Short Circuit

Latest Episodes:

Short Circuit 240 | Live at Columbia Law! Oct 07, 2022

Show notes

Enjoy some intra-Ivy League ribbing with two Yale grads talking law and clerkships from deep inside New York’s oldest university. Short Circuit welcomes David Lat of Original Jurisdiction (f/k/a Article III Groupie) and Michael Yaeger of Carlton Fields and Empirical Justice. After some throat clearing about their alma mater being in the news quite a bit lately—and how for that reason maybe it’s a good thing David and Michael already got their clerkships in—we discuss their experiences working on the Ninth and Third Circuits. We then dive into some cases: David outlines a speech-and-licensing decision where IJ filed an amicus brief, Michael guides us through the weeds of a sentencing case applying the First Step Act, and your host lays out a sovereign immunity opinion involving state court staff where (unlike a certain recent case involving Texas courts) the government doesn’t win (plus—for interested listener(s)—there’s even some Younger abstention!).

It’s the first half of a New York Short Circuit Live double header this month. As for the second, on October 26th, you’re invited! Click to RSVP below.

RSVP for Short Circuit Live in NYC on 10/26 here!

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Tingley v. Ferguson

U.S. v. Chen

Courthouse News Service v. Gilmer

IJ’s Diet Speech Cert Petition

Short Circuit 239 | SCOTUS Preview Live from UNC Sep 30, 2022

Show notes

What’s new in OT22? Quite a bit, it turns out. This is our sixth annual Short Circuit Live Supreme Court Preview from the University of North Carolina School of Law. Once again, the student Federalist Society chapter graciously asked us to visit and preview the upcoming term of the United States Supreme Court, with some lighthearted trivia, a deep dive into a couple cases already being heard by the Court, and a couple more that it might. As in past years, it’s Justin Pearson of IJ vs. Professor Andrew Hessick of UNC. One note for you listeners is that there’s questions from the crowd at the end (which were great!) but you can’t hear them on the podcast. However, don’t worry as our panelists helpfully repeat them for you. By the way, one of those questions comes from a mystery guest . . .

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National Pork Producers Council v. Ross

Moore v. Harper

Kokesch v. Florida Dept. of Health

Moses v. United States

Book by the Mystery Guest (that you should read!)

Short Circuit 238 | Dude, Where’s My Passport? Sep 22, 2022

Show notes

If a doctor says a prisoner needs to take his medication, and you’re a prison guard, you should give the prisoner his medication. A number of prison officials in Utah seem to have failed to do this for someone in detox, leading to his death. Does that violate the Eighth Amendment’s prohibition on cruel and unusual punishments? Yes, said the Tenth Circuit, and the right is clearly established too, defeating qualified immunity. Tori Clark brings us this sobering case where, at least this time, the drunken logic of qualified immunity didn’t rear its ugly head. Also, we discuss what happens when you don’t pay your taxes and then sue about them. Turns out you can’t do that. You also might have your passport taken away. Which raises the question of whether you have a right to do that thing the passport is for—international travel. We pontificate about a Fifth Circuit case concerning taxes and a passport where there’s also a couple elephants in the room.

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Paugh v. Uintah County

Franklin v. U.S.

Short Circuit 237 | Live at the University of Montana Sep 16, 2022

Show notes

It’s the first Big Sky Short Circuit! Recorded in front of students at the University of Montana School of Law, we examine three cases from the Montana Supreme Court (or heading quickly toward it) from three eminent Montana attorneys. There’s cases on government immunity, racial balance on juries, and voting rights, intersecting with state law and the Montana Constitution. We also explore practicing in Big Sky Country and reforms the state supreme court might want to consider. The podcast was recorded in conjunction with a symposium of the Montana Law Review’s celebration of the 50th anniversary of the adoption of the Montana Constitution. Whether you’re interested in Montana itself, or just in state law principles and how state constitutions interact with the rest of our legal system, we hope you’ll enjoy this broad exploration of those topics.

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L.B. v. United States

State v. Wellknown

Montana Youth Action v. Jacobsen

Short Circuit 236 | Constitutions and Common Law Sep 08, 2022

Show notes

When you sue the government for violating your rights do you first need the government’s permission? Unfortunately, the answer is usually “yes.” We look at a pair of recent cases that go in different directions on the issue, and this leads us to some pretty “deep thoughts” about where law comes from and what roles courts and legislatures have in finding remedies to address constitutional violations. The words “common law” come up much more than is generally common for the podcast. First Anya Bidwell explains how the Tenth Circuit denied a prisoner a chance to sue a prison guard based on a recent Supreme Court decision that effectively closed the door on new remedies when federal officials violate the Constitution. Then, in contrast, Ben Field details a case from the Michigan Supreme Court where the majority recognized a remedy for violations of the state constitution. In addition, the dissent says some interesting things about legal history that we explore. It’s often repeated that if there is a right there is a remedy too. We try to find out how true that actually is.

