was a gift from the jail’s phone company, which charged high rates for calls that generated beaucoup profits for the phone company and the sheriff.) District court: We’ll certify some of the subclasses, but not all. Seventh Circuit: We’ll certify all.
  • Putnam County, Ind., officer (6’3”, 270lbs) is convicted of excessive force for beating up restrained, compliant arrestees in two separate instances. Seventh Circuit (2016): The district court needs to reconsider or better explain its far-below-guidelines sentence of 14 months. Seventh Circuit (2017): Again, 14 months seems lenient given the officer’s prior conviction for beating up a three-year-old.
  • Allegation: Oak Lawn, Ill., strip mall owner displeases politically connected tenant; village officials force the owner to remedy nonexistent code violations to the tune of hundreds of thousands of dollars — ultimately forcing him into foreclosure. Seventh Circuit: His deadline to sue the village accrued when the foreclosure process began, not when it concluded.
  • Peoria, Ill., police officer interviewing for specialty assignment (pursuing asset forfeitures) declines to answer any questions until she has read aloud a “nine-page manifesto.” She does not get the gig. Seventh Circuit: She may not press her sex-discrimination or other claims.
  • Rancher tells officer looking for missing cattle that “if you can step foot on [my] property, mister, you’re not going to be walking away.” North Dakota jury: Which was not a true threat but protected free speech. Eighth Circuit: The officer’s subsequent tasing of the rancher did not constitute excessive force.
  • Plaintiff lends her car to her brother-in-law. Yikes! His license is suspended; cops impound the car. She tenders valid license and proof of ownership. LAPD: Sorry, we’re impounding this baby for 30 days, in accordance with policy meant to punish unlicensed drivers. Ninth Circuit: That’s a seizure. Maybe also a taking. Her suit should not have been dismissed.
  • Allegation: An IRS investigator used threats of criminal prosecution to dragoon innocent tax preparers into using their own money as bait in a sting operation to catch scammers fraudulently seeking tax refunds. The sting works, but meanwhile the preparers are out $2 million dollars and have been forced into bankruptcy. Is the IRS immune from suit? Not nearly as immune as it thinks it is, says this Ninth Circuit panel.
  • Student: School officials failed to investigate a rape committed by basketball player (and son of a former NFL player) of another student, after which he raped me, too. Tenth Circuit: No Title IX violation. The school wasn’t required to investigate the earlier [alleged] rape, because only campus security officers knew about it.
  • In light of his mental-health issues and general immaturity, a sentence of 70 days (plus five years supervised release) is not unreasonable for a 24-year-old who kidnapped his ex-girlfriend at BB-gunpoint, handcuffed her, and drove her to another state blindfolded in an effort to win her hand in marriage, says two-thirds of a Tenth Circuit panel.
  • Environmentalists: Mismanagement of the Okeechobee Waterway, which runs from Florida’s Atlantic coast to the Gulf of Mexico, results in algal blooms that kill off wildlife in surrounding waterways and taint drinking water. District court: The Army Corps of Engineers, which manages the waterway, enjoys sovereign immunity. Eleventh Circuit: These issues can’t be litigated without the South Florida Water Management District (a state agency) as a party, and, as it’s immune from suit in federal courts, the case can’t go at all.
  • Plaintiff: Defendant, a lawyer, maintains email accounts that serve no purpose but to receive spam, over which he files meritless suits if his demands for compensation are not met. He filed such a suit against us; we seek recompense. Defendant: The plaintiff — an entity doing business under a fictitious name traceable to a dissolved company that purports to have transferred all its assets to a third entity — doesn’t have standing. California court: Plaintiff’s suit should not have been dismissed.

In March, the Eleventh Circuit ruled that IJ client Mary Lou Wesselhoeft could truthfully label her skim milk as “skim milk,” even though it did not meet the gov’t’s definition. Florida regulators had previously insisted that Mary Lou either add additives, which would contradict her all-natural philosophy, or call her skim milk “imitation milk product,” which would be ridiculous. As of last week, her skim milk is back on the market. Hear, hear for commercial speech! Learn more about the case.

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‘For those of us who work in marbled halls … the Second Amendment might seem antiquated’

From Monday’s opinion by Justice Clarence Thomas (joined by Justice Neil Gorsuch), dissenting from denial of certiorari in Peruta v. California:

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.

Agree with it or disagree, but it strikes me as a powerful articulation of its position. (The other seven justices declined to hear the case, and thus left open the question whether the Second Amendment secures a right of law-abiding adults to carry guns outside the home — a subject on which lower courts continue to be split; Thomas and Gorsuch were urging the court to hear the case.)

