Short Circuit

Short Circuit 393 | As Goes Maine So Goes the Constitution Sep 12, 2025

Your right to remain silent just got a little stronger in the Pine Tree State. We welcome on Carol Garvan of the Maine ACLU to discuss a recent ruling from the state’s highest court. Under police questioning a suspect asked about an attorney being present and whether he had to answer questions, but did so a bit ambiguously. Was that enough to invoke his rights under the Maine Constitution? Carol argued the case as an amicus to explain the high level of protection those rights receive in the state compared to what the U.S. Supreme Court has said about similar language in the U.S. Constitution. And the court agreed with her and her colleagues. She explains to us how the court came to its conclusion and what this means for other Mainers. Then IJ’s Daniel Woislaw tells us of another police encounter, this time at a parked car with heavily tinted windows in the District of Columbia. Could the police force the driver and passengers to roll their windows down? The judges say yes but disagree about why. It’s another example of the “reasonable expectation of privacy” test twisting and turning at the side of the road.

State v. McLain

U.S. v. Williams

IJ’s new Maine Backyard Chickens case

Short Circuit 392 | The NFL Commissioner Decides Sep 05, 2025

Arbitration may not sound like the most exciting subject, but it recently made for an exciting story at the Second Circuit. Former Miami Dolphins coach Brian Flores sued several teams and the NFL itself. In response, the NFL said the case had to go to arbitration. Which was pretty convenient because the NFL’s arbitration clause gives the job of arbitration to the NFL’s commissioner. It’s kind of like suing your employer and your old boss serving as the judge. Mike Greenberg of IJ drops by to explain why this meant the arbitration clause wasn’t enforceable under federal law. Then Jeff Redfern tells us of a case out in the Ninth Circuit where some attorneys got into hot water. They sued to try and change Arizona voting procedures with some aggressive allegations and rhetoric. But was it so aggressive that they should be sanctioned for filing the complaint? IJ’s Jeff Redfern explains what the Ninth Circuit said about the matter, both at the panel stage and when the attorneys tried to go en banc. Some dissenting judges said whatever line there is between aggressive and frivolous it wasn’t crossed in this particular case. The team looks at how these issues especially come up in public interest litigation where “today’s crazy theory becomes tomorrow’s settled law.”

Flores v. N.Y. Football Giants

Lake v. Gates (panel)

Lake v. Gates (en banc denial)

Short Circuit 391 | 7th Circuit Judicial Conference Aug 29, 2025

Short Circuit traveled to Chicago for a live recording on the eve of the Seventh Circuit’s biannual Judicial Conference. In front of a crowd of Seventh Circuit enthusiasts your host spoke with some experts about some of the court’s recent opinions and how the circuit works. That included Sarah Konsky of the University of Chicago, appellate specialist Chris Keleher, and IJ’s own John Wrench. “Collective” (not class) actions, prisoner appeals and summary judgment, and Fourth Amendment overnight-guests all make an appearance as does the life and times of Judge William Bauer.

STOP PRESS: On the eve of this episode dropping IJ won one of its pending cases before the Seventh Circuit! Richwine v. Matuszac, concerning Indiana’s licensing of death doulas. So IJ’s score in the Seventh is now 3-2, not 2-2 as John then-accurately reported.

Richards v. Eli Lilly

Whitaker v. Dempsey

U.S. v. Walker

Oral argument with Judge Bauer & timesheets

Short Circuit 390 | Kangaroo Courts Aug 22, 2025

The Constitution separates “the judicial power” from “executive power.” Well, that’s the theory at least. A mixing of these powers led to some massive fines against a family farm. But Robert Fellner of IJ is happy to report that the Third Circuit recently ruled that’s a problem. In a case that IJ itself litigated, the court ruled that Article III of the Constitution guaranteed an independent judge when the federal government took the farm to court. The ruling is an application of a recent Supreme Court case and bodes well for separation of powers in the future. Then IJ’s Ben Field tells a very different story about a Russian woman who tried to arrange for an oligarch’s girlfriend to fly to the U.S. on a private jet in order to give birth. The problem was the U.S. government had sanctioned the oligarch and the woman working for him tried to evade that. Things didn’t work out and she didn’t show up for her court hearings in the U.S. The question the Second Circuit then looked at was is she a “fugitive”? She doesn’t live in the U.S. but she did used to visit the country a lot. The answer depends on a bit of a messy test about “fugitive disentitlement.”

Sun Valley Orchards v. U.S. Dept. of Labor

U.S. v. Bardakova

The Rise and Rise of the Administrative State

Episode with Scott Lincicome on tariffs

Short Circuit 389 | On Walden Fourth Amendment Aug 15, 2025

It’s Sixth Circuit week on Short Circuit with a couple Sixth Circuit lawyers who clerked on the Sixth Circuit and practice law in Michigan. (Which is where? That’s right, in the Sixth Circuit.) David Porter and Sean Dutton spin yarns about some recent Sixth Circuit opinions, including with a bit of an inside look on what the circuit’s judges think about dissenting from not going en banc. First we look at how “homely” a home needs to be to be a home. What even is a “home” for it to receive the protection of the Fourth Amendment, requiring a warrant and probable cause before government agents can search it? David discusses a recent case from the Sixth Circuit that opened the door on that question. Some warrantless inspectors barreled through the woods to then walk around a set of “mini-cabins.” Did that violate the Fourth Amendment, and if it did was it so clearly established that the inspectors can’t get qualified immunity? The court says yes and yes. We review how it got there and what it means going forward. Then Sean details a case about what rights someone has when they’re in prison and might have a path out of there. If the prison requires you to go through a program related to a sentence that the prisoner has already served, for another crime, in order to get parole, does that have due process implications? It comes down to what a “liberty interest” is. Sean also examines the writing style of the opinion, and we hold a colloquy about where legal opinions are well written and where they get a bit too glib. Finally, we have some fun with some sniping in a recent Sixth Circuit denial of en banc where the epic question is asked of when should a judge write—or not write—a dissental.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

Mockeridge v. Harvey

McClendon v. Washington

Mitchell v. City of Benton Harbor

Walden

Short Circuit 388 | Crazy Fast Speeds Aug 08, 2025

Did you know the feds can send a subpoena to social media companies to find out stuff about your accounts and also order the same companies not to tell you? Turns out it happens all the time. But the law says that a court has to make an individualized assessment of each request. Some federal agents convinced a district court to just let them do all the paperwork and give a blanket gag order for a bunch of requests. Betsy Sanz of IJ joins us to explain why the DC Circuit said that’s just not good enough, although they avoided the Fourth Amendment issue. Then IJ’s Andrew Ward takes us to a meth deal gone bad and a “crazy high” speed chase. When the police arrest the driver, though, he’s pretty friendly—and probably high on marijuana. And he’s even acquitted of dealing meth—but not of being a drug user who owns a rifle he’s barely used that’s back at home in his closet. Is that a Second Amendment violation? It turns on a lot of history and tradition that kind of doesn’t make a lot of sense.

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

U.S. v. Perez

In re: Sealed Case

Short Circuit 325

Beyond the Brief episode “Cash Me if You Can”

Short Circuit 387 | The Business of Baseball Aug 01, 2025

On the heels of the trade deadline, Rob Johnson of IJ reports on some baseball news. But it doesn’t concern the latest in Major League Baseball. Instead, it’s about the business of baseball and how broad is the “business of baseball” exemption from the antitrust laws. There’s a baseball league in Puerto Rico that gave some pretty rough justice to an owner, who then took the league to court. Does the history and tradition of “baseball’s” exemption from antitrust laws apply to this league, or only to the American and National leagues back on the Mainland? Rob brings us the First Circuit’s answer and does so with the objective dispassion of a football fan. Then your host takes us out west for an unsolvable problem involving wild horses crisscrossing public and private lands in Wyoming. Are those horses actually “wild”? Doesn’t really matter to Congress, which mandates pretty impossible things that force the Tenth Circuit to send the government back through the administrative process. Then we close with some hot gossip: There’s no joy in Mudville.

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

Cangrejeros de Santurce Baseball Club v. Liga de Beisbol

American Wild Horse Campaign v. Raby

Flood v. Kuhn

Federal Baseball Club v. National League

Short Circuit 370 (on Wyoming crisscross property)

Casey at the Bat readings at Librovox.org

Short Circuit 386 | Lehto’s License Plates Jul 25, 2025

Steve Lehto of Lehto’s Law rejoins Short Circuit—and for the first time on a YouTube episode—to spread the common sense he delivers daily on his own show. Steve shares a recent opinion from the Kansas Supreme Court about license plate covers. The police and lower courts had interpreted the law to make it a crime if a license plate cover blocked not just the actual license number but the name of the state. This basically turned a huge percentage of car owners into unknowing criminals. And gave the police a lot of discretion. But the court put a stop to that practice by saying it’s simply not how to read the statute. Further, Steve isn’t the only crossover guest on this episode. We also welcome Keith Neely of Beyond the Brief, another IJ podcast. Keith details an opinion from the Fourth Circuit upholding the federal ban on selling handguns to 18, 19, and 20 year olds. Is that OK under the Second Amendment? As with many constitutional issues these days, it depends on how you read the history.

Click here for transcript.

McCoy v. BATF

Kansas v, Beck

Bruen

Blog post on New Jersey license plate case

Lehto’s Law

Beyond the Brief

Mork Meets the Fonz and Lavern

Short Circuit 385 | Pyramid Power Jul 18, 2025

We look into the gray area between a multi-level-marketing venture, like Amway, and a “pyramid scheme.” Appellate attorney Kyle Singhal joins us to discuss a matter of his from the Sixth Circuit where the court examined whether prosecutors in a mail-fraud case got over their skis by repeatedly calling what the defendants did a pyramid scheme. “Pyramid schemes” are bad, obvs., but they’re not actually a federal crime. So was it OK to use that term when speaking to the jury? Kyle explains what the court said in affirming the convictions. Then, Marie Miller of IJ gives us an update on a case she discussed last year in the Eighth Circuit. A police officer arrested a Missouri man for walking on the wrong side of the road. The court had said his First Amendment retaliation case was no good because there was probable cause for the (uncommonly silly) crime. But then the Supreme Court said give that another try. And the Eighth Circuit did and now has ruled the other way, allowing the case to go forward. Marie explains how the court changed its mind (a change in judges might have helped too).

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

US v. Maike

Murphy v. Schmitt (2025)

Murphy v. Schmitt (2023)

Short Circuit 349 (episode on Murphy GVR)

Short Circuit 384 | Metering Constitutional Rights Jul 11, 2025

Can the government force you to only exercise a constitutional right once a month? Could it do that with speech? Or practicing religion? How about keeping and bearing arms? IJ’s Will Aronin asks that question when discussing a California law that restricted gun purchases to buying one gun a month. The Ninth Circuit recently found the law violated the Second Amendment. That’s something the Ninth Circuit doesn’t do very often, so we made sure to take a close look at this “unicorn” of a case. Plus, frequent users of Sudafed may enjoy the conversation. Then John Wrench, the Assistant Director of IJ’s Center for Judicial Engagement, explains a recent Sixth Circuit decision about the government taking the blood of babies. The court addressed a couple constitutional challenges to Michigan’s practice of taking blood from babies when they are born, without parental consent, and then hanging onto the blood samples for 100 years. It said this did not violate the Fourth Amendment or the right of parents to direct the upbringing of their children. But this seemed to contradict what the same court—but different judges—had said earlier in the same case. Can they do that? Apparently.

Click here for transcript.

Nguyen v. Bonta

Kanuszewski v. Michigan HHS

Bruen

Rahimi

Short Circuit 383 | Rock ‘n’ Roll Yoga Jul 04, 2025

Is speaking to a yoga class speech? The Ninth Circuit recently proclaimed that the answer to that question is actually “yes.” But before you turn away from this episode because it simply parrots Captain Obvious, please know that it was not so obvious to the district court. Or the city of San Diego, which tried to define the teaching of yoga—but not the teaching of anything else—in public parks as conduct, not speech. Teaching all kinds of other things was fine, but teaching yoga to four or more people could land you in a twisted position. Paul Avelar of IJ gives some erudition on how the Ninth Circuit relied on a case that he litigated a few years ago to bring the First Amendment to the yoga instructors of California. Then IJ’s Marco Vasquez drives us to Arkansas where some hemp producers challenged the state’s ban on most hemp products. The challengers make a lot of hay out of the allowance for “continuously” transporting hemp through the state. Along the way the Eighth Circuit has to deal with a scrivener’s error. And what is one of those again?

Click here for transcript.

Hubbard v. San Diego

Bio Gen v. Sanders

IJ’s Brief in Chiles v. Salaza r

Bartleby, The Scrivener

Short Circuit 382 | Beard Law Jun 27, 2025

Who doesn’t love a nice beard? It seems the firefighters in Atlantic City. One of their employees wants to wear a beard because of his religion. He doesn’t actually fight fires as part of his job, but there’s a possibility he’d be told he needs to and therefore he supposedly can’t have a beard because his special air mask wouldn’t fit. Does this violate the First Amendment’s protection of free exercise? Matt Liles of IJ reports on this case from the Third Circuit that digs into how “generally applicable” a law must be to not target someone’s religious practice. Then IJ’s Bob McNamara discusses a scary subject: statutes of limitations. Blowing one is every litigator’s nightmare. But which statute of limitations applies in a given case? For claims brought under Title IX, a federal ban on sex discrimination, that’s unclear. Bob breaks down a Fourth Circuit opinion that had to figure out what South Carolina law applies to Title IX claims in a case where a high schooler sued a school for not stopping sexual harassment. Is it a special state law on suing governmental entities? Or is it the most general state statute of limitations? Bob tells us the answer but also advises that this would all be a lot easier if Congress did its job and provided its own statute of limitations.

Click here for transcript.

Smith v. Atlantic City

E.R. v. Beaufort County School Dist.

Employment Division v. Smith

Pogonologia

Short Circuit 381 | Charo on the Tonight Show Jun 20, 2025

We at the Institute for Justice are increasingly involved with combatting retaliation against free speech. Which is why we were highly interested to hear from Daniel Cragg and his recent win at the Eighth Circuit. Dan is a Minneapolis attorney who regularly sues the government for all kinds of things. This particular case was about a doctor who made a few remarks that weren’t very politically popular at her place of work—a public hospital—at the height of the pandemic and cultural ferment in 2020. She lost her discrimination and retaliation claims at summary judgment but the Eight Circuit sent the retaliation claim back for trial. It also called her other claims “interlocutory.” We discuss the free speech issues at the heart of the matter but in addition your panel perplexes about how the court could think the other claims were interlocutory, considering the appeal was from a final judgment. Then Michael Bindas of IJ discusses a recent Ninth Circuit en banc opinion about a police shooting. The interesting thing to Michael’s eyes is how a concurrence treated a pair of substantive due process claims invoking the case Pierce v. Society of Sisters, which just celebrated its 100th anniversary. The panel dig into what the right recognized in Pierce has to do with a child’s claim for losing a parent, and what Plato’s Republic has to do with it all.

Click here for transcript.

Gustilo v. Hennepin Healthcare System

Estate of Hernandez v. L.A.

Pierce v. Society of Sisters

Cato’s event on Pierce, including panel with Michael

Meyer v. Nebraska at 100

Plato’s Republic (Book V)

Short Circuit 380 | Homicide by Bath Jun 13, 2025

Is making someone file a form “in the public interest”? The Fifth Circuit took a look at that age-old question in a recent case regarding the FCC and its gathering of demographic data. What might seem like a small issue opens the door to how the administrative state works, where agencies get their power, and how narrow the courts are reading those powers these days. IJ’s Bob Belden explains the twists and turns of this story that goes back several decades. Then Nick DeBenedetto of IJ walks us through a habeas case from the Sixth Circuit with a wild story about a murder—or was it a murder?—of a wife by her husband and whether the conviction was tainted because of the background of a detective. The detective, it turns out, told all kinds of lies to get hired before he investigated the defendant. Did those lies affect the conviction enough to violate the Constitution? See if you can render your own verdict.

Click here for transcript.

National Religious Broadcasters v. FCC

Widmer v. Okereke

Rebels on the Air by Jesse Walker

Short Circuit 379 | Tariff Bazookas Jun 06, 2025

With the recent major tariff rulings we had to pull in a major tariff expert, Scott Lincicome of the Cato Institute. Scott digs into the “shocking decision,” as even he puts it, from the Court of International Trade declaring many of the recent “emergency” tariffs unlawful. He takes a look at what’s behind the opinion and what’s next as the case goes on appeal to the Federal Circuit and perhaps also to the Supreme Court. The law the tariffs are justified under might not even allow for tariffs, but ruling that way means the courts will have to not give the substantial deference to the President in these kinds of matters that they often have given in the past. Both the Major Questions Doctrine and the Nondelegation Doctrine loom and there’s some gaps that need to be filled. Then IJ’s Jeff Rowes describes a victory for free speech in the D.C. Circuit where the Attorney General of Texas tried to use a consumer fraud statute designed to remedy things like “defective air conditioners” against a journalism organization. Even though the court upheld a preliminary injunction, Jeff argues that the very fact the law was used in this way in the first place, in conjunction with the rich and powerful, is an ominous First Amendment warning. Plus, we dig into some “where are they now, updating cases from recent episodes. This includes one where IJ is trying to have applied to the states one of the last bits of the Bill of Rights that the Supreme Court has missed: The Seventh Amendment’s right to a civil jury trial.

Click here for transcript.

Call for Papers for our conference on Declarations of Rights from 1776!

VOS Selections v. U.S.

Media Matters v. Paxton

Scott’s conversation with Rick Woldenberg from the DC tariff case

Scott & Clark Packard’s study on tariff powers from last year

IJ’s Seventh Amendment incorporation cert petition

Corn Law Rhymes & Other Poems (1833)

The Taxed Cake

Short Circuit 378 | Come and Take It May 30, 2025

Fans of truckers should enjoy this episode, although they may grow angry hearing about a truck stop that never was to be. Tahmineh Dehbozorgi of IJ tells us of a property owner in Georgia who wanted to turn his land by a highway into a truck stop. But the county was dead set against him, leading to a decades-long zoning battle. A gas station would be OK, but not if it looks more like a place where truckers can fuel their rigs and get a little rest. In the end, when the controversy finally reaches the Eleventh Circuit the rational-basis test squashes any chance the truck stop has because . . . well because it’s a rational-basis case. Then Suranjan Sen takes us to the Sixth Circuit where an eight-year-old wore a hat with a gun on it that also says “Come and Take It.” The student was asked to take it off ostensibly because of a recent shooting in a nearby school. Did that violate the First Amendment? The court claims it did not but the matter seems a close case under the relevant caselaw. The crew looks at the relevance of the Tinker case from the Vietnam War era and also where the “come and take it” phrase comes from. Did you know it’s a Battle of Thermopylae thing?

Click here for transcript.

Corey v. Rockdale County

C.S. v. McCrumb

Tinker v. Des Moines Sch. Dist.

Angry Cheerleader Case

Roll On (Eighteen Wheeler)

Short Circuit 377 | Zen and the Art of the Nondelegation Doctrine May 23, 2025

Sometimes a short ride goes a long way. Casey Mattox of Stand Together comes on to tell us how a dirt biker in Nevada may end up making some constitutional history. Agents of the Bureau of Land Management gave the dirt biker a citation for riding without a license-plate light. His public defender argued the underlying law was unconstitutional because Congress hadn’t given the Bureau an “intelligible principle” to guide the underlying traffic regulation and thus violated the nondelegation doctrine. That argument won at the district court but then the Ninth Circuit recently overturned it on appeal. But there may be more life in the case to come. Then Arif Panju of IJ details the latest challenge to a university speech code. A judge twisted some arms to get the school to change its policy and then declared the case moot. The Fifth Circuit, however, said the game’s not over yet because there’s no guarantee the old code won’t come back.

Click here for transcript.

US v. Pheasant

Speech First v. McCall

Uzuegbunam v. Preczewski

FBI v. Fikre

2019 blog post on voluntary cessation

Zen & the Art of Motorcycle Maintenance

Short Circuit 376 | Murder Mysteries May 16, 2025

Two federal appellate opinions involving a murder and whether justice was served. First, IJ’s Dan Alban reports on a Sixth Circuit case where a man alleges he was wrongfully accused and spent seven years in jail waiting for trials on various false charges, including not just murder but others too—including sodomy—and where the trials never happened. All of this, the man claims, was because of a conspiracy directed toward getting him to testify—and lie—in another case. It’s a crazy story that the court doesn’t want to hear because it concluded the man’s civil rights lawsuit was filed too late. Then we hear from An Altik of IJ about the latest in the very long running saga of a man, Rodney Reed, trying to prove his innocence while on death row. Reed was successful at the Supreme Court last year in his attempt to have a claim for DNA testing to be heard. But now that the Fifth Circuit has considered the claim it has denied relief. The court declared that the underlying rule used in Texas courts is constitutional under the Due Process Clause.

Click here for transcript.

Reed v. Goertz

Brown v. Louisville-Jefferson County

Background on Rodney Reed case

The Murder on the Links

Short Circuit 375 | Unsympathetic Clients May 09, 2025

Constitutional rights protect everyone, even people we might not be terribly fond of. This week we discuss two defendants who perhaps don’t deserve a lot of sympathy but nevertheless had their rights vindicated in a way that protects those rights more broadly. First, an IJ alumna, Anna Goodman Lucardi, rejoins Short Circuit to update us on goings on in the Fifth Circuit where the court applied last year’s SCOTUS case about jury trial rights, SEC v. Jarkesy, to a similar situation involving the FCC and fines. The court found that the FCC’s system violated both the Seventh Amendment and Article III of the Constitution. This even though the well-known defendant, AT&T, is a “common carrier.” Then Jessica Bigbie of IJ reports on a Tenth Circuit matter where a warrant led to police finding some not-legal images on someone’s phone. But the warrant itself had some not-constitutional language under the Fourth Amendment. Language allowing the authorities to basically search everything for anything. Jessica applies her background as a public defender and assesses why this “unicorn” of a case came out the way it did. We then end the show with some “where are they now” on cases from Short Circuits past.

Click here for transcript.

AT&T v. FCC

U.S. v. Santiago

SEC v. Jarkesy

Lawson’s The Rise & Rise of the Admin State

The Mouse’s Tale

Short Circuit 374 | Content-Based Dancing May 02, 2025

All kinds of constitutional goodies this week, from sovereign immunity to the First Amendment right to dance. But we begin with our annual Kentucky Derby preview from IJ’s Kentucky boy, Brian Morris. After that Brian keeps things local with a case from the Derby’s home circuit, the Sixth, which features another old favorite of the podcast, Ex parte Young. That precedent helps a pipeline company with some litigation against the governor of Michigan concerning an easement under the Straits of Mackinac (a name we proudly pronounce correctly). Then Evan Lisull, IJ’s legal writing guru, fresh from editing a round of recent briefing, gives some tips for writing at the Supreme Court. He also shares with us an Eleventh Circuit case concerning Jacksonville, Florida’s efforts to stymy the dancing opportunities of 18-20 year olds. The facts are very “Florida Man” (well, “Florida Young Women” technically) and although we give a brief and clinical description of the activities that Jacksonville is trying to ban, parents may want to hit pause if they have younger children listening. The larger issue we spend far more time addressing is whether content-based restrictions on speech related to zoning and unwanted “secondary effects” receive strict scrutiny or not. As a bonus, there’s even a fan-favorite: a Judge Newsom concurrence. We close with some reflections on a favorite of Evan’s during Derby week, Hunter S. Thompson’s 1970 essay on the circus surrounding the run for the roses.

Click here for transcript.

Enbridge Energy v. Whitmer

Wacko’s Too v. Jacksonville

Ex parte Young

The Kentucky Derby Is Decadent & Depraved

Short Circuit 373 | Live from Denver Law! Apr 25, 2025

Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the passage of Colorado’s reforms and gives us his perspective from the civil rights litigation side. Then he describes a Tenth Circuit case he litigated about a woman who was brutally injured by a police officer. The court said her rights were indeed violated, but not in a way that overcame qualified immunity. Finally, we hear from Professor Laurent Sacharoff of Denver Law. He tells us of a recent Tenth Circuit case where a couple of officers got their dog to run into a house without first contacting the resident but after telling the dog to bite the first person it sees. Sig, the dog, then did what it was told and bit the resident—who was asleep in bed—and was allowed to hold on for a minute before the police commanded it to stop. The court found that this was so obviously wrong that it not only violated the Constitution but that the plaintiff overcame qualified immunity. The panel discusses why QI was defeated in one case and not the other and how this makes for unpredictability in legal practice.

Click here for transcript.

SB 20-217

Surat v. Klamser

Luethje v. Kyle

Tenth Circuit courtrooms

Short Circuit 372 | VHS Privacy Apr 18, 2025

An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just about no one rents these things anymore, the statute still applies to rentals of movies online. Both the Sixth Circuit and the Seventh Circuit recently ruled on the scope of the law and came to opposite conclusions. Along the way, Jacob provides a dramatic reading of the original article about Bork’s video rentals. And stay tuned to the end for a segment of “Where Are They Now?”

Click here for transcript.

Villarreal v. City of Laredo

Gardner v. Me-TV National Limited Partnership

Salazar v. Paramount Global

Short Circuit episode with JT Morris

1987 article on Judge Bork’s video rentals

Short Circuit episode on Papa Johns’ website

Nietzsche’s Eternal Recurrence

Short Circuit 371 | Ten Years of Short Circuit Apr 11, 2025

Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode.

Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and, as many listeners will know, the Dean of what some still call #AppellateTwitter. Eugene begins the episode with a recent en banc ruling from the Ninth Circuit which upheld California’s ban on gun magazines with more than 10 rounds. He analyzes the majority’s reasoning but what the audience really enjoyed was his—and Raffi and Anya’s—thoughts about the video dissent by Judge Van Dyke, wherein the judge displayed a number of firearms and how they work. Then we move to Raffi for a few litigation tips from Lord of the Rings. We don’t do a lot of arbitration cases on Short Circuit but, wow, if you’re ever going to hear about one it’s got to be this. Four different arbitrators all heard one dispute, gave mutually inconsistent awards, and even sanctioned one and other. How does this story end? The Fifth Circuit hopes with one last arbitration to rule them all. If it doesn’t go to the Supreme Court first.

Click here for transcript.

Duncan v. Bonta

Sullivan v. Feldman

Judge Van Dyke’s video dissent

Short Circuit 370 | Humans Only in the Copyright Office Apr 04, 2025

Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard.

Click here for transcript.

Daniel Nelson and Patrick Jaicomo’s Section 1983 article

Thaler v. Perlmutter

Iron Bar Holdings v. Cape

John Connor’s speech

Short Circuit 369 | Substantive Due Process, The Podcast Mar 28, 2025

Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don’t have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they’re relying on—go astray.

Click here for transcript.

Littlejohn v. School Board of Leon County

Sacramento v. Lewis

Judge Newsom’s article on incorporation

The One and Only Substantive Due Process Clause

Short Circuit 368 | Flipping the Bird Mar 21, 2025

Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our panel discuss how the issue can get complicated.

Click here for transcript.

Fugenschuh v. Minnehan

Seals v. Wayne County

Whren v. U.S.

Short Circuit 367 | The Police Power Mar 14, 2025

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you.

Click here for transcript.

Good Governing (free download!)

Good Governing (physical copy for purchase)

Dan’s NYU Journal of Law & Liberty article

Short Circuit 366 | I Love You But Can’t Mar 07, 2025

What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of privacy” test comes up as does the complete mess that the Fourth Amendment finds itself in these days.

Click here for transcript.

Plunkitt of Tammany Hall

Short Circuit 365 | I Like Old Property Feb 28, 2025

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening.

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Click here for transcript.

Wagner v. Scheirer

McKinney v. Goins

inversecondemnation.com

Bound By Oath episode on Pennsylvania Coal

SC episode on the British Constitution

Tess of the d’Urbervilles

Short Circuit 364 | Big Bats Feb 21, 2025

Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed.

Click here for transcript.

S.C. Coastal Conservation League v. Corps of Engineers

City of Martinsville v. Express Scripts

TVA v. Hill

Adam’s Legal Newsletter post on the snail darter

Short Circuit episode on Mark Meadows case

Short Circuit episode on PBMs

Dracula

Corleone, Sicily

Short Circuit 363 | The Licensing Racket Feb 14, 2025

You probably know that all-too-many jobs require a license to work. But how is that license administered, who enforces its rules, and who makes the decision on whether to take the license away? Almost always it’s a board composed of people with the same license. Rebecca Haw Allensworth joins us to discuss her new book The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong. Unlike other studies on licensing it digs deep into how licensing boards operate, what their incentives are, and how they are hard on outsiders who haven’t hurt anyone but all-too-easy on insiders who are truly bad actors. She tells stories of what makes boards act this way, how it relates to antitrust law, and what has and could be done to reform how we regulate professions. Also, did you know Tennessee used to have a “beauty pageant operator license”? Listen in to hear that story and much more.

Click here for transcript.

The Licensing Racket

N.C. Board v. FTC (“The Case That Shall Not Be Named”)

Licensed to Work (3d ed.)

Bona Law

Short Circuit 362 | Boil the Frog to Tear Down the House Feb 06, 2025

Two cases, from the Fourth and Sixth Circuits, came out within just a few days of each other, and each was about a city tearing a house down. And whether that was OK. They came to different conclusions, partly because one seemed to have been litigated a bit better, but also for other reasons we discuss. First, IJ’s Christian Lansinger describes a Virginia property that wasn’t in great shape, but also where the officials didn’t act quite right before they tore it down for being a nuisance. Unfortunately, the owner sued too late for the court to address most of his claims. In Kentucky, on the other hand, the owner sued in time after being told he couldn’t appeal to the city’s property review board because although it’s mentioned in the city code, city officials told him it didn’t exist. The court was not impressed by this and allowed the case to move forward. Joe Gay of IJ brings this matter to our attention, along with an interesting concurrence about how our property rights have suffered from a slow boil.

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Listen to Bound By Oath!

Click here for transcript.

D.A. Realestate Investment v. City of Norfolk

McIntosh v. City of Madisonville

Robert Thomas’ blog post

IJ’s Brody case

The Wrong House by A.A. Milne

Short Circuit 361 | Reading the Qualified Tea Leaves Jan 31, 2025

We welcome back Easha Anand of Stanford Law’s Supreme Court Litigation Clinic for her third (or is it fourth?) appearance. Last time she was on she had not yet argued at the Supreme Court, but now she’s done it four times. She tells us if it gets easier (not so far) and then gives a report on a recent Third Circuit case where the court got qualified immunity all wrong. In ruling on a malicious prosecution claim the court helped the pernicious doctrine of QI grow from just being about rights to about causes of action. Then IJ’s Anya Bidwell takes us up to the First Circuit for a civil forfeiture matter concerning 30,000 drug prosecutions that were thrown out and whether the federal courts can help those wrongfully convicted get their property back (“no” is the answer). Also, at the end (after some discussion of biker gangs) there’s some joking about how the Supreme Court has relisted two IJ cases. What your host and guests didn’t know at the time, though, is that the Court would grant cert in one of them just an hour afterward! It’s Martin v. United States, and we’re sure you’ll hear more about it in future podcasts.

Click here for transcript.

RSVP for our 10th Anniversary Party and Show on April 3d in DC!

Rivera-Guadalupe v. City of Harrisburg

Cotto v. Campbell

Williams v. Aguirre

O’Connor v. Eubanks

How to Fix a Drug Scandal

Policing for Profit grade for Massachusetts

DOJ report on Springfield, Mass

IJ page on Martin v. U.S.

Tea-Cup Reading & Fortune-Telling By Tea Leaves

Short Circuit 360 | Weed and Fines Jan 24, 2025

If you have a greenhouse, and a government agent sees it on Google Maps, is that fact probable cause to charge you with growing illegal cannabis, fine you $10,000 a day, and not give you a hearing for years? Humboldt County, California thought it was and threatened ruinous fines against innocent property owners for years in an abusive enforcement scheme. IJ represents innocent property owners in the county who had to take their case to the Ninth Circuit to move forward with their constitutional claims. The lead attorney, Jared McClain, joins us to detail the lawsuit and what the court said about the Excessive Fines Clause plus several other parts of the Constitution. Then, Andrew Ward of IJ takes us to the Fourth Circuit for a challenge to racial preference policies of the Small Business Administration. The case didn’t get to the merits because the court thought the plaintiff wouldn’t be eligible for benefits even without any racial preferences. In light of that there’s some discussion of how best to plead one’s case.

