Short Circuit: Recent Episodes
Institute for Justice
The Supreme Court decides a few dozen cases every year; federal appellate courts decide thousands. So if you love constitutional law, the circuit courts are where it’s at. Join us as we break down some of the week’s most intriguing appellate decisions with a unique brand of insight, wit, and passion for judicial engagement and the rule of law. http://ij.org/short-circuit
Florida, man. Always fun when we touch base with the latest culture war issues in the Sunshine State. Which usually means we’re talking about the Eleventh Circuit. Which is what IJ’s Keith Neely does concerning the “Stope Woke Act,” the state’s attempt to prohibit the endorsement of certain “woke” views in, as applied in this case, its public universities. The court ruled the law was unconstitutional viewpoint discrimination when it comes to higher education. To get there, though, it had to weave its way through a confusing and somewhat contradictory set of cases about government speech, government employee speech, and academic freedom. After that we move to the Fourth Circuit where some Georgetown law students scored a victory for a Jamaican immigrant who tried to appeal an administrative decision but couldn’t because the court’s online docket system wouldn’t work and the clerk at the filing window wouldn’t take his papers. Ben Marsh of IJ, himself a Georgetown grad, details how the court ruled that such behavior isn’t on the due process up-and-up. And for fans of “where are they now,” we end with some updates on cases from Short Circuit’s past.
Burey v. Blanche
Pernell v. Comm. of the Fl. Bd. Ed.
Jouppi v. Alaska
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
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
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.
The Horsemen v. Black
Sligo Creek Ctr v. DHHS
1st HISA episode
Seventh Circuit Judicial Conference episode
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.
Amacher v. Tullahoma
NetChoice v. Yost
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.
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
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.
Roberts v. Thompson
Jackson v. Madison
Bound By Oath
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
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.
Morris v. U.S.
Hall v. Fleming
Bound By Oath episode on the FTCA
Locke v. Davey
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
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.
Winnebago Tribe of Nebraska v. US Army
3PAK, LLC v. Seattle
DeShaney v. Winnebago Cnty.
In our #12Months12Circuits series it’s time to drink an entire Fifth. Now, regular listeners will be very familiar with the Fifth Circuit’s waters and may hesitate from such an undertaking. But true fans of the federal courts of appeals should be pleased, as we take an even closer look than we have before at the ins-and-outs of the federal circuit for Louisiana, Mississippi, and Texas. To help us we welcome on Jessica Underwood, a former Fifth Circuit clerk and now an attorney in Austin, Texas. She reports on a recent Fifth Circuit case on the False Claims Act, explains what the FCA does, and how it accounts for billions of dollars in litigation. In addition to discussing the court’s analysis of what makes for a proper FCA claim, Jessica digs into a concurrence that argues the FCA might be unconstitutional. Then, IJ’s Christie Hebert tells us of another recent Fifth Circuit opinion, this one about a guy who made a living transmitting public data about criminal defendants to potential defense attorneys. That worked well until the court started making some of the information private. Did he have a claim? No, it turns out. But the discussion gets into how the First Amendment might apply—sometimes—to information in the hands of the government.
Click here for transcript.
Montcrief v. Peripheral Vascular Assocs.
Martin v. Burgess
IJ’s Private Enforcement case in Colorado
Episode with Tom Metzloff on the split of the Fifth
You may remember Roy Moore’s 2017 campaign in Alabama for the U.S. Senate in which a controversy arose as to his behavior at the Gadsden Mall several decades before. And, further, that there were allegations that he was banned from the mall because of his friendliness with teenage girls. Include one who at one point was “Santa’s little helper.” After losing that race, Moore brought a defamation suit against the purveyors of a political ad that mentioned these mall/teenage girl allegations in a certain, perhaps misleading, order. And he won. Except, the Eleventh Circuit has now reviewed the matter and ruled that under the First Amendment’s protective standard for speech concerning public figures, Moore actually lost. Suranjan Sen of IJ details the wacky story and the mysteries of “actual malice” and defamation by implication. Then, IJ’s Prashanta Augustine details an en banc denial in the Fifth Circuit where the judges decided not to take up a challenge to the federal ban on machine guns. Even though the full court dodges the issue some judges indicate they think there would be meritorious Second Amendment challenges to the law in the future. And one even suggests there could be a Commerce Clause challenge as well.
Moore v. Cecil
U.S. v. Wilson (en banc denial)
U.S. v. Wilson (3 judge panel)
2003 Ninth Circuit machine guns opinion
Live from the University of Michigan we bring you the latest in administrative law with some of the top scholars and practitioners in the field. It’s Short Circuit’s first time at the home of the Wolverines and the first time we focus the law of administration—and all the constitutional angles that go along with it. We hear from Professors Nicholas Bagley and Christopher Walker of Michigan Law and from Zachary Larsen, a Michigan attorney who specializes in administrative law. The cases include rulings from the Second, Sixth, and D.C. Circuits over immigration, occupational licensing, and labor relations. Plus, we actually answer the question “what is administrative law, anyway?”
Mullin v. Doe
Paul v. FAA
Brown-Forman v. NLRB
Chenery II
John Wrench of IJ details the Fifth Circuit’s ruling that the federal ban on home distilling is unconstitutional. At least as the case was argued, which included the taxing power and the Necessary and Proper Clause, but not the Commerce Clause. Then, IJ’s Joe Gay discusses a Fourth Circuit case where the parents of a West Virginia student who attended a virtual school challenged the program’s vaccine mandate. The case raises interesting religious liberty and rational basis issues. And stay until the end for some “where are they now” updates.
But before you listen: MEGA UPDATE! Between the recording of this episode (April 20, 2026) and its release (May 1) the Sixth Circuit dropped its opinion on the same issue as the Fifth Circuit. In contrast to the Fifth, the Sixth concluded Congress’s taxing power does allow it to ban home distilling. (On this episode we speculate about what the Sixth Circuit was going to do. Feel free to laugh at our predictions.) The circuits are split! Or, one might even say, shorted.
McNutt v. US DOJ
Perry v. Marteney
Ream v. US DOJ (6th Cir. ruling)
Short Circuit traveled to the University of Pennsylvania in Philadelphia where the student Federalist Society chapter graciously hosted us and allowed us to present a live recording before their fellow law students. On the panel we were joined by professors Matthew Wiener and Mitchell Berman and Philadelphia lawyer Michael McGinley. On the podcast we give an overview of the Third Circuit as part of our #12Months12Circuits series and then dig into three recent Third Circuit cases. These include a reverse discrimination matter with an interesting state-law twist, a search of a suspect’s text messages that turns into the question of whether a constitutional rule is merely “prophylactic,” and an AI-assisted brief that divided the court on what sanctions to impose.