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Gorsuch appointment looks like a win for gun-rights supporters

Then-Judge Neil Gorsuch hadn’t written anything squarely dealing with the Second Amendment when he was nominated to the Supreme Court; and while it seemed likely that he’d take a relatively broad view of gun rights (just based on his being a conservative, in an era when conservative jurists tend to lean in that direction), that was just a guess. We now have more evidence, from his vote joining Justice Clarence Thomas’s dissent from denial of certiorari in Peruta v. California — he, like Thomas (and, before his death, Justice Antonin Scalia), seems to be a strong gun-rights supporter, indeed likely more so than some of the other conservative justices. Like it (as I do) or not, but that’s the information we now have.

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Supreme Court refuses to hear right-to-carry-guns case, Justices Thomas and Gorsuch say there is such a right

Federal appellate courts and state high courts are split on whether the Second Amendment secures a right for law-abiding adults to carry guns outside the home, and not just possess them in the home. Several federal appellate courts have generally held that states may, if they want to, sharply limit such carrying (e.g., by giving licenses only to people that the police view as unusually vulnerable to attack). The U.S. Court of Appeals for the 7th Circuit and the Illinois Supreme Court, though, have held that the Second Amendment does generally entitle law-abiding adults to carry guns in most public places, though the government may require licensing and training, and regulate how guns are carried. The Florida Supreme Court has stated the same, and some other courts have opined on the matter as well.

The Supreme Court, however, has refused to resolve the issue, and Monday it has done so again, by denying review in Peruta v. California. Most of the justices didn’t explain their decision, which is not a judgment on the merits of the question. (Lower court decisions going both ways still stand in their respective jurisdictions.) But Justice Clarence Thomas, joined by Justice Neil Gorsuch, argued that the Supreme Court should have heard the case, and also that it should have recognized a right to carry:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” The most natural reading of this definition encompasses public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. … “To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court[.]” …

The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. For example, in Nunn v. State (Ga. 1846) — a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right — the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid (Ala. 1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [Second Amendment] right itself.” This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. …

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.

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The rise and rise of religious arbitration

The Causes

The rise of religious arbitration (RA) is a result of three phenomena that are together changing aspects of American society. The first (and not the focus my book) is the rise of arbitration generally. Over the last twenty-five years, more and more parties, from credit card companies to law firms themselves, have agreed to leave the court system and its laws, opting instead for private resolution of disputes. This has brought about renewed interest in the question of whether expanding arbitration law is generally good in areas as diverse as family law, religious law, class actions, and securities law. It has further engendered discussion about the values and virtues of allowing members of secular societies and subjects of secular legal systems to choose both different forums and different legal systems to resolve their civil disputes.

Second, almost all of the more conservative religious communities (Evangelical Christianity, Catholicism, Orthodox Judaism, Islam, to name just a few) feel more and more that they are at the margins of American law, and are seeking to opt out where possible from vast amounts of civil law, particularly family law. To some extent this is about same-sex marriage, but it has been a significant issue since no-fault divorce was introduced many years earlier.

A third phenomenon is now occurring because of these first two — almost otherwise unrelated — trends: Many religious communities are now forming arbitration tribunals to resolve disputes within their own communities. For example, the rise of Islamic law courts — both perceived and real — within the United States has generated much discussion over whether religious arbitration in particular is a good idea, and even if it is a good idea in the abstract, whether it is a good idea in practice, given the ways in which religions will use it, and how it will or should be implemented.

My book explores the rise of these religious tribunals.

The Law

For a long time, courts in the United States were viewed as experts in everything. Almost any dispute could be settled in a courtroom. In fact, courts were viewed as the only arena where legal disputes between parties could be settled. Over time, however, the ability of courts to settle disputes efficiently and effectively came into question. Courts got backed up and volumes of codified law piled up. Litigation progressively became more expensive and draconian. Parties sought viable alternatives. Out of this frustration, alternative dispute resolution (ADR) — and arbitration in particular — was born.

Until the Federal Arbitration Act of 1924, states were hostile to arbitration. As a member of the New York Court of Appeals in 1914, Justice Benjamin Cardozo discussed his concerns about arbitration, noting:

In each case … the fundamental purpose of the contract [of arbitration] is the same — to submit the rights and wrongs of litigants to the arbitrament of foreign judges to the exclusion of our own…. If jurisdiction is to be ousted by contract, we must submit to the failure of justice that may result from these and like causes. It is true that some judges have expressed the belief that parties ought to be free to contract about such matters as they please. In this state the law has long been settled to the contrary. The jurisdiction of our courts is established by law, and is not to be diminished, any more than it is to be increased, by the convention of the parties. Meacham v. Jamestown, J. & C. R. Co., 105 N.E. 653, 655 (N.Y. 1914) (Cardozo, J., concurring) (internal citation omitted).