Come to our 10th anniversary show and party in DC on April 3d!

Click here for transcript.

Thomas v. Humboldt (excessive fines)

Thomas v. Humboldt (other claims)

Hierholzer v. Guzman

United States v. Bajakajian

Short Circuit 359 | Net Neutrality Flip Flops Jan 17, 2025

A lot going on this week, including a lot of Short Circuit news. On the law side we talk about two recent opinions, one from the Fourth Circuit and one from the Sixth. Jeff Rowes of IJ explains the latest on abstention—Pullman abstention in this instance—where federal courts don’t do their job because state law is complicated. The Fourth Circuit said it wasn’t complicated enough, though, and allowed a religious liberties lawsuit to go forward. Then, IJ’s Brian Morris explains the latest news on net neutrality rules and why the FCC doesn’t get to decide them anymore. The Sixth Circuit won the lottery—literally—on where challenges to the latest rules would go. And once the challenges got there the panel of judges were not very impressed. There’s some discussion of the new post-Chevron world of Loper Bright, plus some discussion of how the internet worked in 1996, when Congress last spoke on this issue. Finally, we close with a reprise of a show we did a year ago about the Scottish poet Robert Burns! A real Scotswoman joins us to recite Burns’s “A Man’s a Man for A’ That.”

But the biggest news this week is our 10th Anniversary! Join us to celebrate ten years of Short Circuit on Thursday, April 3, 2025 in Washington, D.C. The show (and party) will feature a slew of folks from IJ plus retired judges Diane Wood (Seventh Circuit) and Kent Jordan (Third Circuit), Adam Liptak of the New York Times, Professor Eugene Volokh, Dean of #AppellateTwitter Raffi Melkonian, and our old friend Clark Neily, now at the Cato Institute. We have a lot of seats, but they may go fast. Register here today!

W.V. Parents for Religious Freedom v. Waldron

In re: MCP No. 185

Railroad Comm. v. Pullman

Loper Bright Enter. v. Raimondo

Short Circuit 308: Burns Night

A Man’s a Man for A’ That

Short Circuit 358 | Motte-and-Bailey Game Jan 10, 2025

Can state officers simply come on your land and take samples of your dirt (and water) without a warrant? Well, it’s hard to know when the court abstains from telling you. That’s what happened in the Sixth Circuit where a property owner went to federal court to stop an investigation but couldn’t because there was already a state court proceeding. Regular listeners will recognize an old familiar: Younger abstention. Mike Greenberg of IJ joins us to explain this convoluted story and how a case he litigated at the Michigan Supreme Court about drones plays a part in it. Then IJ’s Nick DeBenedetto discusses an en banc Fifth Circuit opinion about the SEC. The agency has to approve certain rules in private stock markets, but are there limits on what those rules can be about? Turns out hot-button diversity issues are a little too far afield. The Major Questions Doctrine makes an appearance, although in a new and perhaps unjustified way. And what does this whole system mean when private entities are beholden to the government approving their own rules?

Click here for transcript.

Satkowiak v. McClain

Alliance for Fair Board Recruitment v. SEC (en banc)

Bound By Oath episode with Professor Bob Williams

Trading Places stock market speech

Short Circuit 357 | Drama at the City Council Meeting Jan 03, 2025

City council meetings are usually sparsely attended, low key, unwatched affairs. Except when they’re not. This week we have two cases where those in power were so offended by what members of the public had to say at a meeting that they were later arrested, in violation of their right to free speech under the First Amendment. Or that’s what the plaintiffs claim, anyway. First, Katrin Marquez of IJ tells us of a meeting in Texas of a “court” that wasn’t exactly a court but really a county board. However, that didn’t stop the “judge” who led the meeting from trying to find an audience member in contempt. Sovereign, judicial, and qualified immunities all raise their heads in the subsequent Fifth Circuit lawsuit, as does the First Amendment retaliation claim. Then, IJ’s Michael Peña brings us to the Sixth Circuit where a local citizen called for the termination of a city manager and later found himself under arrest. Was there a connection between the two? The court seems to think so, or at least enough that it lets the case move forward. Plus, with the close of 2024 we begin with a few words of remembrance of William “Chip” Mellor, IJ’s co-founder and longtime President who we lost recently.

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IJ’s statement on Chip Mellor passing away

Diaz v. Cantu

Blackwell v. Nocerini

Bound By Oath on Monroe v. Pape

IJ’s Iowa city council retaliation case

IJ’s Alabama city council “no” vote retaliation case

IJ’s Texas citizen journalist case

Short Circuit 356 | Christmas Sweater Law Dec 27, 2024

Seasons greetings from Short Circuit! While you’re enjoying your holiday week at the end of 2024 we’re giving you the content you need: Christmas sweaters. Don’t worry, there’s still plenty of legal stuff, but we start things off by delving into the mystery of where the Christmas sweater phenomenon came from. (Your host suspects it has something to do with Bridget Jones’s Diary the movie—but not, interestingly, the book.) If you’re on a non-YouTube platform, to give the episode full justice you might want to check out how the episode actually looks by peaking over at Short Circuit’s YouTube channel where you can see the panel’s fashion choices. As to the law, Bert Gall of IJ tell us of a Fourth Circuit case where some plaintiffs are trying to assert their voting rights by invoking Congress’s act readmitting Virginia to the Union after the Civil War. But that’s just in the background at this point as for now the court is just trying to figure out whether sovereign immunity prohibits the lawsuit. It turns out it does not. Then IJ’s Dan Knepper takes us into a mic-dropping DC Circuit case where the court declared void a slew of environmental regulations despite no party asking it to. Can judges do that? Reactions are mixed.

King v. Youngkin

Marin Audubon Society v. FAA

The untold story of Mr. Darcy’s sweater

Sweater scene from Bridget Jones‘s (movie)

Sweater description from Bridge Jones’s (book)

Short Circuit 355 | Civil Rights Reform in the States Dec 20, 2024

IJ’s Anya Bidwell guest hosts this special episode to ask what states and local governments can do to better protect their citizens’ rights, particularly when it comes to achieving justice in the courts. Professor Joanna Schwartz of UCLA and Kasia Symborski Wolfkot of the Brennan Center join Anya to dig into how a variety of laws and practices outside of Washington, D.C affect our rights. They discuss state legislative reform of causes of action and qualified immunity, the changing nature of state supreme courts, the limited involvement the Department of Justice has with local police departments, and other subjects. Plus, there’s information on how citizens themselves can make a difference, including the often-forgotten opportunity to serve on a jury.

Click here for transcript.

Civil Rights Ecosystems

Lessons From New Mexico

New Mexico Law Review Symposium

State Court Report

Short Circuit 354 | Grounds Increasingly Dubious Dec 13, 2024

We start with a case that ticks a lot of Short Circuit boxes: eliminating governmental immunities, state constitutions, preliminary injunctions, conniving public officials, mootness, and en banc news. So what happened there? Nothing. At least for now. Beyond the Brief’s (and IJ’s) Keith Neely details a long journey a group is having to take to get a state constitutional amendment on Ohio’s ballot. Ohio’s Attorney General has had a lot of problems with their paperwork. So many problems that, as Keith explains, “at some point you run out of stupid.” The case concerns the First Amendment but at bottom it’s about bureaucratic bad faith. Then we hear from IJ’s Josh Fox about a Second Circuit opinion with a default judgment and a prisoner. Unusually, it’s not a default judgment against a prisoner but one a prisoner won against a prison guard. This story from Fishkill, New York deals with what happens when a plaintiff loses their claim against some defendants but wins the same claim against another defendant through default. Is that OK? The district court thought it was and awarded the prisoner $50,000. But things weren’t so great on appeal. This leads to your host describing himself as a default judgment lawyer. Also, Josh answers the perennial question: What’s up with the Court of Federal Claims?

Click here for transcript.

Brown v. Yost

Moore v. Booth

Beyond the Brief’s YouTube channel

Unpublished Opinions, Episode 9

Vogons

Short Circuit 353 | Jurisdictional Mavens Dec 10, 2024

Notable—and quotable—Chicago lawyer Patrick Eckler joins us for a crash-course in Seventh Circuit paranoia (if you’re paranoid about jurisdictional questions at oral argument—which you really should be). A co-host of the Podium and Panel Podcast, Patrick gives a primer on how federal appellate judges look at things The Chicago Way and then explains how a recent oral argument went off the rails quite quickly. The resulting opinion about the Federal Arbitration Act and how it relates to Amtrak was pretty short, mostly because the lawyers seem to have forgotten they work for a railroad. Then Christie Hebert of IJ takes us on an up-and-down ride in the Eighth Circuit with a takings case (and a bit of Contract Clause thrown in) that despite its hopeful beginnings on appeal two years ago ends in a meaningless one-page opinion. Along the way she shares what she learned at the Supreme Court earlier this year in IJ’s property rights case, DeVillier. And, for those who can’t find such content anywhere else, there’s a spirited defense of Rule 12(c) motions.

Click here for transcript.

Montoya v. Amtrak

Oral argument in Montoya

Heights Apartments v. Walz (2022)

Heights Apartments v. Walz (D. Ct. 2023)

Heights Apartments v. Walz (2024)

Podium and Panel Podcast (Apple)

Patrick on LinkedIn

The Railway Children

Latest episode of Unpublished Opinions

Short Circuit 352 | Misinformation Nov 29, 2024

We go online for some First Amendment content this week. First, IJ’s Jeff Redfern explains how the Eleventh Circuit concluded that CNN might be liable for defamation after one of its commentators said Project Veritas had been suspended from Twitter for “misinformation” when it had, in fact, very truthfully doxxed someone. That seems to pass the high bar of “actual malice” under the First Amendment’s free speech protections. Then Tahmineh Dehbozorgi of IJ brings us up to the Third Circuit where Section 230 immunity runs into a TikTok algorithm. Breaking with other circuits, the court says TikTok loses this one because the algorithm makes the content first-party speech, not third-party. It’s a ruling that could mean this issue is finally going up to the Supreme Court. What’s a “publisher” under the First Amendment vs. Section 230 vs. whatever? People are confused, the courts especially.

Click here for transcript.

Project Veritas v. CNN

Anderson v. TikTok

Techdirt article

Still William, Chapter II

Short Circuit 351 | State Court Shenanigans Nov 22, 2024

A couple friends drop by this week who have overstayed their welcome: Rooker and Feldman. Together they make up the Rooker-Feldman doctrine, a weed that has grown to crowd out justiciable federal claims in the federal courts. But the good news is that they aren’t the only friends on this week. We also have Wisconsin appellate attorney Joseph Diedrich who shares the story of his massive Seventh Circuit case which went en banc and Rooker-Feldman and now might go to the Supreme Court. Joe details the ins and outs of how a doctrine that is supposed to simply prevent appeals from state court to the lower federal courts has become a catch-all to get rid of deserving cases, including his case where his client is suing child welfare agents for violating her custody rights. Joe also shares some knowledge about how state courts work in Wisconsin, including a rule about dicta that it shares with the Ninth Circuit. Then IJ’s Arif Panju relocates us to the Fifth Circuit where the press was excluded from bail hearings before Texas state magistrate judges. This violates the First Amendment, it turns out. You’ll also learn a bit about where to find the best brisket.

Click here for transcript.

Gilbank v. Wood County Dept of Human Services (en banc)

Texas Tribune v. Caldwell County

Short Circuit episode on Sixth Circuit case

Gilbank Cert Petition

Stats on Wisconsin Supreme Court cases

Short Circuit 350 | In rem Liechtenstein Nov 15, 2024

Can the U.S. government use civil forfeiture in a U.S. court to take property in another country? One of IJ’s directors of our National Initiative to End Forfeiture Abuse, Dan Alban, reports on a rare forfeiture loss for the federal government when it tried to forfeit money in a bank account in the principality of Liechtenstein. The Ninth Circuit thought that was a bridge too far, although the various judges disagreed with each other on why. Then IJ’s Matt Liles updates us on the latest on Second Amendment challenges to the District of Columbia’s gun laws. If your jam is gunpowder storage, nineteenth century trap guns, Bowie knives on the frontier, and diagrams of centuries-old guns that belong in Terminator movies, we’ve got you covered.

Click here for transcript.

U.S. v. Nasri

Hanson v. D.C.

End Forfeiture

The Parent’s Assistant

Short Circuit 349 | Wrong Side of the Road Nov 08, 2024

Did you know that you can be arrested for walking on the wrong side of the road? Neither did a Missouri police officer. Until he needed an excuse to put someone in handcuffs. Marie Miller of IJ details her recent victory at the Supreme Court—in a relatively terse, 20-word opinion—on behalf of her road-walking client after he lost at the Eighth Circuit, and how the First-Amendment-retaliation victory depended on an IJ case from last term, Gonzalez v. Trevino. Then IJ’s Anya Bidwell—who had something to do with that last-term victory—outlines a trilogy of recent opinions in the Eleventh Circuit where former federal officials have tried to remove their state criminal prosecutions to federal court. It may well be that one of the cases—involving former White House Chief of Staff Mark Meadows—has been taken by the Supreme Court by the time you listen. Also, in the podcast Anya says she’ll make a handy chart to help all of you navigate through the story. Well, afterward she actually did! Click on the link below to see it.

Click here for transcript.

Murphy v. Schmitt (8th Cir.)

Georgia v. Clark

Georgia v. Shafer

Georgia v. Meadows (11th Cir.)

SCOTUS docket for Meadows

Short Circuit episode with Andrew Fleischman

Ulysses

Anya’s chart

Short Circuit 348 | Excessive Fines and the IRS Nov 01, 2024

Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned portions of his opinion as well. Further, as a special treat, Jacob tells us of some work he’s done on legislative immunity and Reconstruction. Plus, do you know the difference between an acronym and an initialism? Whatever it is, we hope you won’t say the two flirted excessively.

Click here for transcript.

U.S. v. Schwarzbaum

Stein v. Kaiser Foundation Health Plan

Gorsuch dissent in Toth v. U.S. denial

Timbs v. Indiana

Short Circuit episode on dicta in 9th Cir.

Jacob’s Section 1983 article

Excessive flirting in Emma

Short Circuit 347 | Election Law Special Oct 25, 2024

With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Circuit case about foreigners and campaign contributions, a Ninth Circuit opinion about voter rolls, a Fifth Circuit decision on ballot collection, back to the Sixth Circuit for a flurry of opinions about RFJ Jr.’s quest to not be on a ballot, and finally to the Minnesota Supreme Court for what the heck “learned in the law” means. But we begin with the question of whether all that much has changed in politics in the last 100+ years.

Click here for transcript.

OPAWL v. Yost

AZ Alliance v. Mayes

La Union del Pueblo Entero v. Abbott

RFK Jr. v. Secretary of State (MI Ct App)

RFJ Jr. v. Secretary of State (MI Sup Ct)

RFK Jr. v. Benson (6th Cir panel)

RFK Jr. v. Benson (6th Cir en banc)

MacDonald v. Simon

Psmith in the City

Short Circuit 346 | Not My Responsibility Oct 18, 2024

When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in stating a Contracts Clause claim. Later on, however, the city of New York “remembered” that it didn’t actually enforce the law in question—a pandemic-era rent-collection abatement—which lead to the plaintiff landlords losing their standing. There’s a silver lining for them—but it’s very much a lining. Then we’re off to the Tenth Circuit where IJ’s Paul Sherman explains Utah’s online age verification law and how the state designed it to only be enforced by private actors. Similar to the Texas abortion law which the Supreme Court tussled with a few terms ago, the statute’s intent is to get the state out of the enforcement business, and therefore get the courts out of the business of finding content-based restrictions on speech unconstitutional under the First Amendment. And it seems this attempt succeeded, for now.

Click here for transcript.

Unpublished Opinions podcast

Bochner v. NYC

Free Speech Coalition v. Anderson

Whole Woman’s Health v. Jackson

IJ amicus brief in Obamacare

Charles Osgood’s Responsibility Poem

Short Circuit 345 | Supreme Court Preview at UNC! Oct 11, 2024

For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re joined by IJ attorney Ben Field. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on and a couple cert petitions that the Court has been considering. You’ll learn about the First Amendment’s history with the Internet, applications of the First Step Act, where things stand with speaking occupations, and the twilight status of the Bivens doctrine.

Click here for podcast.

Free Speech Coalition v. Paxton

Hewitt v. U.S.

360 Virtual Drone Services v. Ritter

Henning v. Snoden

Short Circuit 344 | Can a Jury Only Go Up to Eleven? Oct 04, 2024

“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” Then it’s off to the Fifth Circuit for some different views of video. Anya Bidwell of IJ relates that one particular video demonstrates—or does it?—that a police officer may have been out of line and violated the Fourth Amendment with excessive force. All three judges on the panel write a take about a roadside encounter between police and a driver’s boyfriend that was imperfectly—or was it?—captured by a video camera. Two judges think this means the whole question should go to a jury. Another judge disagrees, and pines for qualified immunity.

Click here for transcript.

Spiller v. Harris County

U.S. v. Johnson

Scott v. Harris

Scene from Twelve Angry Men

Short Circuit 343 | Fourth Amendment Effects Sep 27, 2024

“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in their possession. Michael Perloff of the ACLU argued and won the case and he joins us to discuss its ramifications. Several other circuits have gone the other way on the question, making it a prime issue for another court in Washington D.C. Also, Rob Frommer of IJ’s Fourth Amendment Project treats us to a qualified immunity/Fourth Amendment opinion from the Ninth Circuit about someone who was severely injured by foam baton round fired by a police officer. The judges address the extremely odd question of whether an officer gets the benefit of case law getting better for him after he commits a constitutional violation when it comes to qualified immunity. “Um, no” is the Ninth Circuit’s answer, which leads into a discussion of how qualified immunity may be changing.

Click here for transcript.

Asinor v. D.C.

Sanderlin v. Dwyer

Baby blood case

Molly Brady’s “The Lost ‘Effects’” article

Short Circuit 342 | Kicked Out of the Libertarian Club? Sep 20, 2024

Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pizza—and, of course, that’s essentially everyone. What doesn’t include everyone, though, are those who enjoy having foreign websites track everything we do on our computers. Will Aronin of IJ tells us of a Third Circuit case that examines how various companies track users’ online activity while on the companies’ websites—including users ordering pizza. Is that tracking enough to mean you can sue the company in Pennsylvania? Well, we don’t know because the court didn’t allow the case to go forward. Will breaks it down while providing some strong views about invasions of one’s personal—and virtual—space, plus a throwback reference to shrinkwrap licensing. And did you know that on any given day 13% of Americans are eating pizza?

Click here for transcript.

Kinsley v. Ace Speedway Racing

Hasson v. Fullstory, Inc.

Shrinkwrap license case

Short Circuit episode on Georgia economic liberty case

Anthony on Advisory Opinions about Justice Holmes

Dumas’ Marguerite de Valois

Short Circuit 341 | Live from Austin: Local Retaliation Sep 13, 2024

A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy.

Click here for transcript.

Gonzalez v. Trevino case page

Villarreal v. City of Laredo en banc

Right on Crime

Over Ruled by Justice Gorsuch

Texas Observer

Short Circuit 340 | No Way to Run a Railroad Sep 06, 2024

An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia.

Click here for transcript.

Ramirez v. Killian

Wolfe v. Reading Blue Mountain

Bound By Oath episode on Pennsylvania and coal

IJ’s Georgia railroad eminent domain case

From a Railway Carriage

Short Circuit 339 | The Crime of Journalism Aug 30, 2024

Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It involves the First Amendment, freedom of the press, the Fourth Amendment, arrest warrants, retaliation, and all kinds of Fifth Circuit drama. Then we move to the Eleventh Circuit where our own Anya Bidwell reports on an extremely strict version of qualified immunity that protected a forcible strip search made of a visitor to a prison without any probable cause. There are also concurrences disagreeing with the circuit’s own caselaw, including and one of our favorite staples: a Judge Newsom concurrence asking “what is the law?”

Click here for transcript.

IJ event with the Texas Observer in Austin on September 4!

Short Circuit on YouTube

Villarreal v. Laredo (en banc)

Villarreal v. Laredo (panel)

Villarreal cert petition

Short Circuit 201 (discussing Villarreal panel opinion w/o dissent)

Pentagon Papers case

Gilmore v. Georgia Dept. of Corrections

Short Circuit 338 | Geofence Warrants Aug 23, 2024

One reason we have a Fourth Amendment is to be free from general warrants, permission slips for the government to search, well, everything. Is that what newfangled “geofence warrants” are? The Fifth Circuit thinks so, which is why it found one to be unconstitutional. Your host brings you the tale of a postal heist where the bandits were only found through a search of Google accounts—592 million of them. But was it a “search” in the first place? We hack into this high-tech matter. But first IJ’s Kirby Thomas West provides an example of special rules for government attorneys. The lawyers for some defendants in a civil rights case didn’t want to use qualified immunity, at least not before trial. But then the trial judge ordered them to. And then, by golly, they won. Was that, um, fair? Seems the Eighth Circuit thought it was hunky dory. Kirby, who has experienced much-less-forgiving judicial treatment while litigating on the other side, begs to differ.

Click here for transcript.

Webb v. Lakey

U.S. v. Smith

U.S. v. Chatrie

Short Circuit 337 | Facebook Comment Board of Appeals Aug 16, 2024

Anyone who has ever grown enraged after seeing their comment deleted from a Facebook page will find solace in this week’s episode. We examine a free speech tussle between the National Institutes of Health and the animal rights folks at PETA. IJ’s Michael Soyfer brings us this First Amendment case from the D.C. Circuit which said that blocking certain hashtags isn’t necessarily right even when the posters say mean things. But before that we look at interstate commerce and truckers. The Fifth Circuit isn’t happy about its interstate commerce caselaw, but it’s not the Wickard v. Filburn variety concerning the Constitution. No, it’s an overtime showdown between the Motor Vehicle Carrier Act and the Fair Labor Standards Act. Time travel with us to the days of Schechter Poultry v. United States with your guide, fresh off his pandemic hobby escapades, IJ’s Suranjan Sen.

Click here for transcript.

Escobedo v. Ace Gathering

PETA v. Tabak

Story of the Schechter butchers

Short Circuit 336 | Thor’s Seizure Aug 09, 2024

A most unusual Fourth Amendment case this week: One cop claims there was a seizure while another says there was not. They disagree because one cop is suing the other. Guess which cop wins? It’s the one with the dog—named Thor—that got a little too eager in a cemetery while in hot pursuit. But apparently didn’t “seize” the other by mistakenly tearing into his leg. Dylan Moore of IJ brings us this canine caper from the Eighth Circuit. Then your host takes you to the en banc Fifth Circuit and tells a twisted tale of Jim Crow, felon disenfranchisement, the Eighth Amendment, and “evolving standards.” Historians of the 1890 Mississippi constitutional convention may want to take notice.

Irish v. McNamara

Hopkins v. Watson

Short Circuit on Section 2 of 14th Amendment

Puppy and I

Short Circuit 335 | Zoning Justice Aug 02, 2024

Emphasizing the justice in our name, IJ recently launched a new project to fight back against zoning laws, Zoning Justice. We’ve been challenging overreaching zoning for years, but there’s now a new emphasis on how it inhibits people from providing housing and pursuing the American Dream. Joining us to talk about this new venture are the project’s leader Ari Bargil and IJ attorney Joe Gay. Joe tells us about some recent zoning reforms in Montana and an amicus brief he filed in the state’s supreme court supporting them. It recounts the history—and harms—of zoning and how allowing everyone to do more with their property doesn’t violate anyone’s constitutional rights. Then Ari tells us of an all-too-typical zoning dispute in Philadelphia where the neighborhood opposition to an attempt to rehab some apartments was anything but brotherly.

Zoning Justice Project

Amicus brief in MAID v. Montana

In Re: 3401 Sky Properties, LLC

Village of Belle Terre v. Boraas

Bound By Oath episode on zoning (1 of 3)

Short Circuit interview of Nolan Gray on Arbitrary Lines

Short Circuit 334 | Only Mostly Dead Jul 26, 2024

It’s time for Short Circuit to head for the hills. Two cases from the mountainous Tenth Circuit, one on the Fourth Amendment and another on the Bivens doctrine. First, Bob Belden of IJ saddles up for a 911 call that may have led to the wrongful arrest of a Super Bowl reveler. What is enough evidence from an anonymous tip to stop a supposedly shady suspect? Not as much as was in a parking lot full of Broncos fans. Then your host gives an update on a terrorist who has been in prison for quite some time. He seems to have a good claim against his prison guards. But does the method for bringing that claim even still exist? And whether or not it exists can the government immediately appeal when a court says it does? It’s a quantum-mechanical question.

U.S. v. Daniels

Mohamed v. Jones

In Search of Schrödinger’s Cat

Free Fire by C.J. Box

The Perfect Crime

Short Circuit 333 | Live at Hogan Lovells! Jul 18, 2024

We join forces with the law firm of Hogan Lovells to bring you some “legal mumbo jumbo”—an episode recorded at their offices in Washington, D.C. before a gaggle of law students. Joining your guest host, IJ’s Ben Field, are IJ attorney Kirby Thomas West plus two of Hogan’s finest, appellate attorneys Sean Marotta and Danielle Desaulniers Stempel. Danielle begins things with a Fifth Circuit opinion about silencers and standing. Apparently the plaintiffs were a little silent about any harms that have befallen them. Then it’s on to Sean for a lesson about what makes the world go round. Funnily enough, it’s not money but shipping containers. That is, as the D.C. Circuit recounts, until a federal agency starts tacking into shipping contracts. Finally, Kirby brings us up to the First Circuit for a story of TikTok, retaliation, and judicial opinions that maybe aren’t as funny as their authors think they are.

Paxton v. Dettelbach

Evergreen Shipping Agency v. FMC

Macrae v. Mattos

Short Circuit episode on standing

Short Circuit 332 | Not-So Government Speech Jul 11, 2024

This episode is a First Amendment 2-4-1. We begin with James Dickey of the Upper Midwest Law Center (and former golf pro). James tells us about a recent case he argued at the Eighth Circuit concerning the “government speech” doctrine. If a public school lets some people—but not others with a different viewpoint—come in and hang posters is that just fine because it’s the “government” speaking? In keeping with some recent Supreme Court rulings, the court said no, letting the case go forward. Then IJ’s campaign finance guru Paul Sherman steps forward to tease out a confusing opinion of the Second Circuit about a New York law that allows big contributions to big political parties but much smaller contributions to much smaller groups. It seems the reasoning is that major parties are above suspicion. Can that be right? Paul doesn’t think so.

Cajune v. Ind. Sch. Dist. 194

Upstate Jobs Party v. Kosinski

Huizenga v. Ind. Sch. Dist. 11

Short Circuit 331 | The British Are Coming Jul 02, 2024

The Fourth of July holds a central place in American history. The day patriots threw off the shackles of King George. Which is why it’s a little ironic that this year it’s the day the British are holding a general election to democratically chose their government. To cash in on this coincidence, this episode highlights some recent cases that reflect the heritage of 1776 and also Anglo-American relations of the present day. And, breaking our usual mold, we start with a case from the Supreme Court, SEC v. Jarkesy. Rob Johnson of IJ joins us to explain why this case is such a big deal for the right to a jury trial, and how the preservation of that right was one of the causes of the Revolution itself. Then, Andrew Ward of IJ tells a much more modern story of a burglary of a British diplomat’s Texas home. The burglar was caught and plead guilty. But he wasn’t pleased with a limitation on his right to “drink excessively.” Andrew tells the whole Fifth Circuit story, and also provides education on what exactly a “consul general” does these days.

SEC v. Jarkesy

US v. Woods

Anthony’s piece “America is not British”

British Constitution episode

Short Circuit 330 | Pretext Takings Jun 28, 2024

Everybody knows that the government can’t take property from you just because it doesn’t like you. But what if the government says it actually wants to turn the property into a park even though everybody knows it’s because it doesn’t like you? Recently the Second Circuit said that was A-OK. We had on IJ’s Jeff Redfern, an attorney in the case, to talk about this example of eminent domain abuse and how it’s now potentially heading to the Supreme Court. It involves a family that wanted to build a hardware store and a town that did everything it could to stop them. After that we hear from Jason LaFond, a Texas litigator with some Texas-sized stories. Especially one from the Supreme Court of Texas, which recently ruled on whether it violated the Texas Constitution for the state legislature to get rid of some claims related to pandemic shutdowns and lost tuition. The case gets into originalism in state constitutions, how different constitutions in the same state relate to each other, and the continuing fallout of pandemic policy.

Brinkmann v. Town of Southold

Hogan v. SMU

Cert Petition in Brinkmann

Rational Basis with Economic Bite

Ratification by Pauline Maier

Short Circuit 329 | Much Ado About Nothing Jun 22, 2024

Is “perceived speech” protected by the First Amendment? That straightforward question goes in a very complicated direction when a truck driver is fired from his government job. Christie Hebert of IJ joins us to explain this highly confusing tale from the Tenth Circuit. Then it’s pass-the-popcorn time with some Fifth Circuit drama, served up by IJ’s Rob Johnson. We heard in a recent episode about the objection to a transfer of venue in a challenge to a new rule about credit cards. Well, that same matter is already back at the Fifth Circuit concerning another attempt to transfer venue, replete with more intra-circuit squabbling. We also discuss forum shopping when it comes to nationwide injunctions.

Avant v. Doke

In re Chamber of Commerce (June 18, 2024)

Short Circuit 319

Much Ado, Act III, Scene 1

Short Circuit 328 | A Modest Proposal Jun 13, 2024

It’s a Short Circuit Live, recorded at the Institute for Justice’s annual law student conference! Patrick Jaicomo is your host, and he brings along IJ’s Michael Bindas and Katrin Marquez to dig into two very different but thought-provoking decisions for the young legal minds in the “studio” audience (and yours too, of course, dear listener). First, Michael reports on a decision from the Eleventh Circuit that on its face is a standard insurance and indemnification case. But, Judge Newsom adds a concurrence that will take your mind to different—and artificial?—places. Should we be asking our new AI Overlords what the meaning of words are? The panel thinks it’s perhaps not insane to look into, as does the judge. Then, Katrin reports on another Eleventh Circuit case with a civil rights violation that was so obvious that the court denied qualified immunity even though there was no on-point precedent. Listener beware, though, as it involves the loss of a dog. It does portend, however, some Hope for the future.

Snell v. United Specialty Ins. Co.

Plowright v. Miami Dade County

Hope v. Pelzer

Short Circuit 327 | Conference Realignment Jun 06, 2024

If you’re a fan of our furry friends (actual animals, that is) then this is the episode for you. First, we start with what’s important: What horses to pick in this weeks’ Belmont Stakes, the last leg of the Triple Crown, which will run (or ran, if you listen to this episode later on) in two days. IJ’s Brian Morris lends his horse sense to this question. Then he goes back to his Kentucky roots for a case about the first leg of the Triple Crown. A few gamblers would have won a lot of cash if a horse in a past Kentucky Derby had been disqualified on race day. But because the disqualification didn’t happen for nine months they got nothing. The Sixth Circuit said their case wasn’t a winner. Then we head south to the Fifth Circuit for a dog sniff case that isn’t about drugs but human trafficking. IJ’s Mike Greenberg is skeptical of the reasoning. He also lends his opinion to which states are placed in which reporters for their published opinions. It’s time for conference realignment!

Mattera v. Baffert

U.S. v. Martinez

Short Circuit 209 (drug dogs and animal book)

Short Circuit 271 (Brian mentions the Kentucky Derby)

IJ amicus brief on legal marijuana and drug dogs

Short Circuit 326 | Modesty of Our Lexicographers May 31, 2024

First of all: PARENTAL ADVISORY! If you have children nearby you might want to save part of this episode for later. It doesn’t happen until just after 32 minutes into the episode, but the naughty language the Seventh Circuit quotes in one of this week’s cases forces IJ’s Sam Gedge to choose between dishonest modesty and, as he puts it, revealing the un-expurgated truth. Like a gentlemen, he goes for the latter while discussing a qualified immunity case about a “kung fu cop” with “multiple blackbelts” who gets a little punchy with a man who had a few too many. After that things just get weird as Sam introduces us to the first case in the American (reported, at least) tradition to use a certain word on George Carlin’s famous list. We close with a conversation about Patrick O’Brian’s and Jane Austen’s editing styles. But before any of that IJ’s Jared McClain tells us how to successfully make a mandamus claim against the Capitol Police. Although it seems you can get close in the D.C. Circuit, the common law gauntlet is a tough one.