Massey v. Bergenfield
U.S. v. Curry
McCarthy v. DEA
Getting a jury is one of the most venerated constitutional rights Americans have. But if you’re before the Securities and Exchange Commission there’s been no veneration. Until now, as a recent Supreme Court case Jarkesy v. SEC has knocked the SEC back on its heels. So you’d think that other people before the SEC would be able to get their jury trials too. Unfortunately, though, to enforce that right you need to properly raise it—at least raise it in a way that’s good enough for the court you happen to be before. Which was not true at the Sixth Circuit, as IJ’s Will Aronin informs us. The court told a defendant that he didn’t argue the SEC was unconstitutionally denying him a jury early enough in the process. This seems weird because at that point Jarkesy hadn’t come out yet. Too bad so sad says the court, although it goes on to also say the defendant nevertheless raised some really good points. Then Andrew Ward of IJ discusses a qualified immunity case about a tragic shooting where a police officer seems to have far too easily used deadly force. The Tenth Circuit says there’s no qualified immunity for the officer on a Fourth Amendment claim even though there’s no case exactly like the one before it.
Smith v. SEC
Manning v. Tulsa
Jarkesy v. SEC
The Institute for Justice is once again taking a close look at civil forfeiture. One of IJ’s leaders in our civil forfeiture work, Dan Alban, joins us to outline our new report Policing for Profit 4. Some listeners may be familiar with previous editions but, as Dan explains, in this one there’s a lot of new information and analysis, especially how civil forfeiture works procedurally and how those procedures fail the Supreme Court’s mandate that they be “timely.” Dan also discusses a recent Sixth Circuit case involving Bitcoin and civil forfeiture and how innocent owners of crypto are sometimes caught up in the forfeiture process. Then Marie Miller of IJ discusses a recent Seventh Circuit case about another government abuse near and dear to our hearts: qualified immunity. Some officers raided a rural Wisconsin property where they tackled a suspect and then “accidentally” (that’s disputed) hit him in the head with the butt of an M16. The court says with the facts being in dispute to a jury the case should go.
Policing for Profit 4
U.S. v. 0.40401694 Bitcoin
Steinhoff v. Malovrh
Culley v. Marshall
Indiana parcel forfeiture case
BBO episode Pierson to Pearson
When the police ask you for an I.D., when do you have to hand it over? That depends on a lot of facts and a lot of law, including whether a state has a statute allowing an officer to make you hand the I.D. over. Mike Greenberg of IJ reports on a ruling from the Alabama Supreme Court where a cop demanded a man watering flowers tell him who he was. The man said he was “Pastor Jennings” and lived across the street. That wasn’t good enough for the cop and after some escalation Paster Jennings (who really did live across the street) was arrested. After a long march through the Eleventh Circuit the matter was certified to state court on the scope of the underlying statute. Along with that statute come Fourth Amendment issues. And whether the Erie doctrine is hogwash. Then IJ’s Betsy Sanz discusses a recent Sixth Circuit appeal involving a man serially suing his city. His claims, and their frivolity, are one matter but the more interesting part of the story is his lawyers’ use of AI in writing the briefs. The court is not happy with this, nor with the lawyers’ response to its attempt to investigate two dozen fake citations.
Register for “The Other Declarations of 1776” conference on April 10!
Jennings v. Smith
Whiting v. Athens (merits)
Whiting v. Athens (AI sanctions)
Hiibel v. Sixth Judicial Dist. Court
With a baker’s dozen of circuits it’s hard to pick a favorite. Or is it? We sit down with three lawyers and scholars to ask what their favorite circuit is and why. Ben Field of IJ gives us his choice and we also bring on professors Tom Metzloff of Duke and Dawn Chutkow of Cornell. You’ll hear their impressions on how the courts work, what makes them special, and some behind-the-scenes stories (and even a conspiracy theory). But before all that we have Ben dig into a recent Ninth Circuit case concerning a Seattle ordinance that mandates policies and disclosures for app-based delivery companies. Are those policies “speech” and if so what does the First Amendment have to say about sending them to drivers? Plus, at the very beginning we give a shocking update to our #12Months12Circuits segment on the Fourth Circuit from last week. It seems there’s some trouble in the paradise of western North Carolina—or more properly put, a lack of trouble. At oral argument. And despite the statute that everyone will now be talking about: 28 U.S.C. § 48(a).
Uber v. Seattle
28 U.S.C. § 48
Zauderer v. Office of Disc. Counsel
Evan Lisull of IJ tells us of a guy on probation who seems to have been pretty clever with his living arrangements. The police often don’t need a warrant to search the residence of a person on probation. In this case from the Fourth Circuit, the guy owned two properties, one of which he seemed to have lived at and the other of which he allowed his girlfriend to live in. But the girlfriend didn’t just hang out there, she had a lease with him. That lease, it turned out, was key to the court ruling the government should have got a warrant before it searched her apartment and seized thousands of dollars in cash. It’s a rare loss in a civil forfeiture case for the government. Then we go to the Eleventh Circuit where IJ’s John Korevec explains the ins-and-outs of the Federal Tort Claims Act. We explore new wrinkles on how to sue the federal government and the exceptions to the exceptions to the exceptions when doing so. Finally, we finish with a review of the Fourth Circuit as part of our #12Months12Circuits series.
Register for “The Other Declarations of 1776” conference on April 10!
U.S. v. Perez
Doe v. U.S.
Bound By Oath episode on the FTCA
We welcome on Sam MacRoberts of the Kansas Justice Institute for an inspection of the Fourth Amendment. Sam is the General Counsel and Litigation Director of KJI where he does things like sue the government. So he’s a perfect fit for Short Circuit. Sam tells us of a case he recently litigated about how his state’s inspection laws went to the dogs. Specifically, clients of his who ran a very small dog training business at their home and had to deal with abrupt, last-minute inspections where the state said it did not need to get a warrant. But Sam thought the Fourth Amendment seems to indicate it did. So the case went to the Tenth Circuit, which ruled Sam was right. The opinion digs into a judge-created exception to the warrant requirement concerning “closely regulated” businesses. What’s a “closely regulated business”? Sam tries to help us answer. As does Daniel Woislaw of IJ, who discusses our second case, a recent one from the Sixth Circuit, about what happens when the closely regulated exception is used in a criminal investigation. An employee of a bar in Michigan drank on the job and later was arrested for a DUI. The police investigated the bar itself and tried conducting a search as a part of the criminal investigation under the cover of a regulatory inspection. The court said you can’t use the easy search when you’re actually trying to do the hard one. Both cases and both guests give us a hard look into this frustratingly complicated area of constitutional law. Plus, at the end, we play a little “where are they now” and learn what’s happened to some cases of Short Circuits past.
Johnson v. Smith
Generis Entertainment v. Donley
Kansas Justice Institute
[Note: This episode was down for a couple days but has been reposted. It originally dropped on March 6, 2026.] If you’ve ever wondered if a sniff is a search, IJ’s Rob Frommer has you covered on this week’s episode. Well, he has you covered in explaining how the law is all over the place on the subject. Rob tells the story of a couple who were sleeping in their car in a Mississippi parking lot when a cop saw they had an empty bottle of Fireball whisky in the back. This quickly led to a K-9 dog sniff and a full search of the car which then led to a civil rights lawsuit. After that, Jaba Tsitsuashvili of IJ brings us another Fourth Amendment story, this one involving the ICE detentions and habeas petitions rolling across the country. A federal district judge in West Virginia had enough of the federal government’s unconstitutional tactics and wrote a fiery opinion lambasting ongoing violations of both the Constitution and immigration law. It was in the context of a specific detainee who was pulled over for having a plastic cover on his license plate. Jaba takes us through the opinion and the wider world of contemporary ICE tactics.
