Short Circuit

Latest Episodes:

Short Circuit 439 | Adams, Jefferson, and The Declaration Jul 31, 2026

Show notes

Tim Sandefur joins us to discuss his latest (and tenth!) book “Proclaiming Liberty,” all about the Declaration of Independence, John Adams and Thomas Jefferson, and a whole lot more that is hard to fit into a subtitle. We discuss the “pre-history” of the Revolution from English constitutionalism and the Glorious Revolution of a century before, the role each man played in creating American constitutionalism, why the Declaration was written the way it was, and why it is “law.” Among many other issues.

Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence

Tyrants and Rogues

Nature’s God

Short Circuit 438 | The Strike Zone for Ultra Vires Jul 24, 2026

Show notes

If you like stories of co-workers showing up at your door at night and threatening you and your family then we have the episode for you. This happened to a federal employee in Virginia. Shaken by the experience, he and his family then sued. The thing is, because his co-workers were also federal employees, and the threats seemed to be work related, he had to use the Federal Tort Claims Act. As IJ’s John Korevec explains, that meant he had a lot of roadblocks. And while some of those roadblocks knocked out some of the claims in the lawsuit, according to the D.C. Circuit some of them survived. It’s another piece in the puzzle about how the FTCA does not allow for a lot of justice—but does let some through at times. Then Prashanta Augustine of IJ takes us out to the Tenth Circuit for a ruling on Presidential powers. Recent administrations have gone back and forth on expanding and retracting areas of federal land to be “national monuments” under the Antiquities Act. Can those decisions be challenged in court? The feds claimed sovereign immunity. But the Tenth Circuit, in a case involving the Grand Staircase and Bear’s Ears national monuments, found an exception for “ultra vires” acts. That raised all kinds of tricky (and interesting!) problems involving equitable relief, jurisdiction, and the Presidency. NOTE: After we recorded this episode the Trump Administration once again retracted the size of these monuments, mooting the Tenth Circuit matter as it currently exists but allowing for all kinds of exciting new litigation where the sides are flipped.

He v. Rubio

Garfield County v. Trump

Update on the national monuments since we recorded

Short Circuit 437 | Privately Racing the Nondelegation Doctrine Jul 17, 2026

Show notes

An old friend rejoins the show, the Horseracing Integrity and Safety Act of 2020. It’s been trotting around the federal courts of appeals for a few years now, truing to outrun the private nondelegation doctrine. The latest showing was at the Fifth Circuit a few weeks ago. Rebecca Furdek of the Wisconsin Institute of Law and Liberty joins us to survey the field and provide the odds on what may end up being a photo finish at the Supreme Court. Then we shift from horses to zombies with IJ’s Marco Vasquez. He takes us to the Fourth Circuit where the Seventh Amendment’s jury trial right ran up against an old and increasingly disfavored Supreme Court precedent. But not disfavored enough to not control the outcome of the case. Is it “zombie precedent”? And will it remain undead for long? We address these questions before turning to the latest in our #12Months12Circuits series with another old friend of the show, the Seventh Circuit.

Click here for transcript.

The Horsemen v. Black

Sligo Creek Ctr v. DHHS

1st HISA episode

Seventh Circuit Judicial Conference episode

Short Circuit 436 | Retaliatory Justice Jul 10, 2026

Show notes

If you like the drama of local politics you’ll love this story, told by IJ’s Christian Lansinger, from the Sixth Circuit. A colorful and controversial elected official was accused of not living in the city she represented, leading to an effort to remove her. In response she did prove she “lived” there—although “barely”—and then separately sued for First Amendment retaliation. Part of her claim related back to some comments she made about going together “like cocaine and waffles” before a Confederate flag. She loses her retaliation lawsuit (quite unsurprisingly) but how the court got there could affect other, more sympathetic, retaliation cases in the future. Plus, Christian updates us on the latest on the plaintiff’s situation. Then An Altik of IJ tells us of another Sixth Circuit ruling, this one involving Ohio’s requirement that kids have permission from their parents to use social media. The three judges on the panel can’t agree on much of anything but in the end the law is upheld. The various opinions discuss standing, overbreadth doctrine, content-based restrictions on speech, and vagueness. Plus the (limited?) evidence about social media and its harms to minors.

Click here for transcript.

Amacher v. Tullahoma

NetChoice v. Yost

Short Circuit 435 | 1776 and Judicial Review Jul 03, 2026

Show notes

Happy America’s 250th! To celebrate, we’re doing things the IJ Way, tying in the events of 1776 to something that emerged a few years later and that we at IJ work with every day today: judicial review. Therefore, although we’re jumping on the bandwagon and doing an “America at 250” episode like everyone else, this one focuses on something most people aren’t talking about for the anniversary—and certainly weren’t discussing in 1776.

But one thing Americans were discussing that year, in addition to how best to fight the British and declare independence, was writing constitutions. That was a new thing at the time, a new way of forming a government. It also lay the seeds for judges declaring laws “unconstitutional,” something that didn’t happen in the Old Country. IJ just held a conference on this subject and as part of that held a mock argument/moot court on a constitutional challenge under Pennsylvania’s constitution from 1776. The question was, is this new thing called “judicial review” actually a thing? Sam Gedge of IJ was part of that “case” and joins us to reflect on what he learned digging into the first principles of judicial review and what Americans in the years just after 1776 may have been thinking as they tried to figure out their new constitutional reality. Then your host shares the outline of a draft article on how American courts have used the shadow of the British parliamentary system when justifying judicial review. They did it a lot for the first century or so of the country’s history but since then not so much. Why is this? And does it have something to do with America becoming “Top Nation” as the sun slowly set on the British Empire? Fans of the ’85 Bears may enjoy an analogy. As might Dan Moreno.