Leopold v. Manger

Brumitt v. Smith

Edgar v. McCutchen

Memoirs of the Countess of Cardigan

Quart of Blood Technique

Short Circuit 325 | This Is a Racket May 23, 2024

How does history inform our interpretation of the Constitution? In all kinds of ways, it seems, and perhaps in too many of them. We once again look at how history and the Second Amendment are mixing together, in a case from the Eighth Circuit. The opinion lets us do a bit of digging into a less-well-known founding father, Benjamin Rush, and his enthusiastic embrace of putting people behind bars. But before that IJ’s Bobbi Taylor details some of the latest class-action shenanigans in the Seventh Circuit. For the first time we address “mootness fees,” settlements extracted in some disclosure litigation against public corporations. And we consider whether they’re “a racket” as the court suggests.

Alcarez v. Akorn, Inc.

U.S. v. Veasley

Ted Frank episode, SC 154

Szasz, The Manufacture of Madness

Short Circuit 324 | The Battle for Your Brain May 16, 2024

We take a break from the federal courts of appeals and look into a brave new world—or is it an Orwellian one? Our thoughts—our inner mental processes—are the one aspect of our lives that is completely private. Right? Well, emerging technology is making that not so true anymore. IJ’s Anya Bidwell welcomes Professor Nita Farahany of Duke University to Short Circuit to discuss her recent book The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology. They talk about how neurotechnology works and how it has many potentially transformative implications, including many good ones. But in the wrong hands—especially the hands of the State—those implications can be quite unsettling. And there are so many gray areas in-between. People in China and other countries are already dealing with some of these implications and the legal and constitutional system in the United States is not yet ready for them if we are to keep the mental privacy we all value. Get ready for a conversation about what is private, what is human, and how liberal values and the Constitution can address the good and the bad of a future that is already here. And how to write a book via the Pomodoro method.

The Battle for Your Brain

Searching Secrets

Incriminating Thoughts

Pomodoro Technique

Short Circuit 323 | Poor Behavior May 08, 2024

We’re gonna read you the Riot Act. Again. An old friend of Short Circuit returns, the Anti-Riot Act. Perhaps (?) named in homage to its 18th century predecessor, the Congressional statute received a facial test at the Seventh Circuit, and IJ’s Kirby Thomas West tells us how it fared in the face of a guy who requested that everyone bring their family and a brick to a “riot.” He did not do so well in court, but perhaps the Anti-Riot Act has problems anyway? Then we go for a drive down a Houston freeway where Sam Gedge makes a citizen’s arrest of a qualified immunity claim while drinking at a local flea market at 2am. The Fifth Circuit served up a wild ride of a case that is too good to pass up but also holds bigger lessons for how judges perceive “split-second decisions” and premeditated lies.

U.S. v. Betts

Hughes v. Garcia

The Riot Act

Short Circuit 146 (4th Cir. Anti-Riot Act case)

Short Circuit 322 | Neighbors May 02, 2024

Stories we hope our listeners can relate to this week: borrowing cars and lousy neighbors. First, from the Sixth Circuit, IJ’s Rob Frommer details how a man sitting in the passenger seat of a running car somehow lost his Fourth Amendment standing. And went to prison. And then in the Second Circuit your host explores what can be done when your neighbor is an embassy. It’s an all-too-familiar tale of a building project gone awry but with a twist of sovereign immunity.

Click here for transcript.

Register for the May 10 open fields conference!

U.S. v. Rogers

Harvey v. Sierra Leone

Neighbors 1980’s opening song

Fawlty Towers—The Builders

Short Circuit 321 | A Tale of Two Prisons Apr 25, 2024

We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars.

Register for the May 10 open fields conference!

Click here for transcript.

Connell v. CIA

Lozano v. Collier

Audio Arguendo (Michel’s oral arguments podcast)

Short Circuit 320 | Spy Cameras Apr 19, 2024

We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so.

Register for the May 10 open fields conference!

US v. Hay

Citizens United to Protect Our Neighborhoods v. Chestnut Ridge

Episode on 7th Cir pole camera case

Episode on 1st Cir pole camera case

End of The Usual Suspects (SPOILER ALERT!)

Short Circuit 319 | Baptism By Venue Apr 12, 2024

Two wild stories this week, one biblical and one of a more secular nature—but still wild. Jeff Redfern of IJ tells of a Texan judicial shootout in a fight between credit card companies and the Consumer Finance Protection Bureau. The companies got tired of waiting for the trial court to rule on an emergency motion so they appealed it—but around the same time the trial court transferred the case to a court in Washington, D.C. Was that wrong? Can anything be done about it? Opinions differ. Then Keith Neely of IJ takes us underwater to the Sixth Circuit for perhaps our first case involving baptism. An officer was ready to charge a driver with marijuana possession, but then offers to give her a lesser charge . . . if she lets him baptize her in a lake that night. Which, after she grabs some towels, goes forward. And in the ensuing lawsuit qualified immunity is denied because, well, this is pretty obviously unconstitutional. Right? Also, Keith gives a preview of IJ’s new show Beyond the Brief. Check it out!

Click here for transcript.

Beyond the Brief

In re Fort Worth Chamber

White v. Hamilton County

Mark i:6-8

Short Circuit 318 | Is Coding Speech? Apr 05, 2024

An all Seventh Circuit, all Chicago episode. IJ attorney Andrew Ward drops in to tell a tale of online support for terrorists. Or at least FBI agents posing as terrorists. This recent case does not weigh in on, but raises the issue, of whether computer code is speech. Then we turn to the nitty gritty of unions, small employers, pension plans, and legalized cartels. Things are a bit topsy turvy in this area—and often sound pretty unfair. Your host gives a bit of a lay of the land as it’s been expressed by Judge Easterbrook of the Seventh Circuit over the years.

Click here for transcript.

IJ conference on the Open Fields Doctrine (May 10)

Cato conference on the right to earn a living (April 18)

U.S. v. Osadzinski

Bulk Transport Corp. v. Teamsters No. 142 Pension Fund

Central States v. Gerber Truck

Short Circuit 317 | Live at the University of Virginia! Mar 29, 2024

The Short Circuit roadshow comes to UVA in Charlottesville, Virginia, where we finally focus on the Fourth Circuit. Fresh off her Supreme Court argument last week in Gonzales v. Trevino, Anya Bidwell turns back to the federal courts of appeals with some local guests. They are Professors Rachel Bayefsky and Lawrence Solum of UVA and Greg Cui of MacArthur Justice (and UVA). They discuss recent Fourth Circuit cases about cruel and unusual punishment in prison, a non-immune judge on a search, and the rational basis test turned up to 12 (that is, Rule 12(b)(6)) in a land use dispute.

Click here for transcript.

Jones v. Solomon

Gibson v. Goldston

SAS Associates 1 v. Chesapeake

Video from Gibson case

Legal Theory Blog

Bayefsky on Judicial Institutionalism

Bayefsky on Public-Law Litigation

Solum on Legal Personhood for AI

**Short Circuit 316 | Unaccountable** Mar 22, 2024
Is qualified immunity a narrow doctrine focused on protecting the police when they make “split second decisions”? If you listen to its defenders you would get that impression. The reality is far, far different. And IJ now has the stats to back that up. In this special episode, we welcome on IJ’s Bob McNamara and data scientist Jason Tiezzi to discuss a new report *Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises*. It presents an analysis of over 7,000 federal appellate decisions over an eleven-year period and tells us a lot about how qualified immunity actually works in practice. We dig into many of its findings, such as that only 27% of appeals where qualified immunity was at issue involved excessive force. And that almost one in five qualified immunity appeals involved First Amendment claims. Listen in to hear the details, including about how this massive study was put together. And click below in the show notes to read the report itself.

Click here for transcript.

Unaccountable

*Unaccountable* finds qualified immunity hobbles victims of government abuses like these and fails to accomplish the goals supporters claim it’s needed to achieve, strengthening the case for ending the doctrine.
read report

Short Circuit 315 | A Day at the Races Mar 14, 2024

A bit of a free speech derby this week, one opinion about free speech itself and another about how to just get to the First Amendment in the first place. We start in Florida with something that’s becoming a theme on the show: The Eleventh Circuit ruling that a law championed by the state’s governor and passed by the state legislature violates the First Amendment. The opinion concerns part of the “Stop WOKE Act” (acronym alert) and how the court pretty easily found that the law regulates speech, doesn’t pass scrutiny, and therefore is unconstitutional. But IJ’s Paul Avelar cautions that although the result may have seemed obvious it actually wasn’t that obvious because of some prior inconsistent cases. Then we hop over to California where IJ’s Christian Lansinger tells us of a horse that dare not speak its name. At least if it wants to race. But putting aside the right to give a horse a name that makes fun of someone else (in this case, the name is “Malpractice Meuser”), the Ninth Circuit focused on procedural hurdles (fences?) that stood in the way of the horse’s owner vindicating that right. It’s time to giddy up!

Click here for transcript.

Honeyfund.com v. Florida

Jamgotchian v. Ferraro

Short Circuit episode on horse racing and nondelegation

Locke v. Shore (interior designer speech case)

Short Circuit 314 | That’s Gold, Jerry, Gold! Mar 07, 2024

Everyone says we need more housing, right? Not all local governments agree. Maybe they’re fine with more housing over there but not where developers actually want to build it. Justin Pearson of IJ joins us to tell a story of local shenanigans in his home town in New York state where a long saga to build some homes ended in a glorious flame-out of judicial abdication. There’s regulatory takings, zoning, ripeness, and even a religious liberty angle in this case from the Second Circuit. Then your host makes an offer that’s too good to be true. Because it isn’t. Crypto backed by gold might sound like an odd concept, and it was too odd for a scam artist to stay out of prison. But not before he bilked several million dollars from investors. However, that didn’t prevent him from arguing that the “history and tradition” of his Sixth Amendment right to force witnesses to testify meant he could rope in a few federal government employees. Did the denial of his request mean the court should throw out his conviction? Your host provides the answer from this First Circuit opinion. You’ll learn that even today just shouting “history and tradition” doesn’t get you very much.

Click here for transcript.

BMG Monroe v. Village of Monroe

U.S. v. Crater

Laser scene from Goldfinger

Short Circuit 313 | Memo From a Robot Mar 01, 2024

A special episode on artificial intelligence and the law, including how we find the law. Ed Walters, a pioneer in bringing AI to legal research, joins us to separate the artificial wheat from the chaff. He explains that a lot of the recent news about the failures of AI models have been due to using the wrong models for the wrong things, not the models themselves. He walks us through a near future when lawyers can use AI to not just find points of law but write memos or briefs. We’re also joined by IJ’s Paul Sherman, our resident AI aficionado, who recently wrote a letter to the Fifth Circuit about a proposed rule it has regarding AI use and brief writing. There’s a lot of promise out there but also a lot of danger in the government—including courts—overreacting. We also talk a bit about copyright issues and AI and what’s on the horizon. Are we approaching the Singularity? Ed thinks likely not, but there’s still worries we should be aware of.

Click here for transcript.

Vlex

Short Circuit episode on robot law (2021)

Paul’s letter to the Fifth Circuit on AI use

Short Circuit 312 | The Power of FERC Feb 22, 2024

An electric episode where we just might short the circuits. That’s because we dive into some capital “D” Drama at the Federal Energy Regulatory Commission. Amid fighting and commissioner turnover related to renewable energy prices and an election, FERC makes a consequential decision without first going to the full board. And later the Sixth Circuit catches that hand in the judicial cookie jar. Dan Knepper of IJ drops by to explain some of the complexities of energy policy and how to remedy its violation when everyone doesn’t dot their i’s. Then Bobbi Taylor of IJ leads us (along with 43 police officers) into a home where no drugs (or the suspect) are found but many family members are seriously injured. Qualified immunity? The Third Circuit prefers a jury. Also, you learn what Sir Walter Scott meant by a “palmer.” And does anyone use paper copies of the Federal Reporter anymore?

Click here for transcript.

PJM Interconnection v. FERC

Anglemeyer v. Ammons

Politico piece Dan mentions

Sir Walter Scott’s Marmion

Short Circuit 311 | SCOTUS Ladies Feb 14, 2024

We’re joined by the SCOTUS Ladies, two “Supreme Court super fans.” They are Anastasia Boden and Elizabeth Slattery and they’re here to talk about their new blogging project but also to share their wider knowledge of the Constitution, public interest litigation, and even the federal courts of appeals. They each pick a case from the Fifth Circuit by Judge Willett, who you’ll learn is a very self-proclaimed “middle-management circuit judge.” First it’s the big question everyone is asking: Has the Supreme Court impliedly overruled Humphrey’s Executor? Minds seem to differ among the judges. Plus we have a bit of a rumble about structure vs. substance. Then we Netflix and chill while a rogue prosecutor goes after the streaming service and won’t let go—until the court recognizes a loophole in Younger abstention.

Click here for transcript.

Consumer Research v. CPSC

Netflix v. Babin

Humphrey’s Executor v. U.S.

SCOTUS Ladies

Short Circuit 310 | Opening the Vaults Feb 09, 2024

The Ninth Circuit recently had some pretty harsh words for the FBI’s egregious behavior when the Bureau decided to crack open some vaults in Los Angeles. The FBI tried to forfeit all kinds of property held in these vaults from innocent owners. Rob Frommer of IJ tells us all about this IJ case and the Ninth Circuit’s indignation. Then it’s off to the Second Circuit for a different kind of police misconduct, but misconduct nevertheless. IJ’s Katrin Marquez details a police officer’s attempts to silence someone simply because he told the cop to turn his headlights on. The case demonstrates how hard it can be to enforce the First Amendment and how necessary the courts of appeals can be. There’s also some ‘80s nostalgia for those into live TV syndicated specials.

Click here for transcript.

Snitko v. U.S.

Rupp v. Buffalo

Oral argument in Snitko v. U.S.

When Geraldo Rivera Opened Al Capone’s Vault

Buffalo News story on Rupp case

New IJ report on Qualified Immunity

Short Circuit 309 | O’Scannlain O’Rama Feb 01, 2024

It’s a clerk reunion this week, at least for two former clerks of Judge Diarmuid O’Scannlain of the Ninth Circuit. We welcome back David Lat of Original Jurisdiction who is joined by Daniel Sullivan, a New York litigator at Holwell, Shuster & Goldberg. Both clerked for Judge O’Scannlain at one time, giving them keen insights into clerking on the Ninth and what it’s like to be a judge in a jurisdiction where your colleagues often take a different point of view. However, we start things off not out west but in the southeast where David details Florida Governor Ron DeSantis’ efforts to suspend an elected prosecutor, Andrew Warren, and Warren’s resulting First Amendment lawsuit. In an opinion chock-a-block with facts the Eleventh Circuit rebuffed the suspension. David also highlights a Judge Newsom concurrence (something we’re getting quite used to on Short Circuit) and some interesting state-law issues. Then Dan turns the gas stove on to cook up a story of preemption and evolving standards of statutory interpretation. The City of Berkeley did a very Berkeley thing by trying to prevent new gas ranges, but the Ninth Circuit said federal law preempted that decision even though several judges thought maybe the law in this area isn’t all that up-to-date. Including Senior Judge O’Scannlain. Also, there’s a recommendation for where to get chicken next time you’re in Chicago.

Work at the Institute for Justice!

Click here for transcript.

Warren v. DeSantis

California Restaurant Assoc v. Berkeley

Original Jurisdiction

Short Circuit 308 | Burns Night Jan 25, 2024

A more poetic Short Circuit this week. Coinciding with his birthday, January 25th, and with the phenomenon that it is these days, we pay homage to Scotland’s greatest poet, Robert Burns. What does this 18th century minstrel of haggis, lassies, and auld lang syne have to do with judicial engagement and the circuit courts of appeals? Well, if nothing else free spirited inquiry and the good cheer we try and support on the show. You’ll first hear what Burns might have thought of qualified immunity. Then Brian Morris of IJ joins us for his own reading of some bits of real Burns poems and then whisks us off to the Fifth Circuit where Texas tried to force publishers to rate their books. This attempt at compelled speech receives a heavy dose of judicial engagement, maybe one that would bring a smile to Burn’s face. Then it’s up to the Seventh Circuit where a lawyer just didn’t understand when to go home after his client had settled the case. And after the lawyer had been kicked out of the case for misbehavior. We finally end with the most cited poem of Burns in American judicial opinions. It’s one some listeners will recognize. All-in-all, we hope this episode is one of our best-laid schemes.

Click here for transcript.

Book People v. Wong

Bailey v. Worthington Cylinder Corp.

Jackson Coca-Cola Bottling v. Chapman

Burns Supper Guide

To a Mouse, On Turning Her Up In Her Nest With the Plough

A Man’s a Man for a’ That

Green Grow the Rashes

Burns BBC Documentary

Short Circuit 307 | Working Both Sides of the Bench Jan 18, 2024

An “utterly bonkers” case this week. Jaba Tsitsuashvili, attorney at IJ and attorney for his client Erma Wilson, tells us about the Fifth Circuit’s recent ruling in her case. By day a prosecutor worked for the office that prosecuted her but then moonlighted with the judge in her case by night. That’s what we call in constitutional law “a problem.” But she only found out about this years later, long after she had served her time. Now that this double-dealing story has come to light can she go back and clean up her record? With a result the Fifth Circuit admits is unjust, but mandated by the Circuit’s precedent, it says she can’t. If she were still in prison, though, she could. Which is pretty nuts. But that’s not all this week. Keith Neely of IJ skates onto the podcast with a story of “Chanukah on Ice,” and why religious groups were prevented from advertising it and other religious messages on the sides of buses in Tampa, Florida. The Eleventh Circuit figures out what to do with this obviously unconstitutional policy while showcasing a double lutz of concurrences.

Click here for transcript.

Wilson v. Midland County

Young Israel of Tampa v. Hillsborough Area Regional Transit

Irons footnotes

Short Circuit 306 | Widespread Super Cheap Surveillance Jan 11, 2024

If a defendant lies on the stand, and also hasn’t turned over records that would have helped answer the same question, is that discovery abuse? We dig into trial tactics with IJ’s Will Aronin in a civil rights case from the Fourth Circuit where a police officer defendant may not have been entirely truthful about how many times he had been sued. Then IJ’s Jeff Rowes gives the full Reno 911 about a man whose prescription drug mill was nabbed through a warrantless search of a massive government database. Does the Fourth Amendment protect your medical records? We learn how the Ninth Circuit recently grappled with—or, rather, didn’t grapple with—that issue.

Apply to work at IJ here!

Click here for transcript.

Short Circuit 305 | Rare as Hen’s Teeth Jan 04, 2024

An old favorite on our first show of 2024, a search incident to arrest. Was it reasonable for the police to open a man’s backpack when he already lay handcuffed on the ground? Or should they have gotten a warrant first? IJ’s John Wrench analyzes this matter from the First Circuit where a case from the ‘70s about a bank robber suppresses a motion to suppress. Then IJ’s Betsy Sanz takes us out west to Los Angeles—but should it have been only as far as Nebraska? That’s the question the Ninth Circuit addresses where we encounter a lying congressman, the Vicinage Clause, and our friends at the FBI.

Click here for transcript.

U.S. v. Perez

U.S. v. Fortenberry

Riley v. California

Blog post on an Illinois case and vicinage

Short Circuit 304 | The Writing on the Wall Dec 28, 2023

If you ask someone on the street what’s the deal with the standard in employment discrimination cases they’ll likely exclaim “McDonnell Douglas!” And they’d be right. Except, the Eleventh Circuit just reminded us that that’s not the whole story. And Judge Newsom adds in that it shouldn’t be the story at all. IJ’s Joe Gay explains the ins and out of this opinion that’s got the whole employment law world talking. Then your host tells a story from the Fifth Circuit as it heavily indicates it’s ready to change precedent for certain Voting Rights Act claims. Along the way it makes a claim about what “the law” is. But is it?

Click here for transcript.

Tynes v. Florida Dept of Juvenile Justice

Petteway v. Galveston County (panel decision)

Petteway v. Galveston County (en banc grant of stay)

Daniel 5:5-7

Short Circuit 303 | Larry McMurtry Fact Pattern Dec 20, 2023

Motions to suppress evidence of illegal firearms possession seem to be all the rage these days, or at least on this episode. IJ’s Christie Hebert starts things off in the Tenth Circuit where an altercation between former high school classmates (one of whom is a cop) leads to the discovery of an M-16 in the back of a tow truck. Was that a Fourth Amendment violation or a permissible inventory search? The court thinks the former and suppresses the evidence. The same is true in the Eighth Circuit, where IJ’s Evan Lisull tells us the police can’t get a warrant to search someone’s home just because the guy who lives there is a shady character. Evan also explains what it’s like to live on a nine-acre lot in rural Iowa and how “city mice” might not understand.

Click here for transcript.

U.S. v. Ramos

U.S. v. Ralston

12 Days of Short Circuit Christmas

Short Circuit 302 | Deranged Prosecutor Dec 14, 2023

Two holiday delights this week: The right of a former president to say “Deranged prosecutor Jack Smith” and the proper standard when officials recklessly fail to keep a suicide watch. First it’s Paul Sherman with the D.C. Circuit’s analysis of how former President Trump’s speech can be curtailed while he’s being prosecuted in Washington, D.C. The First Amendment interest is high, but is it high enough? Even though the court applies strict scrutiny the answer is mostly no. Paul explains how it seems like a good precedent when it is applied to less exceptional cases in the future. Then Patrick Jaicomo brings us to the Fourth Circuit where a woman tragically killed herself while in a jail—and while the jail’s staff knew she had already tried to. To get there, though, the court needed to clean up some of its caselaw and square it with what the Supreme Court has said.

Click here for transcript.

U.S. v. Trump

Short v. Hartman

IJ page for Taylor v. LeBlanc

Short Circuit 301 | Litigating the Multiverse Dec 07, 2023

We’re joined by Braden Boucek, Director of Litigation at the Southeastern Legal Foundation, and IJ’s Arif Panju. Braden takes us to the Eighth Circuit where the court dismisses some claims as moot in a challenge to a school district’s transgender policy. But it finds the rest of the case live—and the policy vague. Braden makes the point that some other judges have seemed to think lawsuits are either not ripe or moot, but never actually justiciable. Along the way there’s some unenumerated rights talk. Then Arif uses his language skills to take us into a tale of French heritage and . . . oil and gas. It’s a bit of a wild issue in the Fifth Circuit about extraction, property rights, and the interplay of ancient French doctrine and modern American statutes. Also, what’s really going on with the court’s certification to the Louisiana Supreme Court? It’s a Cajun conundrum.

Click here for transcript.

Parents Defending v. Linn Mar Community School Dist.

Johnson v. Chesapeake Louisiana, LP

Event on Mere Natural Law

Short Circuit episode on Fourth Circuit standing case

Short Circuit 300 | The Cause of Action Community Nov 30, 2023

It’s all about rights and voting this week. With a cause of action twist. We dig into the right to sue to enforce voting rights and the right to sue to keep others from voting for someone else. Confused? It seems so are the courts. First, Anya Bidwell breaks from SCOTUS prep to lay out what the Eighth Circuit said about Section 2 of the Voting Rights Act of 1965. She explains why courts are so stingy about suing to enforce rights these days but also why this particular question might be much ado about not that much. Then IJ’s Dylan Moore joins us for the first time and details one of the latest attempts to keep former President Trump off the ballot. Someone running against Trump (who you’ve probably never heard of) apparently didn’t run enough. Or much at all. Plus it’s our 300th episode! But we’re saving the Spartans for later.

Click here for transcript.

Arkansas NAACP v. Arkansas Board of Apportionment

Castro v. Scanlan

Episode on courts creating causes of action

Episode 200 & Short Circuit’s origins

Short Circuit 299 | The Gambler Nov 22, 2023

Short Circuit 299 | The Gambler

We’re joined by Mike Greenberg of IJ, who flies in via drone. Or, rather, two drone cases. First Mike tells us of his recent argument at the Michigan Supreme Court in a Fourth Amendment matter that we first talked about on Short Circuit way back on Episode 167. Then he relates a recent Fifth Circuit ruling about a Texas law allegedly protecting Texans’ privacy. Maybe it does, maybe it does, but the our panel isn’t entirely impressed with how the Fifth Circuit’s panel dismissed a First Amendment challenge. Then a man walks in and puts his chips on the table. Actually, that’s IJ’s Jared McClain who antes-up with a story about a gambler who didn’t follow Kenny Roger’s advice. And then had his iCloud account seized by the cops. Was it a constitutional violation? For him it turns out it doesn’t matter as the dealin’s done.

Give to the Institute for Justice at this link!

Click here for transcript.

National Press Photographers v. McCraw

U.S. v. McCall

Michigan Drone Surveillance case

Short Circuit 167 (1st MI Drones episode)

The Gambler

Short Circuit 298 | Everything Causes Cancer Nov 16, 2023

You ever notice those warning labels saying the State of California has carcinogenic concerns about whatever the product is you are buying? Ever also notice that those labels seem to be on a lot of products? Well, you’re not the only one. It seems the state has been saying it “knows” things cause cancer when pretty much no one else does. This week IJ’s Ben Field tells us all about a Ninth Circuit case where the state’s over-inclusiveness ran into the First Amendment. Then it’s off to Texas where its governor asserts some plaintiffs have the wrong man. IJ’s Bob Belden rides into the Fifth Circuit’s investigation over who they should sue. As he explains, in cases like this one there’s often no exact answer.

Plus, Bound By Oath Season 3 is coming! As we discuss, get your podcast subscriptions ready.

Click here for transcript.

National Assoc. of Wheat Growers v. Bonta

U.S. v. Abbott

Ex parte Young

Denis Leary’s No Cure for Cancer (NSFW)

Short Circuit 297 | Working in a Coal Mine with TikTok Nov 09, 2023

It’s the old and the new economy this week. First, IJ’s Dan Alban grabs his shovel and hardhat and heads deep down into the tunnels of administrative law to dig out a preamble that made a difference. In fact, it turns out preambles often make a difference in admin law cases, including those involving benefits for black lung disease. The Sixth Circuit seems kind of uncomfortable with this, as does our panel. Then we open up the TikTok app. The company wasn’t happy to be in federal court in Texas and tried to move to California with a writ of mandamus. IJ’s Suranjan Sen dances his way (in a bit more than 15 seconds) to why the Fifth Circuit issued the writ. It seems something was either lost in translation or lost in a file.

Wilgar Land Co v. Director

In re TikTok

Working in the Coal Mine

Wacko from Waco

Click here for transcript.

Short Circuit 296 | Parenting Is Hard Nov 02, 2023

A pair of qualified-immunity-infused opinions that will light a fire and inspire parenting solidarity. First, IJ’s Tori Clark brings us to the Ninth Circuit where a suspect to an arson exercised his right to remain silent. But it wasn’t that right to remain silent. So does this other one, that the First Amendment protects, actually exist? The court has qualified doubts. Then Katrin Marquez transports us to the Eleventh Circuit where a mom is doing her best by letting her 17-year-old son pick his school and spend time at a park. And then she insults a school resource officer. Who has the mom arrested. Free range parenting rage ensues, plus a denial of qualified immunity.

Click here for transcript.

Moore v. Garnand

Butler v. Smith

Gonzalez v. Trevino case page

Cert petition for JTH v. Spring Cook

Short Circuit 295 | Nightmare on Law Street Oct 26, 2023

It’s our Halloween special! Spooky stories from the federal courts of appeals that will keep you up at night. Erica “Specter” Smith Ewing and Bert “The Ghoul” Gall, both IJ attorneys, tell a couple recent terrifying tales from the Tenth and Seventh Circuits. First, Erica lays out how a small Colorado town repeatedly stymied a property owner with new land use regulations when the owner dared to compete with a business connected to members of the city government. The opinion features ghosts of IJ’s past and the biggest monster of them all, the rational basis test. Then, Bert outlines a lawsuit involving cable companies and cities losing out on cable fees. But the case takes an unexpected—and haunting—twist at oral argument. The worst nightmare of many of a Seventh Circuit practitioner makes an appearance: Judge Easterbrook asking jurisdictional questions outside of what was briefed. Listener discretion (at least for appellate advocates) is advised!

Click here for transcript.

Van Sant & Co. v. Calhan

East St. Louis v. Netflix

Oral argument in Netflix case

Schoolhouse Rock – I’m Just a Bill

Powers v. Harris

Short Circuit 294 | A Blast from the Past Oct 19, 2023

Short Circuit listeners may be familiar with occupational liberty cases brought by the Institute for Justice. But perhaps not with the kind of “through the looking glass” case we’re talking about this week, regarding a Chicago public school principal. Madison, Wisconsin attorney Joe Diedrich joins us to break apart the Seventh Circuit ruling. Then, IJ attorney Paul Sherman joins us to share his campaign finance expertise in a case that we don’t see much of anymore: a campaign finance case. It’s a Tenth Circuit opinion that updates the law a bit on campaign finance matters and also features a radio ad that Paul does his best to emulate.

Click here for transcript.

Biggs v. Chicago Board of Ed.

Wyoming Gun Owners v. Gray

Short Circuit episode on Devillier v. Texas

Short Circuit 293 | General Law for the Fourth Amendment Oct 12, 2023

It’s a Short Circuit Special this week, all about that part of the Constitution that is supposed to keep away unreasonable searches and seizures—the Fourth Amendment. We’re joined by Professor Dan Epps of Washington University in St. Louis. Dan is the co-author, along with his Wash U colleague Danielle D’Onfro, of The Fourth Amendment and General Law, an article that the Yale Law Journal recently published. They make the argument there that when courts are trying to determine what’s a search or a seizure they should look to whether government officials have broken the law that the rest of us have to follow. And to figure out what that “law” is, courts should look to the general law of the United States, not the particular law of a particular state or city. And what is the “general law”? Well, listen to find out. Their piece is one of the latest arguments in an ongoing debate both at the Supreme Court and elsewhere about how the Court’s “reasonable expectation of privacy” test doesn’t work and how it should be replaced. We discuss some of the background of this debate, including some of Justice Scalia’s rulings late in his life that got it really going, other arguments for where the Court should go, and Dan and Danielle’s argument. Anyone interested in the Fourth Amendment and its intersection with property rights may find the conversation especially interesting, as well as anyone interested in the “general law,” the common law, and the conception of law as a spontaneous order and not just the command of a sovereign.

Click here for transcript.

The Fourth Amendment and General Law

The Positive Law Model of the Fourth Amendment

U.S. v. Jones (2012)

U.S. v. Carpenter (2018)

Blog post on Katz puns

Short Circuit 292 | Infallible Online Oct 03, 2023

A special Short Circuit Live in southern California with a special guest. We welcome Ken White, a/k/a Popehat to the show, along with IJ attorneys Patrick Jaicomo and Paul Avelar. Ken digs into Missouri v. Biden, the all-over-the-place litigation from the Fifth Circuit about pressure from the Biden Administration to have social media companies remove certain kinds of speech. Ken thinks the Fifth Circuit did a good job correcting some of the excesses of the district court ruling but ultimately agrees there seems to be something unconstitutional here. He also previews where this area of law might be going. We then turn to the Sixth Circuit where Patrick tells a tale of a judge who receives immunity for doing something that judges really aren’t supposed to do—jail someone without cause after they merely sat in his courtroom. And then Paul explains how you can’t copyright “the law,” and how that came up in a D.C. Circuit case involving private publishers of industry standards. Can a lawmaker co-opt J.K. Rowling’s copyrights by simply publishing her books in a statute book? Inquiring minds want to know.

PLEASE NOTE: This episode was recorded on October 1, 2023, before the Fifth Circuit issued an updated opinion in Missouri v. Biden. However, the only real change seems to have been that one agency, the Cybersecurity and Infrastructure Security Agency, was added back into the injunction.

Click here for transcript.