Register for “The Other Declarations of 1776” conference on April 10!
Wogan v. Rose
Urquilla-Ramos v. Trump
Florida v. Harris
Litigation is a risky business. Borrowing tens of millions of dollars to win a lawsuit is even more risky. And it turns out makes settling a case especially difficult. Patrick Eckler, Chicago attorney and co-host of the Podium and Panel Podcast, rejoins us to detail a wild Seventh Circuit story about an antitrust chicken (and pork and beef) lawsuit that got a bit spicy. Anyone who has tried to settle a case will want to give a listen—and then to do exactly not what happened. Patrick also explains what litigation financing is and why it’s something to handle with extreme caution. Then IJ’s Bert Gall takes us down the aisles of your local Trader Joe’s. A store had an employee it wasn’t happy with. Turns out that she wasn’t happy with them either and went to the National Labor Relations Board. She won a couple rounds of unfair labor practice litigation and then the matter went to the Fifth Circuit. The panel’s majority sided with her by deferring to the NLRB’s legal and factual findings but the dissent had a lot of problems with how that went, including in light of the fall of Chevron deference. Fans of labor law, administrative law, and spicy tortilla chips (but not Two-Buck Chuck) might find joy in this pop down to the shops.
Register for “The Other Declarations of 1776” conference on April 10!
Carina Ventures v. Pilgrim’s Pride
Trader Joe’s v. NLRB
Podium and Panel Podcast
In Colorado marijuana is legal under state law. In Kansas it is not. This had led Kansan police officers to stop a lot of cars with out-of-state plates. And after they stop the cars they come up with tactics to prolong the stops to buy time to look for weed. One of these tactics is the “Kansas Two-Step.” A lawsuit, on behalf of innocent people caught up in these stops, challenged the whole scheme, leading to a big-time injunction against the police. But, as IJ’s Jared McClain explains, on appeal the Tenth Circuit thought the injunction was just too big—even though the court recognized there were a lot of constitutional violations. Then we move to the Ninth Circuit where switchblade owners challenged California’s knife restrictions. Nick DeBenedetto tells us how the court upheld the law in a Second Amendment challenge and what Bowie knives (and various other weapons you may not be familiar with) have to do with it. Finally, we bring you the latest in our #12Months12Circuits series with a look at the Second Circuit, the circuit of the Big Apple.
Click here for transcript.
Shaw v. Smith
Knife Rights v. Bonta
Rodriguez v. U.S.
Nunchucks case
Our Second Circuit episode
An all-star conversation among Stanford professors, recorded live before Stanford students, about originalism and how it interacts with recent cases from the federal courts of appeals. Anya Bidwell hosts Jud Campbell, Jonathan Gienapp, and Orin Kerr on topics such as what originalism is, how to think about the Fourth Amendment when making originalist arguments, what levels of generality have to do with how courts are approaching history, what is the state of play after Bruen, and how everything went wrong after Erie.
Click here for transcript.
NRA v. Bondi (en banc)
Texas v. Bondi (panel)
U.S. v. Wilson
If you own rights to movies or shows and would prefer them to not end up on YouTube for free this is an episode for you. Dan Knepper of IJ explains how the owner of some classic Mexican films tried to deal with the problem of the films ending up on YouTube. A recent Eleventh Circuit opinion tackled the Digital Millenium Copyright Act and how YouTube tries to deal with the problem of users putting copyrighted material on its site when they don’t have permission. As you might imagine it is a complicated process. If you want YouTube’s help in tracking what goes up on the site then you have to agree not to sue YouTube. Otherwise you can try and track things yourself and retain the right to sue but it turns out that’s quite difficult. Some of this has to do with the “red flag” test. Dan explains how this messy world works and how the court broke with the top legal treatise in the area. Then, IJ’s Sophia Henderson takes us to the beach and, unfortunately, a monopoly. The city of North Myrtle Beach, S.C., gave a monopoly to itself to set up beach equipment for beach patrons. A competitor who was boxed out of the industry sued and instead of making a constitutional case of it argued that the city was violating federal antitrust law. The question then became was the city immune because it is a state actor. In the end, the Fourth Circuit tells us that monopoly wins.
Click here for transcript.
Athos Overseas v. YouTube
Cherry Grove Beach Gear v. North Myrtle Beach
IJ’s John Wrench journeys to New Orleans to chat with some legal scholars on their recent work on all kinds of IJ-adjacent questions, especially as they relate to the American Founding. This includes economic liberty at the Founding, legal interpretation at the Founding, and “history and tradition” and constitutional rights. Between sessions at the Association of American Law Schools conference John reconnoiters with Kenneth Rosen of the University of Alabama and separately with Jonathan Green of Arizona State and Ryan Snyder of the University of Missouri. These conversations will give you a snapshot of cutting edge work about some of the Constitution’s perennial issues.
Click here for transcript.
Historical Practice at the Founding
Some Traditional Questions About “History and Tradition”
Lovers of municipal crime and corruption—and internal affairs departments not doing their jobs—may enjoy the stories this week from Detroit and Baltimore. First, Kirby Thomas West of IJ reports on a Sixth Circuit case where a towing company was a little too good at finding cars to tow after they had been stolen. It turns out the towing company was in contact with a ring of car thieves, who would give it a head’s up after a theft, allowing it to then cash in on towing fees from the city. The company had its license pulled and then sued, claiming a due process violation. And it won! A dollar. Otherwise, the court concluded that the city’s pulling of its license for working with car thieves was incredibly justified. There’s also an internal investigation in the city that found nothing wrong, and which the court was not happy about. Then IJ’s Carl Wu details a Fourth Circuit case that started with a punch up at a bachelorette party that then got really complicated. Fans of HBO’s The Wire will find many familiar facts and practices concerning Baltimore’s finest. A fight at the party leads to an off-duty police officer being disciplined and fired. She then brings a lawsuit alleging racial discrimination and a First Amendment violation. There’s all kinds of bad behavior of other cops that becomes relevant, including failures to fire cops who have done much worse. The court allows the case to go forward despite an internal investigation that pinned the blame on the officer, and which perhaps was not the most thorough. Finally, we begin a series for 2026: #12Months12Circuits. We’re giving a little background on each circuit, once a month, starting with, which else, the First. It’s a “little baby circuit” in New England.
Click here for transcript.
Nationwide v. Detroit
Johnson v. Baltimore
IJ’s Detroit forfeiture case
When you pay your bail money it’s a good practice to get a receipt. A woman in Mississippi found that out the hard way when she was arrested on pretty shaky grounds and then told she had to pay up or stay in jail. Her sister paid the $1,300+ the next day and then a long time later was never told to come back to court. She then sued for civil rights violations. But then the government claimed she had been found “guilty” and that money she paid had in fact been payment of the resulting fine. What? Marco Vasquez of IJ details this Fifth Circuit case and why the court didn’t address the merits because it had been prematurely appealed. Then IJ’s Riley Grace Borden updates us on a religious liberty matter in the Ninth Circuit concerning how expansive the First Amendment’s protection of church autonomy is. The doctrine applies to how houses of worship hire their ministers and similar officials but also extends to other church employees. How much? The court is careful to say it goes further but is careful to limit how much it says too.
