Short Circuit

Latest Episodes:

Short Circuit 159: The Sub-Rational Basis Test Jan 22, 2021

Show notes

When a judge asks you a question, it’s best to give an answer. We briefly discuss an oral argument that IJ Senior Attorney Rob Frommer had last week on South Carolina’s civil forfeiture laws, and listen to some non-answers his opposing counsel gave. Then it’s on to the Fifth Circuit where the court wrestles with a COVID-19 order shutting down Louisiana’s bars, and the Seventh Circuit where both the plaintiff and defendant have some unconventional positions on standing. If you’re playing Short Circuit bingo this episode has got you covered: “Lochner,” “rational basis,” “civil forfeiture,” “Twitter Laureate,” and “subtreasury.”

Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-159.pdf
South Carolina Civil Forfeiture, https://ij.org/case/south-carolina-civil-forfeiture/
Big Tyme Investments, LLC v. Edwards, https://www.ca5.uscourts.gov/opinions/pub/20/20-30537-CV0.pdf
Thornley v. Clearview AI, Inc., http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-14/C:20-3249:J:Hamilton:con:T:fnOp:N:2644794:S:0
A Tale of Two Cases and Two Pandemics, https://ij.org/cje-post/a-tale-of-two-cases-and-two-pandemics/
Rob Frommer, https://ij.org/staff/rfrommer/
Josh Windham, https://ij.org/staff/joshua-windham/
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 158 | Privileges or Immunities and Consent Decrees Jan 14, 2021

Show notes

The Fourteenth Amendment’s Privileges or Immunities Clause resurfaces in the Seventh Circuit, where the State of Indiana treated some newcomers differently from some long-time residents. Meanwhile, an Arkansas school district augments a consent decree from the days of school desegregation. But there’s a question of whether it did so for the right reasons.

Transcript: https://ij.org/wp-content/uploads/2021/01/short-circuit-158.pdf
Hope v. Commissioner of Indiana Department of Correction, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-06/C:19-2523:J:Rovner:aut:T:fnOp:N:2640105:S:0
Junction City School District v. Arkansas Department of Education, https://ecf.ca8.uscourts.gov/opndir/20/12/191340P.pdf
Saenz v. Roe, https://supreme.justia.com/cases/federal/us/526/489/
Justin Pearson, https://ij.org/staff/justin-pearson/
Robert Peccola, https://ij.org/staff/rpeccola/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 157 | State Constitutionalists Are the Veterinarians of Law Jan 07, 2021

Show notes

How do you put together a campaign of litigation under various state constitutions across the country? And how to you get state courts to take their own constitutions seriously? On this special Short Circuit we explored these questions through the history of marriage equality litigation in state courts before the issue went to the U.S. Supreme Court. Joining host Anthony Sanders were Professors Lee Carpenter and Ellie Margolis of Temple University’s Beasley School of Law who recently wrote an article on this subject. They recount the history of marriage equality litigation and more broadly examine what to think about when litigating under state constitutions. Whatever the issue is that you’re fighting for—including a few we fight for at the Institute for Justice, such as eminent domain abuse and economic liberty—this is a fun “how to” conversation for public interest lawyers of all kinds.

Transcript: https://ij.org/wp-content/uploads/2021/01/Short-Circuit-157-transcript.pdf
One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3693109
Lee Carpenter, https://www.law.temple.edu/contact/leonore-f-carpenter/
Ellie Margolis, https://www.law.temple.edu/contact/ellie-margolis/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 156 | The Navigable Waters, Recording Cops, and People in Church Dec 23, 2020

Show notes

Is it time for the Supreme Court to spread some privileges or immunities cheer? Michael Bindas discusses a cert petition pending at SCOTUS on navigating the navigable waters, one of the few rights the Court has said the Privileges or Immunities Clause protects. He also tells us about a Ninth Circuit case on COVID orders and religious liberty. Meanwhile, Diana Simpson digs into a very deep dive of a First Circuit opinion on recording the cops in Massachusetts. Turns out the First Amendment protects it.