Missouri v. Biden (Sept 8 opinion)

Missouri v. Biden (Oct 3 opinion)

Orta v. Repp

American Soc for Testing & Materials v. Public.Resource.Org

Short Circuit 291 | Stanford’s Supreme Court Clinic Sep 28, 2023

We visit some friends of the Institute for Justice at the Supreme Court Litigation Clinic at Stanford Law School. The clinic allows law students to work, full time, alongside experienced Supreme Court litigators on a range of interesting cases. IJ’s Anya Bidwell recently traveled to Stanford and sat down with two clinic professors, Jeffrey Fisher and Easha Anand. They discuss the clinic and its model, cases pending at the Court this term, and arguments the clinic had at the Court last term. And, interspliced with the conversation, you’ll hear a few cuts from the actual arguments. Enjoy a fascinating look at how cases get to the Court, how they’re argued, and how the dynamics of the current Court are shaping those arguments.

Click here for transcript.

Dubin v. United States

Glacier Northwest v. Teamsters

O’Connor-Ratcliff v. Garnier

Chiaverini v. City of Napoleon

Short Circuit 290 | Supreme Court Preview at UNC! Sep 21, 2023

For the 7th year in a row Short Circuit travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re also joined by IJ attorney, and UNC alum, Josh Windham. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on, plus two cert petitions that the Court may take up. You’ll learn about Second Amendment mechanics, Fourth Amendment fun, and standing quandaries.

Click here for transcript

U.S. v. Rahimi

Acheson Hotels v. Laufer

Verdun v. City of San Diego

Jackson v. Ohio

Short Circuit 289 | Property Rights FTW Sep 15, 2023

We celebrate, and dig into, two victories for property rights this week—both in IJ cases! First, IJ’s Wesley Hottot discusses the Sixth Circuit’s opinion in his clients’ challenge to Detroit’s vehicle seizure program. Wayne County, Michigan will seize cars on flimsy grounds and then wait months until the owner can even try and get the car back—unless you fork over some ransom money, in which case it doesn’t matter what the evidence is. The court found this a clear constitutional violation and ruled that owners should be able to contest these seizures within two weeks. Then, in a tale that will shock our bibliophile listeners, IJ’s Bob McNamara tells us of what the D.C. Circuit thought of the Library of Congress’s program of forcibly taking books as part of its copyright program, even when the taking of the books had nothing to do with copyright. For years small publishers have been threatened with fines if they don’t turn over books, without any compensation, and even though the books are copyrighted anyway. Many of these books are then literally thrown away. Sound like a taking? The court agrees. There’s also some grumbling about moving books between apartments.

Click here for transcript.

Ingram v. Wayne County

Valancourt Books v. Garland

Culley v. Marshall (pending SCOTUS case)

Baby Ninth book page (with events)

Short Circuit 288 | Nondelegating Warrants Sep 08, 2023

Two old favorites this week: The nondelegation doctrine and the phrase “come back with a warrant.” And both from the culturally varied Sixth Circuit. First, Justin Pearson of IJ explains the wide delegation of power that Congress gave OSHA and how the courts have hand-waived away any constitutional problems with that. That’s no different in the recent Sixth Circuit case, although there is an interesting dissent. Then, Brian Morris takes us down the Ohio River to a couple Kentucky cops who won’t take no—or “get a warrant”—for an answer. It’s a defeat for qualified immunity and a lesson on what the police will do even when the body cameras are on.

Click here for transcript.

Allstates Refractory Contractors v. Su

Reed v. Campbell County

Navarette v. California

Map from “American Nations”

Short Circuit 287 | Where the Sidewalk Ends Aug 30, 2023

The members of the Nashville City Council are apparently big fans of sidewalks to nowhere. In order for property owners to get a permit they have to commit to building a sidewalk along their lot line, even if there’s no sidewalk anywhere else on the street. Or, they can just hand over a chunk of cash. The Sixth Circuit said earlier this year that there’s a big constitutional problem with that. Minnesota attorney Ryan Wilson stops in to tell us about that story. But first we hear from another Minnesota attorney (sense a theme here?) David Asp about everyone’s favorite topic: ERISA preemption. No, seriously, it’s a big deal that has a big impact on our health care system. Dave walks us through a recent opinion from the Tenth Circuit that marks a split and could be on its way to the Supreme Court. Also, you’ll learn a bit about how law students clean up after themselves (not well it turns out).

Click here for transcript.

Pharmaceutical Care Management Assoc v. Mulready

Knight v. Nashville

Where the Sidewalk Ends

Apply to be a Senior Fellow at IJ!

Short Circuit 286 | Totally Noncontroversial Issues Aug 25, 2023

We wade into a hotly contested subject this week: standing law under Article III of the U.S. Constitution. The cases by which we address that subject are about more mundane issues—abortion drugs and transgender transitioning in public schools—so we mostly ignore them. First, IJ’s Andrew Ward takes us to the rough-and-tumble Fifth Circuit where a group of doctors are challenging the FDA’s approval of a drug, resulting in a somewhat eyebrow-raising opinion (in more ways than one, but we focus on standing) where the bounds of a cognizable injury seem more expanded than normal. Then IJ’s Kirby Thomas West brings us to the Fourth Circuit where a group of parents challenge a school district’s gender transition policy. That leads to a result civil rights lawyers are more used to—a court excusing itself on standing grounds. What does this portent for the future of standing law? We have no idea, but we speculate about original meaning.

Click here for episode transcript

Alliance for Hippocratic Medicine v. FDA

John and Jane Parents v. Montgomery County Board of Education

Clapper v. Amnesty International

R.E.M. – Stand

Short Circuit 285 | Searching for Something Aug 18, 2023

A whole lot of searching going on this week. First, Scott Regan of IJ reports on a Ninth Circuit opinion involving, among other things, an iCloud account. How does the Fourth Amendment apply to the gazillions of pieces of data stored on our phones? It depends on what the officers are searching for, and their searches. Then, in a very different search, a DC police officer asks a guy to show his waistband. Twice. And then the guy runs and throws a gun in the bushes. Were the officer’s requests seizures? Searches? Unreasonable? The evidence is suppressed but the judges disagree on a few things. Your host reports on this case from the DC Circuit.

Click here for transcript.

U.S. v. Pelayo

U.S. v. Gamble

Edgar Allan Poe’s “Eldorado”

Short Circuit 284 | Betting the Election Aug 11, 2023

Ari Bargil of IJ visits the Short Circuit virtual studio to take a bet. Or, rather, to tell us why some of us can keep taking bets—for now. The Fifth Circuit recently granted a preliminary injunction to participants in PredictIt, a New Zealand-based research experiment where people can bet real money about the outcomes of elections. The CFTC, however, doesn’t want to put up with this business anymore and is trying to shut it down. Nevertheless, because of the Fifth Circuit you can place your bets, but only for now. Then, your host takes us on another internationally oriented adventure regarding the difference between the “government” and the “state” of Venezuela. It’s mighty important to a group of investors in the Third Circuit. Turns out rulers can change but “sovereignty survives.”

Click here for episode transcript.

Clarke v. CFTC

OI European Group B.V. v. Venezuela

Short Circuit 283 | Pennies at a Time Aug 03, 2023

If someone sends you an unsolicited text message are you “injured”? In a constitutional sense, that is. Bob Belden swoops back to the podcast to explain the latest en banc business from the Eleventh Circuit on texting, common law causes of action, Article III of the Constitution, and Office Space. Your host then gives him a quick summary of The Case of the Thorns. After that we cross the continent to the Ninth Circuit where first-time guest Christian Lansinger tells us of a dissent from a denial of en banc (dissental?) on the state-created danger doctrine. The facts are disturbing, but the issue is one that might be going to the Supreme Court soon.

Click here for transcript.

Drazen v. Godaddy.com

Murguia v. Langdon

The Case of the Thorns

Professor Andrew Hessick’s standing article

Fractions of a Penny

Short Circuit 282 | Sexy Cops and Decades of Deference Jul 27, 2023

We swing from one legal extreme to another this week. From the First Amendment protecting street entertainers in Vegas on the one hand to deference to the comments of the United States Sentencing Commission on the other. First, John Wrench walks us down the Vegas Strip with a couple “sexy cops” who bumped into some undercover real cops and then ran into some real trouble. The Ninth Circuit ruled in the case in 2017 and then after a petition for rehearing was filed did . . . nothing. Until this month when it filed an amended opinion. We try and figure out what happened with that and where the case stands now. Then it’s off to the Tenth Circuit where Jared McClain explains a developing circuit split over what deference courts owe to the Sentencing Commission’s interpretation of its own rules. Despite the split, though, Jared explains how it might be a while until this area gets sorted out.

Click here for transcript.

Santopietro v. Howell

U.S. v. Maloid

Law review article on Santopietro case (by Stephen Touchton)

Short Circuit 281 | Bosom Buddies Jul 20, 2023

We talk with a couple remarkable women who achieved something pretty remarkable for some other remarkable women in Georgia: Had the state supreme court strike down an occupational licensing law that would have put hundreds of women out of work. The law mandated a license for “lactation consultants,” women who help new moms breastfeed their babies. The license required vast amounts of training, far more than necessary and far more than most existing consultants had. IJ attorneys Jaimie Cavanaugh and Renée Flaherty join us to detail how they fought a five-year legal battle to the Georgia Supreme Court—twice—and how the Georgia Constitution and other state constitutions protect economic liberty. The case provides a lot of hope for the future, and not just to those who work with babies and breasts.

Click here for transcript.

Jackson v. Raffensberger (1st appeal)

Jackson v. Raffensberger (2d appeal)

Patel v. Texas Dept. of Licensing & Regulation

Ladd v. Real Estate Comm.

Anthony’s old article on states and economic liberty

Lady Madonna

Short Circuit 280 | Something’s Rotten in the State of Bivens Jul 14, 2023

Scott Michelman of the ACLU-DC joins us to discuss the ins-and-outs of a recent fascinating (yet disappointing) ruling of the D.C. Circuit. Remember when President Trump had a square cleared of protesters—with tear gas—so he could take a photo op? Scott represents some of the plaintiffs in that case, whose claims against federal officials were thrown out because the court said it wasn’t enough like three cases from over forty years ago. Yet, it seems like some of the judges were reluctant about that conclusion and even offered a theory about how a different lawsuit might work in a future. Then Anya Bidwell discusses a very different result from the Seventh Circuit where a claim against federal narcotics agents could go forward because the relevant precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was against, well, federal narcotics agents.

Click here for transcript.

Buchanan v. Barr

Snowden v. Henning

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

Short Circuit 279 | Cops on the Beat Jul 07, 2023

It’s hard to sue the police. But it’s even harder to sue a judge. Rob Johnson returns to tell us about an Eighth Circuit case where a suit against a judge can actually go forward . . . partly. Why one way and why the other? It seems it might be all because of the robe. It didn’t help the judge that he physically put two kids in jail himself. Then we swing through the Sixth Circuit for a cop who opens a car door and hilarity (and the community care doctrine) ensues. Sound a bit like a Mickey Spillane story? You can judge for yourself.

Click here for transcript.

Rockett v. Eighmy

U.S. v. Morgan

Pennsylvania v. Dunlap (Roberts dissent)

Short Circuit 278 | I’ll Take the Elevator Jun 30, 2023

Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing.

Click here for transcript.

Sterling Hotels v. McKay

Anibowei v. Morgan

Short Circuit 277 | More to Come Jun 22, 2023

Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is “[m]ore to come.”

Click here for transcript.

CFPB v. Brown

U.S. v. Jackson

U.S. v. Cunningham

Range v. Attorney General

2 Esdras 4:45-46

Commentary on Esdras (G.H. Box 1912)

The lunch that launched #AppellateTwitter

Short Circuit 276 | The Concentration of Powers Jun 15, 2023

We all know about the separation of powers. But this week IJ attorney Jaba Tsitsuashvili introduces us to something else: the concentration of powers. It’s pretty much what it sounds like, and it happens when people have to depend on legislatures to protect constitutional rights. That’s what unfortunately happened recently at the Iowa Supreme Court. Anya Bidwell gives us the details on that story. But sometimes the legislature actually does act to protect constitutional rights. Ok, so then what? Well, Jaba explains that the Louisiana Supreme Court essentially thought that wasn’t good enough to . . . actually protect constitutional rights. Finally, your host details a recent piece he wrote about remedies, constitutions, and statutes. See if your mind is blown by an old law review article like his was.

Click here for transcript.

Burnett v. Smith

Jameson v. Montgomery

Xi v. Haugen

Some Reflections on Legislation, Adjudication, and Implied Private Actions (Foy article)

Where Does the Law Come From? (Anthony’s article)

Short Circuit 275 | All Constitutional Law is Procedural Nonsense Jun 08, 2023

IJ attorney Paul Avelar seizes the means of production (and the Short Circuit microphone) and hosts this week’s episode, live from IJ’s annual Law Student Conference. He’s joined by IJ attorneys Arif Panju and Ari Bargil, who come on to demonstrate that they are, in fact, different people. Arif first details a recent IJ appellate victory in the Sixth Circuit, where Judge Sutton once again explained that if your name is not “Rooker” or “Feldman” then the Rooker-Feldman doctrine most likely does not apply. Arif also gives the facts of the tragic story of what our clients went through before the “Environmental Court” in Memphis, Tennessee, and where the lawsuit challenging its Kangaroo nature now stands. Then Ari digs into a police raid gone horribly wrong in Harris County, Texas. Not exactly a story of the Lone Star State’s finest, as the Fifth Circuit recently indicated. There’s also much ado about procedure.

Click here for transcript

Tuttle v. Sepolio

Hohenberg v. Shelby County

That book Paul won’t stop talking about

Short Circuit 274 | 100 Years of Meyer v. Nebraska Jun 02, 2023

June 4, 2023 marks exactly 100 years since the Supreme Court handed down its opinion in Meyer v. Nebraska, where the Court ruled that it is unconstitutional for states to forbid the teaching of foreign languages. The case was a momentous decision both at the time and for the future. It lead to developments in many different areas of constitutional law, including free speech, religion, educational freedom, economic liberty, and the incorporation of the Bill of Rights. To celebrate the anniversary the Center for Judicial Engagement at the Institute for Justice held a conference on March 31, 2023 called “100 Years of Unenumerated Freedoms: Meyer v. Nebraska at a Century”.

This episode of Short Circuit provides you with the keynote address from the conference, a speech by Professor William G. Ross of Samford University’s Cumberland School of Law. Professor Ross is the author of Forging New Freedoms: Nativism, Education and the Constitution, 1917-1927 (1994), the definitive account of Meyer and the other cases in the same “trilogy”: Pierce v. Society of Sisters and Farrington v. Tokushige. We were absolutely thrilled that he spoke at our conference and wanted to celebrate the anniversary date itself by sharing his remarks with you. And if you’re also interested in hearing what other scholars had to say at the conference please find the link in the shownotes that will bring you to the archived video of the event.

Click here for transcript.

Meyer v. Nebraska

Forging New Freedoms

Video of the conference “100 Years of Unenumerated Freedoms”

Short Circuit 273 | Suing to Apportion Seats May 25, 2023

Today we’re digging into the Fourteenth Amendment. No, not the part we usually talk about, Section 1, with its privileges or immunities, equal protection, and all that. Not even Section 4 (debt ceiling?) or Section 3 (rebellion stuff). No, we’re digging into a super interesting case involving Section 2, the part that lowers a state’s Congressional representation if it abridges the right to vote. Jared Pettinato of Citizens for Constitutional Integrity, counsel in the lawsuit, joins us to discuss what it’s all about. We learn the history of Section 2, how Jared represents voters in states that lost members of Congress in the last census, how he’s suing the Census Bureau via the Administrative Procedure Act, and what a three-judge panel recently said about his clients’ standing. He also previews what’s ahead at the D.C. Circuit. After all that IJ’s Sam Gedge discusses Footnote 4. Not, not that Footnote 4, but a recent one from the Second Circuit that kind of said unpublished cases are actually published. Or did it?

Click here for transcript.

Citizens for Constitutional Integrity v. Census Bureau

U.S. v. Montague

Politico article on Jared’s case

Jared Pettinato

Sam Gedge

Anthony Sanders

Short Circuit 272 | Elizabeth Warren and Jackets May 18, 2023

If a sitting senator threatened you with censorship, would it matter what jacket she’s wearing? Although not an issue we discuss this week, it’s related to both of our cases. First, Justin Pearson tells us of a Ninth Circuit case considering whether a letter from Senator Elizabeth Warren crossed the constitutional line by discussing actions that could be taken against Amazon for selling a certain book. Then, Christie Hebert brings us to the Fifth Circuit and whether a man abandoned his jacket at his mother’s house. Does it matter that it was on top of the trash can?

Click here for transcript.

Download Anthony’s book for free!

Robert F. Kennedy, Jr. v. Elizabeth Warren

U.S. v. Ramirez

Short Circuit 271 | The Cars Greatest Hits May 11, 2023

Cars and free speech, what could be a more American combination? This week we’re playing a double-sided session that you can enjoy while honking your horn or writing your Facebook post. That’s because our two cases examine the free-speech implications of both of those activities. First, if you honk in support of a protest, is that protected by the First Amendment? We drive out to sunny California and the Ninth Circuit to answer that automotive question. Then, it’s off to the hills of Kentucky for another—not quite as fun—car activity: Calling the tow truck. For one towing company they found the calls stopped just around the time they criticized a local politician on Facebook. Coincidence? The Sixth Circuit thinks maybe not. Plus, with a speech bonus, you’ll hear what Rudyard Kipling thought of the motorcar.

Click here for transcript.

Porter v. Martinez

Lemaster v. Lawrence County

To Motorists

Background to To Motorists

Short Circuit 270 | Baby Ninth Amendments May 05, 2023

IJ attorney Josh Windham seizes the microphone and turns it around on your regular host, Anthony Sanders. Josh interviews Anthony about his new book, which comes out on May 9, 2023, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.

The book is part history, part legal theory, and part advocacy. It tells the story of how Americans took the words of the Ninth Amendment to the U.S. Constitution and put them in various state constitutions. It then explores what that means for how state constitutions protect our rights (a lot) and what judges have done to give those rights protection (not much). Josh and Anthony dig into these issues, how these provisions should be interpreted, how that would change how state constitutions protect our rights, and even how this story might change how we think about the U.S. Constitution itself.

Further, as of May 9 you not only will be able to read the book, but download it for free! You can do that even from the comfort of the podcast app you’re currently using, either from the publisher, University of Michigan Press, or, for Kindle users, from Amazon.

Click here for transcript.

University of Michigan Press page (with free download) for Baby Ninth Amendments

Amazon page (including free Kindle version)

Institute for Justice page for the book

Short Circuit 269 | The British Constitution Apr 27, 2023

It’s Special Short Circuit time. And this time that means we don’t just investigate a special legal issue, we journey to a special place (well, at least that’s what Shakespeare and John of Gaunt might say). This week we focus on the British Constitution, how it’s (quite) different from the United States Constitution, how it’s constituted, how it works, and how it’s been changing recently. Two scholars have edited a new volume full of scepticism (note the “c” instead of the “k”) about recent and proposed constitutional changes in the United Kingdom, a book called Sceptical Perspectives on the Changing Constitution of the United Kingdom. If you don’t know much about the constitutional order of America’s mother country you’ll learn quite a bit. If you’d like to learn more about the constitutional debates they’re having in Britain you’ll learn quite a bit more. And if you’d like to hear a bit of push-and-pull about the merits of a written constitution that judges can enforce versus one that’s ever changing then you might even learn a bit about that—whether you agree with our guests or not. Richard Johnson and Yuan Yi Zhu join us for all things British—with some elements of the English, the Scots, and even the Welsh—and your host throws in a bit of reminiscing about time spent in the remnants of the Duchy of Normandy.

Click here for transcript.

Sceptical Perspectives on the Changing Constitution of the United Kingdom

Anthony’s essay that discusses the British Constitution

The Act of Union

Richard’s book The End of the Second Reconstruction

Short Circuit 268 | God and Man at Harvard and Yale Apr 20, 2023

Who ever said insurance isn’t interesting? Certainly not the Eleventh Circuit, and certainly not IJ’s Ben Field. He tells us a harrowing story of a church—a church of all places!—which weathers two acts of God (hurricanes) while taking insurance contracts and kicking insurances claims (actually, the insurance company kicked the claims). Ben weaves together the competing views of contract interpretation as personified by Harvard’s Samuel Williston and Yale’s Arthur Corbin to explain how the court ended up where it did. We even delve into the Gospel of John for inspiration. Then, in slightly less theological matters than contractual interpretation, we look at what the Fifth Circuit cooked up when it comes to free speech. Whether you’re a veggie burger connoisseur or not, you’ll want to hear about Louisiana’s attempt to stymie the labeling of meatless meat such as Tofurky. IJ’s Betsy Sanz tells us why the court did not find the law unconstitutional, but also why that means the law might not end up doing very much.

Click here for transcript.

Shiloh Christian Center v. Aspen Specialty Insurance Co.

Turtle Island Foods v. Strain

Short Circuit 267 | Take It Apr 14, 2023

Just compensation is a pretty basic part of the Constitution. Which is why this week’s panel is a little confused how the State of Minnesota thought it could just take a bunch of insulin without paying for it. IJ attorney Joe Gay joins us to explain what the Eighth Circuit had to say not just about just compensation but where a property owner goes to get it. Then IJ’s Anna Goodman tells another Eighth Circuit tale of a speedy trial that was not so speedy. But it turns out that’s ok. Even when it’s the government’s fault.

Click here for transcript.

All about Anthony’s book!

April 24 Feddie Night Fights debate

PhRMA v. Williams

U.S. v. Cooley

Short Circuit 266 | School Choice Special Apr 06, 2023

On a special Short Circuit IJ’s Marie Miller sits down with a trio of school choice experts to provide an overview on where school choice is today. Nicole Garnett and Rick Garnett, both professors at Notre Dame Law School, join IJ’s Michael Bindas to discuss the history of school choice, answer common objections to school choice programs, and walk through some of the litigation that has culminated in the explosion of school choice programs we now see in 2023. The episode was recorded at the University of Notre Dame after a conference celebrating the publication of The Case for Parental Choice, a collection of essays by John Coons and edited by Nicole and Rick along with their colleague Ernest Morrell.

Click here for a transcript.

The Case for Parental Choice

Zelman v. Simmons-Harris

Espinoza v. Montana Dept. of Revenue

Carson v. Makin

Short Circuit 265 | Time Travel Mar 30, 2023

Wouldn’t it be fun to own a time machine? If you said yes then you’re a lot like the Fifth Circuit. Last week its full set of judges trotted out their own Delorean and ran it at 88 miles an hour while issuing an order denying an en banc motion. We’re calling this “time travel” because unlike a normal denial of en banc the court did so after it already had over three months ago and the losing side (represented by IJ!) had already filed a cert petition with the Supreme Court. IJ’s Bob McNamara comes on to discuss this bending of the space-time continuum, but also the bending of long-established property rights principles. The case concerns a takings claim against the State of Texas where the state is trying to get away with not paying property owners for flooding their land. And if the Fifth Circuit’s ruling stands it’ll get away with it now and into the future. Continuing on the time traveling theme, your host then tells a tale straight out of a Donna Tartt novel (well, a combination of two of them): A six-thousand-year-old idol that’s sold on the New York art market and is of . . . uncertain provenance.

Click here for transcript.

Devillier v. Texas (cert petition)

Devillier v. Texas (2d denial of en banc)

Turkey v. Christie’s

H.G Well’s The Time Machine

Donna Tartt’s The Secret History

Donna Tartt’s The Goldfinch

Short Circuit 264 | Evicting Innocent People Mar 23, 2023

Can a city get a renter evicted for a crime they didn’t commit? Unfortunately, in cities across the country the answer is yes. On a special Short Circuit we dig into this outrageous, and immensely underreported, issue. Professor Katy Ramsey Mason of the University of Memphis joins us to discuss crime free rental ordinances, laws that allow cities for force landlords to evict tenants after anyone in their household is merely charged (not convicted) of a crime. And not a crime committed on the property, but anywhere in town. We also hear from IJ attorney Sam Gedge who is part of a team currently challenging one of the worst examples of these laws in Granite City, Illinois. The case is currently at the Seventh Circuit and will be argued later this year. We even play some audio clips of what the eviction process has been like in Granite City as people who have done nothing wrong are kicked out of their homes.

Click here for transcript.

Register for March 31 conference on Meyer v. Nebraska!

Article in UCLA Law Review, “One-Strike 2.0”

IJ’s Granite City compulsory evictions case

ACLU case in Minnesota (now settled)

Short Circuit 263 | A Three Hour Tour Mar 14, 2023

A nostalgic tale of judicial engagement where we examine whether recess is a crime and whether it’s fine for the government to follow your every move out on the water. First, Keith Neely of IJ joins us for the first time to discuss a Fourth Circuit opinion about a vague law that explicitly makes it illegal to be obnoxious. Then it’s his colleague Trace Mitchell’s turn with a Fifth Circuit tour of administrative law and the First Amendment. Keith also talks about the trivia test he had to take to become a circuit court clerk and how you pronounce “seconded.” (It’s not what you think. Unfortunately.) Plus, we close with a bit of rumination over “the youth of today” and how they can’t make obvious references to ‘60s sitcoms anymore.

Click here for transcript.

Register for March 31 conference on Meyer v. Nebraska!

Carolina Youth Action Project v. Wilson

Mexican Gulf Fishing Co. v. U.S. Dept of Commerce

The British origins of “seconded”

Short Circuit 262 | Shielded Mar 08, 2023

A special Short Circuit Live at Georgetown University hosts Joanna Schwartz of UCLA to discuss her book Shielded: How the Police Became Untouchable. And not only that, but after hearing her introduce the book itself we do a full Short Circuit looking at a number of recent cases in light of it. Anya Bidwell and Professor Schwartz are joined by professors Seth Stoughton, Carlos Manuel Vazquez, and Alex Reinert. Recorded on Tuesday, March 7 and co-sponsored with our friends at the Georgetown Center for the Constitution.

Click here for transcript.

Our March 31, 2023 conference on Meyer v. Nebraska

Come see Anthony on Thursday, March 16 at noon in Charleston, S.C.!

Work at IJ!

Shielded: How the Police Became Untouchable

Edwards v. City of Florissant

Sosa v. Martin County

Pettibone v. Russell Mack v. Williams

Mack v. Williams

Short Circuit 261 | Live at Southern Methodist University! Mar 02, 2023

Short Circuit speaks with the law students at SMU in our first visit to The Big D. With Anya Bidwell as your host, she introduces us to Texas lawyers Zack Faircloth, Will Langley, and Don Tittle. They dig into recent cases on the Second Amendment, “premature bankruptcy,” vaping regulation, and (of course) qualified immunity. With more than one matter that seems to be on track for the Supreme Court this is the episode for Rick and Morty fans.

Register for March 7 event with Joanna Schwartz on her book “Shielded”!

Click here for podcast.

United States v. Rahimi

Wages and White Lion Investments v. FDA (motions panel)

Wages and White Lion Investments v. FDA (merits panel)

In re LTL Management

Molina v. City of St. Louis

Rick and Morty “Spa Planet” episode

Short Circuit 260 | Unlimited Tariff Power Feb 23, 2023

For the first time Short Circuit welcomes the Jones-Act-hating, free-trade-loving, tariff-busting, T-shirt-writing, and top-5-ranking Scott Lincicome of the Cato Institute. Scott introduces us to a rare breed at Short Circuit, the Court of Appeals for the Federal Circuit. That’s because the court just issued (another) opinion upholding some of the dumbest steel tariffs of recent years (and that’s saying a lot). Scott walks us through the supposed national security issues, how tariff sausage gets made, and where the courts might go from here. After a somewhat difficult segue we then move to Andrew Ward of IJ, who tells a wild story from the Sixth Circuit of a shed that catches on fire, a sketchy warrant, security cameras, noises that sound like someone is ripping down a roof, and several kilos of a mysterious white substance in the sink. But none of it ever happened because of the fruit-of-the-poisonous-tree doctrine. Finally, we end with a top-5 list from Scott.

Primesource Building Products, Inc. v. U.S.

U.S. v. Waide

Tariffs Foster Political Dysfunction T-shirt

Capitolism newsletter

Short Circuit 259 | The Rent Is Too Damn High Feb 17, 2023

A qualified immunity and property rights pairing this week. But first we announce the winning answer from last episode’s “decretal language” competition. Then, Patrick Jaicomo explains why in the Fourth Circuit it can be unconstitutional for the police to prevent you from livestreaming an encounter, but you can’t sue them about it. Then Suranjan Sen walks us through a couple challenges to New York’s notorious rent control laws. The Second Circuit finds no taking there, whatever the realities of tenants who never move out. However, the question arises: Can these cases be heading somewhere higher? Also, courts, you’re not writing mystery novels. So stop opening your opinions like one.

Click here for transcript.

Register for Feb 18 Cleveland show, Comedy is not a Crime!

Register for event with Joanna Schwartz on her book “Shielded”!

Register for March 31 conference on Meyer v. Nebraska!

Sharpe v. Winterville Police Dept.

Community Housing Improvement Program v. City of New York

74 Pinehurst v. State of New York

Short Circuit 258 | And in en banc news Feb 10, 2023

Our newsletter begins announcements about federal en banc decisions with the phrase “And in en banc news.” And about a year ago we had an argument on the podcast on how to pronounce that fancy French-sounding phrase. Today we bring back the guests from that episode—Sam Gedge and Bob Belden—to settle the issue, once and for all. Along the way you’ll learn about how we have the Germans to thank for how we describe full sittings of the federal courts of appeals. You’ll also learn about two recent en banc cases, one from the Eleventh Circuit concerning how prisoners can sue in federal court, and one from the D.C. Circuit about how foreign students can stay in the country and get some work experience. There’s also a couple rabbit holes involving decretal language and whether a “dissental” is a thing.

Click here for transcript.

Register for Feb 17 panel at Case Western Reserve!

Register for Feb 18 Cleveland show, Comedy is not a Crime!

Register for Marc 31 conference on Meyer v. Nebraska!

Buy Anthony’s book!

Draft of article And in En Banc News . . . (to appear in Judicature)

Judge Newman article on decretal language

Wells v. Brown

Washington Alliance v. DHS

En banc argument episode

Short Circuit 257 | General Google Warrants Feb 02, 2023

On this Groundhog Day special we’re sniffing out a couple eternally recurrent subjects: limits on government surveillance and limits on property rights. We’re joined by IJ’s Seth Young and also are very pleased to announce we once again have on Mike Chase, author of How to Become a Federal Criminal. Mike gives an overview of a case pending in the Fourth Circuit that could have major ramifications for everyone with a smart phone and a Google account—that is, everyone, period. After a bank robbery the police tried to track down a suspect using several layers of Google data. The court later found that the warrant in question violated the Fourth Amendment—yet excused it anyway. Mike explains the issues and also gives a preview of what’s coming in the world of federal crimes. Seth’s case is also from the Fourth Circuit, and it brings us to the happy days of March 2020 and what happened to a couple who simply wanted to access their own property. Was that a taking? The multifactored magic 8 ball says “no.”

United States v. Chatrie

Blackburn v. Dare County

16 USC § 668DD

50 CFR § 32.49

Phil Connors forecast

Short Circuit 256 | A Magical Bag of Dope Jan 26, 2023

Could you identify a “bag of dope” through a tinted car window? A police officer in Euclid, Ohio thought he could, but it turns out the effort wasn’t close enough for government work. Under the Fourth Amendment, at least. IJ’s Rob Frommer joins us to tell the latest Sixth Circuit tale of cops not bothering to get a warrant. Then Suranjan Sen of IJ takes us to the Eighth Circuit where the police dispersed a crowd for “unlawful assembly.” That may have been unconstitutional, but when the protesters sue they encounter some pleading problems.

Click here for transcript.

Register for our Meyer v. Nebraska conference!

2023 IJ Summer Clerkship Application

U.S. v. Loines

Edwards v. City of Florissant

Bound By Oath episode on municipal liability

Short Circuit 255 | Basic Training Jan 19, 2023

We are joined by Texas “teenylaw” lawyer Kristen Vander-Plas LaFreniere. We talk about what it’s like to run a very small practice and then dig into the latest from the circuits. Kristen presents a religious victory over the Marines in the D.C. Circuit and gives a bit of background about what that service thinks of the Navy. If you’ve made it through basic training this is the episode for you. Then, Erica Smith Ewing of IJ takes us out to the Ninth Circuit where there’s a rare win against a zoning ordinance.