All that plus a “where are they now?” update of past cases we’ve discussed on the podcast that now have met their end with cert denials. That leads to some reflections on a recent denial of a cert petition of IJ’s and why filing cert petitions can be a bit like following your local sports team.
Click here for transcript.
Jew v. Dobbins
Union Gospel Mission v. Brown
Cert Petition in McKinnon v. Hernandez
The Other Declarations of 1776
What does qualified immunity have to do with Joan of Arc? Released on the anniversary of the start of her trial, this episode examines that question—from “the French perspective”—with two tales of qualified immunity. First, IJ’s Tahmineh Dehbozorgi presents a case from the Sixth Circuit where a police officer punched a mental hospital patient into a wall. The court concludes the punch violated the Constitution—but was it “clearly established”? The court says no, leaving the victim with no remedy. Ben Marsh of IJ then details an Eighth Circuit case about a protest in Omaha, Nebraska during the tumult of 2020. A SWAT officer fired pepper balls into the crowd which unfortunately hit a member of the public in the eye. Was that an unreasonable seizure? And did it violate the First Amendment? It doesn’t matter, because under qualified immunity both claims fail anyway.
Click here for transcript.
Guptill v. Chattanooga
Keup v. Sarpy County
Henry VI, Part 1
St. Joan by Shaw
IJ’s Anya Bidwell interviews two civil rights lawyers for a wide-ranging conversation about what it’s like to litigate on behalf of people behind bars. She welcomes on Sam Weiss of Rights Behind Bars and Elizabeth Cruikshank of the Institute for Constitutional Advocacy and Protection (ICAP) to hear stories of qualified immunity, prison conditions, prisoners making their way in the court system without lawyers, and many other topics. To begin with we hear the story of what it was like for Sam, with Elizabeth’s assistance, to start a new nonprofit and then the story of an early success for them, the Supreme Court’s decision in Taylor v. Riojas, which jump-started the “obviousness” exception to grants of qualified immunity. Then each report on a recent success from the federal courts of appeals, Elizabeth’s from the Fourth Circuit and Sam’s from the Third.
Click here for transcript.
Apply to be a summer fellow at IJ here!
Taylor v. Riojas
Frazier v. Prince George’s County
Montanez v. Price
In the early days of the COVID pandemic, a county in Florida thought it was a good idea to keep people off of the beach. Even if they owned it. The beach owners were not able to access their beaches for weeks—although local police could. And did. The owners went to court and now, years later, the Eleventh Circuit has ruled that that was a taking under the Fifth Amendment to the U.S. Constitution. IJ’s An Altik takes us beachcombing. But first, Diana Simpson of IJ walks us through a fascinating concurrence from the Fifth Circuit about certification. That is the practice of lower federal courts asking state supreme courts what ambiguous state law actually “is.” One judge isn’t a fan and explains where the practice came from and why it’s now out of control. We get into the history of “general law” versus local law and what federal courts were originally designed to do.
Click here for transcript.
Stanford v. Brandon Nursing & Rehab. Ctr.
Alford v. Walton County
Cedar Point Nursery v. Hassid
Bound By Oath episode discussing Erie
Starting with a few lines from Shakespeare’s As You Like It, we are joined by two gentlemen of the stage, James Joseph, the first Assistant Director for IJ’s clinic at the University of Chicago, and Bob McNamara, IJ’s Deputy Director of Litigation. Both have theater backgrounds and both discuss how the skills you learn in theater play into being a good lawyer. It’s not just gesticulating to the jury, explains James, it’s also understanding how people act, how they respond to subtle clues, and most of all how to tell a story. Then we head off to the Third Circuit for two cases. James reports on a challenge to New Jersey’s restriction of assisted suicide to residents and how the law did when put up against the Privileges and Immunities Clause. Then Bob tells us of a wild story of extortion—or was it?—where federal prosecutors applied the Computer Fraud and Abuse Act to someone who tried to help a friend get some ransom cash from a former employer.
Apply to be a summer fellow at IJ here!
Bryman v. Murphy
U.S. v. Eddings
Abigail Alliance v. von Eschenbach
Recent other episode on CFAA
As You Like It
The U.S. government seized over $600,000 from a business, tried to forfeit the money, never filed criminal charges against anyone, and then three years later said “nevermind!” and dismissed the case and gave the money back. At the same time, the business was trying to find out what was in the original warrant applications for the seizure. Is the case over, or can the business keep working to see what the secret documents say? Dan Alban of IJ gives us the scoop in this case from the Sixth Circuit. Then, IJ’s McCarley Maddock tells us about the latest NCAA antitrust drama. A college football player transferred around to a few different schools and along the way played a year at a junior college. The problem for him was that year counted against his eligibility. But is that rule an antitrust violation? The Third Circuit says that, like with the French Revolution, it’s too early to tell.
California Palms v. U.S.
Elad v. NCAA
Short Circuit on baseball and antitrust
What happens if you sue your employer and your boss’s boss is a federal judge? It’s kind of complicated. Aliza Shatzman of the Legal Accountability Project rejoins us to detail a recent Fourth Circuit case where an employee who worked in a federal public defender’s office alleged she was sexually harassed and then sued about it. It’s the first case of its kind and gives a window into how employment complaints work within the Article III branch. Aliza also talks about her ongoing work at the Legal Accountability Project and their clerkship database. Then, IJ’s Katrin Marquez tells us a most unpleasant story about a woman who went through TSA screening. The woman then tried to use the Federal Tort Claims Act but the federal government claimed she couldn’t because TSA officers aren’t “law enforcement.” The Eleventh Circuit said “really?” and has now allowed the case to move forward.
Click here for transcript.
Strickland v. U.S.
Koletas v. U.S.
Legal Accountability Project
The FTCA and the Military
Can a city require you to get a permit if you’re having a few people over to pray? In an Ohio town it was a little unclear. As IJ’s Suranjan Sen explains, an Orthodox Jewish man wanted to have enough people over that he could hold a proper service for the Sabbath. There was no worry about traffic and parking because Orthodox Jews don’t drive on the Sabbath. But that didn’t prevent a neighbor from complaining anyway. Things got confusing at city hall, though, where some officials weren’t even sure the man needed a “house of worship” permit. Even so, he went to federal court, ended up in the Sixth Circuit, and got dismissed because the case as not ripe. Along the way there’s a lot of talk about facial vs. as-applied claims and how land use is weird. Then we go to Tate Cooper of IJ with a couple subjects we’ve specialized in on Short Circuit over the years: drones and free speech. This time they’re together in a bit of a new way. A company provides a service to hunters for drones to help them find their prey after an animal has been shot. Michigan law forbids this. Is that a restriction on “speech” and a First Amendment violation because the drone is sending information to the hunter and the law only applies to the drone if it is “speaking”? The Sixth Circuit says no via some unclear reasoning. A lot of that is because of unclear Supreme Court cases which (perhaps?) might be cleared up a bit sometime soon.
