Short Circuit

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Short Circuit 299 | The Gambler Nov 22, 2023

Show notes

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

Show notes

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.

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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

Show notes

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

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Short Circuit 296 | Parenting Is Hard Nov 02, 2023

Show notes

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.

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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

Show notes

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!

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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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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.

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U.S. v. Rahimi

Acheson Hotels v. Laufer

Verdun v. City of San Diego

Jackson v. Ohio

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