Singh v. Berger

SoCal Recovery v. City of Costa Mesa

Short Circuit 254 | Civil Rights Roundup Jan 13, 2023

In honor of the birthday of Martin Luther King, Jr. we invited on three civil rights lawyers to talk about their latest, pathbreaking, cases and the challenges they face in bringing justice for all. Anya Bidwell of IJ welcomes her colleague Marie Miller, as well as Mark Silverstein, Legal Director of the ACLU-Colorado, and Sam Thypin-Bermeo a civil rights lawyer in Miami. Each discusses a recently filed case where law enforcement officers are alleged to have gone far beyond the bounds of the Constitution.

Click here for transcript.

Johnson v. Staab (complaint)

Maple v. Stella (complaint)

Rosales v. Alexandria PD

50 Shades of Government Immunity

Constitutional GPA

Short Circuit 253 | Imaginary Lines Jan 05, 2023

Two tales of the criminal justice system this week, with the Excessive Fines Clause and the Fourth Amendment both playing a part. First, in the Second Circuit, Ari Bargil tells us how an ingenious scheme of selling marijuana over an app hits a snag when the funds have to go through the bank. Which is subject to all kinds of federal laws. What about the law forbidding excessive fines? For that it gets a little complicated. Then it’s off to the Ninth Circuit where John Wrench details a traffic stop with an “inventory search.” Did the cops really make it just to ensure the defendant didn’t lose his stuff? Many of us our skeptical, but somehow the conviction stands.

Click here for transcript.

U.S. v. Patterson

U.S. v. Anderson

Blow – Courtroom Scene

World of Trouble

Short Circuit 252 | 13th Amendment at SCOTUS Dec 29, 2022

Not many lawyers alive today can say they’ve litigated a Thirteenth Amendment case (yes, that amendment; the one about slavery). But we at IJ have one, and we’re asking the Supreme Court to take a look at it. What’s before the Court is whether prosecutors who—under political pressure—made a bogus case against a group of nurses are “absolutely immune” from the nurses’ civil rights lawsuit. IJ’s Ben Field explains the stakes in this case from the Second Circuit. Then, Jaba Tsitsuashvili of IJ tells us of a Minnesota police department that holds every person who wasn’t born in the U.S. until it hears back from I.C.E., whether they’re a citizen or not. Um, is that a problem? Jaba explains how the Eighth Circuit explained that, oh yes, it is.

Click here for transcript.

Cert petition in Anilao v. Spota

Anilao v. Spota (3d Circuit)

Parada v. Anoka County

Bound By Oath Episode on Absolute Immunity

Short Circuit 251 | You Got Insurance? Dec 22, 2022

You got insurance is not just a question they ask at the doctor’s office. Most of the time when someone sues the government—especially a local government—there’s at least some insurance potentially available to pay for the government’s defense and to pay a claim. But insurance policies are famous for having exclusions. And it turns out that in bunch of lawsuits in the Sixth Circuit there are exclusions for property rights and taxes that are making things complicated for property-tax-collecting counties. These come in the wake of “equity theft” cases, and court rulings that these can constitute a taking. IJ’s Dan Knepper joins us for this intersection of insurance and civil rights law. Also, we go down to the Eleventh Circuit for a life insurance policy and a tragic story of “suicide-by-cop.” Turns out the standard exclusion in a policy for suicide can count even if that happens indirectly. Finally, if you haven’t heard our “12 Days of Short Circuit Christmas” on our separate bonus episode, stick around until the end for a song about 12 days and 12 federal circuits.

Click here for transcript.

Law Students: Apply to be a 2023 summer fellow at IJ!

Safety Specialty Insurance Co. v. Genesee County Board

North American Co. for Life & Health Insurance v. Caldwell

Rafaeli, LLC v. Oakland County

Short Circuit episode on Rafaeli

12 Days of Short Circuit Christmas Dec 21, 2022

A very short episode for the Holidays. Sung by members of the Institute for Justice. Click to listen, but here are the words:

On the 1st day of Short Circuit Christmas my federal reporter gave to me

A thesaurus under Judge Selya’s pine tree

On the 2d day of Short Circuit Christmas my federal reporter gave to me

Two Calabresi tort rules

And a thesaurus under Judge Selya’s pine tree.

On the 3d day of Short Circuit Christmas my federal reporter gave to me

Et al.

[Yeah, you know how the song goes. Let’s skip to the 12th, i.e. D.C. Cir., verse & you can see all of them at once]

Twelve vacaturs granted

Eleven judges named Pryor

Ten library courtrooms

Nine en banc reversals

Eight qualified immunities

Seven Chicago professors

Six Sutton Stanzas

Five Judge Hos

Four ex-prosecutors

Three Jersey convictions

Two Calabresi tort rules

And a thesaurus under Judge Selya’s pine tree.

Short Circuit 250 | Thanksgiving for the Arrest Dec 16, 2022

One of our oldest friends (well, not really a “friend”) is back, the rational basis test. Turns out the government can justify refusing to give someone a license on the grounds that it’s extra work for the government itself to have to issue the license. That sounds kinda weird, right? IJ attorney Josh House agrees, as he discusses a new case from the Fifth Circuit. But it’s not all bad news this week. In the Sixth Circuit the police can’t receive qualified immunity when they lie on a police report. Turns out that’s an “obvious” constitutional violation. Yeah, who knew? Jared McClain of IJ explains pretty much everyone did.

Click here for transcript.

Newell-Davis v. Phillips

Caskey v. Fenton

St. Joseph Abbey v. Castille

Taylor v. Riojas

Short Circuit 249 | Licensed to Work Dec 08, 2022

For millions of lower-income Americans, state licensing laws make finding work or opening a small business harder and more expensive—if not outright impossible. So claims the third edition of Licensed to Work, a report of the Institute for Justice. We talk to Lisa Knepper, a co-author of the report, to hear why occupational licensing is such a big deal—and such a big barrier to so many—and what has changed in the five years since the last edition. There’s good news! Yet, so many challenges remain. And as Short Circuit listeners know one way to address those challenges is through judicial engagement. Thus, Josh Windham of IJ also joins us to discuss a recent decision in Pennsylvania where a court found a licensing requirement to be unconstitutional, clearing the way for entrepreneurs like Josh’s client. We hope you enjoy a little policy along with a little law, and we promise there will be no (well, not much) math.

Click here for transcript.

Licensed to Work 3

Ladd v. Real Estate Commission (2022 decision)

Ladd (2020 decision)

Bang the Drum All Day

Short Circuit 248 | “I Declare Bankruptcy” Dec 02, 2022

Money makes the world go round. And sometimes the Constitution and our civil rights laws help money out with that. We examine a couple recent cases where bankruptcy and attorney fees awards intersected with constitutional law. First, IJ’s Rob Peccola describes how the Second Circuit followed the Supreme Court’s recent instructions to take Constitution’s use of the word “uniform” seriously. Then, IJ’s Bert Gall joins us for the first time to walk through what the Sixth Circuit had to say on who a “prevailing party” is and what “enduring” means. A whole lot of cash can turn on the answer. Plus, if you like Shel Silverstein, this might be the episode for you.

Click here for transcript.

In re Clinton Nurseries, Inc.

Tennessee NAACP v. Hargett

Siegel v. Fitzgerald

Smart, read by Shel Silverstein

Short Circuit 247 | Off to the Races Nov 23, 2022

Just in time for Thanksgiving we have two extremely juicy opinions (from a judicial engagement standpoint), one about the right to earn a living and one on the nondelegation doctrine. First, it’s our old friend Jeff Rowes of IJ who discusses how the Fifth Circuit ruled against a tanning salon that didn’t want to be shut down during the pandemic, but where the court really didn’t seem to want to. And then there’s a concurring opinion that’s all about how the right to earn a living is “deeply rooted.” Then, Trace Mitchell of IJ grabs the reins and takes us for a ride around nondelegation jurisprudence. It’s a case considering Congress’s decision to give governmental power to a private group as a method of regulating the horse racing industry. Giddy up!

Click here for transcript.

Golden Glow Tanning Salon v. City of Columbus

Nat. Horsemen’s Benevolent & Protective Assoc. v. Black

Short Circuit Episode on Kentucky right to earn a living case

IJ Nondelegation doctrine case

Short Circuit 246 | The Unholy Trinity Nov 18, 2022

We’re joined by two friends from the MacArthur Justice Center, Emily Washington and Eric Foley, to tell us all about a blood-boiling case of prosecutorial misconduct, concocted evidence, and lying to put a man on death row. They are fighting an epic battle in the Fifth Circuit against many things in their case, but this week we focus on one especially: absolute immunity, a special benefit prosecutors often—but not always—enjoy. Did the prosecutor enjoy it in their lawsuit? Listen to find out. There’s not just one, but two concurrences by Judge Jim Ho of the Fifth Circuit (who news reports say festively sends out Christmas cards, along with his family, using the slogan “Ho, Ho, Ho”). And then IJ’s own Anya Bidwell tells us about “Wanteds.” They’re not warrants, but they’re nevertheless often used. Were they a thing at common law, and are they “reasonable” under the Fourth Amendment? There’s another concurrence that makes the case.

Click here for transcript.

Wearry v. Foster (3 judge panel)

Wearry v. Foster (denial of en banc)

Furlow v. Belmar

Short Circuit 245 | A Texas-Sized “And” Nov 08, 2022

Everything’s big in Texas. Including that famous English conjunction “and.” For the first time on Short Circuit we have two IJ attorneys based in the Lone Star State on the same episode, Arif Panju and Christie Hebert. They introduce us to two Texan cases from the Texas-dominated Fifth Circuit. First, Arif explains why some voting rights groups didn’t have standing to challenge a few changes to the state’s voting laws even though the new rules seem to have problems. Then, Christie tells the story of “and” under the First Step Act and how two Fifth Circuit Texan judges can disagree so strongly. Further, William Travis—and the em dash—make appearances.

Click here for transcript.

Texas State LULAC v. Elfant

U.S. v. Palomares

Letter to the People of Texas and All Americans in the World

Short Circuit 244 | Election Special 2022 Nov 02, 2022

When Americans vote it usually means one other thing. Americans suing. And this year is no different. Diana Simpson of IJ joins us, as she did on the eve of the 2020 election, to help summarize and scrutinize hot-off-the-press opinions on ballot access and voting rules for the election on November 8, 2022. We discuss cases in federal and state court involving laws in Pennsylvania, Nebraska, Nevada, Alaska, Georgia, and the town of Mason, Tennessee. Plus, we’re excited to announce the first appearance of Richard Nixon on the podcast.

Click here for transcript.

Ball v. Chapman (Pa. Supreme Court)

Migliori v. Lehigh County Bd. of Elections (3d Circuit)

Eggers v. Evnen (8th Circuit)

ACLU v. County of Nye (Nevada Supreme Court)

Curling v. Raffensperger (11th Circuit)

Burrell v. Tipton County Elec. Comm’n (6th Circuit)

Nixon’s “last press conference”

Carhenge

Short Circuit 243 | Live From New York It’s Short Circuit! Oct 28, 2022

We recorded an episode live before an audience in New York City! NYC is home to the United States Court of Appeals for the Second Circuit, and it’s an all Second Circuit special. Join IJ’s Patrick Jaicomo as he talks with three former Second Circuit clerks: Maaren Shah, Bruce Green, and Alex Reinert. They dive into three recent Second Circuit cases—a certain defamation action against former President Trump, a case combining qualified immunity and a dog bite, and an attack on the irrationality of how the feds classify marijuana. There’s also reminiscing about our guests’ time working for the court.

Click here for transcript.

McKinney v. City of Middletown

Carroll v. Trump

United States v. Green

Short Circuit 242 | CON Law at SCOTUS Oct 20, 2022

The Institute for Justice has asked the Supreme Court to take a case challenging Kentucky’s Certificate of Need law (aka a “CON law”—very much a double entendre). Two attorneys in the case, Andrew Ward and Bob Belden, discuss how their clients simply want to provide home health care to their own immigrant community, why the law that prevents that violates the Constitution, and how the Sixth Circuit disagreed. There’s a lot of discussion about how the rational basis test turns out to not be so rational. Then the panel moves on to a property rights case, also in the Sixth Circuit, challenging “equity theft.” You’ll learn a few things about law versus equity and why theft by the government is still theft.

Click here for transcript.

RSVP for Short Circuit Live in NYC on 10/26 here!

Tiwari v. Friedlander (Sixth Circuit)

Tiwari v. Friedlander (cert petition)

Hall v. Meisner

Short Circuit 175

Short Circuit 241 | Pretext for a Traffic Stop Oct 13, 2022

The Supreme Court has said that once the police find a reason to pull you over, they can pull you over—even if that’s not at all why they actually want to pull you over. Patrick Jaicomo joins us to discuss a tragic story from the Fifth Circuit where the court denied qualified immunity to an officer, but also questioned why the police should be allowed to conduct pretextual stops in the first place. We also police tactics that seem designed to turn the temperature up, not down. Then it’s off to the First Circuit where Anna Goodman tells us about standing and the Americans with Disabilities Act. Be sure to keep your standing from your merits while listening. Also, we close with a little bit about “cleaned up.”

RSVP for Short Circuit Live in NYC on 10/26 here!

Click here for transcript.

Crane v. City of Arlington

Laufer v. Acheson Hotels, LLC

Novak v. City of Parma cert petition

The Onion’s amicus brief in Novak

“Cleaning Up Quotations” by Jack Metzler

Short Circuit 240 | Live at Columbia Law! Oct 07, 2022

Enjoy some intra-Ivy League ribbing with two Yale grads talking law and clerkships from deep inside New York’s oldest university. Short Circuit welcomes David Lat of Original Jurisdiction (f/k/a Article III Groupie) and Michael Yaeger of Carlton Fields and Empirical Justice. After some throat clearing about their alma mater being in the news quite a bit lately—and how for that reason maybe it’s a good thing David and Michael already got their clerkships in—we discuss their experiences working on the Ninth and Third Circuits. We then dive into some cases: David outlines a speech-and-licensing decision where IJ filed an amicus brief, Michael guides us through the weeds of a sentencing case applying the First Step Act, and your host lays out a sovereign immunity opinion involving state court staff where (unlike a certain recent case involving Texas courts) the government doesn’t win (plus—for interested listener(s)—there’s even some Younger abstention!).

It’s the first half of a New York Short Circuit Live double header this month. As for the second, on October 26th, you’re invited! Click to RSVP below.

RSVP for Short Circuit Live in NYC on 10/26 here!

Click here for transcript.

Tingley v. Ferguson

U.S. v. Chen

Courthouse News Service v. Gilmer

IJ’s Diet Speech Cert Petition

Short Circuit 239 | SCOTUS Preview Live from UNC Sep 30, 2022

What’s new in OT22? Quite a bit, it turns out. This is our sixth annual Short Circuit Live Supreme Court Preview from the University of North Carolina School of Law. Once again, the student Federalist Society chapter graciously asked us to visit and preview the upcoming term of the United States Supreme Court, with some lighthearted trivia, a deep dive into a couple cases already being heard by the Court, and a couple more that it might. As in past years, it’s Justin Pearson of IJ vs. Professor Andrew Hessick of UNC. One note for you listeners is that there’s questions from the crowd at the end (which were great!) but you can’t hear them on the podcast. However, don’t worry as our panelists helpfully repeat them for you. By the way, one of those questions comes from a mystery guest . . .

Click here for transcript.

National Pork Producers Council v. Ross

Moore v. Harper

Kokesch v. Florida Dept. of Health

Moses v. United States

Book by the Mystery Guest (that you should read!)

Short Circuit 238 | Dude, Where’s My Passport? Sep 22, 2022

If a doctor says a prisoner needs to take his medication, and you’re a prison guard, you should give the prisoner his medication. A number of prison officials in Utah seem to have failed to do this for someone in detox, leading to his death. Does that violate the Eighth Amendment’s prohibition on cruel and unusual punishments? Yes, said the Tenth Circuit, and the right is clearly established too, defeating qualified immunity. Tori Clark brings us this sobering case where, at least this time, the drunken logic of qualified immunity didn’t rear its ugly head. Also, we discuss what happens when you don’t pay your taxes and then sue about them. Turns out you can’t do that. You also might have your passport taken away. Which raises the question of whether you have a right to do that thing the passport is for—international travel. We pontificate about a Fifth Circuit case concerning taxes and a passport where there’s also a couple elephants in the room.

Click here for transcript.

Paugh v. Uintah County

Franklin v. U.S.

Register for Short Circuit Live in New York!

Short Circuit 237 | Live at the University of Montana Sep 16, 2022

It’s the first Big Sky Short Circuit! Recorded in front of students at the University of Montana School of Law, we examine three cases from the Montana Supreme Court (or heading quickly toward it) from three eminent Montana attorneys. There’s cases on government immunity, racial balance on juries, and voting rights, intersecting with state law and the Montana Constitution. We also explore practicing in Big Sky Country and reforms the state supreme court might want to consider. The podcast was recorded in conjunction with a symposium of the Montana Law Review’s celebration of the 50th anniversary of the adoption of the Montana Constitution. Whether you’re interested in Montana itself, or just in state law principles and how state constitutions interact with the rest of our legal system, we hope you’ll enjoy this broad exploration of those topics.

Click here for transcript.

L.B. v. United States

State v. Wellknown

Montana Youth Action v. Jacobsen

Short Circuit 236 | Constitutions and Common Law Sep 08, 2022

When you sue the government for violating your rights do you first need the government’s permission? Unfortunately, the answer is usually “yes.” We look at a pair of recent cases that go in different directions on the issue, and this leads us to some pretty “deep thoughts” about where law comes from and what roles courts and legislatures have in finding remedies to address constitutional violations. The words “common law” come up much more than is generally common for the podcast. First Anya Bidwell explains how the Tenth Circuit denied a prisoner a chance to sue a prison guard based on a recent Supreme Court decision that effectively closed the door on new remedies when federal officials violate the Constitution. Then, in contrast, Ben Field details a case from the Michigan Supreme Court where the majority recognized a remedy for violations of the state constitution. In addition, the dissent says some interesting things about legal history that we explore. It’s often repeated that if there is a right there is a remedy too. We try to find out how true that actually is.

Click here for transcript.

Join us for Short Circuit Live in NYC on Oct 26!

Silva v. U.S.

Bauserman v. Unemployment Insurance Agency

50 Shades of Government Immunity

Short Circuit 235 | Smelly Short-Term Rental Laws Sep 02, 2022

We all know that guests, like fish, begin to smell after three days, But what about short-term rental ordinances? We look at a pair of regulations from New Orleans and Jersey City. One the Constitution bids farewell to, but the other still stinks. Ari Bargil explains how the Fifth Circuit found the New Orleans scheme lacking under the dormant Commerce Clause. However, Erica Smith Ewing—after explaining how Jersey mayors shake down various industry groups—tells us how the Jersey City ordinance survived a trio of challenges, but at least sparked an interesting concurrence about the future of regulatory takings law. Come for the guests, stay for the fish. And you’ll learn a smidgen about Elizabethan author John Lyly as well.

Click here for transcript.

Hignell-Stark v. City of New Orleans

Nekrilov v. City of Jersey City

John Lyly, Euphues and His England

Gideon Kanner, Making Laws & Sausages

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Short Circuit 234 | Treaties With Tribes Aug 26, 2022

Do you know your Indian Law from your Tribal Law? If not, Minnesota appellate attorney Scott Flaherty joins us to discuss a recent Seventh Circuit case where a Wisconsin band of the Ojibwe vindicated their treaty rights. Indian law is notoriously complicated with a lot of unsettling history, but Scott helpfully walks us through this latest chapter. Also, pursuing his white whale of Younger abstention, Sam Gedge of IJ details a refreshing rejection of that doctrine in the Fourth Circuit. Could this harpoon hit the spot? Captain Ahab himself also makes an appearance.

Click here for transcript.

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers

Jonathan R. v. Justice

Younger v. Harris

Episode on Younger v. Harris with Fred Smith

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Scott Flaherty

Sam Gedge

Anthony Sanders

Short Circuit 233 | Frozen Lawns and Nashville Blues Aug 22, 2022

Property rights leads the way this week, with a little bit of intervention thrown in. Paul Avelar of IJ joins us to present a Sixth Circuit case where the owners committed the crime of landscaping their lawn without permission. He also discusses some recent goings on in the city of Nashville, Tennessee to do with home based businesses and code enforcement, including a recent ruling of the Tennessee Supreme Court. In addition, your host Anthony Sanders tells a tale of wine and intervention, also in the Sixth Circuit. Don’t worry, there wasn’t “an intervention” related to wine, but the intervenors who aren’t happy about wineries were able to intervene.

Click here for transcript.

See Short Circuit Live in New York on October 26!

Stevens v. City of Columbus

Wineries v. Township of Peninsula

Shaw v. Nashville

Code Snitching in Nashville (Radley Balko story)

Short Circuit 232 | Abolish the Zoning Aug 09, 2022

We welcome Nolan Gray on this week, author of the new book Arbitrary Lines: How Zoning Broke the American City and How to Fix It. Nolan is a city planner, scholar, and writer on all things urban. And he has it out for “zoning,” that method city planners love so much where they separate land uses from each other and end up controlling the finest details of what people get up to on their own property. He joins us for a detailed journey through zoning’s history, how humans got along for so long without it, why it creates so many more problems than it solves, and why it’s become so much worse. Further, he explains why often what we think of as “zoning” is actually something else and that there are many land-use tools cities have that would work fine without it.

Click here for episode transcript.

Arbitrary Lines

Village of Euclid v. Ambler Realty Co.

Nolan Gray

California YIMBY

Anthony Sanders

Short Circuit 231 | Focus on What Matters Aug 04, 2022

A couple cases this week where federal courts, at least in part, paid attention to the right things. Joined by the leaders of IJ’s Project on Immunity and Accountability, Anya Bidwell and Patrick Jaicomo, we dig into a couple recent denials of qualified immunity. Patrick discusses a case from the Fifth Circuit where a sheriff’s deputy committed some extremely heinous acts while on a “welfare check.” There’s Fourth Amendment and due process claims, and they’re addressed in a rather unusual way. Then Anya flies us out to Honolulu for a building inspector who was very hard to please. It’s a racial discrimination appeal under a civil rights law that goes back to before the Fourteenth Amendment. But first Patrick tells us of his musical exploits on a home synthesizer.

Click here for transcript.

Tyson v. County of Sabine

Toshikawa v. Seguirant

Register for Short Circuit Live in NYC on October 26!

Cert petition in Minnesota CSI (IJ case)

Anya & Patrick’s article on Recalibrating Qualified Immunity

Anya Bidwell

Patrick Jaicomo

Anthony Sanders

Short Circuit 230 | Immunities Denied and Federal Court for Trump Prosecution Jul 28, 2022

Georgia criminal defense attorney Andrew Fleischman joins us to talk about a unicorn. Yes, the Eleventh Circuit recently found a state prosecutor was not absolutely immune from a civil rights lawsuit, where a witness was arrested for not testifying . . . after he actually showed up to testify. This kind of case is extremely rare, and Andrew discusses how rare, and what its effect might be in a place like the Fulton County prosecutor’s office. Then it’s off to the Fifth Circuit where Alexa Gervasi of IJ discusses an absolutely tragic case where a prisoner dies and the guards are notgranted qualified immunity. Not quite a unicorn, but also a rare beast.

Also, speaking of Fulton County, STICK AROUND TO THE END. Andrew educates us on why if the Fulton County District Attorney prosecutes former President Trump the case could be removed to federal court. And, he gives a prediction about whether that will happen.

Click here for transcript.

Kassa v. Fulton County

Moore v. LaSalle Management Co.

Bound By Oath episode on prosecutorial immunity (with Lara Bazelon)

Removal statute for federal officials prosecuted in state court

Short Circuit 229 | Recording the Police Jul 22, 2022

The First Amendment protects your right to record the police. Yes, we already knew that, said the Tenth Circuit. Um, you did? Dan Alban presents a case where an officer blatantly tried to stop a vblogger from recording him by threatening to run him over, and where the court did a few interesting gymnastics in order to say what always should have been obvious. Quality immunity hijinks ensue, but with a happy ending. Then Jeff Rowes takes us to prison in the Fifth Circuit. Was a lawsuit there moot? Not this time, but concurring judge Jim Ho explains that courts say the M-word all too often.

Click here for transcript.

Irizarry v. Yehia

Tucker v. Gaddis

Alexa Gervasi & Anya Bidwell oped

Sledge Hammer! intro

Short Circuit 228 | No Portable Signs Jul 15, 2022

A town made it illegal to hold a sign. Anywhere. Really, just holding a sign is illegal. Sound like a First Amendment violation? That’s what we thought. And that’s what David Markese of the American Liberties Institute thought too. David joins us to discuss a recent Eleventh Circuit ruling in favor of his client after they took the town of Fort Myers Beach to court. Then it’s off to Texas to settle the great question, how the heck do you pronounce amicus curiae? After settling that once and for all IJ’s Dan Rankin explains that Tyson Foods can’t move a COVID-19 case to federal court just because it might have feared it was under arrest.

Click here for transcript.

Glenn v. Tyson Foods, Inc.

LaCroix v. Town of Fort Myers Beach

Background on Universal/Nationwide Injunctions

David Markese

Dan Rankin

Anthony Sanders

Short Circuit 227 | Salt Mines and Open Fields Jul 07, 2022

Ever worked in a salt mine? It seems some non-union employees hadn’t either when their boss joked that they might be sent to one. That wasn’t funny to someone completely unconnected to the employer, who filed an unfair labor practice. Jared McClain joins us to discuss this funny case from the Third Circuit. And get a refresher on the open fields doctrine–and how it doesn’t apply to seizures–from John Wrench as he tells us about a few not-very-well-looked-after cows.

Click here for transcript.

Short Circuit 226 | Short Circuit Live Constitutional GPA Jul 01, 2022

Recorded live at UCLA, we’re introducing a new study from the Institute for Justice: Constitutional G.P.A., is your Government Preventing Accountability? The study grades each state on how its citizens are able–or all too often, are not able–to hold government officials accountable when their rights are violated. It’s also a research tool you can use yourself. Hosted by IJ attorney Anya Bidwell we hear about three recent cases through the prism of the study. They are presented by UCLA law professor (and Chief Conspirator at the Volokh Conspiracy) Eugene Volokh, President of the National Police Accountability Project Julia Yoo, and California civil rights attorney Nicholas Yoka.

Feel free to follow along with us by checking out the interactive study here.

Click here for transcript.

Short Circuit 225 | Supreme School Choice Victory Jun 23, 2022

On a special Short Circuit, we sit down with Michael Bindas, a senior attorney at the Institute for Justice and lead attorney in Carson v. Makin. There, the Supreme Court just ruled in favor of Michael’s clients and thousands of children whose parents now have additional options for their education. We talk to Michael about the underlying religious liberty and school choice issues, what it’s like to argue a case at the Supreme Court, and the future of school choice in the wake of this important victory. Somehow we also work bourbon and rye into the conversation.

Click here for transcript.

Episode 224 | Cameras on Poles Recording Everything Jun 16, 2022

It’s just so easy these days to put a camera on a pole and record everything that happens in someone’s front yard for eight months. So easy that we keep getting cases where that’s exactly what the police do. Without a warrant. IJ attorney Josh Windham unpacks the latest, out of the First Circuit, Courier font and all. The judges don’t agree, but the rest of us can that this issue is likely heading to the Supreme Court soon. Then Anthony Sanders tells a story from Indiana where its supreme court drew a line in the sand dunes about what its legislature can delegate. But it’s not the “nondelegation doctrine” you’ve heard about.

RSVP for Short Circuit Live and Constitutional G.P.A. on June 30, 2022 in Los Angeles!

Click here for transcript.

Short Circuit 223 | Clerks and Harassment Jun 10, 2022

We discuss a couple legal immunities, one listeners will be familiar with and one that’s pretty unknown. The second is being addressed by our special guest, Aliza Shatzman. She is the co-founder of The Legal Accountability Project, a new nonprofit whose mission is to ensure that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Aliza had a harrowing experience as a law clerk and found that the laws that apply to other government employees often don’t extend to those in the judicial branch. She also presents a recent case from the Fourth Circuit about a judicial branch employee who brought a number of claims to try and get around sovereign immunity—and actually succeeded on a few of them. Then Kirby Thomas West of IJ discusses a Fifth Circuit case with terrible facts, but a good outcome on the qualified immunity front.

Click here for the transcript.

Short Circuit 222 | Live at IJ’s Law Student Conference Jun 06, 2022

Recording in front of a live audience at the 2022 Institute for Justice’s Law Student Conference, we look at some of the best, and some of the worst, from the Fourth Circuit. First, Justin Pearson explains why a restriction on “political” advertising on the side of buses was unconstitutional even though it recognized the side of a bus is not a “public forum.” Then, Michael Bindas gives us his best sommelier (or is it wino?) impersonation and discusses a tipsy opinion allowing North Carolina to prevent out-of-state retailers from shipping wine to the state’s consumers. It’s pretty much not what the Supreme Court has said about the dormant Commerce Clause and alcohol.

RSVP to Constitutional GPA and Short Circuit Live at UCLA on Thursday, June 30th 2022!

Click here for transcript.

Short Circuit 221 | The Big Mac May 26, 2022

A couple headline-grabbing, government-thumping constitutional-heavyweight cases coming at you this week. First, Rob Johnson explains how he filed a brief on the importance of the right to a jury trial when he checked the news to find the Fifth Circuit had just said the same thing in a different case. He details why this is a big deal (and a good deal) and not the end-of-humanity some people have been shouting about. Then, Dan Alban tells us of how the Eleventh Circuit just found almost all of Florida’s “social media law” unconstitutional, and why this isn’t really that surprising. Except for the fact that the Fifth Circuit has cryptically upheld Texas’s similar law. Also, it’s towel day.

Click here for the transcript.

Short Circuit 220 | Timing Is Everything May 19, 2022

When is a case over? As you’ll learn, that depends on a lot of weird stuff. IJ attorney Will Aronin walks us through the Ninth Circuit’s recent decision on everybody’s favorite bedtime reading, Rule 68 and offers of judgment. Seriously, it’s an untapped resource of the federal courts with some counterintuitive traps for lawyers who don’t read the rules. Then Jeff Redfern of IJ tells us about the latest chapter in mask lawsuits, this time from the Eighth Circuit. The court says part of the case (all of the case?) is moot, but with the pandemic it’s hard to know with any finality. There’s an invocation of Sisyphus that might not surprise you.

Click here for transcript.

Short Circuit 219 | Threading the Federal Courts May 11, 2022

Short Circuit is proud to present to you Professor Marin Levy of Duke University School of Law. She is a top scholar on the federal judiciary, including its history, how it has evolved, and how it actually works. Plus, she’s educated the world about the federal (and state!) courts through the magic of Twitter threads. We talk to her about what’s so interesting about the federal courts (with some “short” remarks about the “circuit” courts) and how she got started Tweeting them.

After that Kirby Thomas West of IJ tells us about a Second Circuit case where the government didn’t do enough to pass the First Amendment (at least for now) even though the plaintiff wasn’t the most sympathetic. And we go back to Marin to detail a Ninth Circuit case with an even less sympathetic party, but where the court overlooked the importance of some pretty intriguing issues, such as whether there’s a Fourth Amendment violation if the government comes in and copies all of your stuff.

Register for IJ’s Judicial Engagement Forum on the Michigan Constitution.

Click here for transcript.

Short Circuit 218 | Because the Supreme Court Did Some Things It Did May 06, 2022

A couple issues near-and-dear to many of your hearts this week: Money and Facebook. First, if you win a case against the government are you a “prevailing party” deserving of an attorneys fees award? North Carolina officials argued you’re not if you do so well that the law you’re challenging actually disappears. Luckily the Fourth Circuit shot that argument down. Alexa Gervasi explains. But meanwhile the Sixth Circuit shot down quite a lot of the First and Fourth Amendments when a police department took great vengeance upon a man with the audacity to . . . create a parody Facebook page. As Ari Bargil tells us, it’s a case demonstrating why everyone hates lawyers.