Click here for transcript.
Grand v. University Heights
Yoder v. Bowen (3 judge panel)
Yoder v. Bowen (en banc denial)
Williamson County Planning v. Hamilton Bank
Sorrell v. IMS Health
In a special episode, IJ’s Anya Bidwell interviews Matteo Godi of USC Law about his new article “Section 1983: A Strict Liability Statutory Tort.” Professor Godi provocatively argues that the basis of most modern civil rights litigation—originally part of the Civil Rights Act of 1871 and today known as “Section 1983”—should be interpreted as a strict liability cause of action. Anya has him discuss how the Supreme Court has erroneously imposed state-of-mind requirements in civil rights litigation in sharp contrast to the original scheme that he contends the Reconstruction Congress designed. Qualified immunity is one, but only one, example stemming from this error. The interview also covers additional recent developments in scholarship about Section 1983 and how Professor Godi’s proposal would work as a practical matter.
Section 1983: A Strict Liability Statutory Tort
Villarreal en banc with Oldham concurrence
We’re joined by Reb Masel, a California lawyer who tries to keep the law fun while educating the public about how it works. She’s apparently pretty good at it as she has a zillion followers across various platforms. She drops in to share her thoughts about a Fifth Circuit case concerning a little bit of moonshine. And years of pretrial detention. Did that detention deny the defendant a speedy trial? The court agrees, but only after further years of litigation. Then IJ’s Bobbi Taylor describes a marijuana and cash heist that goes poorly. How poorly? One defendant didn’t even “obtain” any of the pot or money. So can he be subject to a forfeiture order? The Second Circuit rules in his favor—although he still has plenty of other legal problems.
Click here for transcript.
Berryman v. Huffman
Elias v. Hytmiah
Georgia man in pretrial detention for 10+ years
Reb’s video on The Onion’s amicus brief
The Book They Throw at You
Reb’s TikTok
The balance between free speech, campus order, and fighting antisemitism has been a major flashpoint the last couple of years and it just hit the First Circuit in a lawsuit against the Massachusetts Institute of Technology. The case concerns protests and encampments at MIT’s campus in the wake of Hamas’s attack on Israel. The legal questions concern MIT’s responsibilities in light of taking federal funds. Michael Peña of IJ details what the court considered and where it came out. Then, IJ’s Arif Panju bring us to New Orleans for a short vacation. The city tried to restrict short term rentals to only those owned by “natural persons,” not ordinary people who use LLCs or other corporate forms. This was in response to losing the first round of the same case a few years ago under a dormant Commerce Clause challenge. The Fifth Circuit, again, found the city’s efforts unconstitutional in some ways, but most interestingly here it found the natural person/LLC distinction failed the rational basis test. In doing so, it relied on an IJ victory, also in the Fifth Circuit.
Click here for transcript.
Stand With Us Center for Legal Justice v. MIT
Hignell-Stark v. New Orleans
Short Circuit 235 (on earlier Fifth Circuit ruling)
IJ’s amicus brief in the New Braunfels case
If you think you’ve worked in a bad job you might want to first hear the first case we have this week, brought to you by IJ’s Michael Soyfer. It might give you a bit of cheerful perspective. An employee was out with Covid when suddenly her employer needed her password for an urgent task. She shared it with a coworker friend which then got the job done. Months later, though, the two workers left the company and sued for sexual harassment. In return, the employer sued them for violating the Computer Fraud and Abuse Act, a law passed in 1986 in a simpler computing time. The end result, courtesy of the Third Circuit, is that the women did not commit a crime and their harassment claims could proceed. (If they had committed a crime then so might many of us.) Then Sam Gedge of IJ updates us on his Younger abstention quest. A group of physicians were disciplined for saying things about the Covid vaccine that Washington State officials did not like. So they sued those officials to vindicate their rights. But the Ninth Circuit said their claims could not go forward because, among other reasons, there were ongoing matters in a state agency and also because there were matters that weren’t in a state agency. Confused? Sam will try and unconfuse you.
Click here for transcript.
NRA Group v. Durenleau
Stockton v. Brown
Short Circuit Younger 50th Anniversary episode
Orin Kerr amicus on the CFAA
IJ’s case for psychologist John Rosemond
IJ’s “caveman blogger” case
It’s Short Circuit Live from Antonin Scalia Law School at George Mason University with a D.C. Circuit special! We review opinions from a court that “many people are saying” is the second-most-important in the land. With a full state of very special guests: GMU’s own Todd Zywicki, Casey Norman of the New Civil Liberties Alliance, and IJ’s own Bob Belden. Professor Zywicki discusses a pair of recent D.C. Circuit rulings on attempted firings at the FTC and the Federal Reverse that revolve around the fate of Humphrey’s Executor. Then, Casey shares a saga of the reporter’s privilege under the First Amendment and how it can conflict with the Privacy Act. Finally, Bob asks who wants to be a millionaire? (If you do, turns out a good path is narcing on a Wall Street firm for underpayment of taxes while filing the correct IRS form.)
Click here for transcript.
Slaughter v. Trump (D.C. Circuit denial of stay)
Cook v. Trump (D.C. Circuit denial of stay)
Trump v. Slaughter (SCOTUS grant of stay)
Chen v. FBI
In re: Sealed Case
Short Circuit 214 (D.C. Circuit special)
“Religion” and “fact checks” don’t normally go together. But an employer did so when some employees tried to obtain a religious accommodation from a COVID vaccine requirement. Matt Liles of IJ explains that the employer didn’t exactly “fact check” religion itself, but tried to point out that other religious leaders were OK with the vaccine and so should the employees. This all ends up in federal court under Title VII where the Sixth Circuit has to fix some errors in the district court and straighten out how Title VII works. The court also hints that the way to deal with religious accommodations isn’t to use “fact checks.” Then IJ’s Christian Lansinger brings us to the Eight Circuit where 3M—famous for Scotch tape and Post-its—was fighting with the IRS over how much money it owed via its Brazilian subsidiary. The fight revolved around an IRS regulation and how much deference to give the agency in interpreting a Congressional statute. That all changed last year at the Supreme Court with the overturning of the Chevron doctrine. How does the IRS do in this brave new world? Not well, it turns out.
Click here for transcript.
Bilyeu v. UT-Battelle
3M v. Commissioner
Loper Bright Enters. V. Raimondo
IJ’s IRS and tax preparers case
Dropping on First Monday, the Supreme Court’s first day of the October 2025 term, it’s our annual Supreme Court preview, recorded live at the University of North Carolina. Re-joining us after a very long hiatus is Sheldon Gilbert, the original host of the very first preview and very first Short Circuit Live, way back when he was the Director of the Center for Judicial Engagement. That is, back when he was a Younger Sheldon. These days he has the fancy-pants job of CEO and President of the Federalist Society. But he’s returned for old times’ sake and also to follow what seems to be the occupation of his calling—a game show host. Sheldon welcomes Justin Pearson of IJ and Interim Dean Andy Hessick of UNC Law for a bit of SCOTUS trivia and a review of some of the term’s biggest cases. Get ready for substance v. procedure, the Heck bar, civil forfeiture, and unconstitutional conditions. Plus, things you never knew—or never even fathomed you never knew—about Erie Railroad v. Tompkins. This is the way we Leeroy Jenkins at Short Circuit.