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Join us for Short Circuit Live in NYC on Oct 26!

Silva v. U.S.

Bauserman v. Unemployment Insurance Agency

50 Shades of Government Immunity

Short Circuit 235 | Smelly Short-Term Rental Laws Sep 02, 2022

Show notes

We all know that guests, like fish, begin to smell after three days, But what about short-term rental ordinances? We look at a pair of regulations from New Orleans and Jersey City. One the Constitution bids farewell to, but the other still stinks. Ari Bargil explains how the Fifth Circuit found the New Orleans scheme lacking under the dormant Commerce Clause. However, Erica Smith Ewing—after explaining how Jersey mayors shake down various industry groups—tells us how the Jersey City ordinance survived a trio of challenges, but at least sparked an interesting concurrence about the future of regulatory takings law. Come for the guests, stay for the fish. And you’ll learn a smidgen about Elizabethan author John Lyly as well.

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Hignell-Stark v. City of New Orleans

Nekrilov v. City of Jersey City

John Lyly, Euphues and His England

Gideon Kanner, Making Laws & Sausages

Short Circuit 234 | Treaties With Tribes Aug 26, 2022

Show notes

Do you know your Indian Law from your Tribal Law? If not, Minnesota appellate attorney Scott Flaherty joins us to discuss a recent Seventh Circuit case where a Wisconsin band of the Ojibwe vindicated their treaty rights. Indian law is notoriously complicated with a lot of unsettling history, but Scott helpfully walks us through this latest chapter. Also, pursuing his white whale of Younger abstention, Sam Gedge of IJ details a refreshing rejection of that doctrine in the Fourth Circuit. Could this harpoon hit the spot? Captain Ahab himself also makes an appearance.

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Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers

Jonathan R. v. Justice

Younger v. Harris

Episode on Younger v. Harris with Fred Smith

Scott Flaherty

Sam Gedge

Anthony Sanders

Short Circuit 233 | Frozen Lawns and Nashville Blues Aug 22, 2022

Show notes

Property rights leads the way this week, with a little bit of intervention thrown in. Paul Avelar of IJ joins us to present a Sixth Circuit case where the owners committed the crime of landscaping their lawn without permission. He also discusses some recent goings on in the city of Nashville, Tennessee to do with home based businesses and code enforcement, including a recent ruling of the Tennessee Supreme Court. In addition, your host Anthony Sanders tells a tale of wine and intervention, also in the Sixth Circuit. Don’t worry, there wasn’t “an intervention” related to wine, but the intervenors who aren’t happy about wineries were able to intervene.

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See Short Circuit Live in New York on October 26!

Stevens v. City of Columbus

Wineries v. Township of Peninsula

Shaw v. Nashville

Code Snitching in Nashville (Radley Balko story)

Short Circuit 232 | Abolish the Zoning Aug 09, 2022

Show notes

We welcome Nolan Gray on this week, author of the new book Arbitrary Lines: How Zoning Broke the American City and How to Fix It. Nolan is a city planner, scholar, and writer on all things urban. And he has it out for “zoning,” that method city planners love so much where they separate land uses from each other and end up controlling the finest details of what people get up to on their own property. He joins us for a detailed journey through zoning’s history, how humans got along for so long without it, why it creates so many more problems than it solves, and why it’s become so much worse. Further, he explains why often what we think of as “zoning” is actually something else and that there are many land-use tools cities have that would work fine without it.

Click here for episode transcript.

Arbitrary Lines

Village of Euclid v. Ambler Realty Co.

Nolan Gray

California YIMBY

Anthony Sanders

Short Circuit 231 | Focus on What Matters Aug 04, 2022

Show notes

A couple cases this week where federal courts, at least in part, paid attention to the right things. Joined by the leaders of IJ’s Project on Immunity and Accountability, Anya Bidwell and Patrick Jaicomo, we dig into a couple recent denials of qualified immunity. Patrick discusses a case from the Fifth Circuit where a sheriff’s deputy committed some extremely heinous acts while on a “welfare check.” There’s Fourth Amendment and due process claims, and they’re addressed in a rather unusual way. Then Anya flies us out to Honolulu for a building inspector who was very hard to please. It’s a racial discrimination appeal under a civil rights law that goes back to before the Fourteenth Amendment. But first Patrick tells us of his musical exploits on a home synthesizer.

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Tyson v. County of Sabine

Toshikawa v. Seguirant

Cert petition in Minnesota CSI (IJ case)

Anya & Patrick’s article on Recalibrating Qualified Immunity

Anya Bidwell

Patrick Jaicomo

Anthony Sanders