If you’re in Michigan, sign up now for our May 20, 2022 forum on Judicial Engagement and the Michigan Constitution!

Click here for transcript.

Short Circuit 217 | Hunting for Free Speech Truffles Apr 29, 2022

It’s a First Amendment fiesta at Short Circuit this week! Tori Clark explains how in the Eighth Circuit it’s hard to sue the government to protect your right to free speech when the law is privately enforced. And we’re not talking about Texas here, but people not acting so nice in Minnesota. Further down the trail, things went a little berserk in Oregon, and a pro se legislator won himself another day in court in the Ninth Circuit. Sam Gedge has hunted through the briefs.

If you’re in Michigan come to our State Forum on Judicial Engagement and the Michigan Constitution! Friday, May 20, 2022 at noon. There’s also a free lunch. RSVP here.

Click here for transcript.

Episode 216 | Sovereign Immunity and NIMBY Neighbors Apr 20, 2022

Suing the United States government is really hard. So hard that someone’s family might not get to even if the government is at fault for that person dying in a flood. Adam Shelton explains why that luckily might not be true in this case, but all too often is. Then Diana Simpson walks us through a procedural pretzel of property rights preventing people from putting up homes. She also discusses some old cases you might not know about, but really should.

Click here for transcript.

Episode 215 | You Say Habeas I Say Mandamus Apr 14, 2022

We focus in on two Latin words this week: habeas and mandamus. Both usually mean “you lose.” But things somehow turned out differently in the Fourth Circuit and Fifth Circuit. Hear the story of a man trapped in prison for a small drug sale for almost a decade who fights his way through the state and federal courts and wins himself a new trial. IJ’s Bob Belden tells that tale. And then there’s a story about guns, the Internet, speech, the differences between Texas and New Jersey, and transfer orders. Alexa Gervasi gets us up to speed on that saga. She also previews a new IJ case about a prosecutor working for a judge he practiced before. It’s as bad as it sounds.

Click here for transcript.

Episode 214 | Short Circuit Live returns to the D.C. Circuit Apr 08, 2022

Short Circuit Live returns with an all-star all-D.C. Circuit panel! IJ attorney Anya Bidwell hosts a discussion with three Supreme Court lawyers (and former D.C. Circuit clerks), Lisa Blatt, Kelsi Brown Corkran, and Paul Clement. They reminisce about their days clerking for D.C. Circuit judges and analyze three recent circuit opinions on liability under terrorism laws, executive privilege, and no-fly lists.

Click here for transcript.

Short Circuit 213 | Antitrust Smiles and Judgment Frowns Mar 31, 2022

Some property owners sued an arm of the State of Louisiana for damages and won a $10 million judgment. Wow, that’s real money! Except, because the lawsuit was in state court they can’t collect on it unless the legislature gives it to them. Which it doesn’t want to do. So the money isn’t so real after all. They then went to federal court, but the Fifth Circuit gave them some bad news. IJ’s Jeff Redfern explains. When we move to the Ninth Circuit, however, it’s all smiles. The court said an antitrust case could move forward against members of the California Dental Board. Your host Anthony Sanders gives the latest in turning the antitrust laws on the most anticompetitive of them all, the regulators.

Ariyan, Inc. v. Sewerage & Water Board of New Orleans, https://www.ca5.uscourts.gov/opinions/pub/21/21-30335-CV0.pdf

SmileDirectClub, LLC v. Tippins, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/17/20-55735.pdf

Bound By Oath podcast, https://shortcircuit.org/center-for-judicial-engagement/sc/14th-at-150-podcast/

Remedying the Loss of a Right, https://ij.org/cje-post/remedying-the-loss-of-a-right/

Jeff Redfern, https://ij.org/staff/jeffrey-redfern/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 212 | Lehto’s Law Mar 24, 2022

Michigan lawyer and YouTube legal sensation Steve Lehto joins us this week. We talk a bit about his career as a broadcaster, consumer protection lawyer, and host of an internet show with 300,000 subscribers. Then we get into some language he never got to “play on the radio.” All because a few police officers threw a man out of a $3 county fair for wearing a t-shirt with a famous saying of the group NWA. Or at least that’s what the Sixth Circuit said in denying the officers qualified immunity. Also, our old friend Rob Peccola comes back with the latest in the landlord wars in Minneapolis, and how the Eighth Circuit didn’t see no takings.

Short Circuit 211 | Cohen the Police Mar 17, 2022

Like owls? We’ve got owls. Two of them. But they don’t like each other. Ben Field explains how the Ninth Circuit adjudicated with this Parliament of owls, and how a 12 gauge shotgun is involved. In addition, Evan Lisull tells a story of “chalking,” the police, and the First Amendment. Both from another Ninth Circuit case, but also from his own brush with the law. Throw in some qualified immunity and admin law, and you’ve got a very festive St. Patrick’s Day episode (minus anything Irish).

Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/

Friends of Animals v. U.S. Fish & Wildlife Service, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/04/21-35062.pdf

Ballentine v. Las Vegas Metropolitan Police Department, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/08/20-16805.pdf

Rivas-Villegas v. Cortesluna (case questioning circuits clearly establishing law), https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pdf

Ben Field, https://ij.org/staff/ben-field/

Evan Lisull, https://ij.org/staff/evan-lisull/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 210 | Grand Juries and IRS Interpretations Mar 11, 2022

As news followers over the last few years will know, grand jury records are super secret. But sometimes judges allow the word to get out, under certain narrow circumstances. Is one of them just that the records are old and historians find them interesting? Sorry, says the First Circuit, in the latest installment of a circuit split. Rob Frommer tells us all the history. Also, can the IRS get around the Administrative Procedure Act through some creative lawyering? No, says the Sixth Circuit. John Wrench walks us through a rhetorical lashing of our tax collectors.

Finally, come see Short Circuit Live in DC on April 6, 2022! The link to RSVP and join us is here: https://ij.org/event/scl/

In re: Petition for Order Directing Release of Records, http://media.ca1.uscourts.gov/pdf.opinions/20-1836P-01A.pdf

Mann Construction, Inc. v. United States, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0041p-06.pdf

Short Circuit Live at University of Georgia, https://shortcircuit.org/sc_podcast/124-live-at-uga-law/

Rob Frommer, https://ij.org/staff/rfrommer/

John Wrench, https://ij.org/staff/john-wrench/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 208 | The Government Is Special Feb 25, 2022

Wanna get mad? This week we’ve got you covered. Two cases where the government plays by different rules from the rest of us. First Jaba Tsitsuashvili explains how the 11th Circuit went out of its way to excuse the Department of Justice’s failure to raise a legal argument to do with a traffic stop search that private attorneys would not get away with. And Josh House tells us what the 8th Circuit thinks about property when you don’t pay property taxes. The result isn’t pretty. Along the way, however, there’s a few laughs and in the 11th Circuit case we hope you appreciate that “the dissent comes with receipts.”

United States v. Campbell, https://media.ca11.uscourts.gov/opinions/pub/files/201610128.enb.pdf

Tyler v. Hennepin County, https://ecf.ca8.uscourts.gov/opndir/22/02/203730P.pdf

https://ij.org/staff/joshua-house/

https://ij.org/staff/jaba-tsitsuashvili/

https://ij.org/staff/asanders/

Short Circuit 207 | West Coast Hits Feb 17, 2022

Following in the footsteps of last week’s Super Bowl halftime show, we’re keeping it West Coast today. Two cases from the Ninth Circuit that are Very Ninth Circuit. First, Bob McNamara explains how the overbreadth doctrine invalidated a restriction on speech related to violating immigration law. Then, Joe Gay describes the many ways the court found an Oakland, California ordinance to be just fine constitutionally even though it forces people to pay a lot of money just to move back into their house. Nobody raps, but there are unintentional references to the Norwegian pop group a-ha.

United States v. Hansen, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/10/17-10548.pdf

Ballinger v. City of Oakland, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/01/19-16550.pdf

Robert McNamara, https://ij.org/staff/robert-mcnamara/

Joe Gay, https://ij.org/staff/joe-gay/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 206 | 50 Shades of Government Immunity Feb 09, 2022

The Institute for Justice just issued a new report, 50 Shades of Government Immunity, about what happens when you go to state–not federal–court after the government violates your rights. The report grades every state for its access to justice as an alternative to the federal judiciary. Unfortunately, with just a couple exceptions, it doesn’t paint a pretty picture.

Two IJ attorneys, Anya Bidwell and Patrick Jaicomo, and Professor Alex Reinert of Cardozo Law, join Short Circuit to discuss the report and Professor Reinert’s related research. You’ll learn that while going to state court isn’t nearly as easy as some at the U.S. Supreme Court assume it to be, there are prospects for reform as well.

50 Shades of Government Immunity, https://ij.org/report/50-shades-of-government-immunity/

New Federalism and Civil Rights Enforcement, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1478&context=nulr

Protecting Everyone’s Constitutional Rights Act (IJ’s model legislation), https://ij.org/legislation/protecting-everyones-constitutional-rights-act/

Alex Reinert, https://cardozo.yu.edu/directory/alexander-reinert

Anya Bidwell, https://ij.org/staff/anya-bidwell/

Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 205 | Foreign Divorces Feb 04, 2022

Divorce can be hard on the kids. Especially when the divorce was 40 years ago, the government doesn’t believe it happened, and your U.S. citizenship depends on whether it did. New York litigator Alexandra Tseitlin joins Short Circuit to discuss an unusual immigration case she recently won in the Third Circuit. Also, ineffective assistance of counsel claims are difficult to win. But they’re a bit easier when the lawyer is just obviously wrong about what the law means. Tori Clark of IJ walks us through a tragic story that got a bit better on appeal. And finally, we have a winner in our Most Beautiful Courtroom contest. We hope you don’t mind speaking in the library.

Jaffal v. ICE, https://www2.ca3.uscourts.gov/opinarch/203148p.pdf

U.S. v. Freeman, https://www.ca4.uscourts.gov/opinions/194104A.P.pdf

Alexandra Tseitlin, https://www.tseitlinlaw.com/alexandra-tseitlin/

Tori Clark, https://ij.org/staff/tori-clark/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 204 | Contracts and Blood Spatters Jan 28, 2022

Sometimes when the government does bad things to you it violates the Constitution. And sometimes it just violates the contract. Jeff Rowes explains the difference, and how things went down with a development scheme in the Fifth Circuit. Also, Will Aronin brings his expertise he learned as a trial lawyer to examine some junk science that has now been put on trial. Plus he details why it would be nice for a criminal defendant to know if a witness testifying against him is known to “stretch the truth.”

Preston Hollow Capital, LLC v. Cottonwood Development Corp., https://www.ca5.uscourts.gov/opinions/pub/21/21-50389-CV0.pdf

O’Donnell v. Yezzo, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0026n-06.pdf

Judge Jon Newman article on “En Banc,” https://static.reuters.com/resources/media/editorial/20200714/IN%20BANC%20PRACTICE%20IN%20THE%20SECOND%20CIRCUIT%20THE%20VIRTUES%20OF%20RESTRAINT.pdf

Jeff Rowes, https://ij.org/staff/jrowes/

Will Aronin, https://ij.org/staff/will-aronin/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 203 | I Have No Idea What’s Going On Jan 21, 2022

Is it “on bonk” or “n bank”? IJ lawyers disagree on how to pronounce a full court of appeals considering a case. But whatever your Latin/Old French skills, the en banc Fifth Circuit said some things about the Dallas County jail that even your crack team of experts can’t understand. But Sam Gedge does his best to explain what might be going on, and how the court needlessly addressed his favorite topic, Younger abstention. But before that Bob Belden tells a story of a renegade sheriff sticking unauthorized anti-Halloween signs in rehabilitated sex offenders’ yards.

RSVP for our live event on the Georgia Constitution on February 4, 2022, https://ij.org/event/center-for-judicial-engagement-forum-on-the-georgia-constitution/

McClendon v. Long, https://media.ca11.uscourts.gov/opinions/pub/files/202110092.pdf

Daves v. Dallas County, https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf

Rival “How to Pronounce ‘En Banc'” Videos: https://www.youtube.com/watch?v=vQexSbL8iDQ, https://www.youtube.com/watch?v=fsnW2JDc0G8

Sam Gedge, https://ij.org/staff/sam-gedge/

Bob Belden, https://ij.org/staff/bob-belden/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 202 | Rules for Traffic Stops Jan 13, 2022

Ever wondered when the police can pull you over and what they can do once you stop? Then this episode brings news you can use through a couple recent traffic stop cases. Wesley Hottot reports on the Eighth Circuit’s blessing of a stop supposedly brought on by some pretty smelly weed (although not everyone is convinced of the story). Then, your host Anthony Sanders tells us of a new development in Oregon where its high court has rejected the “automobile exception” to the requirement to get a warrant before a search. Also, please keep your nominations for the most beautiful federal circuit courtroom rolling in. Our listeners have demonstrated there’s some architecturally fierce, yet lovely, competition out there.

United States v. Shumaker, https://ecf.ca8.uscourts.gov/opndir/21/12/203467P.pdf

Oregon v. McCarthy, https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9463/rec/2

Post on Oregon v. McCarthy, https://ij.org/cje-post/state-con-law-case-of-the-week-oregon-stops/

IJ’s Project on the Fourth Amendment, https://ij.org/issues/ijs-project-on-the-4th-amendment/

Wesley Hottot, https://ij.org/staff/whottot/

Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 201 | The Fifth Circuit: It’s Complicated Jan 06, 2022

It’s a new year but little is new with qualified immunity in the Fifth Circuit. Or is it? Easha Anand of the MacArthur Justice Center joins us to discuss a recent denial of qualified immunity in a police brutality case. IJ’s Anya Bidwell joins in and reports on a couple other developments that demonstrate perhaps there’s some “split second” thinking going on among those judges.

Timpa v. Dillard

Villarreal v. City of Laredo

Harmon v. City of Arlington

IJ’s Gonzalez v. City of Castle Hills

Easha Anand, MacArthur Justice Center

Anya Bidwell

Anthony Sanders

Short Circuit 200 | Origins Dec 17, 2021

It’s our 200th episode! We’re taking this second century as an excuse to explore where Short Circuit came from and what it’s done, both the podcast and the newsletter. We start things off at the very beginning with Short Circuit’s editor and the podcast’s original host John Ross. Then it’s a blast-from-the-past with Clark Neily and Evan Bernick. We close things off with guest host Paul Sherman and Short Circuit Live host Anya Bidwell. You’ve heard how Spiderman and Batman came to be, but do you know what traumatic event led to Short Circuit? Ok, there’s no radiation or mugging, but you will learn how reading way too many qualified immunity opinions can radicalize your worldview. Enjoy!

Also, a quick update to the episode. None of us really remembered where the idea for the podcast actually came from, but further deep (and actual) research has revealed it was our sound engineer and producer Mark. Thank you!

https://ij.org/staff/jross/
https://www.cato.org/people/clark-neily
https://www.niu.edu/law/about/directory/bernick.shtml
https://ij.org/staff/psherman/
https://ij.org/staff/anya-bidwell/
https://ij.org/staff/asanders/

Short Circuit 199 | The Right Not To Be Framed and It’s Greek To Me Dec 09, 2021

In what may be the most obvious of examples of obvious constitutional violations, we discuss the right to not have the police put you in prison. Alexa Gervasi of IJ explains how this was too much even for qualified immunity to defeat, at least in the Third Circuit. And IJ’s Ryan Wilson explains why a case involving a Greek boat accident can go forward in Boston. No, the captain’s name was not Odysseus.

Dave Kennedy Fellowship, https://www.ij.org/opportunities/students
Litigation Fellowship, https://www.ij.org/opportunities/employment-opportunities/
Dennis v. City of Philadelphia, https://www2.ca3.uscourts.gov/opinarch/192390p.pdf
Curtis v. Galakatos, http://media.ca1.uscourts.gov/pdf.opinions/20-1846P-01A.pdf
For 25 Years, Jimmy Dennis Was on Death Row. Then One Day, He Wasn’t., https://www.phillymag.com/news/2021/02/06/jimmy-dennis-musician-death-row/
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Ryan Wilson, https://ij.org/staff/ryan-wilson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 198 | International Trade and Standing for Guns Dec 02, 2021

Where do you go to challenge an illegal tax? Well, if that tax is a tariff your destination is the United States Court of International Trade. Learn all about this corner of the Article III judiciary, and how tariffs for once took a beating before it, from Eric Boehm, a reporter at Reason. Also, we return to a frequent subject on Short Circuit, the Pennsylvania Supreme Court, with IJ’s Josh Windham. That court just made it a little easier to challenge restrictions on gun rights, although it really shouldn’t have been that hard in the first place.

Solar Energy Industries Assoc. v. U.S., https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf
Firearm Owners Against Crime v. City of Harrisburg, https://casetext.com/case/firearm-owners-against-crime-v-city-of-harrisburg-1
A Judge Just Did What Biden Wouldn’t: Dump Some Trump Tariffs, https://reason.com/2021/11/17/a-judge-just-did-what-biden-wouldnt-kill-some-trump-tariffs/
Eric Boehm, https://reason.com/people/eric-boehm/
Josh Windham, https://ij.org/staff/joshua-windham/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 197 | No Vehicles in the Park Remix Nov 19, 2021

Fans of the Hart-Fuller debate are gonna love this one. As will normal people who have no idea what that means. Legal philosopher HLA Hart asked whether a rule saying “no vehicles in the park” included bicycles, toy cars and airplanes. But now the D.C. Circuit has been asked, what about trailers? D.C. Circuit guru and IJ attorney Jeff Redfern explains what’s a vehicle and what isn’t according to that court’s recent opinion on fuel efficiency standards. Meanwhile out West, it’s hard to get on the ballot in Big Sky Country. IJ election expert Paul Sherman walks us through how the Ninth Circuit found Montana’s rather bizarre system of ballot access partly constitutional, but partly not. Our apologies, but there’s some math.

Truck Trailer Manufacturers Assoc. v. EPA, https://www.cadc.uscourts.gov/internet/opinions.nsf/233083B9809082A28525878B0053FE5B/$file/16-1430-1922005.pdf
Montana Green Party v. Jacobsen, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/08/20-35340.pdf
HLA Hart, Positivism and the Separation of Law and Morals, http://www.horty.umiacs.io/courses/readings/hart-1958-positivism-separation.pdf
Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, https://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-%20A%20Reply%20to%20Professor%20Hart.pdf
HLA Hart Interview, https://www.youtube.com/watch?v=xgigb36aC7Y
Richard Winger’s Ballot Access News, https://ballot-access.org/
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Paul Sherman, https://ij.org/staff/psherman/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 196 | 50 Years of “Our Federalism” Nov 12, 2021

In addition to some other civil rights anniversaries, 2021 marks 50 years since the Supreme Court decided Younger v. Harris. There, the Court made it extremely hard for federal courts to stop an unconstitutional state prosecution. This “Younger abstention” doctrine has been with us ever since. Professor Fred Smith of Emory Law joins us to discuss what Younger’s impact has been and how it has especially made it difficult to fight state court systems that have become de facto debtors’ prisons. Additionally, we hear from Sam Gedge of IJ who gives us some of the background on the case and perspective on litigating civil rights cases with it looming in the background. We close with an investigation on where the heck the term “Our Federalism” (which Younger relies upon without citation) came from. Hint: Its first name is Felix.

Younger v. Harris, https://supreme.justia.com/cases/federal/us/401/37/
Fred Smith Jr., Abstention in the Time of Ferguson, https://harvardlawreview.org/wp-content/uploads/2018/06/2283-2358_Online.pdf
Michael Collins, Whose Federalism?, https://core.ac.uk/download/pdf/217202953.pdf
Fred Smith Jr., https://law.emory.edu/faculty/faculty-profiles/smith-fred-profile.html
Sam Gedge, https://ij.org/staff/sam-gedge/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 195 | Pride and Prejudice in Prison Oct 28, 2021

What’s too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court’s bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you’ve already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to.

Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf
Miranda v. City of Casa Grande, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/19/20-16905.pdf
Rob Johnson, https://ij.org/staff/rjohnson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 194 | Arboreal Takings and the Sidewalks of New York Oct 21, 2021

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of the landowner’s mitigation efforts. At least that’s what Wesley Hottot reports the Sixth Circuit said last week. There’s also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He’s also a birdwatcher, which comes in handy in this tree case. Meanwhile, there’s some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There’s also some Commerce Clause talk and what’s a “substantial effect” on commerce these days.

F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf
Jingrong v. Chinese Anti-Cult World Alliance, Inc., https://www.ca2.uscourts.gov/decisions/isysquery/e636d947-d9e2-44a4-9967-bbad7fe70ba6/1/doc/18-2626_complete_opn.pdf
The Sidewalks of New York, https://www.youtube.com/watch?v=wsx_uxISjM0

Kirtland’s Warbler, https://www.allaboutbirds.org/guide/Kirtlands_Warbler/id
Hermit Thrush, https://www.allaboutbirds.org/guide/Hermit_Thrush/id
Wesley Hottot, https://ij.org/staff/whottot/
Daniel Rankin, https://ij.org/staff/daniel-rankin/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 193 | Hamilton Singing Fire in a Crowded Theater Oct 15, 2021

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil forfeiture case. Yet that came to pass in the First Circuit, and IJ attorney Bob Belden explains why it turns out the family that owned the letter were throwing away their shot. Meanwhile in the Second Circuit a fire on a movie set turns into a First Amendment retaliation claim. Kirby Thomas West joins us not to warn of the dangers of shouting fire, but what a fire chief who is your boss might do to you if you speak up on other topics.

Specht v. City of New York, https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/hilite/
United States v. Letter from Alexander Hamilton to the Marquis de Lafayette Dated July 21, 1780, http://media.ca1.uscourts.gov/pdf.opinions/20-2061P-01A.pdf
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Bob Belden, https://ij.org/staff/bob-belden/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 192 | Standing Up for a Dollar Oct 08, 2021

It’s taken five years, but the clients of IJ senior attorney Paul Avelar can now finally get their day in court thanks to a ruling in the Ninth Circuit. Paul joins us to explain why it takes so long to just try and vindicate your rights, and how Arizona’s (thankfully former) civil forfeiture system allowed prosecutors to keep people’s property over and over again, including, at first, his client’s car. Meanwhile things got SALT-y in the Second Circuit where whatever you think about the state-and-local-income-tax deduction the court says it’s not constitutionally guaranteed. Former New Yorker and IJ attorney Will Aronin uses some family-friendly yet SALT-y language to describe the state’s high taxes and it and a few other states’ successful efforts to have standing, but unsuccessful attempts at anything else.

Click here for transcript.

Short Circuit 191: Judicial Activism for Reals Oct 01, 2021

Frustrated with the deeply complicated issue of homelessness on Los Angeles’s skid row, a district court took the law into its own hands and ordered a lot of stuff to happen. One problem (of many) with that was the plaintiffs didn’t ask for the stuff. So it wasn’t too hard for the Ninth Circuit to reverse, as Jeff Rowes explains. He and his colleague Diana Simpson also discuss their own work on homelessness issues at the Institute for Justice and how the law often prevents small solutions to a very large problem. Diana also explains why you’re unlikely to have an insurance policy that covers the pandemic, as a colorful Sixth Circuit opinion tells us about a usually colorless subject. Finally, your host learns that asteroids actually have killed some people.

IJ’s Fall 2021 Legal Intensive in Chicago, https://ij.org/opportunities/students/legalintensive-fall2021/
LA Alliance for Human Rights v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf
Santo’s Italian Café, LLC v. Acuity Insurance Co., https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0224p-06.pdf
IJ’s North Carolina Right to Shelter case, https://ij.org/case/north-carolina-shelter-zoning/
Jeff Rowes, https://ij.org/staff/jrowes/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 190: A Crime a Day in Prison Sep 23, 2021

Mike Chase, author of “How to Become a Federal Criminal” and the man behind the @CrimeADay Twitter account, joins us to lay out the Eighth Circuit’s take on Congressman Devin Nunes suing people he doesn’t agree with. IJ attorney Diana Simpson then explains how an especially talented prisoner has won two cases at the Ninth Circuit over the cold turkey tactics of his jailers. Mike also relates to us some of his experiences representing prisoners and how they often have very meritorious claims.

Nunes v. Lizza, https://ecf.ca8.uscourts.gov/opndir/21/09/202710P.pdf
Coston v. Nangalama, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/19-16450.pdf
8th Circuit’s Bizarre Ruling in Devin Nunes’ SLAPP Suit Against Reporter Ryan Lizza, https://www.techdirt.com/articles/20210915/12225347567/8th-circuits-bizarre-ruling-devin-nunes-slapp-suit-against-reporter-ryan-lizza.shtml
Mike Chase, How to Become a Federal Criminal, https://www.amazon.com/How-Become-Federal-Criminal-Illustrated/dp/1982112514
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 189 | Supreme Court Preview, OT 2021 Sep 17, 2021

For the fifth year in a row the Center for Judicial Engagement travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term. Once again there’s trivia, deep dives on a couple cases about to be argued, and a couple cert petitions. Professor Andy Hessick battles IJ attorney Justin Pearson for top SCOTUS trivia dog and your host Anthony Sanders enjoys the first LIVE Short Circuit since the world shut down.

Cummings v. Premier Rehab Keller, PLLC, https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/
City of Austin v. Reagan National Advertising of Texas, Inc., https://www.scotusblog.com/case-files/cases/city-of-austin-texas-v-reagan-national-advertising-of-texas-inc/
Mohamud v. Weyker , https://ij.org/case/federal-police-immunity-cert-petitions/
Torres v. Texas Department of Public Safety, https://www.scotusblog.com/case-files/cases/torres-v-texas-department-of-public-safety/
Andy Hessick, https://law.unc.edu/people/andrew-hessick/
Justin Pearson, https://ij.org/staff/justin-pearson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 188 | Chalked Tires and the Other ACA Sep 02, 2021

Ever rolled your tires to try and cover up the meter maid’s chalk mark? No, me neither . . . But even if you haven’t, you might not have to worry about tire chalk marks much longer. Josh Windham explains how the Sixth Circuit has said that’s an unreasonable search. And out West it turns out there’s so much law in Yellowstone National Park (the Wyoming bit, at least) that a camper gets out of an assault charge because of a law called the ACA (just not the one you’re thinking of). The camper didn’t commit the Perfect Crime, but Dan Alban talks about it while he’s in the district.

Taylor v. City of Saginaw

United States v. Harris

Brian Kalt, The Perfect Crime

C.J. Box, Free Fire

Dan Alban, https://ij.org/staff/dalban/
Josh Windham, https://ij.org/staff/joshua-windham/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 187 | How Binding Is Your Dicta? Aug 26, 2021

The Third Circuit allowed a Second Amendment case challenging Robinson Township’s new zoning ordinance to proceed. Did they town change their zoning laws just to prevent a gun club from fulling opening? Possibly, we’ll have to wait and see. But in the meantime, Andrew Ward walks us through this decision exploring just which level of scrutiny applies to Second Amendment challenges. And there was a very colorful dissent in the Ninth Circuit from Judge VanDyke. Patrick Jaicomo explains this dissent and its problems with the Ninth Circuit’s binding dicta rule.

Drummond v. Robinson Township: https://www2.ca3.uscourts.gov/opinarch/201722p.pdf

Ford v. Peery: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf

IJ’s Conference on the Will of the People: https://ij.org/event/does-the-will-of-the-people-actually-exist/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 186 | Chillin’ With Uber Aug 12, 2021

Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you’re not “chilled,” and therefore not “injured,” even if you’re breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was not unfair for Uber to compete against taxicabs when its own right to operate was, shall we say, a grey area. Plus, some nostalgia for the halcyon days of 2013 when getting in a ridesharing car was something you didn’t tell your mother.

Click here for the transcript.

Short Circuit 185 | Guns and Football Aug 05, 2021

More on two of America’s favorite subjects this week. Josh House rejoins us as we analyze six separate opinions about one football coach. Josh last came on in the spring when the Ninth Circuit said the coach didn’t have a prayer. Although that ruling stands for now, a number of judges recently exercised their freedom to speak differently. And maybe it’s because of the name, but there’s a lot of Second Amendment law firing out of the Second Circuit. Adam Griffin explains how the court was on target in a case about individual versus collective rights.

Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-185_otter.ai-002-FINAL.pdf
Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/19/20-35222.pdf (en banc)
Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf (panel decision)
Henry v. County of Nassau, https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/doc/20-1027_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/hilite/
Episode on the Right to “Bear” Arms, https://ij.org/sc_podcast/174/
Josh House, https://ij.org/staff/joshua-house/
Adam Griffin, https://ij.org/staff/adam-griffin/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 184 | California Constitutional Dreaming Jul 28, 2021

On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state’s highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts who run the California Constitution Center at the University of California at Berkeley, Dr. David Carrillo and Stephen Duvernay. We also discuss how to research a state constitution, what resources are available online to both litigators and scholars, and how useful those materials might turn out to be.
Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-184_otter-FINAL.pdf
IJ’s Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/
California Constitution, https://law.justia.com/constitution/california/
California Constitution Center, https://www.law.berkeley.edu/research/california-constitution-center/
David A. Carrillo, https://www.law.berkeley.edu/our-faculty/faculty-profiles/david-carrillo/
Stephen Duvernay, https://www.law.berkeley.edu/our-faculty/faculty-profiles/stephen-duvernay/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
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Short Circuit 183 | Expectations of Surveillance Jul 23, 2021

The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you’re doing can be seen from a public place (or in this case, three cameras mounted on a utility pole for 18 months). But the court isn’t happy with the result and utters a cry for help. Also, have you ever had to fill out forms that don’t make any sense? Ben Field joins the podcast to tell the tale of what forms you need to lose your U.S. Citizenship, and how it’s difficult to sign them from federal prison.

Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-183_otter.ai-FINAL.pdf
United States v. Tuggle, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-14/C:20-2352:J:Flaum:aut:T:fnOp:N:2733467:S:0
Farrell v. Blinken, https://www.cadc.uscourts.gov/internet/opinions.nsf/E73FAF5B041FF05685258711005181D8/$file/19-5357-1906101.pdf
Katz v. United States, https://www.law.cornell.edu/supremecourt/text/389/347
Vogon Bureaucracy (21:30), https://www.dailymotion.com/video/x4syjrl
Rob Frommer, https://ij.org/staff/rfrommer/
Ben Field, https://ij.org/staff/ben-field/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 182 | Putting the Protection in “Equal Protection” Jul 15, 2021

Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it’s supposed to protect, well, equal protection. Yet if you bring a claim that you’re not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tragic case where the court did take “protection” seriously, denying qualified immunity to police officers who failed to protect a woman from her stalking ex-partner. She joins us to discuss the victory and its wider impact. Also, what’s a “closely-regulated industry?” That term is often used to deny businesses some of their Fourth Amendment protections, and the Ninth Circuit recently ruled that massage parlors qualify. IJ’s Josh Windham joins us to analyze whether this is becoming an exception that swallows the rule, i.e. the rule that the government come back with a warrant.

Click here for transcript.

Short Circuit 181 | Mandatory Associations Jul 08, 2021

It’s not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whether these kinds of requirements are constitutional, overruling itself but also not overruling itself at the same time. What do you do with that confusing precedent if you’re a lower court federal judge? IJ attorney Rob Johnson joins us to walk through who now does—or does not?—have to join their state bar association, and how all of this may (quickly?) make its way back to the Supreme Court.

Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-181.pdf
Schell v. The Chief Justice, https://www.ca10.uscourts.gov/opinions/20/20-6044.pdf
McDonald v. Longley, https://www.ca5.uscourts.gov/opinions/pub/20/20-50448-CV0.pdf
Boudreaux v. Louisiana State Bar Assoc., https://www.ca5.uscourts.gov/opinions/pub/20/20-30086-CV0.pdf
Janus v. AFSCME, https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf
Keller v. State Bar of California, https://supreme.justia.com/cases/federal/us/496/1/
Rob Johnson, https://ij.org/staff/rjohnson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 180 | A Fifth of Qualified Immunity Jul 02, 2021

The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown’s Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ’s Anya Bidwell then sends us in the other direction where the circuit denied qualified immunity to a pair of paramedics who refused to help a prisoner, and we discuss whether the Supreme Court’s recent tea leaves pushed it in that direction. Finally, we take apart an en banc denial where a majority of the circuit most definitely is not reading those tea leaves—although Judge Willet may be in the form of a telegraph message.