Berk v. Choy
Oliver v. City of Brandon
Jouppi v. Alaska
La Anyane v. Georgia
The Ballad of Harry Tompkins
The Very First Short Circuit Live (with Younger Sheldon and Younger Justin)
Leeroy Jenkins!
Two opinions that dig into history, one on voting rights the other on gun rights, and both from the Fourth Circuit. First, Dan Nelson of IJ tells us of a challenge to a North Carolina law that criminalizes voting by felons, even when the voter legitimately thinks they are eligible to vote. The statute was passed back during Reconstruction for racist reasons and hasn’t materially changed since. Does that still matter all these many years later? It turns out it does, and the court ruled it unconstitutional. IJ’s Dylan Moore then tells us a tale of a man who bought a gun in Arizona and brought it to Maryland. Unfortunately, he was under a felony indictment back home. That fact plus traveling with the gun violated federal law. But does that law violate his Second Amendment rights? The court doesn’t think so but it has to do a few historical twists and turns before arriving at that cross-country destination.
N.C. A. Philip Randolph Institute v. Board of Elections
U.S. v. Jackson
Bruen
It’s a Short Circuit Live from YIMBYTown! We travel to the Yes-In-My-Back-Yard conference, held this year in New Haven, Connecticut. Our guests discuss recent cases and controversies related to efforts to build more homes and also, unfortunately, do the opposite. First up is David Schleicher, aka “Professor YIMBY,” of Yale Law School. David updates everyone on a case we’ve talked about before, a lawsuit in Montana to try and throw out the state’s “miracle” housing reforms passed a couple years ago. The case is now before the state supreme court after a rocky initial ride. David focuses on the issue of private covenants and how that might affect reforms elsewhere in the future. Then Andrew Fine of Open New York tells the sad tale of a long battle to build low-income housing on a lot—the “Elizabeth Street Garden”—in the middle of New York City. Led by Hollywood celebrities, the effort to prevent the project for “environmental” reasons dragged on for over a decade. Although that act of NIMBYism ultimately lost at the state’s highest court, continuing attempts to stop the project took so long that the city recently just pulled the plug. We end on a cheerier note, though, with Ari Bargil of IJ. He relates the news of a win in trial court in Georgia for our client’s efforts to build “tiny homes.” Does this presage other victories elsewhere? The panel think that through.
New York Court of Appeals ruling in Elizabeth Street Garden case
MAID v. Montana update
Georgia Tiny Homes case
David’s piece on NIMBY judges
It’s a free speech episode with two rulings for the First Amendment. Paul Sherman of IJ details a victory that the Institute for Justice litigated at the Seventh Circuit. IJ represents a “death doula,” someone who helps people deal with many things that come up when a loved on passes away. Indiana said that she needed a funeral director’s license to do that. But she obtained a preliminary injunction against that law as applied to her, and the court upheld the injunction on appeal. Then IJ’s Joe Gay tells a wild story about “sideshows,” where cars race around intersections late at night and people involved do various other, mostly illegal, things. One California county was fed up with the sideshows and passed a law making it illegal to simply watch them. A citizen journalist challenged the law and the Ninth Circuit ruled that, yes, the sideshows themselves are a problem, but the answer is not to prevent journalists from watching them.
Richwine v. Matuszak
Garcia v. County of Alameda
Upsolve v. James
Your right to remain silent just got a little stronger in the Pine Tree State. We welcome on Carol Garvan of the Maine ACLU to discuss a recent ruling from the state’s highest court. Under police questioning a suspect asked about an attorney being present and whether he had to answer questions, but did so a bit ambiguously. Was that enough to invoke his rights under the Maine Constitution? Carol argued the case as an amicus to explain the high level of protection those rights receive in the state compared to what the U.S. Supreme Court has said about similar language in the U.S. Constitution. And the court agreed with her and her colleagues. She explains to us how the court came to its conclusion and what this means for other Mainers. Then IJ’s Daniel Woislaw tells us of another police encounter, this time at a parked car with heavily tinted windows in the District of Columbia. Could the police force the driver and passengers to roll their windows down? The judges say yes but disagree about why. It’s another example of the “reasonable expectation of privacy” test twisting and turning at the side of the road.
State v. McLain
U.S. v. Williams
IJ’s new Maine Backyard Chickens case
Arbitration may not sound like the most exciting subject, but it recently made for an exciting story at the Second Circuit. Former Miami Dolphins coach Brian Flores sued several teams and the NFL itself. In response, the NFL said the case had to go to arbitration. Which was pretty convenient because the NFL’s arbitration clause gives the job of arbitration to the NFL’s commissioner. It’s kind of like suing your employer and your old boss serving as the judge. Mike Greenberg of IJ drops by to explain why this meant the arbitration clause wasn’t enforceable under federal law. Then Jeff Redfern tells us of a case out in the Ninth Circuit where some attorneys got into hot water. They sued to try and change Arizona voting procedures with some aggressive allegations and rhetoric. But was it so aggressive that they should be sanctioned for filing the complaint? IJ’s Jeff Redfern explains what the Ninth Circuit said about the matter, both at the panel stage and when the attorneys tried to go en banc. Some dissenting judges said whatever line there is between aggressive and frivolous it wasn’t crossed in this particular case. The team looks at how these issues especially come up in public interest litigation where “today’s crazy theory becomes tomorrow’s settled law.”
Click here for transcript.
Flores v. N.Y. Football Giants
Lake v. Gates (panel)
Lake v. Gates (en banc denial)
Short Circuit traveled to Chicago for a live recording on the eve of the Seventh Circuit’s biannual Judicial Conference. In front of a crowd of Seventh Circuit enthusiasts your host spoke with some experts about some of the court’s recent opinions and how the circuit works. That included Sarah Konsky of the University of Chicago, appellate specialist Chris Keleher, and IJ’s own John Wrench. “Collective” (not class) actions, prisoner appeals and summary judgment, and Fourth Amendment overnight-guests all make an appearance as does the life and times of Judge William Bauer.
STOP PRESS: On the eve of this episode dropping IJ won one of its pending cases before the Seventh Circuit! Richwine v. Matuszac, concerning Indiana’s licensing of death doulas. So IJ’s score in the Seventh is now 3-2, not 2-2 as John then-accurately reported.
Click here for transcript.
Richards v. Eli Lilly
Whitaker v. Dempsey
U.S. v. Walker
Oral argument with Judge Bauer & timesheets
The Constitution separates “the judicial power” from “executive power.” Well, that’s the theory at least. A mixing of these powers led to some massive fines against a family farm. But Robert Fellner of IJ is happy to report that the Third Circuit recently ruled that’s a problem. In a case that IJ itself litigated, the court ruled that Article III of the Constitution guaranteed an independent judge when the federal government took the farm to court. The ruling is an application of a recent Supreme Court case and bodes well for separation of powers in the future. Then IJ’s Ben Field tells a very different story about a Russian woman who tried to arrange for an oligarch’s girlfriend to fly to the U.S. on a private jet in order to give birth. The problem was the U.S. government had sanctioned the oligarch and the woman working for him tried to evade that. Things didn’t work out and she didn’t show up for her court hearings in the U.S. The question the Second Circuit then looked at was is she a “fugitive”? She doesn’t live in the U.S. but she did used to visit the country a lot. The answer depends on a bit of a messy test about “fugitive disentitlement.”