Transcript: https://ij.org/wp-content/uploads/2020/12/short-circuit-156.pdf
Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/
Project Veritas Action Fund v. Rollins, http://media.ca1.uscourts.gov/pdf.opinions/19-1586P-01A.pdf
Calvary Chapel Dayton Valley v. Sisolak, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/15/20-16169.pdf
Michael Bindas, https://ij.org/staff/mbindas/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 155 | Only 160 Felonies Dec 10, 2020

Show notes

The first two items in the Bill of Rights get top billing. Does a nine-year-old felony conviction for tax fraud justify continuing to deny someone their Second Amendment right to keep and bear arms? That’s something the Third Circuit addressed, with a spirited dissent. Patrick Jaicomo discusses this case about the Second in the Third. Meanwhile, the Fifth Circuit recognizes that new law has come to light regarding the First Amendment, and that changes everything for Dr. Ron Hines, in his quest to bring telemedicine to our animal friends. Without the aid of a fifth, Ari Bargil gives us the history of quite a bit of speech and rational basis action over the last few years in Circuit Number Five.

Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-155-Edited.pdf
Folajtar v. Attorney General (2d Amendment case in the 3d Cir.), https://www2.ca3.uscourts.gov/opinarch/191687p.pdf?mkt_tok=eyJpIjoiT1RjNU56ZzVZVGhoWXpkayIsInQiOiJwbkE1NUdDNmN4ZStQQmlNQWxlUEQ0QWUwanY0ZVp6QWF3ZCtGWGI1ajRqa2t2TzhTTkZUcFhzNWw1XC9qcnpuamJVWXhybnhUc2ZmaHZYdnlnd2RodkxiODlCdVB1ZkJGOUJVZXJaVkYwZzNBRUVCUFJSbU00TUNnRjNpeHpLVFcifQ%3D%3D
Hines v. Quillivan, http://www.ca5.uscourts.gov/opinions/pub/19/19-40605-CV0.pdf
Engblom v. Carey (3d Amendment case in the 2d Cir.), https://casetext.com/case/engblom-v-carey
St. Joseph Abbey v. Castille, http://www.ca5.uscourts.gov/opinions%5Cpub%5C11/11-30756-CV1.wpd.pdf
Facts, Not Fantasy, https://ij.org/cje-post/facts-not-fantasy/
Bound By Oath podcast, https://ij.org/boundbyoath
Deep Dive podcast, https://ij.org/podcasts/deep-dive-podcast/
Brownback v. King, https://ij.org/case/brownback-v-king/
Tim Sandefur, Rational Basis and the 12(b)(6) Motion: An Unnecessary “Perplexity”, https://pacificlegal.org/wp-content/uploads/2014/11/Sandefur12b6.pdf
Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/
Ari Bargil, https://ij.org/staff/ari-bargil/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 154 | Class action coupons and a building for Buddhists Nov 30, 2020

Show notes

Class action expert Ted Frank joins to discuss a Ninth Circuit case where the court didn’t think giving class members crummy coupons warranted almost $15 million in attorneys fees. IJ Senior Attorney Jeff Rowes then gets some religion about land use and how the Alabama Constitution protects Buddhists in starting a meditation center.

Transcript: https://ij.org/wp-content/uploads/2020/12/Short-Circuit-Episode-154-Edited.pdf
Chambers v. Whirlpool Corp., https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/10/16-56666.pdf
Thai Meditation Association of Alabama v. City of Mobile, https://media.ca11.uscourts.gov/opinions/pub/files/201912418.pdf
Ted Frank, https://hlli.org/ted-frank/
Jeff Rowes, https://ij.org/staff/jrowes/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 153 | The Wire and Dairy Cows Nov 12, 2020

Show notes

Ever seen The Wire? Do you think those cops could have seriously used a team of drones taking photos of Stringer Bell for 12 hours a day? Turns out so does the city of Baltimore itself, whose drone surveillance program was reviewed (yet upheld) by the Fourth Circuit last week. Also, the team discusses what the Washington State Constitution has to do with privileges or immunities in the dairy industry.

Transcript: https://ij.org/wp-content/uploads/2020/11/Short-Circuit-Episode-153-Edited.pdf
Leaders of a Beautiful Struggle v. Baltimore Police Department, https://www.ca4.uscourts.gov/opinions/201495.P.pdf
Martinez-Cuevas v. Deruyter Brothers Dairy, http://www.courts.wa.gov/opinions/pdf/962677.pdf
Courtney v. Danner, https://ij.org/case/lake-chelan-ferries/

Dan Alban, https://ij.org/staff/dalban/
Wesley Hottott, https://ij.org/staff/whottot/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 152: Election Law 2020 Special Oct 29, 2020

Show notes

What is with up with the torrent of election law cases coming out these days? IJ’s Diana Simpson and Anthony Sanders are here to give you the scoop. Actually, quite a few scoops, served up in the circuit courts of appeals the last few weeks, and even a couple Supreme Court cases, and a state supreme court case, thrown in. Cut down on just a smidgen of election confusion while time for that is running short.

Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/

Wise v. Circosta, https://www.ca4.uscourts.gov/Opinions/202104R1.P.pdf
Texas League of United Latin American Citizens v. Hughs, http://www.ca5.uscourts.gov/opinions/pub/20/20-50867-CV0.pdf
The New Georgia Project v. Raffensperger, https://media.ca11.uscourts.gov/opinions/pub/files/202013360.pdf
Richardson v. Hughs, http://www.ca5.uscourts.gov/opinions/pub/20/20-50774-CV0.pdf
Texas Democratic Party v. Abbott, http://www.ca5.uscourts.gov/opinions/pub/20/20-50407-CV1.pdf
Memphis A. Philip Randolph Institute v. Hargett, https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0331p-06.pdf
Priorities USA v. Nessel, https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0336p-06.pdf
Democratic National Committee v. Wisconsin State Legislature, https://www.scotusblog.com/case-files/cases/democratic-national-committee-v-wisconsin-state-legislature/
Republican Party of Pennsylvania v. Boockvar, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-542.html

Short Circuit 151 | Lifetime Leases and Butterflies on Walls Oct 22, 2020

Show notes

We don’t recommend converting apartments into condos in San Francisco. But if you do, it might be hard to bring a takings claim, as we find out why from a recent denial of en banc review in the Ninth Circuit. Meanwhile, the question at the D.C. Circuit is whether butterflies mix with walls. Specifically, The Wall. Turns out, the National Butterfly Center is an open field, so the Fourth Amendment doesn’t have much of a butterfly effect. But the butterflies do have a due process claim, at least for butterfly procedures. Also, next week stay tuned for our election law extravaganza.

Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-Episode-151-Edited.pdf
Pakdel v. City and County of San Francisco, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/13/17-17504.pdf
National American Butterfly Association, https://www.cadc.uscourts.gov/internet/opinions.nsf/0/EEB0F5AB2D921F4685258600004FBB76/$file/19-5052-1865847.pdf
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Kirby West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 150 | Vacation rentals, COVID orders, and Electoral College studies Oct 08, 2020

Show notes

On October 16, 2020 the Center for Judicial Engagement is hosting a special online event, our forum on judicial engagement and the Pennsylvania Constitution. Register today at the link below to join in the state constitutional fun! (Plus free CLE for PA bar members.) In the meantime, we discuss a few recent Pennsylvania cases as the warm-up act for the forum next week. Recent cases on economic liberty and separation of powers under the Pennsylvania Constitution get co-equal time, and we also hypothecate (but only hypothecate) on whether a governor can veto a legislature’s attempt to appoint Presidential electors.

iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019
Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview
Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit
Google: https://podcasts.google.com/feed/aHR0cDovL2ZlZWRzLnNvdW5kY2xvdWQuY29tL3VzZXJzL3NvdW5kY2xvdWQ6dXNlcnM6ODQ0OTMyNDcvc291bmRzLnJzcw?sa=X&ved=2ahUKEwjTsdf7z5bsAhXbhXIEHWCfCZwQ9sEGegQIARAM
Newsletter: ij.org/about-us/shortcircuit/
Want to email us? shortcircuit@ij.org

October 16, 2020 Pennsylvania Constitution State Forum registration, https://ij.org/event/145311-2/

Transcript: https://ij.org/wp-content/uploads/2020/10/short-circuit-150.pdf
Ladd v. Real Estate Commission, https://ij.org/wp-content/uploads/2017/07/PPM-Decision.pdf
Wolf v. Scarnati, https://law.justia.com/cases/pennsylvania/supreme-court/2020/104-mm-2020-0.html
Josh Windham, https://ij.org/staff/joshua-windham/
Adam Shelton, https://ij.org/staff/adam-shelton/
Anthony Sanders, https://ij.org/staff/asanders/

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