Cardozo was not alone. In fact, most Western legal systems were initially hostile to ADR forums operating apart from the state-sponsored justice system and resolving conflicts in accordance with substantive and procedural values different from those embraced by the courts.

In 1925, Congress passed the Federal Arbitration Act (FAA) which explicitly validates written agreements to arbitrate matters involving commerce. American arbitration is thus strongly grounded in contract theories. Under the FAA, a court may vacate an arbitration award under a variety of circumstances, but they are limited to cases where there was no valid arbitration agreement, or the award was through fraud or duress or misconduct by the arbitrators. Finally, while courts are generally not permitted to question the substance of an arbitration award, the FAA does allow them to vacate arbitral rulings that are contrary to public policy, and some courts have held that an award may be vacated if its substance amounts to manifest disregard for the law.

Although there has been a long and winding road over the last seventy-five years, the Supreme Court has consistently over the last three decades expanded the scope of arbitration to include most fields and most types of litigation. Essentially, by contract, a two people can now choose a forum other than a court and can choose a law other than American law. The forum can be an arbitration panel made up of sixty-three Polish-speaking Italian jurists residing in New York or three members of the American Arbitration Association. It can be French law, British law, Jewish law or Islamic law. So long as it is clear in the contract, it works.

This has given rise to a thriving network of independent rabbinical courts throughout the United States, many Islamic courts that have been created over the last decade, and the beginnings of Christian arbitration as ever more people in the Evangelical community realize that individual Christian denominations, too, are a minority religion in the United States.

* * *

[The guest posts in these series are designed to introduce the reader to the basic issues presented in my book Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West (Oxford, 2017), which is being released this week. I am a law professor at Emory University School of Law, and the Projects Director at its Center for the Study of Law and Religion. For about twenty years, I served as an arbitrator in the Beth Din of America, first as the consultant hired to write the rules that are still used by the BDA, then as the director, and then as one of the four standing members of the rabbinical court.

These posts are divided into five: The first, this one, explains the rise in religious arbitration and the law governing it. The second will explain the evolution of religious arbitration in America, focusing on the Jewish experience, which is the most nuanced and complex in America now. The third will explore the criticisms of religious arbitration and the fourth will explain its virtues. The final post will explore how this applies to the recent conversation about Islamic courts and what the rabbinical courts can teach Islamic courts about how to conduct religious arbitration.]

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Translating Genesis: double translation

(James Pruitt, Qingwa, LLC/Bigstock)

This is the second in a series of posts about “Genesis 1–11: A New Old Translation for Readers, Scholars, and Translators” (available from the publisher and from Amazon). In my last post, I mentioned a double translation in Genesis 11:9:

Hence her name is called Babylon, for there the LORD scrambled the tongue of all the earth and made it babble. And from there the LORD scattered them over the face of all the earth.

“Double translation” means rendering one term in the original with two terms in the translation. This technique is almost never used in contemporary English Bible translations, but there is precedent for it. Ancient Greek translators of Genesis used double translations (e.g., the Septuagint’s “chest and belly” in Genesis 3:14, and Theodotion’s “in the wind during the cooling off of the day” in Genesis 3:8). Medieval English translators used double translations. And some gifted 20th century writers used them, such as Hannah Arendt, when translating a word from Aristotle into German, and Langston Hughes, when translating an African political slogan into English.

Why double translation? Our translation is meant to be very close, closer than the widely used English translations of Genesis, both Jewish and Christian (e.g., NJPS, NRSV, Alter, NIV, ESV). So we don’t use double translation to gild the lily. Rather, the idea is that languages don’t fully align. An expression may have multiple senses or shades of meaning that can’t be carried over into the receiving language with a single translation. In these cases, a translator can try to capture more of the significance with a double translation, at the cost, however, of giving up the concision of the original.

We use the double translation technique in five other instances. I’ll highlight one of them and mention the other four in passing. (You’ll see an example of how our translation uses italics to mark puns, but more on that in a later post.)

First consider Genesis 2:25–3:1:

And the two of them were naked, the man and his wife, and were not ashamed. Now the serpent was smooth and shrewd beyond every other beast of the field which the LORD God had made.

“Smooth and shrewd” is a double translation. “Shrewd” captures the denotative sense, while “smooth” captures the connotation. Oily. Slick. A smooth operator.