Click here for transcript.
Sun Valley Orchards v. U.S. Dept. of Labor
U.S. v. Bardakova
The Rise and Rise of the Administrative State
Episode with Scott Lincicome on tariffs
It’s Sixth Circuit week on Short Circuit with a couple Sixth Circuit lawyers who clerked on the Sixth Circuit and practice law in Michigan. (Which is where? That’s right, in the Sixth Circuit.) David Porter and Sean Dutton spin yarns about some recent Sixth Circuit opinions, including with a bit of an inside look on what the circuit’s judges think about dissenting from not going en banc. First we look at how “homely” a home needs to be to be a home. What even is a “home” for it to receive the protection of the Fourth Amendment, requiring a warrant and probable cause before government agents can search it? David discusses a recent case from the Sixth Circuit that opened the door on that question. Some warrantless inspectors barreled through the woods to then walk around a set of “mini-cabins.” Did that violate the Fourth Amendment, and if it did was it so clearly established that the inspectors can’t get qualified immunity? The court says yes and yes. We review how it got there and what it means going forward. Then Sean details a case about what rights someone has when they’re in prison and might have a path out of there. If the prison requires you to go through a program related to a sentence that the prisoner has already served, for another crime, in order to get parole, does that have due process implications? It comes down to what a “liberty interest” is. Sean also examines the writing style of the opinion, and we hold a colloquy about where legal opinions are well written and where they get a bit too glib. Finally, we have some fun with some sniping in a recent Sixth Circuit denial of en banc where the epic question is asked of when should a judge write—or not write—a dissental.
Click here for transcript.
Come to Short Circuit Live in Chicago on August 17!
Short Circuit in YIMBYTown! (11am on Sept. 15)
Mockeridge v. Harvey
McClendon v. Washington
Mitchell v. City of Benton Harbor
Walden
Did you know the feds can send a subpoena to social media companies to find out stuff about your accounts and also order the same companies not to tell you? Turns out it happens all the time. But the law says that a court has to make an individualized assessment of each request. Some federal agents convinced a district court to just let them do all the paperwork and give a blanket gag order for a bunch of requests. Betsy Sanz of IJ joins us to explain why the DC Circuit said that’s just not good enough, although they avoided the Fourth Amendment issue. Then IJ’s Andrew Ward takes us to a meth deal gone bad and a “crazy high” speed chase. When the police arrest the driver, though, he’s pretty friendly—and probably high on marijuana. And he’s even acquitted of dealing meth—but not of being a drug user who owns a rifle he’s barely used that’s back at home in his closet. Is that a Second Amendment violation? It turns on a lot of history and tradition that kind of doesn’t make a lot of sense.
Click here for transcript.
Come to Short Circuit Live in Chicago on August 17!
Short Circuit in YIMBYTown! (11am on Sept. 15)
U.S. v. Perez
In re: Sealed Case
Short Circuit 325
Beyond the Brief episode “Cash Me if You Can”
On the heels of the trade deadline, Rob Johnson of IJ reports on some baseball news. But it doesn’t concern the latest in Major League Baseball. Instead, it’s about the business of baseball and how broad is the “business of baseball” exemption from the antitrust laws. There’s a baseball league in Puerto Rico that gave some pretty rough justice to an owner, who then took the league to court. Does the history and tradition of “baseball’s” exemption from antitrust laws apply to this league, or only to the American and National leagues back on the Mainland? Rob brings us the First Circuit’s answer and does so with the objective dispassion of a football fan. Then your host takes us out west for an unsolvable problem involving wild horses crisscrossing public and private lands in Wyoming. Are those horses actually “wild”? Doesn’t really matter to Congress, which mandates pretty impossible things that force the Tenth Circuit to send the government back through the administrative process. Then we close with some hot gossip: There’s no joy in Mudville.
Click here for transcript.
Come to Short Circuit Live in Chicago on August 17!
Short Circuit in YIMBYTown! (11am on Sept. 15)
Cangrejeros de Santurce Baseball Club v. Liga de Beisbol
American Wild Horse Campaign v. Raby
Flood v. Kuhn
Federal Baseball Club v. National League
Short Circuit 370 (on Wyoming crisscross property)
Casey at the Bat readings at Librovox.org
Steve Lehto of Lehto’s Law rejoins Short Circuit—and for the first time on a YouTube episode—to spread the common sense he delivers daily on his own show. Steve shares a recent opinion from the Kansas Supreme Court about license plate covers. The police and lower courts had interpreted the law to make it a crime if a license plate cover blocked not just the actual license number but the name of the state. This basically turned a huge percentage of car owners into unknowing criminals. And gave the police a lot of discretion. But the court put a stop to that practice by saying it’s simply not how to read the statute. Further, Steve isn’t the only crossover guest on this episode. We also welcome Keith Neely of Beyond the Brief, another IJ podcast. Keith details an opinion from the Fourth Circuit upholding the federal ban on selling handguns to 18, 19, and 20 year olds. Is that OK under the Second Amendment? As with many constitutional issues these days, it depends on how you read the history.
Click here for transcript.
McCoy v. BATF
Kansas v, Beck
Bruen
Blog post on New Jersey license plate case
Lehto’s Law
Beyond the Brief
Mork Meets the Fonz and Lavern
We look into the gray area between a multi-level-marketing venture, like Amway, and a “pyramid scheme.” Appellate attorney Kyle Singhal joins us to discuss a matter of his from the Sixth Circuit where the court examined whether prosecutors in a mail-fraud case got over their skis by repeatedly calling what the defendants did a pyramid scheme. “Pyramid schemes” are bad, obvs., but they’re not actually a federal crime. So was it OK to use that term when speaking to the jury? Kyle explains what the court said in affirming the convictions. Then, Marie Miller of IJ gives us an update on a case she discussed last year in the Eighth Circuit. A police officer arrested a Missouri man for walking on the wrong side of the road. The court had said his First Amendment retaliation case was no good because there was probable cause for the (uncommonly silly) crime. But then the Supreme Court said give that another try. And the Eighth Circuit did and now has ruled the other way, allowing the case to go forward. Marie explains how the court changed its mind (a change in judges might have helped too).
Click here for transcript.
Come to Short Circuit Live in Chicago on August 17!
