Short Circuit

Latest Episodes:

Short Circuit 199 | The Right Not To Be Framed and It’s Greek To Me Dec 09, 2021

Show notes

In what may be the most obvious of examples of obvious constitutional violations, we discuss the right to not have the police put you in prison. Alexa Gervasi of IJ explains how this was too much even for qualified immunity to defeat, at least in the Third Circuit. And IJ’s Ryan Wilson explains why a case involving a Greek boat accident can go forward in Boston. No, the captain’s name was not Odysseus.

Dave Kennedy Fellowship, https://ij.org/opportunities/students
Litigation Fellowship, https://ij.org/opportunities/employment-opportunities/
Dennis v. City of Philadelphia, https://www2.ca3.uscourts.gov/opinarch/192390p.pdf
Curtis v. Galakatos, http://media.ca1.uscourts.gov/pdf.opinions/20-1846P-01A.pdf
For 25 Years, Jimmy Dennis Was on Death Row. Then One Day, He Wasn’t., https://www.phillymag.com/news/2021/02/06/jimmy-dennis-musician-death-row/
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Ryan Wilson, https://ij.org/staff/ryan-wilson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 198 | International Trade and Standing for Guns Dec 02, 2021

Show notes

Where do you go to challenge an illegal tax? Well, if that tax is a tariff your destination is the United States Court of International Trade. Learn all about this corner of the Article III judiciary, and how tariffs for once took a beating before it, from Eric Boehm, a reporter at Reason. Also, we return to a frequent subject on Short Circuit, the Pennsylvania Supreme Court, with IJ's Josh Windham. That court just made it a little easier to challenge restrictions on gun rights, although it really shouldn't have been that hard in the first place.

Solar Energy Industries Assoc. v. U.S., https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf
Firearm Owners Against Crime v. City of Harrisburg, https://casetext.com/case/firearm-owners-against-crime-v-city-of-harrisburg-1
A Judge Just Did What Biden Wouldn't: Dump Some Trump Tariffs, https://reason.com/2021/11/17/a-judge-just-did-what-biden-wouldnt-kill-some-trump-tariffs/
Eric Boehm, https://reason.com/people/eric-boehm/
Josh Windham, https://ij.org/staff/joshua-windham/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 197 | No Vehicles in the Park Remix Nov 19, 2021

Show notes

Fans of the Hart-Fuller debate are gonna love this one. As will normal people who have no idea what that means. Legal philosopher HLA Hart asked whether a rule saying “no vehicles in the park” included bicycles, toy cars and airplanes. But now the D.C. Circuit has been asked, what about trailers? D.C. Circuit guru and IJ attorney Jeff Redfern explains what’s a vehicle and what isn’t according to that court’s recent opinion on fuel efficiency standards. Meanwhile out West, it’s hard to get on the ballot in Big Sky Country. IJ election expert Paul Sherman walks us through how the Ninth Circuit found Montana’s rather bizarre system of ballot access partly constitutional, but partly not. Our apologies, but there’s some math.

Truck Trailer Manufacturers Assoc. v. EPA, https://www.cadc.uscourts.gov/internet/opinions.nsf/233083B9809082A28525878B0053FE5B/$file/16-1430-1922005.pdf
Montana Green Party v. Jacobsen, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/08/20-35340.pdf
HLA Hart, Positivism and the Separation of Law and Morals, http://www.horty.umiacs.io/courses/readings/hart-1958-positivism-separation.pdf
Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, https://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-%20A%20Reply%20to%20Professor%20Hart.pdf
HLA Hart Interview, https://www.youtube.com/watch?v=xgigb36aC7Y
Richard Winger’s Ballot Access News, https://ballot-access.org/
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Paul Sherman, https://ij.org/staff/psherman/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 196 | 50 Years of “Our Federalism” Nov 12, 2021

Show notes

In addition to some other civil rights anniversaries, 2021 marks 50 years since the Supreme Court decided Younger v. Harris. There, the Court made it extremely hard for federal courts to stop an unconstitutional state prosecution. This “Younger abstention” doctrine has been with us ever since. Professor Fred Smith of Emory Law joins us to discuss what Younger’s impact has been and how it has especially made it difficult to fight state court systems that have become de facto debtors’ prisons. Additionally, we hear from Sam Gedge of IJ who gives us some of the background on the case and perspective on litigating civil rights cases with it looming in the background. We close with an investigation on where the heck the term “Our Federalism” (which Younger relies upon without citation) came from. Hint: Its first name is Felix.

Younger v. Harris, https://supreme.justia.com/cases/federal/us/401/37/
Fred Smith Jr., Abstention in the Time of Ferguson, https://harvardlawreview.org/wp-content/uploads/2018/06/2283-2358_Online.pdf
Michael Collins, Whose Federalism?, https://core.ac.uk/download/pdf/217202953.pdf
Fred Smith Jr., https://law.emory.edu/faculty/faculty-profiles/smith-fred-profile.html
Sam Gedge, https://ij.org/staff/sam-gedge/
Anthony Sanders, https://ij.org/staff/asanders/

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Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

Short Circuit 195 | Pride and Prejudice in Prison Oct 28, 2021

Show notes

What’s too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court’s bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you’ve already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to.

Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf
Miranda v. City of Casa Grande, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/19/20-16905.pdf
Rob Johnson, https://ij.org/staff/rjohnson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 194 | Arboreal Takings and the Sidewalks of New York Oct 21, 2021

Show notes

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of the landowner’s mitigation efforts. At least that’s what Wesley Hottot reports the Sixth Circuit said last week. There’s also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He’s also a birdwatcher, which comes in handy in this tree case. Meanwhile, there’s some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There’s also some Commerce Clause talk and what’s a “substantial effect” on commerce these days.

F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf
Jingrong v. Chinese Anti-Cult World Alliance, Inc., https://www.ca2.uscourts.gov/decisions/isysquery/e636d947-d9e2-44a4-9967-bbad7fe70ba6/1/doc/18-2626_complete_opn.pdf
The Sidewalks of New York, https://www.youtube.com/watch?v=wsx_uxISjM0

Kirtland’s Warbler, https://www.allaboutbirds.org/guide/Kirtlands_Warbler/id
Hermit Thrush, https://www.allaboutbirds.org/guide/Hermit_Thrush/id
Wesley Hottot, https://ij.org/staff/whottot/
Daniel Rankin, https://ij.org/staff/daniel-rankin/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 193 | Hamilton Singing Fire in a Crowded Theater Oct 15, 2021

Show notes

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil forfeiture case. Yet that came to pass in the First Circuit, and IJ attorney Bob Belden explains why it turns out the family that owned the letter were throwing away their shot. Meanwhile in the Second Circuit a fire on a movie set turns into a First Amendment retaliation claim. Kirby Thomas West joins us not to warn of the dangers of shouting fire, but what a fire chief who is your boss might do to you if you speak up on other topics.

Specht v. City of New York, https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/hilite/
United States v. Letter from Alexander Hamilton to the Marquis de Lafayette Dated July 21, 1780, http://media.ca1.uscourts.gov/pdf.opinions/20-2061P-01A.pdf
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Bob Belden, https://ij.org/staff/bob-belden/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 192 | Standing Up for a Dollar Oct 08, 2021

Show notes

It’s taken five years, but the clients of IJ senior attorney Paul Avelar can now finally get their day in court thanks to a ruling in the Ninth Circuit. Paul joins us to explain why it takes so long to just try and vindicate your rights, and how Arizona’s (thankfully former) civil forfeiture system allowed prosecutors to keep people’s property over and over again, including, at first, his client’s car. Meanwhile things got SALT-y in the Second Circuit where whatever you think about the state-and-local-income-tax deduction the court says it’s not constitutionally guaranteed. Former New Yorker and IJ attorney Will Aronin uses some family-friendly yet SALT-y language to describe the state’s high taxes and it and a few other states’ successful efforts to have standing, but unsuccessful attempts at anything else.

Transcript forthcoming.
Platt v. Moore, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/04/19-15610.pdf
State of New York v. Yellen, https://www.ca2.uscourts.gov/decisions/isysquery/3d29ff16-5377-4bc7-8ba4-429d01cedd38/1/doc/19-3962_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3d29ff16-5377-4bc7-8ba4-429d01cedd38/1/hilite/
Adam Shelton, The Article IV, Section 3 Controversy, https://ij.org/cje-post/the-article-iv-section-iii-controversy/
Paul Avelar, https://ij.org/staff/pavalar/
Will Aronin, https://ij.org/staff/will-aronin/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 191: Judicial Activism for Reals Oct 01, 2021

Show notes

Frustrated with the deeply complicated issue of homelessness on Los Angeles’s skid row, a district court took the law into its own hands and ordered a lot of stuff to happen. One problem (of many) with that was the plaintiffs didn’t ask for the stuff. So it wasn’t too hard for the Ninth Circuit to reverse, as Jeff Rowes explains. He and his colleague Diana Simpson also discuss their own work on homelessness issues at the Institute for Justice and how the law often prevents small solutions to a very large problem. Diana also explains why you’re unlikely to have an insurance policy that covers the pandemic, as a colorful Sixth Circuit opinion tells us about a usually colorless subject. Finally, your host learns that asteroids actually have killed some people.

IJ’s Fall 2021 Legal Intensive in Chicago, https://ij.org/opportunities/students/legalintensive-fall2021/
LA Alliance for Human Rights v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf
Santo’s Italian Café, LLC v. Acuity Insurance Co., https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0224p-06.pdf
IJ’s North Carolina Right to Shelter case, https://ij.org/case/north-carolina-shelter-zoning/
Jeff Rowes, https://ij.org/staff/jrowes/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 190: A Crime a Day in Prison Sep 23, 2021

Show notes

Mike Chase, author of “How to Become a Federal Criminal” and the man behind the @CrimeADay Twitter account, joins us to lay out the Eighth Circuit’s take on Congressman Devin Nunes suing people he doesn’t agree with. IJ attorney Diana Simpson then explains how an especially talented prisoner has won two cases at the Ninth Circuit over the cold turkey tactics of his jailers. Mike also relates to us some of his experiences representing prisoners and how they often have very meritorious claims.

Nunes v. Lizza, https://ecf.ca8.uscourts.gov/opndir/21/09/202710P.pdf
Coston v. Nangalama, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/19-16450.pdf
8th Circuit’s Bizarre Ruling in Devin Nunes’ SLAPP Suit Against Reporter Ryan Lizza, https://www.techdirt.com/articles/20210915/12225347567/8th-circuits-bizarre-ruling-devin-nunes-slapp-suit-against-reporter-ryan-lizza.shtml
Mike Chase, How to Become a Federal Criminal, https://www.amazon.com/How-Become-Federal-Criminal-Illustrated/dp/1982112514
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

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