Short Circuit

Latest Episodes:

Short Circuit 289 | Property Rights FTW Sep 15, 2023

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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

Show notes

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