Transcript: https://ij.org/wp-content/uploads/2021/07/short-circuit-180.pdf
J.W. v. Paley, http://www.ca5.uscourts.gov/opinions/unpub/19/19-20429.0.pdf
Kelson v. Clark, http://www.ca5.uscourts.gov/opinions/pub/20/20-10764-CV0.pdf
Ramirez v. Guadarrama, https://www.ca5.uscourts.gov/opinions/pub/20/20-10055-CV0.pdf
Taylor v. Riojas, https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf
Nicolas Riley, https://www.law.georgetown.edu/icap/our-team/
Anya Bidwell, https://ij.org/staff/anya-bidwell/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 179 | Taking Bees with the Police Power Jun 24, 2021

Something that is not the bee’s knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don’t get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal employees go to court so they can feel free to Tweet #Resistance? Not any more, and perhaps not ever, as Adam Shelton tells us of another Fourth Circuit opinion.

Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-179_otter.ai-FINAL.pdf
AFGE v. Office of Special Counsel, https://www.ca4.uscourts.gov/opinions/201976.P.pdf
Yawn v. Dorchester County, https://www.ca4.uscourts.gov/opinions/201584.P.pdf
Cert petition in Lech (tank case), https://ij.org/wp-content/uploads/2019/11/Lech-rehearing-petition-filed.pdf
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Adam Shelton, https://ij.org/staff/adam-shelton/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 178 | First Amendment Home Design Jun 17, 2021

If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don’t know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one after (perhaps unwittingly) funding terrorist groups in Syria.

Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-178_otter-FINAL.pdf
Burns v. Town of Palm Beach, https://media.ca11.uscourts.gov/opinions/pub/files/201814515.pdf
United States v. Harcevic, https://ecf.ca8.uscourts.gov/opndir/21/06/192755P.pdf
Justin Pearson, https://ij.org/staff/justin-pearson/
Paul Sherman, https://ij.org/staff/psherman/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 177 | When Are Judges “Too Cool?” Jun 11, 2021

How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast, trying to thread the needle on whether “Your right to remain silent” is a “constitutional right” or merely a “constitutional rule.” What’s the difference? We’re not really sure.

Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-177_otter.ai-FINAL.pdf
Tekoh v. County of Los Angeles (en banc), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/18-56414.pdf
Tekoh v. County of Los Angeles (panel opinion), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-56414.pdf
Briseno v. Henderson, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/01/19-56297.pdf
McCaughtry v. City of Red Wing (Phil Simms quote), https://casetext.com/case/mccaughtry-v-city-of-red-wing-3
Raffi Melkonian, https://www.wrightclosebarger.com/attorneys/raffi-melkonian/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 176 | Conjunction Junction, what’s your function? Jun 04, 2021

There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue over an unsolicited text message? Alexa Gervasi tells us what the Fifth Circuit said about this question, including how it relates to a public nuisance.

Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-176_otter-FINAL.pdf
United States v. Garcon, https://media.ca11.uscourts.gov/opinions/pub/files/201914650.pdf
United States v. Lopez, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf
Cranor v. 5 Star Nutrition, LLC, https://www.ca5.uscourts.gov/opinions/pub/19/19-51173-CV0.pdf
Justice Paul Thissen, When Rules Get in the Way of Reason: One judge’s view of legislative interpretation, https://cdn.ymaws.com/mcaa-mn.org/resource/resmgr/files/mcaa_news/J_Thissen_article_in_Bench_a.pdf
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Wesley Hottot, https://ij.org/staff/whottot/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
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Short Circuit 175 | Tax Takings and Reservation Creation May 28, 2021

Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued their land is a reservation under some often-neglected, and often-dishonored, agreements with the federal government. It’s an all Sixth Circuit, all Big Ten, property rights edition of Short Circuit.

Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-175_otter.ai-FINAL.pdf
Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0103p-06.pdf
Oral argument in Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-29-2021%20-%20Thursday/20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH.mp3&name=20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH
Little Traverse Bay Band of Odawa Indians v. Whitmer, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0109p-06.pdf
McGirt v. Oklahoma, https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf
Thread on Oklahoma history, https://threadreaderapp.com/thread/1288098856346034179.html
Emily White, https://www.dannlaw.com/attorney-profile/emily-white/
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 174 | The Right to “Bear” Arms May 21, 2021

Second Amendment scholar David Kopel sits down with us to set the stage for a big issue we’ll hear a lot about over the next year: What “keep and bear arms” means outside of the home. Whether it’s conceal carry or open carry, does the Constitution protect that right, and if so, how? There’s a case at the Supreme Court from the Second Circuit challenging New York’s conceal carry law, and another case waiting in the wings from the Ninth Circuit. We get into some history, some legal tactics, and some judicial speculation—although only of a healthy kind.

Click here for the transcript.

Short Circuit 173 | Public Accommodations and High Speed Snaps May 13, 2021

Legal raconteur and writer David Lat joins us for some underneath-their-robes hijinks. David talks a bit about his new venture and his battle with COVID-19. Then he examines a disability case from the Eleventh Circuit which tries to figure out the relationship between a “public accommodation” under the Americans with Disabilities Act and a website. After that, Bob McNamara tells us a tragic story from the Ninth Circuit involving some “Snaps” and how they relate to Section 230.

Transcript: https://ij.org/wp-content/uploads/2021/05/short-circuit-173_otter.ai-FINAL.pdf
Gil v. Winn-Dixie Stores, Inc., https://www.courthousenews.com/wp-content/uploads/2021/04/winn-dixie-ca11.pdf
Lemmon v. Snap, Inc., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf
David’s “Original Jurisdiction,” https://davidlat.substack.com/
Bob McNamara, https://ij.org/staff/robert-mcnamara/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 172 | Confronting Cook County Corruption Apr 30, 2021

What does Sir Walter Raleigh have to do with a Tennessee murder trial? You’ll learn from Rob Johnson, as he confronts his witness with a devastating cross-examination while presenting a unique habeas case from the Sixth Circuit. And does 50 years seem a long time for a case to last? Even in Cook County, Illinois it’s a bit of a stretch. But, as Jeff Rowes explains, given the county’s, and its most famous city’s, Untouchable history of corruption, the case can go on. For now.

Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-172_otter.ai-FINAL.pdf
Miller v. Genovese, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0086p-06.pdf
Shakman v. Clerk of Cook County, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D04-16/C:20-1828:J:Scudder:aut:T:fnOp:N:2691064:S:0
Hemphill v. New York, https://www.scotusblog.com/case-files/cases/hemphill-v-new-york/
Rob Johnson, https://ij.org/staff/rjohnson/
Jeff Rowes, https://ij.org/staff/jrowes/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 171 | Should Originalists Party Like It’s 1868, not 1791? Apr 22, 2021

On a special Short Circuit, professors Christopher Green and Evan Bernick join your host Anthony Sanders to examine one of the great questions of the Fourteenth Amendment: When courts apply the Bill of Rights to the States, should they give those provisions the meaning they had when they were adopted, in 1791, or how they were understood when the Fourteenth Amendment was adopted, in 1868? The question is important, argue our guests, both methodologically and practically. Among other things, using the meaning the Bill of Rights had in 1868 might better fulfill the promise of Reconstruction, which was largely lost when the Supreme Court buried much of the Fourteenth Amendment in the years following the Civil War.

And speaking of Reconstruction, click here to see our 150th anniversary celebration of Section 1983, that we held earlier this week! https://www.youtube.com/watch?v=MlrAK4OXvPQ

Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-171_otterFINAL.docx
Torres v. Madrid, https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf
McDonald v. City of Chicago, https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
Graham v. Connor, https://supreme.justia.com/cases/federal/us/490/386/
Ramos v. Louisiana, https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf
Christopher Green, https://law.olemiss.edu/faculty-directory/christopher-green/
Evan Bernick, https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2547295
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
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Short Circuit 170 | A Hot Mess and Seven Magic Words Apr 15, 2021

What can a court say in 325 pages? So much that we don’t have much of a clue. Diana Simpson slices and dices the Fifth Circuit’s analysis of a challenge to the Indian Child Welfare Act as it gets set for a highly likely trip up to the Supreme Court. And did you know you can sue the Federal Election Commission if they don’t investigate someone you don’t like? Well, you could, until the D.C. Circuit found some magic words. Adam Shelton pulls a rabbit out of a hat in explaining this prosecutorial discretion case.

Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-170_otter.ai-FINAL.docx
Brackeen v. Haaland, https://www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf
CREW v. FEC, https://www.cadc.uscourts.gov/internet/opinions.nsf/2E3A562AA93DFCDA852586B2004F2355/$file/19-5161-1893809.pdf
Diana Simpson, https://ij.org/staff/diana-simpson/
Adam Shelton, https://ij.org/staff/adam-shelton/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 169 | The Duct Tape of Federal Law Apr 09, 2021

If you’re not a major party candidate it can be really hard to get on the ballot. So hard it’s sometimes unconstitutional. Paul Sherman explains how a Michigan candidate fought the elections bureaucracy in the Sixth Circuit and won (well, at least got on the ballot). Plus, can the City of New York sue to stop global warning? Actually, no. Andrew Ward walks us through a case from the Second Circuit on federal common law, this thing lawyers call Erie, and international relations.

Register here for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/
Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-169-FINAL.pdf
Graveline v. Johnson, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0072p-06.pdf
City of New York v. Chevron Corp., https://www.ca2.uscourts.gov/decisions/isysquery/63c19c68-c35d-4c5f-9962-aee09bd4e76f/1/doc/18-2188_opn.pdf
Ballot Access News, https://ballot-access.org/
Paul Sherman, https://ij.org/staff/psherman/
Andrew Ward, https://ij.org/staff/andrew-ward/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 168 | Suspicious Handshakes and Football Prayers Apr 01, 2021

Can the police stop and frisk your person based on their “training and experience?” Not if that training and experience is simply that drug dealers like to shake hands, says the Fourth Circuit. Ari Bargil provides the details of a drug dealer that the police were a tad too impatient to lock-up. And can an assistant football coach for a public high school publicly pray at the 50 yard line right after a game? The answer is it depends. Not every penitent man will pass the Ninth Circuit’s analysis. Plus, there’s a circuit split update on bump stocks and the CDC.

Register here for the April 20th online event on the 150th anniversary of Section 1983: https://ij.org/event/outragelegislation/
Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-168-FINAL.pdf
United States v. Drakeford, https://www.ca4.uscourts.gov/opinions/194912.P.pdf
Kennedy v. Bremerton School Dist., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf
Gun Owners of America v. Garland, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0070p-06.pdf
Tiger Lily, LLC v. HUD, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0074p-06.pdf
Aril Bargil, https://ij.org/staff/ari-bargil/
Josh House, https://ij.org/staff/joshua-house/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 167 | Section 230 and a Drones Search Mar 26, 2021

We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story about a drone that flew above someone’s property, and thereby committed a “search” under the Fourth Amendment (well, the government in charge of the drone did). This very interesting case from the Michigan Court of Appeals allows us to talk about drones, reasonable expectations of privacy, and whether the air above your house is an “open field.”

Click here for Transcript

Short Circuit 166 | To En Banc or Not to En Banc Mar 18, 2021

The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textbook into one little case about a ranch in Louisiana. The plaintiff scored a hit, but not a very palpable one.

Register for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/
Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-166.pdf
Aposhian v. Wilkinson, https://www.ca10.uscourts.gov/opinions/19/19-4036.pdf
Grace Ranch, LLC v. BP America Production Company, http://www.ca5.uscourts.gov/opinions/pub/20/20-30224-CV1.pdf
Hamlet, Act. III, Sec. 1, ln. 51, https://www.gutenberg.org/files/27761/27761-h/27761-h.htm#tagIII_8
Josh Blackman, In Bump Stock Case, Tenth Circuit Dismisses Grant of Rehearing En Banc As Improvidently Granted, https://reason.com/volokh/2021/03/06/in-bump-stock-case-tenth-circuit-dismisses-grant-of-rehearing-en-banc-as-improvidently-granted/?utm_source=dlvr.it&utm_medium=twitter
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 165 | Orphaned Precedent Mar 09, 2021

How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa Gervasi walks us through the latest challenge to mandatory bar association dues. The Ninth Circuit says a Supreme Court precedent is on pretty shaky grounds these days, but as it’s the Supremes’ job to sort its own cases out, the lower court’s hands are tied. That’s true for the free speech claim, but on freedom of association there’s more wriggle room.

Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-165.pdf
Terkel v. Centers for Disease Control and Prevention, https://files.texaspolicy.com/uploads/2021/02/25160210/045-Opinion-and-Order.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-_yj38m8dsqQuMMefjgKOjTMn-r345C5gtARN0qLZ_Yb3dh8Eo_3Ifdh6baGpsGd07pTnKW
Crowe v. Oregon State Bar, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/19-35463.pdf
Michael Bindas, https://ij.org/staff/mbindas/
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 164 | Bad Cop Records and Suspicionless Searches Mar 03, 2021

New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’s what the First Circuit says, at least. Adam Shelton breaks down this alarming ruling, which we’ll all want to keep in mind when leaving the country becomes a thing again.

Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-164.pdf
Uniformed Fire Officers Association v. De Blasio, https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/doc/20-2789_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/hilite/
Alasaad v. Mayorkas, http://media.ca1.uscourts.gov/pdf.opinions/20-1077P-01A.pdf
Tiffany Wright, https://www.orrick.com/en/People/2/6/8/Tiffany-Wright
Adam Shelton, https://ij.org/staff/adam-shelton/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 163 | The Law of Johnny 5 Is Alive Feb 19, 2021

For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circuit, we look into all of these questions with our guest Ed Walters, founder and CEO of Fastcase, and an adjunct professor who teaches robot and artificial intelligence law at Georgetown Law School.

Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-163_otter.ai_.pdf
Copyrighting all the melodies to avoid accidental-infringement, https://www.ted.com/talks/damien_riehl_copyrighting_all_the_melodies_to_avoid_accidental_infringement
I, Robot, http://ekladata.com/-Byix64G_NtE0xI4A6PA1–o1Hc/Asimov-Isaac-I-Robot.pdf
Ed Walters: https://www.law.georgetown.edu/faculty/edward-j-walters/
Anthony Sanders: https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
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Short Circuit 162 | I Will Get Credit When I Crush You Feb 12, 2021

If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells the plaintiff he will “crush” her.

Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-162_otter.ai_.pdf
Williams v. Marinelli, https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/doc/18-1263_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/hilite/
Miller v. Sam Houston State University, https://www.ca5.uscourts.gov/opinions/pub/19/19-20752-CV0.pdf
Anya Bidwell, https://ij.org/staff/anya-bidwell/
Bob McNamara, https://ij.org/staff/robert-mcnamara/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 161 | A Honkload of Stateless Cocaine Feb 04, 2021

A triad of important things in life are tweets, stateless vessels, and fonts. IJ attorneys Tatiana Pino and Patrick Jaicomo join your host Anthony Sanders to outline how a politician in the Eighth Circuit almost turned her Twitter account into a public forum, which would have prevented her from blocking anyone based on a viewpoint she disagrees with. Also, ever wanted to sail your own boat onto the high seas, free from any nation’s sovereign arm? Too bad. At least says the First Circuit to an unlucky mariner who happened to be transporting quite a lot of cocaine. Finally, Anthony takes us on a tour of the fonts of the federal circuits. Will others follow the Fifth Circuit’s lead and not pretend they issue opinions with typewriters anymore?

Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-161.pdf
Campbell v. Reisch, https://ecf.ca8.uscourts.gov/opndir/21/01/192994P.pdf
United States v. Aybar-Ulloa, http://media.ca1.uscourts.gov/pdf.opinions/15-2377P2-01A.pdf
Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/
Tatiana Pino, https://ij.org/staff/tatiana-pino/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 160 | The Dominion of Giuliani and Citizenship Receptions Jan 29, 2021

Even though ex-President Trump is off of Twitter, his tweets are still abundant in federal legal filings. IJ Senior Attorney Jeff Rowes explains the First Amendment defenses (spoiler: he thinks there aren’t many) Rudy Giuliani might have to the new lawsuit filed against him by a Canadian voting machine company. But if that’s not international enough for you, IJ attorney Kirby Thomas West shares the saga of a family that thought they were free from diplomatic immunity, but instead failed to obtain citizenship for a women who went on to fight for ISIS, and lost her passport in the process—a decision affirmed by Presidential Tweet. In the process your host Anthony Sanders explains how he never really thought about the “Reception Clause” before (which, unfortunately, has nothing to do with football).

Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-160.pdf
Complaint in US Dominion, Inc. v. Giuliani, https://assets.documentcloud.org/documents/20463220/dominion-v-giuliani-complaint.pdf
Muthana v. Pompeo, https://www.cadc.uscourts.gov/internet/opinions.nsf/97F4C9BA474983DE8525866200567816/$file/19-5362-1880558.pdf
Anthony’s Twitter thread about US citizens born abroad, https://twitter.com/IJSanders/status/1127307781139308549
Jeff Rowes, https://ij.org/staff/jrowes/
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
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Short Circuit 159: The Sub-Rational Basis Test Jan 22, 2021

When a judge asks you a question, it’s best to give an answer. We briefly discuss an oral argument that IJ Senior Attorney Rob Frommer had last week on South Carolina’s civil forfeiture laws, and listen to some non-answers his opposing counsel gave. Then it’s on to the Fifth Circuit where the court wrestles with a COVID-19 order shutting down Louisiana’s bars, and the Seventh Circuit where both the plaintiff and defendant have some unconventional positions on standing. If you’re playing Short Circuit bingo this episode has got you covered: “Lochner,” “rational basis,” “civil forfeiture,” “Twitter Laureate,” and “subtreasury.”

Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-159.pdf
South Carolina Civil Forfeiture, https://ij.org/case/south-carolina-civil-forfeiture/
Big Tyme Investments, LLC v. Edwards, https://www.ca5.uscourts.gov/opinions/pub/20/20-30537-CV0.pdf
Thornley v. Clearview AI, Inc., http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-14/C:20-3249:J:Hamilton:con:T:fnOp:N:2644794:S:0
A Tale of Two Cases and Two Pandemics, https://ij.org/cje-post/a-tale-of-two-cases-and-two-pandemics/
Rob Frommer, https://ij.org/staff/rfrommer/
Josh Windham, https://ij.org/staff/joshua-windham/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
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Short Circuit 158 | Privileges or Immunities and Consent Decrees Jan 14, 2021

The Fourteenth Amendment’s Privileges or Immunities Clause resurfaces in the Seventh Circuit, where the State of Indiana treated some newcomers differently from some long-time residents. Meanwhile, an Arkansas school district augments a consent decree from the days of school desegregation. But there’s a question of whether it did so for the right reasons.

Transcript: https://ij.org/wp-content/uploads/2021/01/short-circuit-158.pdf
Hope v. Commissioner of Indiana Department of Correction, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-06/C:19-2523:J:Rovner:aut:T:fnOp:N:2640105:S:0
Junction City School District v. Arkansas Department of Education, https://ecf.ca8.uscourts.gov/opndir/20/12/191340P.pdf
Saenz v. Roe, https://supreme.justia.com/cases/federal/us/526/489/
Justin Pearson, https://ij.org/staff/justin-pearson/
Robert Peccola, https://ij.org/staff/rpeccola/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
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Short Circuit 157 | State Constitutionalists Are the Veterinarians of Law Jan 07, 2021

How do you put together a campaign of litigation under various state constitutions across the country? And how to you get state courts to take their own constitutions seriously? On this special Short Circuit we explored these questions through the history of marriage equality litigation in state courts before the issue went to the U.S. Supreme Court. Joining host Anthony Sanders were Professors Lee Carpenter and Ellie Margolis of Temple University’s Beasley School of Law who recently wrote an article on this subject. They recount the history of marriage equality litigation and more broadly examine what to think about when litigating under state constitutions. Whatever the issue is that you’re fighting for—including a few we fight for at the Institute for Justice, such as eminent domain abuse and economic liberty—this is a fun “how to” conversation for public interest lawyers of all kinds.

Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-157-transcript.pdf
One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3693109
Lee Carpenter, https://www.law.temple.edu/contact/leonore-f-carpenter/
Ellie Margolis, https://www.law.temple.edu/contact/ellie-margolis/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
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Short Circuit 156 | The Navigable Waters, Recording Cops, and People in Church Dec 23, 2020

Is it time for the Supreme Court to spread some privileges or immunities cheer? Michael Bindas discusses a cert petition pending at SCOTUS on navigating the navigable waters, one of the few rights the Court has said the Privileges or Immunities Clause protects. He also tells us about a Ninth Circuit case on COVID orders and religious liberty. Meanwhile, Diana Simpson digs into a very deep dive of a First Circuit opinion on recording the cops in Massachusetts. Turns out the First Amendment protects it.

Transcript: https://ij.org/wp-content/uploads/2020/12/short-circuit-156.pdf
Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/
Project Veritas Action Fund v. Rollins, http://media.ca1.uscourts.gov/pdf.opinions/19-1586P-01A.pdf
Calvary Chapel Dayton Valley v. Sisolak, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/15/20-16169.pdf
Michael Bindas, https://ij.org/staff/mbindas/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 155 | Only 160 Felonies Dec 10, 2020

The first two items in the Bill of Rights get top billing. Does a nine-year-old felony conviction for tax fraud justify continuing to deny someone their Second Amendment right to keep and bear arms? That’s something the Third Circuit addressed, with a spirited dissent. Patrick Jaicomo discusses this case about the Second in the Third. Meanwhile, the Fifth Circuit recognizes that new law has come to light regarding the First Amendment, and that changes everything for Dr. Ron Hines, in his quest to bring telemedicine to our animal friends. Without the aid of a fifth, Ari Bargil gives us the history of quite a bit of speech and rational basis action over the last few years in Circuit Number Five.

Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-155-Edited.pdf
Folajtar v. Attorney General (2d Amendment case in the 3d Cir.), https://www2.ca3.uscourts.gov/opinarch/191687p.pdf?mkt_tok=eyJpIjoiT1RjNU56ZzVZVGhoWXpkayIsInQiOiJwbkE1NUdDNmN4ZStQQmlNQWxlUEQ0QWUwanY0ZVp6QWF3ZCtGWGI1ajRqa2t2TzhTTkZUcFhzNWw1XC9qcnpuamJVWXhybnhUc2ZmaHZYdnlnd2RodkxiODlCdVB1ZkJGOUJVZXJaVkYwZzNBRUVCUFJSbU00TUNnRjNpeHpLVFcifQ%3D%3D
Hines v. Quillivan, http://www.ca5.uscourts.gov/opinions/pub/19/19-40605-CV0.pdf
Engblom v. Carey (3d Amendment case in the 2d Cir.), https://casetext.com/case/engblom-v-carey
St. Joseph Abbey v. Castille, http://www.ca5.uscourts.gov/opinions%5Cpub%5C11/11-30756-CV1.wpd.pdf
Facts, Not Fantasy, https://ij.org/cje-post/facts-not-fantasy/
Bound By Oath podcast, https://ij.org/boundbyoath
Deep Dive podcast, https://ij.org/podcasts/deep-dive-podcast/
Brownback v. King, https://ij.org/case/brownback-v-king/
Tim Sandefur, Rational Basis and the 12(b)(6) Motion: An Unnecessary “Perplexity”, https://pacificlegal.org/wp-content/uploads/2014/11/Sandefur12b6.pdf
Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/
Ari Bargil, https://ij.org/staff/ari-bargil/
Anthony Sanders, https://ij.org/staff/asanders/

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
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Short Circuit 154 | Class action coupons and a building for Buddhists Nov 30, 2020

Class action expert Ted Frank joins to discuss a Ninth Circuit case where the court didn’t think giving class members crummy coupons warranted almost $15 million in attorneys fees. IJ Senior Attorney Jeff Rowes then gets some religion about land use and how the Alabama Constitution protects Buddhists in starting a meditation center.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-Episode-154-Edited.pdf
Chambers v. Whirlpool Corp., https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/10/16-56666.pdf
Thai Meditation Association of Alabama v. City of Mobile, https://media.ca11.uscourts.gov/opinions/pub/files/201912418.pdf
Ted Frank, https://hlli.org/ted-frank/
Jeff Rowes, https://ij.org/staff/jrowes/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 153 | The Wire and Dairy Cows Nov 12, 2020

Ever seen The Wire? Do you think those cops could have seriously used a team of drones taking photos of Stringer Bell for 12 hours a day? Turns out so does the city of Baltimore itself, whose drone surveillance program was reviewed (yet upheld) by the Fourth Circuit last week. Also, the team discusses what the Washington State Constitution has to do with privileges or immunities in the dairy industry.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Transcript: https://ij.org/wp-content/uploads/2020/11/Short-Circuit-Episode-153-Edited.pdf
Leaders of a Beautiful Struggle v. Baltimore Police Department, https://www.ca4.uscourts.gov/opinions/201495.P.pdf
Martinez-Cuevas v. Deruyter Brothers Dairy, http://www.courts.wa.gov/opinions/pdf/962677.pdf
Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/

Dan Alban, https://ij.org/staff/dalban/
Wesley Hottott, https://ij.org/staff/whottot/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 152: Election Law 2020 Special Oct 29, 2020

What is with up with the torrent of election law cases coming out these days? IJ’s Diana Simpson and Anthony Sanders are here to give you the scoop. Actually, quite a few scoops, served up in the circuit courts of appeals the last few weeks, and even a couple Supreme Court cases, and a state supreme court case, thrown in. Cut down on just a smidgen of election confusion while time for that is running short.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

Wise v. Circosta, https://www.ca4.uscourts.gov/Opinions/202104R1.P.pdf
Texas League of United Latin American Citizens v. Hughs, http://www.ca5.uscourts.gov/opinions/pub/20/20-50867-CV0.pdf
The New Georgia Project v. Raffensperger, https://media.ca11.uscourts.gov/opinions/pub/files/202013360.pdf
Richardson v. Hughs, http://www.ca5.uscourts.gov/opinions/pub/20/20-50774-CV0.pdf
Texas Democratic Party v. Abbott, http://www.ca5.uscourts.gov/opinions/pub/20/20-50407-CV1.pdf
Memphis A. Philip Randolph Institute v. Hargett, https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0331p-06.pdf
Priorities USA v. Nessel, https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0336p-06.pdf
Democratic National Committee v. Wisconsin State Legislature, https://www.scotusblog.com/case-files/cases/democratic-national-committee-v-wisconsin-state-legislature/
Republican Party of Pennsylvania v. Boockvar, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-542.html

Short Circuit 151 | Lifetime Leases and Butterflies on Walls Oct 22, 2020

We don’t recommend converting apartments into condos in San Francisco. But if you do, it might be hard to bring a takings claim, as we find out why from a recent denial of en banc review in the Ninth Circuit. Meanwhile, the question at the D.C. Circuit is whether butterflies mix with walls. Specifically, The Wall. Turns out, the National Butterfly Center is an open field, so the Fourth Amendment doesn’t have much of a butterfly effect. But the butterflies do have a due process claim, at least for butterfly procedures. Also, next week stay tuned for our election law extravaganza.

iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019
Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview
Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit
Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-Episode-151-Edited.pdf
Pakdel v. City and County of San Francisco, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/13/17-17504.pdf
National American Butterfly Association, https://www.cadc.uscourts.gov/internet/opinions.nsf/0/EEB0F5AB2D921F4685258600004FBB76/$file/19-5052-1865847.pdf
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Kirby West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 150 | Vacation rentals, COVID orders, and Electoral College studies Oct 08, 2020

On October 16, 2020 the Center for Judicial Engagement is hosting a special online event, our forum on judicial engagement and the Pennsylvania Constitution. Register today at the link below to join in the state constitutional fun! (Plus free CLE for PA bar members.) In the meantime, we discuss a few recent Pennsylvania cases as the warm-up act for the forum next week. Recent cases on economic liberty and separation of powers under the Pennsylvania Constitution get co-equal time, and we also hypothecate (but only hypothecate) on whether a governor can veto a legislature’s attempt to appoint Presidential electors.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: https://podcasts.google.com/feed/aHR0cDovL2ZlZWRzLnNvdW5kY2xvdWQuY29tL3VzZXJzL3NvdW5kY2xvdWQ6dXNlcnM6ODQ0OTMyNDcvc291bmRzLnJzcw?sa=X&ved=2ahUKEwjTsdf7z5bsAhXbhXIEHWCfCZwQ9sEGegQIARAM
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

October 16, 2020 Pennsylvania Constitution State Forum registration, https://ij.org/event/145311-2/

Transcript: https://ij.org/wp-content/uploads/2020/10/short-circuit-150.pdf
Ladd v. Real Estate Commission, https://ij.org/wp-content/uploads/2017/07/PPM-Decision.pdf
Wolf v. Scarnati, https://law.justia.com/cases/pennsylvania/supreme-court/2020/104-mm-2020-0.html
Josh Windham, https://ij.org/staff/joshua-windham/
Adam Shelton, https://ij.org/staff/adam-shelton/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 149 | Supreme Court Preview for Tar Heels Oct 02, 2020

For the fourth year in a row, the Institute for Justice has teamed up with the University of North Carolina Federalist Society Chapter to preview cases for the Supreme Court’s upcoming term. IJ’s Justin Pearson and Erica Smith join with UNC Professor Andy Hessick to share their wisdom on what’s interesting, and what may get even more interesting, in the months to come.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: https://podcasts.google.com/feed/aHR0cDovL2ZlZWRzLnNvdW5kY2xvdWQuY29tL3VzZXJzL3NvdW5kY2xvdWQ6dXNlcnM6ODQ0OTMyNDcvc291bmRzLnJzcw?sa=X&ved=2ahUKEwjTsdf7z5bsAhXbhXIEHWCfCZwQ9sEGegQIARAM
Newsletter: ij.org/about-us/shortcircuit/
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Transcript: https://ij.org/wp-content/uploads/2020/10/short-circuit-149.pdf
Justin Pearson, https://ij.org/staff/justin-pearson/
Erica Smith, https://ij.org/staff/esmith/
Andy Hessick, https://law.unc.edu/people/andrew-hessick/
Brownback v. King, https://ij.org/case/brownback-v-king/

Short Circuit 148 | Are Apartments a Nuisance? Private Property and the Rise of Zoning Sep 17, 2020

In a special Short Circuit, Harvard Law Professor Molly Brady joins us to talk about an untold story from the rise of zoning law. A lot of the blame for our affordable housing crisis is often placed on the case Euclid v. Ambler Realty, where the Supreme court declared zoning (which includes prohibiting apartments) constitutional. But zoning was not the first try at limiting multifamily housing in certain neighborhoods. Professor Brady discusses how property covenants and nuisance law were employed to limit the availability of housing, and how when that didn’t work planners turned to the heavy hand of zoning. Along the way we discuss property deeds, spontaneous order, immigration, and the ever-beloved Coase Theorem.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
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Transcript: https://ij.org/wp-content/uploads/2020/09/Episode-148-Transcript.pdf
Professor Molly Brady, http://www.maureenebrady.com/
Village of Euclid v. Ambler Realty Co., https://supreme.justia.com/cases/federal/us/272/365/
The Coase Theorem, https://www.libertarianism.org/topics/ronald-h-coase
From the IJ Archives: Let’s Take Zoning to Court, https://ij.org/sc_blog/lets-take-zoning-to-court/

Short Circuit 147 | Off-premises signs and an on-premises subpoena Sep 10, 2020

Will former White House Counsel Don McGahn ever testify to the House Judiciary Committee? That partly depends on how you squint when reading the Declaratory Judgment Act. University of Texas law professor (and Twitter Laureate of federal jurisdiction) Steve Vladeck checks off the justiciability boxes and tells us it didn’t use to be so complicated. Meanwhile, cities continue to hate billboards, and the Supreme Court continues to not speak as clearly as it could, even in cases involving content-based restrictions on speech. Bob McNamara explains why you have to read a sign to see if it’s “on premises.”

