Short Circuit

Latest Episodes:

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

Show notes

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.

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Newell-Davis v. Phillips

Caskey v. Fenton

St. Joseph Abbey v. Castille

Taylor v. Riojas

Short Circuit 249 | Licensed to Work Dec 08, 2022

Show notes

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.

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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

Show notes

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.

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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

Show notes

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!

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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

Show notes

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.

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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

Show notes

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.

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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

Show notes

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.

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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

Show notes

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.

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McKinney v. City of Middletown

Carroll v. Trump

United States v. Green

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

Show notes

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.

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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

Show notes

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