Click here for transcript.

Video of the Mock Argument on Pennsylvania’s 1776 Constitution

Other video from the same conference

Vanhorne’s Lessee v. Dorrance

Draft article “Parliament’s American Shadow”

1066 and all that

The Super Bowl Shuffle, aka The British Empire

Short Circuit 434 | The Police Are the Emergency Jun 26, 2026

Show notes

If someone sues you for money you get to defend yourself in court. Right? Not really if you sign a confession of judgment, a contract where you waive defenses to a later collection action. A county in Iowa had a policy of making prisoners sign confessions of judgment when they were released if they owed money to the jail. That seems like it might have due process problems. Does it? Well, we don’t know yet but the Eighth Circuit recently ruled that the released prisoners have standing to move forward in their case. Michael Soyfer of IJ takes us through this dispute where IJ and a number of other groups filed an amicus brief. Then, McCarley Maddock of IJ reports on a bizarre set of facts in Madison, Wisconsin where a man may—or may not—have fired shots after an argument with his wife. The police then come to his house, with a Bearcat, and begin a standoff where he, it seems, was fast asleep inside. Things go bad for the man after that, resulting in an arrest and later a federal lawsuit. That then fails because of qualified immunity, according to the Seventh Circuit.

Click here for transcript.

Roberts v. Thompson

Jackson v. Madison

Bound By Oath

Short Circuit 433 | Bond Hearing Without Lawyer Jun 19, 2026

Show notes

After an arrest, is the decision on whether a defendant can get out on bond while their prosecution proceeds a “critical stage’? In the Eighth Circuit it’s hard to know because the court threw out a case asking that question due to a lack of standing. IJ’s Jimmy Odell, a former public defender, details this challenge to an Arkansas court’s practice of not appointing public defenders until after the bond decision has been made. It raises highly important Sixth Amendment questions but also illustrates how constitutional issues sometimes are hard to squarely put before a judge. Then your host discusses a recent Fourth Circuit case where the right to a jury trial under the Seventh Amendment intersected with a West Virginia “public nuisance” lawsuit on the opioid crisis. You wouldn’t expect a lawsuit against a massive pharmaceutical-distribution company to rely on almost a thousand years of history yet the ancient distinction between the common law and equity is at the heart of the matter. Plus, it’s time for the Sixth Circuit in our #12Months12Circuits series.

Farella v. Benton County Dist. Ct.

In re Express Scripts

Bound By Oath podcast

Episode on the Sixth Circuit

Short Circuit 432 | Moth-Eaten Precedent Jun 12, 2026

Show notes

A wild, and tragic, story from the Fifth Circuit with a bit of good (yet confusing) news at the end. IJ’s Diana Simpson tells us of a woman who feared her ex-boyfriend was going to harm her, so she called his probation officer. The officer assured the woman that they’d arrest him but then didn’t bother to do so. That resulted in a brutal assault. Does she have a claim against the federal government under those facts? Turns out she does, which we learn after bobbing and weaving around the various exceptions to the Federal Tort Claims Act. Then, Tate Cooper of IJ brings us a sighting of “zombie precedent”—or is it “moth-eaten precedent”?—from the Fourth Circuit where a college student who wanted to study to be a preacher couldn’t get a scholarship. The court looks at three recent big religious liberty cases at the Supreme Court, including two IJ cases, and concludes that despite them an older precedent still controls.

Click here for transcript.

Morris v. U.S.

Hall v. Fleming

Bound By Oath episode on the FTCA

Locke v. Davey

Short Circuit 431 | Hard but not Impossible Jun 05, 2026

Show notes

We welcome back a treasured many-times guest, the first time since he’s left IJ. Brian Morris served in our merry band of libertarian litigators for many years before recently moving to Chicago. He rejoins us to detail a recent Fourth Circuit decision that his now-colleagues litigated about making right a pair of wrongful convictions where two brothers spent almost 20 years behind bars. The case involves hearsay and how the testimony of a long-dead witness can be used in a later civil rights lawsuit. But before all that Brian does what he’s done on Short Circuit many times before: Pick the winners at the racetrack. And that’s not all the drama for one show. IJ’s Anya Bidwell tells us the latest bad news about suing federal officials, where someone who claimed the IRS unconstitutionally audited them was left out in the cold by the D.C. Circuit. Boris Pasternak readers may feel a connection.

McPherson v. Patton

Ray v. Priver

Link for Chicago FTCA conference

Short Circuit 430 | Stateless in Seattle May 29, 2026

Show notes

In the wild days of June 2020 you may remember how a group of protestors took over a few city blocks in Seattle, and how the police simply abandoned the area for a few weeks. That meant some businesses in that area suffered property damage and a massive loss of revenue. Now, years later, the businesses’ claims for damages were just ruled on at the Ninth Circuit. How did they do? Not well. As IJ’s Robert Fellner explains, there is no duty for the police to protect you from the crimes of others. We explore whether that really describes what happened in the CHOP zone. And before that, Daniel Nelson of IJ details a Fourth Circuit ruling about a Native American tribe’s attempt to recover the remains of two boys who died over a century ago. The boys were forcibly taken from their families and put in a “reeducation” school in Pennsylvania that then led to their deaths. Today, their remains are on U.S. Army property. What responsibility does the federal government have to the tribe to return the remains under the Native American Graves Protection and Repatriation Act? The majority says in this case the tribe wins but the larger issue remains quite complicated.

Click here for transcript.

Winnebago Tribe of Nebraska v. US Army

3PAK, LLC v. Seattle

DeShaney v. Winnebago Cnty.

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