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a
Newsletter: ij.org/about-us/shortcircuit/
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Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-147-Transcript.pdf
IJ Legal Intensive: https://ij.org/ijs-legal-intensive/
Committee on the Judiciary v. McGahn, https://www.cadc.uscourts.gov/internet/opinions.nsf/6402FB14D0F73EDD852585D5005DA953/$file/19-5331-1859039.pdf
Reagan National Advertising v. City of Austin, http://www.ca5.uscourts.gov/opinions/pub/19/19-50354-CV0.pdf
Steve Vladeck, https://law.utexas.edu/faculty/stephen-i-vladeck
Robert McNamara, https://ij.org/staff/robert-mcnamara/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 146 (9/4/20) Sep 04, 2020

Rejoining us after a very long break is Rob Johnson, who has some things to say about the Anti-Riot Act and a case finding part of it overbroad and unconstitutional. The case comes out of a prosecution of some racist rioters who attended a Unite the Right rally in Charlottesville in 2017. Also, Rob Frommer tells us a tale about a woman who spent a decade in prison for a crime she did not commit, and that there was plenty of evidence she did not commit before she was imprisoned. Despite all this, prosecutorial and qualified immunity do their best to bar her access to justice. Plus, learn a bit about what happened when the Hanoverians took over from the Stuarts.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a
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Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-146-transcript-1.pdf
United States v. Miselis, https://www.ca4.uscourts.gov/opinions/194550.P.pdf
Weimer v. County of Fayette, https://www2.ca3.uscourts.gov/opinarch/191823p.pdf
The Riot Act, https://www.gutenberg.org/files/8142/8142-h/8142-h.htm
Robert Frommer, https://ij.org/staff/rfrommer/
Robert Johnson, https://ij.org/staff/rjohnson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 145 | Dude, where’s my car? And, campaigning to disclose Aug 27, 2020

Can a city hold on to your car for three years for no reason? Unfortunately, the Sixth Circuit seems to think the answer is “yes,” although over a fiery dissent. This week Wesley Hottot presents Nichols v. Wayne County and the team muses about the application of a case from 1978 and whether it even applies in Detroit anymore. Also, Paul Sherman takes us into campaign season with a campaign through campaign finance (and administrative) law with CREW v. FEC.

Click here for a transcript.

Short Circuit 144 | PACER Charges and Publicly Charged Universal Injunctions Aug 14, 2020

What brings all lawyers together? Hatred of PACER. Some nonprofits challenged the fees the federal courts charge for accessing court filings on the electronic records system. And they won. Kind of. But this doesn’t mean you get to stop paying to see legal documents. This week Diana Simpson explains the history of accessing court documents via modem, where those fees go, and how the Federal Circuit interpreted some obscure statutory language. Also, Congress has never defined the term, but for well over a century Congress has barred immigrants who are likely to become a “public charge.” Can the Department of Homeland Security adopt a definition of the term that will render way more people inadmissible? The Fourth Circuit said yes, and went on to opine on the continuing controversy over “nationwide injunctions.” Adam Shelton discusses that case, as well as a couple other recent cases from the Second Circuit—on the exact same issue—and a different injunction case from Puerto Rico.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a
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Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-144-Transcript.pdf
National Veterans Legal Services Program v. United States, http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1081.OPINION.8-6-2020_1631951.pdf
A Week of Universal Injunctions, https://ij.org/cje-post/a-week-of-universal-injunctions/

Short Circuit 143 (8/7/20) Aug 06, 2020

Religious freedom v. anti-discrimination and a promise not to do bad things.

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Transcript: https://ij.org/wp-content/uploads/2020/09/short-circuit-143.pdf
Jamison v. McClendon: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf
New Hope Family Services v. Poole: https://ij.org/wp-content/uploads/2020/07/19-1715_opn_formatted.pdf?mkt_tok=eyJpIjoiTURBeU1qWTJNalUxTURrMyIsInQiOiJOR3BaVTdkZFFDbndIbWJ1T0VtSmp2N1wvQmVienRrVXQ3YnN5N1wvSTJzZVY4S2R3YjBNUDZBTk5pUXFXT3dYRExVKzBkWXdcLzhJNDIzRFY2QjhwbmhXeEdFaDlrNTlSTlROZlcwNGxwbkhKOXEzaUN2ckl1eVJRZjZRdGRPdWMwUyJ9
Speech First v. Killeen: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D07-28/C:19-2807:J:Brennan:condis:T:fnOp:N:2554247:S:0
Walter Olson: https://www.cato.org/people/walter-olson

Short Circuit 142 (7/31/20) Jul 30, 2020

Excessive home foreclosures and parking fines.

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Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-142-edited.pdf
Rafaeli, LLC v. Oakland County, https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/19-20-Term-Opinions/156849.pdf
Pimentel v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/22/18-56553.pdf
Christina Martin, https://pacificlegal.org/staff/christina-martin/

Short Circuit 141 (7/24/20) Jul 23, 2020

A police pizza raid and Fourth Amendment fireworks in the Fourth Circuit

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Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-141-edited.pdf
Chicago Freedom School complaint: https://peopleslawoffice.com/wp-content/uploads/2020/06/1-CFS-Complaint-Filed.pdf
4A fireworks: https://www.ca4.uscourts.gov/opinions/184233A.P.pdf

Short Circuit 140 Jul 15, 2020

End times at the sheriff’s department and Euclidean policing.

Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-140.pdf
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Sheriff case: https://ecf.ca8.uscourts.gov/opndir/20/06/191213P.pdf
Police brutality case: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0185p-06.pdf

Short Circuit 139 (6/26/20) Jun 26, 2020

A Week of Heavy Lifts: Closing Down Gyms in Michigan and a High-Profile Prosecution in DC.

Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-139_otter.ai-final.pdf
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Gym Injunction: https://ij.org/wp-content/uploads/2020/06/09915820907.pdf
Gym Injunction stayed: https://ij.org/wp-content/uploads/2020/06/Document.pdf
Mike Flynn: https://www.cadc.uscourts.gov/internet/opinions.nsf/79798A0FA0633B7985258591004DD3E7/$file/20-5143-1848728.pdf

Short Circuit 138 (6/18/20)A Bunch of Bad Apples Jun 18, 2020

A bunch of bad apples.

Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-138.pdf
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Case 1: http://www.ca5.uscourts.gov/opinions/unpub/19/19-40217.0.pdf
Case 2: https://www.ca4.uscourts.gov/opinions/182142.P.pdf
Case 3: http://media.ca11.uscourts.gov/opinions/pub/files/201812061.pdf
Case 4: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0161p-06.pdf

Short Circuit 137 (6/12/20) Jun 12, 2020

Qualified Immunity and George Floyd

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Qualified immunity FAQ: https://ij.org/frequently-asked-questions-about-ending-qualified-immunity/
Cato Institute on QI: https://www.unlawfulshield.com/
Anya’s USA Today op-ed on QI: https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/
West: https://www.scotusblog.com/case-files/cases/west-v-winfield/
Baxter: https://www.scotusblog.com/case-files/cases/baxter-v-bracey/

Short Circuit 136 (6/2/20) Arguing at the Supreme Court Jun 02, 2020

Ever wonder what it’s like to argue at the Supreme Court? In a special episode, Anya Bidwell interviews four IJ attorneys who have been in the hot seat.

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Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-136_otter.ai-FINAL.pdf
Kelo: https://ij.org/case/kelo/
Bennett: https://ij.org/press-release/arizona-campaign-finance-release-6-27-2011/
Espinoza: https://ij.org/case/montana-school-choice/
Timbs: https://ij.org/case/timbs-v-indiana/

Short Circuit 135 (5/28/20) May 28, 2020

Constitutional guarantees during emergencies.

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Right to counsel: https://ij.org/wp-content/uploads/2020/03/19-1778_opn.pdf
Wisconsin’s stay-at-home order https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868

Short Circuit 134 (5/15/20) May 15, 2020

Is the Supreme Court finally going to do something about qualified immunity?

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Is Qualified Immunity Unlawful? https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=13555&context=journal_articles
West: https://ij.org/case/west-v-city-of-caldwell/
King: https://ij.org/case/brownback-v-king/
Zadeh: https://www.scotusblog.com/case-files/cases/zadeh-v-robinson/
Jessop: https://www.scotusblog.com/case-files/cases/jessop-v-city-of-fresno-california/
IJ’s Jessop amicus: https://www.supremecourt.gov/DocketPDF/19/19-1021/138419/20200317143611916_39525%20pdf%20Gammon.pdf

Short Circuit 133 (5/7/20) May 07, 2020

Forcing kids to attend crummy schools and forcing prisoners to stay in a COVID-infested prison.

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The right to a basic minimum education: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0124p-06.pdf
Medically vulnerable inmates (district court order): https://www.acluohio.org/wp-content/uploads/2020/04/2020-04-21-022-PI-Order.pdf
Medically vulnerable inmates (Sixth Circuit ruling): https://www.acluohio.org/wp-content/uploads/2020/05/2020-05-04-023-Order.pdf

Short Circuit 132 (5/1/20) May 01, 2020

A prostitution sting, alcohol, and government debt collectors.

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Arresting a reporter: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D04-20/C:19-1945:J:Rovner:aut:T:fnOp:N:2504353:S:0
Arresting the flow of alcohol: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0119p-06.pdf
Robocalls: http://www.ca4.uscourts.gov/opinions/181588.P.pdf
IJ’s robocall amicus: https://ij.org/wp-content/uploads/2020/04/Barr-v-AAPC-Amicus.pdf

Short Circuit 131 (4/24/20) Apr 24, 2020

The Real RBT and the King’s Bench (in Pennsylvania) Approves COVID-19 Restrictions.

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SSI benefits in Puerto Rico: http://media.ca1.uscourts.gov/pdf.opinions/19-1390P-01A.pdf
Pennsylvania COVID restrictions: http://www.pacourts.us/assets/opinions/Supreme/out/68MM2020mo%20-%2010439399799476700.pdf

Short Circuit 130 (4/21/20) Apr 21, 2020

No suing the feds for hiding Jeffrey Epstein’s non-prosecution deal, no suing the feds for killing cows in a quarantine, and no suing over government speech.

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Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-130.pdf
Non-prosecution agreement: http://media.ca11.uscourts.gov/opinions/pub/files/201913843.pdf
Fever tick quarantine: http://www.ca5.uscourts.gov/opinions/pub/19/19-40077-CV0.pdf
Janus table turning: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D04-07/C:19-1349:J:Rovner:aut:T:fnOp:N:2498138:S:0
Lynching grand jury records: http://media.ca11.uscourts.gov/opinions/pub/files/201715016.enb.pdf
Anthony Pitch’s book on the Moore’s Ford lynching: https://smile.amazon.com/Last-Lynching-Anthony-S-Pitch/dp/1543627471?sa-no-redirect=1

Short Circuit 129 (4/14/20) Apr 14, 2020

Fines & fees, completed misdemeanors, and jail debit cards.

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Sherwood, Ark fines and fees: https://ecf.ca8.uscourts.gov/opndir/20/01/182982P.pdf
IJ’s Sherwood en banc petition: https://ij.org/wp-content/uploads/2020/03/Williams-Petition-File-Stamped.pdf
Completed misdemeanors: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0088p-06.pdf
Jail debit cards: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/16/18-35735.pdf

Short Circuit 128 (4/9/20) Apr 09, 2020

Did you know your city might go bankrupt because it doesn’t respect property rights? Strong Towns, Zoning, and Engineering Licensing

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Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-128_otter.ai-FINAL.pdf
Charles “Chuck” Marohn, Strong Towns https://www.strongtowns.org/contributors-journal/charles-marohn
Strong Towns (the book): https://www.strongtowns.org/book
Village of Euclid v. Ambler Realty Co.: https://supreme.justia.com/cases/federal/us/272/365/
Oregon Engineering Speech: https://ij.org/case/oregon-engineering-speech/

Short Circuit 127 (4/3/20) Apr 01, 2020

A cert grant, a cert petition, sanctuary cities, and pilfered Spanish gold.

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Cert grant: https://ij.org/press-release/u-s-supreme-court-will-hear-police-accountability-case/
Cert petition: https://ij.org/case/miami-forfeiture-attorneys-fees/
Sanctuary cities: http://media.ca1.uscourts.gov/pdf.opinions/19-1802P-01A.pdf
Gold bar: http://media.ca11.uscourts.gov/opinions/pub/files/201813282.pdf

Short Circuit 126 (3/26/20) Mar 26, 2020

Cert petitions, a prison shank public records request and an arrest for being a smart mouth.

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Prison shank: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/0EE1E9783C2A9C9D8525852700504E8C/$file/18-5068-1832659.pdf
Smart mouth QI: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0083p-06.pdf
Carousel Farms: https://ij.org/case/woodcrest-homes-inc-v-carousel-farms-metro-dis/
Task Force accountability: https://ij.org/case/brownback-v-king/
Police theft: https://ij.org/press-release/police-stole-225k-in-cash-and-coins-and-the-courts-said-okay/

Short Circuit 125 (3/13/20) Mar 13, 2020

Double jeopardy, the Air Force’s effective ban on deploying HIV-positive airmen, and leaving supplies in the desert for migrants crossing the border.

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Double jeopardy: https://www.armfor.uscourts.gov/newcaaf/opinions/2019OctTerm/170263.pdf
New Yorker: https://www.newyorker.com/magazine/2011/11/14/three-trials-for-murder
Air Force & HIV: http://www.ca4.uscourts.gov/opinions/191410.P.pdf
Leaving supplies in the desert: https://assets.documentcloud.org/documents/6763128/2020-02-03-Hoffman-DE22-Order-Reversing.pdf

Short Circuit 124: Live at UGA Law Feb 28, 2020

Lynching & grand jury secrecy, property destruction during a wrongful arrest, and a minimum wage fight.

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Andrew Fleischman: https://www.rossandpines.com/attorneys/andrew-s-fleischman/
Eric Segall: https://law.gsu.edu/profile/eric-j-segall/
Michael Wells: http://www.law.uga.edu/profile/michael-l-wells
Anya Bidwell: https://ij.org/staff/anya-bidwell/

Cases:

Lewis v. Governor of Alabama (panel): http://media.ca11.uscourts.gov/opinions/pub/files/201711009.pdf
Lewis v. Governor of Alabama (en benc): http://media.ca11.uscourts.gov/opinions/pub/files/201711009.enb.pdf
Glenn v. The State: https://ij.org/wp-content/uploads/2020/02/Glenn-v.-The-State.pdf
Pitch v. United States: http://media.ca11.uscourts.gov/opinions/pub/files/201715016.pdf

Ep. 9: Excessive Fines Feb 20, 2020

Prohibitions on excessive fines date back at least as far as Magna Carta in 1215, and the U.S. Constitution has barred excessive fines since 1791. But the Supreme Court has only recently begun to interpret what the Excessive Fines Clause means, and it wasn’t until 2019 that the Court said the Clause applies to the states.

On this episode: the story of how the Supreme Court finally began to incorporate the Bill of Rights rights against the states and the history of excessive fines.

Short Circuit 123 (2/6/20) Feb 06, 2020

A police officer’s suit against a Black Lives Matter protest leader, a qualified immunity cert petition, and Frank Easterbrook rips the DOJ.

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Black Lives Matter (April 2019): https://www.courtlistener.com/opinion/4613290/john-doe-v-deray-mckesson/
Black Lives Matter (August 2019): http://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV0.pdf
Black Lives Matter cert petition: https://www.aclu.org/sites/default/files/field_document/mckesson_v_doe_cert_petn_and_appendix.pdf
Black Lives Matter (December 2019): http://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV1.pdf
Kelsay v. Ernst panel decision: https://ecf.ca8.uscourts.gov/opndir/18/09/172181P.pdf
Kelsay v. Ernst en banc decision: https://ecf.ca8.uscourts.gov/opndir/19/08/172181P.pdf
Kelsay v. Ernst cert petition: https://www.supremecourt.gov/DocketPDF/19/19-682/123715/20191126132451862_19-__%20PetitionForAWritOfCertiorari.pdf
Easterbrook is not pleased: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

Short Circuit 122 (1/27/20): Nationwide injunctions Jan 27, 2020

Learn all about a topic many people can’t stop talking about: “nationwide injunctions.” Scott Keller of Baker Botts, and formerly the Solicitor General for the State of Texas, speaks with CJE Director Anthony Sanders about injunctions, the constitution, and even courts of equity in jolly ol’ England.

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SPEAKERS
Scott Keller, appellate lawyer: https://www.bakerbotts.com/people/k/keller-scott-a
Anthony Sanders, Director of the Center for Judicial Engagement: https://ij.org/staff/asanders/

RESOURCES:

Texas, et al. v. United States (DAPA case):https://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-40238-CV0.pdf
Facial Unconstitutionality & Universal Injunctions: https://ij.org/sc_blog/facial-unconstitutionality-universal-injunctions/
Multiple Chancellors: Reforming the National Injunction: https://harvardlawreview.org/2017/12/multiple-chancellors-reforming-the-national-injunction/
The Lost History of the “Universal” Injunction: https://harvardlawreview.org/2020/01/the-lost-history-of-the-universal-injunction/

Special Episode: Espinoza v. Montana (1/16/20) Jan 16, 2020

On January 22, 2020, the U.S. Supreme Court will hear oral argument in an IJ case, Espinoza v. Montana Dept. of Revenue. At issue is a Montana school choice program that allowed families to send their children to private schools, including religious ones. The Montana Supreme Court said the program violated the state’s Blaine Amendment, a relic of 19th-century anti-Catholic hysteria that lives on today in 37 states constitutions, and struck the program down in 2018. The U.S. Supreme Court, however, will consider whether discriminating against religious options violates the First Amendment. On this podcast, we take a look at the history of Blaine Amendments, school choice, and one-size-fits-all schooling.

https://ij.org/case/montana-school-choice/

Short Circuit 121 (1/03/20) Dec 31, 2019

Maryland political advertising, Texas liquor protectionism, and sham review of habeas petitions.

Planned Giving: http://ij.plannedgiving.org/

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Election interference: http://www.ca4.uscourts.gov/opinions/191132.P.pdf
Wal-Mart liquor: http://www.ca5.uscourts.gov/opinions/pub/18/18-50299-CV1.pdf
IJ’s equal protection amicus: https://libationlawblog.com/wp-content/uploads/2019/02/Walmart-v-Texas-Institute-for-Justice-Amicus-Brief.pdf
Sham review cert petition: https://www.supremecourt.gov/DocketPDF/18/18-8341/91333/20190311112740772_00000007.pdf
Justice Sotomayor’s statement respecting denial of cert (starts page 14): https://www.supremecourt.gov/orders/courtorders/120919zor_ihdj.pdf

Short Circuit 120 (12/20/19) Dec 18, 2019

IJ.org/donate

Seattle homelessness, privacy for political donors, and a city sues a state.

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Delaware judicial appointments: https://www.scotusblog.com/case-files/cases/carney-v-adams/
Seattle homeless sweeps: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/29/18-35053.pdf
Donor privacy: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/29/16-55727.pdf
IJ’s amicus in support of cert: https://www.supremecourt.gov/DocketPDF/19/19-251/116781/20190924125402029_Brief%20of%20Amicus%20Curiae%20Institute%20for%20Justice%20in%20Support%20of%20Petitioners.pdf
Austin v. Texas housing vouchers: http://www.ca5.uscourts.gov/opinions/pub/18/18-50646-CV0.pdf

Short Circuit 119 (12/6/19) Dec 04, 2019

Oyster takings, eminent domain in Colorado, and eminent domain in the Philippines.

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Virginia oystermen: https://www.inversecondemnation.com/inversecondemnation/2019/11/city-we-have-the-right-to-pollute-virginia-oystermens-petition-asserting-a-taking-.html
Colorado eminent domain: https://ij.org/case/woodcrest-homes-inc-v-carousel-farms-metro-dis/
Philippines eminent domain: https://www.inversecondemnation.com/inversecondemnation/2019/09/berman-international-takings-must-undergo-painstaking-judicial-scrutiny.html

Short Circuit 118 (11/26/19) Nov 26, 2019

SWAT destroys an innocent persons house, Baltimore food trucks, and making innocent owners whole in civil forfeiture cases.

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Consent to SWAT destroying your house: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-35300.pdf
Maryland’s law of the land clause: https://ij.org/wp-content/uploads/2016/05/Court-of-Appeals-Brief-FINAL.pdf
Miami forfeiture cert petition: https://ij.org/wp-content/uploads/2019/11/Salgado-v.-United-States-of-America-Petition-for-a-Writ-of-Certiorari.pdf

Short Circuit 117 (11/22/19) Nov 22, 2019

Dry celling, panhandler speech, and judicial abdication most foul at the Washington Supreme Court.

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Dry cell: https://www2.ca3.uscourts.gov/opinarch/181811p.pdf
Arkansas panhandling: https://ecf.ca8.uscourts.gov/opndir/19/11/173219P.pdf
Property rights in Washington state: https://ij.org/wp-content/uploads/2019/11/95813-1-Opinion.pdf
Washington appendix: https://ij.org/wp-content/uploads/2019/11/Yim-v-Seattle-Op.-Appendix.pdf

Ep. 8: Substantive Due Process Nov 15, 2019

If the government is going to take away life, liberty, or property, the due process of law requires it to follow fair procedures. But, according to the Supreme Court, that’s not all that due process requires. The government also must have a good reason to take life, liberty, or property. On this episode, we head to Akron, Ohio where city officials have shut down a privately run homeless community—without a good reason.

Short Circuit 116 (11/9/19) Nov 05, 2019

SWAT destroys an innocent person’s house, privacy in your backyard, and productive use of abandoned property.

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https://ij.org/opportunities/employment-opportunities/

SWAT takings: https://www.ca10.uscourts.gov/opinions/18/18-1051.pdf
Tree camera: https://ij.org/wp-content/uploads/2019/11/treecamera.pdf
Adverse possession: https://ij.org/wp-content/uploads/2019/11/adverse-possession.pdf

Short Circuit 115: Live at Penn Law (10/10/19) Oct 15, 2019

A special Third Circuit episode featuring Claire Finkelstein, Mitch Berman, and Matthew Stiegler. Recorded before a live student audience at the invitation of the Penn Law chapter of the Federalist Society.

Claire Finkelstein and Mitch Berman are professors at Penn Law. Matthew Stiegler is an appellate attorney and the proprietor of CA3blog.

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Adams v. Governor of Delaware: https://www2.ca3.uscourts.gov/opinarch/181045p.pdf

Pellegrino v. TSA: https://www2.ca3.uscourts.gov/opinarch/153047pen.pdf

Annual Supreme Court Preview: Live at UNC Chapel Hill (10/01/19) Oct 04, 2019

Want to learn about the cases at the Supreme Court this year? Want to challenge your knowledge of “SCOTUS Geography”? Then listen into the Center for Judicial Engagement’s annual Supreme Court preview! Recorded earlier this week at the University of North Carolina.

Espinoza v. Montana Department of Revenue, https://ij.org/case/montana-school-choice/

Allen v. Cooper, https://www.scotusblog.com/case-files/cases/allen-v-cooper/

U.S. v. $70,670.00, http://media.ca11.uscourts.gov/opinions/pub/files/201810312.pdf

City of Boise v. Martin, https://www.scotusblog.com/case-files/cases/city-of-boise-idaho-v-martin/

Short Circuit 114 – Live at UCLA (9/27/19) Sep 27, 2019

A Ninth Circuit episode featuring Eugene Volokh, Richard Re, and Robert Everett Johnson. Recorded live before a student audience at the invitation of the UCLA chapter of the Federalist Society.

Eugene Volokh and Richard Re are professors at UCLA Law. Robert Everett Johnson is an associate at Jones Day.

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The Koala v. Khosla: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/24/17-55380.pdf

City of Los Angeles v. Barr: https://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/18-55599.pdf

Biel v. St. James School panel decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/17/17-55180.pdf

Biel v. St. James School dissent from denial of en banc review: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/25/17-55180.pdf

Ep. 7: Incorporation, the Lack Thereof Aug 23, 2019

In 1842, the city of New Orleans prosecuted Father Bernard Permoli, a Catholic priest, for conducting an open casket funeral. A violation of the Free Exercise Clause of the First Amendment? The Supreme Court said no: The protections in the Bill of Rights did not bind state and local governments.
Then in 1868, the Fourteenth Amendment is ratified, and it incorporated the Bill of Rights against the states–or did it? On this episode, the failure of incorporation after Reconstruction.

Short Circuit 113 (8/16/19) Aug 13, 2019

Auer deference, the citizenship question, and the nondelegation doctrine.

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Kisor v. Wilkie (Auer deference): https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/
Department of Commerce v. New York (Citizenship question) https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/
Gundy v. United States (Nondelegation): https://www.scotusblog.com/case-files/cases/gundy-v-united-states/
IJ amicus in support of reinvigorating the nondelegation doctrine: https://ij.org/wp-content/uploads/2018/10/SCOTUS-Gundy-v.-US-Brief-of-Amicus-Curiae-Institute-for-Justice_6.1.2018.pdf

Short Circuit 112 (08/02/19) Aug 02, 2019

Bitten by a police dog, shot by a police officer, and sexually assaulted by a corrections officer.

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Dog bite: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf
ACLU petition for cert: https://www.acludc.org/sites/default/files/field_documents/baxter_petition_for_certiorari.pdf
Shot by police: http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf
Corrections officer sex assault: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-26/C:18-1498:J:Brennan:aut:T:fnOp:N:2361273:S:0
IJ amicus in support of en banc review: https://ij.org/wp-content/uploads/2019/07/ML-brief.pdf

Short Circuit 111 (7/19/19) Jul 18, 2019

Criticizing the police, prayers at public meetings, and Twitter as public forum.

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Police non-disparagement: http://www.ca4.uscourts.gov/opinions/172444.P.pdf

Prayers at gov’t meetings: http://media.ca11.uscourts.gov/opinions/pub/files/201715769.pdf

Trump on Twitter: https://ij.org/wp-content/uploads/2019/07/18-1691_opn.pdf

Short Circuit 110 (07/12/19) Jul 11, 2019

Litigating under seal, flags as gov’t speech, and dangerous cell phones.

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Epstein redactions: https://ij.org/wp-content/uploads/2019/07/18-2868_16-3945_complete_opn.pdf
Boston flag: http://media.ca1.uscourts.gov/pdf.opinions/18-1898P-01A.pdf
Cell phone radiation: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/02/16-15141.pdf

Ep. 6: Procedural Due Process Jul 05, 2019

Before the government can take away your life, liberty, or property, it must first give you due process: fair and meaningful procedure. On this episode, we trace the history of due process from 1215 to today. And we head to Harris County, Texas, which operates the the third-largest jail in the country, to see why federal courts say its system of money bail violated that ancient guarantee.

Short Circuit 109 (6/7/19) Jun 07, 2019

Cursing at the police, suspending drivers’ licenses over unpaid court debt, and eight months of warrantless home surveillance.

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Cursing at the police: https://ecf.ca8.uscourts.gov/opndir/19/06/173419P.pdf
Nieves v. Bartlett: https://www.scotusblog.com/case-files/cases/nieves-v-bartlett/
Court debt: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0086p-06.pdf
Warrantless surveillance: https://ij.org/wp-content/uploads/2019/06/u.s.-v.-daphne-moore.pdf

Short Circuit 108 – Live at UChicago(5/7/19) May 07, 2019

A Seventh Circuit extravaganza featuring Tacy Flint, Will Baude, and Jim Pfander. The episode was recorded before a live student audience at the University of Chicago Law School at the invitation of UChicago chapter of the Federalist Society.
Tacy Flint is a partner at Sidley Austin who has practiced before the U.S. Supreme Court and numerous federal courts of appeal. She clerked for Justice Stephen Breyer and Judge Richard Posner. Tacy is a UChicago law grad.
Will Baude is a professor at UChicago Law and the author of Is Qualified Immunity Unlawful? Will clerked for Chief Justice John Roberts, Judge Michael McConnell and at the Institute for Justice.
Jim Pfander is a professor at Northwestern Law and the author of many articles examining Bivens and the importance of remedies against federal officers for constitutional violations. Jim clerked for Judge Levin Campbell.

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Pretrial detention: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-23/C:17-1510:J:Sykes:aut:T:fnOp:N:2282458:S:0
Vicarious liability: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-03/C:17-3618:J:Hamilton:con:T:fnOp:N:2318717:S:0
Indianapolis forfeiture: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D02-26/C:17-2933:J:Manion:aut:T:fnOp:N:2299727:S:0

Ep. 5 Tangled: The Equal Protection Clause Apr 17, 2019

After the Civil War, what many Americans needed most was protection from violence. That’s what the Equal Protection Clause was meant to guarantee, but today the Clause does entirely different work. On this episode: a tour of the history and meaning of the Clause and how African-style hair braiders use it today to protect their right to earn an honest living.

For more resources: https://ij.org/sc_long_podcast/episode-5-tangled-the-equal-protection-clause/

Short Circuit 107 (3/22/19) Mar 21, 2019

Police theft, forfeiture pleading standards, and fetal tissue transfers.

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Police theft: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/20/17-16756.pdf
Civil forfeiture: https://ecf.ca8.uscourts.gov/opndir/19/03/163646P.pdf
Fetal tissue: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D03-14/C:18-1146:J:Easterbrook:aut:T:fnOp:N:2308370:S:0

Ep. 4: The Navigable Waters Feb 20, 2019

In 1873, the Supreme Court said that the Privileges or Immunities Clause protects a right to “use the navigable waters of the United States”—and not much else. But in the nearly 150 years since, the Court has never examined what the right to use the navigable waters means in practice. On this episode: a pair of brothers from Stehekin, Washington, try to change that.

Short Circuit 106 (2/15/19) Feb 18, 2019

Facebooking jurors, an unpopular church, a very bad cop, and a tire-tapping trespass.

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Facebooking jurors: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0015p-06.pdf
Church zoning: http://www.ca4.uscourts.gov/opinions/181450.P.pdf
Little Rock’s finest: http://media.ca8.uscourts.gov/opndir/19/02/172079P.pdf
Tire tap search: http://www.ca5.uscourts.gov/opinions/pub/17/17-40299-CR0.pdf

Ep. 3 All But Redacted: The Privileges or Immunities Clause Jan 30, 2019

The Privileges or Immunities Clause was meant to be one of the key liberty-protecting provisions of the Fourteenth Amendment. The Clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That sounds like a big deal, right? It’s not. The Clause has been virtually read out of the Constitution, and for people trying to vindicate their civil rights in court, it’s been of little practical use. That story—the near redaction of the Clause—begins with the Slaughterhouse Cases, which the U.S. Supreme Court decided in 1873.

On Episode Three of Bound By Oath: What rights were the Framers of the Fourteenth Amendment seeking to protect through the Privileges or Immunities Clause? And what happened to the Clause?

More resources here: https://ij.org/sc_long_podcast/all-but-redacted-the-privileges-or-immunities-clause/

Short Circuit 105 (1/17/19) Jan 17, 2019

No Fly List games and no sovereign immunity over Flint’s water crisis or Ferguson’s fines and fees.

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No Fly List games: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/02/14-16161.pdf
Flint water crisis: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0003p-06.pdf
Ferguson fines and fees: http://media.ca8.uscourts.gov/opndir/19/01/181472P.pdf

Short Circuit 104 Dec 26, 2018

Flight risks, using police databases for personal reasons, and a sentencing brouhaha.

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Flight risk: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0262p-06.pdf
Police databases: https://ij.org/wp-content/uploads/2018/12/gorman.pdf
Concurrent v. consecutive sentencing: http://www.ca4.uscourts.gov/opinions/177082.P.pdf

Ep. 2: The Fight for the Fourteenth Dec 19, 2018

At the close of the Civil War, some 4 million slaves became free. But almost immediately after hostilities ceased, leaders in the ex-Confederate states began to impose a series of laws, the Black Codes, that re-instituted slavery in all but name. Just as swiftly, a wave of terrorist violence swept across the South, targeting blacks seeking education, economic independence, and a voice in civic and political life—and also whites with Union sympathies. In Washington, D.C., Republican leaders grappled with another problem: When the Southern states rejoined the Union, they would do so with more political power than they’d enjoyed prior to secession—the consequence of each African-American now counting as five-fifths, rather than three-fifths, of a person.

iTunes: https://itunes.apple.com/us/podcast/bound-by-oath-by-ij/id1445199346?mt=2

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