And there’s another idea behind the choice of “smooth.” To explain it, I’ll give an excerpt from the 135 pages of translation notes at the back of our volume:

Through a pun the fate of the man and the woman is entwined with that of the serpent. “Naked” (‘arummim) sounds like “shrewd” (‘arum) in the next sentence, and in fact the Hebrew word rendered “naked” was chosen, instead of a similar word of the same meaning used elsewhere in this passage (‘erom, ‘erummim), just to make the pun obvious. The pun ties together the creation of Adam and Eve and their temptation, and it points to the futility of disobedience: “The nude humans have been duped by the shrewd serpent; they want to be shrewd, but in the end they are only nude” (Arnold 2013, citations omitted).

To hint at the pun in English, a double translation is employed, “smooth and shrewd,” with “smooth” reinforcing the sense of “shrewd” while also suggesting a smooth physical surface like the skin of the naked humans, not to mention the smooth skin of the serpent. Although “nude” would make the pun more obvious in English, “naked” is the right word because of its association with vulnerability and shame.

In short, the double translation “smooth and shrewd” is a way to carry over denotation and connotation, while also hinting at a crucial pun.

The other instances of double translation are in Genesis 2:8, 3:4, 4:5-6, and 8:21. (For comparison, I’ll link to how each verse is rendered in a widely used and fairly literal translation, the English Standard Version.)

In 2:8, our translation has God planting a garden in Eden “aforetime, in the east.” (Cf. ESV.) That picks up two different ways to understand a Hebrew word, which might have been used with either or both of these senses.

In 3:4, the serpent’s rejection of the divine sentence is emphasized by the Hebrew word order. To show that emphasis, we repeat the negation: “No, it is not ‘you must surely die.’” (Cf. ESV.)

In 4:5-6, Cain “burned … with anger.” “Burned” is a more literal translation; “was angry” is the idiomatic sense. The double translation keeps the physicality of “burned” without sacrificing clarity. (Cf. ESV.)

In 8:21, Noah’s sacrifice produces “a sweet savor, a savor of rest.” This is a technical term for sacrifices, traditionally translated in English as “a sweet savor.” But it is also the last in a series of puns on Noah’s name, which means “rest.” The double translation is meant to pick up the connection with sacrifice in the rest of the Bible (“a sweet savor”) and the connection with other puns in the flood story (“a savor of rest”). (Cf. ESV.)

What these passages exemplify is the richness of language and the difficulty of bottling it up in a concise form of words. In E. M. Forster’s “Howard’s End,” there’s a quote that captures the trade-offs inherent in translation. In the novel, a character wants to buy a house, and she says she’s looking for “a small house, with large rooms, and plenty of them.”

Something like this is also true in law. A modern statute might be clear, precise and non-redundant, but it usually cannot be all three. Although most of the textual canons used for statutory interpretation make a lot of sense, this is why I think the canon against surplusage is naive. In everyday speech, in legal texts and even in translations of Genesis, one person’s surplusage may be another person’s way of dealing with inevitable trade-offs between clarity and concision.

(Page references to our volume: Double translation is discussed in our “To the Persistent Reader” essay on P. 51. The translation notes on the instances of double translation are on Pp. 95–97, 108, 109, 129, 167–168. For discussion of a double translation we consider but reject, “My iniquity is too great to be borne or forgiven” in Genesis 4:13, see P. 138.)

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Michael Broyde guest-blogging on ‘Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West’

(James Pruitt, Qingwa, LLC/Bigstock)

I’m delighted to report that Prof. Michael Broyde (Emory Law School), will be guest-blogging here this coming week on his new book, “Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West” (just published by the Oxford University Press). Broyde has written extensively on Jewish law — he is both an ordained rabbi and a former director of the Beth Din of America, the largest Jewish arbitration tribunal in the United States — but in his posts (as in his book) he’ll be talking more generally about religious arbitration in various religious traditions. Here’s his summary of his forthcoming posts:

This book tackles the problem of religious arbitration as an outsider, asking whether religious arbitration is a valuable good for a secular society, or merely an activity which is unfortunately protected by the First Amendment (like a White Supremacist Church) but which we all wish would really go away, and which should be granted only the most minimal protections the constitution requires.

These posts are divided into five: The first explains the rise in religious arbitration and the law governing it. The second explains the evolution of religious arbitration in America, focusing on the Jewish experience, which is the most nuanced and complex in America now. The third explores the criticisms of religious arbitration and the fourth explains its virtues. The final post explores how this applies to the recent conversation about Islamic courts and what the rabbinical courts can teach Islamic courts about how to conduct religious arbitration.

I’ve long been interested in religious tribunals and more broadly in how the secular legal system deals with religious law, and I very much look forward to Broyde’s posts.

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