Short Circuit

Latest Episodes:

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

Show notes

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.

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Rockett v. Eighmy

U.S. v. Morgan

Pennsylvania v. Dunlap (Roberts dissent)

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

Show notes

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.

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Sterling Hotels v. McKay

Anibowei v. Morgan

Short Circuit 277 | More to Come Jun 22, 2023

Show notes

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.”

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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

Show notes

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.

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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

Show notes

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.

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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

Show notes

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

Show notes

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?

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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

Show notes

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?

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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

Show notes

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.

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Porter v. Martinez

Lemaster v. Lawrence County

To Motorists

Background to To Motorists

Short Circuit 270 | Baby Ninth Amendments May 05, 2023

Show notes

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