US v. Maike
Murphy v. Schmitt (2025)
Murphy v. Schmitt (2023)
Short Circuit 349 (episode on Murphy GVR)
Can the government force you to only exercise a constitutional right once a month? Could it do that with speech? Or practicing religion? How about keeping and bearing arms? IJ’s Will Aronin asks that question when discussing a California law that restricted gun purchases to buying one gun a month. The Ninth Circuit recently found the law violated the Second Amendment. That’s something the Ninth Circuit doesn’t do very often, so we made sure to take a close look at this “unicorn” of a case. Plus, frequent users of Sudafed may enjoy the conversation. Then John Wrench, the Assistant Director of IJ’s Center for Judicial Engagement, explains a recent Sixth Circuit decision about the government taking the blood of babies. The court addressed a couple constitutional challenges to Michigan’s practice of taking blood from babies when they are born, without parental consent, and then hanging onto the blood samples for 100 years. It said this did not violate the Fourth Amendment or the right of parents to direct the upbringing of their children. But this seemed to contradict what the same court—but different judges—had said earlier in the same case. Can they do that? Apparently.
Click here for transcript.
Nguyen v. Bonta
Kanuszewski v. Michigan HHS
Bruen
Rahimi
Is speaking to a yoga class speech? The Ninth Circuit recently proclaimed that the answer to that question is actually “yes.” But before you turn away from this episode because it simply parrots Captain Obvious, please know that it was not so obvious to the district court. Or the city of San Diego, which tried to define the teaching of yoga—but not the teaching of anything else—in public parks as conduct, not speech. Teaching all kinds of other things was fine, but teaching yoga to four or more people could land you in a twisted position. Paul Avelar of IJ gives some erudition on how the Ninth Circuit relied on a case that he litigated a few years ago to bring the First Amendment to the yoga instructors of California. Then IJ’s Marco Vasquez drives us to Arkansas where some hemp producers challenged the state’s ban on most hemp products. The challengers make a lot of hay out of the allowance for “continuously” transporting hemp through the state. Along the way the Eighth Circuit has to deal with a scrivener’s error. And what is one of those again?
Click here for transcript.
Hubbard v. San Diego
Bio Gen v. Sanders
IJ’s Brief in Chiles v. Salazar
Bartleby, The Scrivener
Who doesn’t love a nice beard? It seems the firefighters in Atlantic City. One of their employees wants to wear a beard because of his religion. He doesn’t actually fight fires as part of his job, but there’s a possibility he’d be told he needs to and therefore he supposedly can’t have a beard because his special air mask wouldn’t fit. Does this violate the First Amendment’s protection of free exercise? Matt Liles of IJ reports on this case from the Third Circuit that digs into how “generally applicable” a law must be to not target someone’s religious practice. Then IJ’s Bob McNamara discusses a scary subject: statutes of limitations. Blowing one is every litigator’s nightmare. But which statute of limitations applies in a given case? For claims brought under Title IX, a federal ban on sex discrimination, that’s unclear. Bob breaks down a Fourth Circuit opinion that had to figure out what South Carolina law applies to Title IX claims in a case where a high schooler sued a school for not stopping sexual harassment. Is it a special state law on suing governmental entities? Or is it the most general state statute of limitations? Bob tells us the answer but also advises that this would all be a lot easier if Congress did its job and provided its own statute of limitations.
Click here for transcript.
Smith v. Atlantic City
E.R. v. Beaufort County School Dist.
Employment Division v. Smith
Pogonologia
We at the Institute for Justice are increasingly involved with combatting retaliation against free speech. Which is why we were highly interested to hear from Daniel Cragg and his recent win at the Eighth Circuit. Dan is a Minneapolis attorney who regularly sues the government for all kinds of things. This particular case was about a doctor who made a few remarks that weren’t very politically popular at her place of work—a public hospital—at the height of the pandemic and cultural ferment in 2020. She lost her discrimination and retaliation claims at summary judgment but the Eight Circuit sent the retaliation claim back for trial. It also called her other claims “interlocutory.” We discuss the free speech issues at the heart of the matter but in addition your panel perplexes about how the court could think the other claims were interlocutory, considering the appeal was from a final judgment. Then Michael Bindas of IJ discusses a recent Ninth Circuit en banc opinion about a police shooting. The interesting thing to Michael’s eyes is how a concurrence treated a pair of substantive due process claims invoking the case Pierce v. Society of Sisters, which just celebrated its 100th anniversary. The panel dig into what the right recognized in Pierce has to do with a child’s claim for losing a parent, and what Plato’s Republic has to do with it all.
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Gustilo v. Hennepin Healthcare System
Estate of Hernandez v. L.A.
Pierce v. Society of Sisters
Cato’s event on Pierce, including panel with Michael
Meyer v. Nebraska at 100
Plato’s Republic (Book V)
Is making someone file a form “in the public interest”? The Fifth Circuit took a look at that age-old question in a recent case regarding the FCC and its gathering of demographic data. What might seem like a small issue opens the door to how the administrative state works, where agencies get their power, and how narrow the courts are reading those powers these days. IJ’s Bob Belden explains the twists and turns of this story that goes back several decades. Then Nick DeBenedetto of IJ walks us through a habeas case from the Sixth Circuit with a wild story about a murder—or was it a murder?—of a wife by her husband and whether the conviction was tainted because of the background of a detective. The detective, it turns out, told all kinds of lies to get hired before he investigated the defendant. Did those lies affect the conviction enough to violate the Constitution? See if you can render your own verdict.
Click here for transcript.
National Religious Broadcasters v. FCC
Widmer v. Okereke
Rebels on the Air by Jesse Walker
With the recent major tariff rulings we had to pull in a major tariff expert, Scott Lincicome of the Cato Institute. Scott digs into the “shocking decision,” as even he puts it, from the Court of International Trade declaring many of the recent “emergency” tariffs unlawful. He takes a look at what’s behind the opinion and what’s next as the case goes on appeal to the Federal Circuit and perhaps also to the Supreme Court. The law the tariffs are justified under might not even allow for tariffs, but ruling that way means the courts will have to not give the substantial deference to the President in these kinds of matters that they often have given in the past. Both the Major Questions Doctrine and the Nondelegation Doctrine loom and there’s some gaps that need to be filled. Then IJ’s Jeff Rowes describes a victory for free speech in the D.C. Circuit where the Attorney General of Texas tried to use a consumer fraud statute designed to remedy things like “defective air conditioners” against a journalism organization. Even though the court upheld a preliminary injunction, Jeff argues that the very fact the law was used in this way in the first place, in conjunction with the rich and powerful, is an ominous First Amendment warning. Plus, we dig into some “where are they now, updating cases from recent episodes. This includes one where IJ is trying to have applied to the states one of the last bits of the Bill of Rights that the Supreme Court has missed: The Seventh Amendment’s right to a civil jury trial.
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Call for Papers for our conference on Declarations of Rights from 1776!
VOS Selections v. U.S.
Media Matters v. Paxton
Scott’s conversation with Rick Woldenberg from the DC tariff case
Scott & Clark Packard’s study on tariff powers from last year
IJ’s Seventh Amendment incorporation cert petition
Corn Law Rhymes & Other Poems (1833)
The Taxed Cake
Fans of truckers should enjoy this episode, although they may grow angry hearing about a truck stop that never was to be. Tahmineh Dehbozorgi of IJ tells us of a property owner in Georgia who wanted to turn his land by a highway into a truck stop. But the county was dead set against him, leading to a decades-long zoning battle. A gas station would be OK, but not if it looks more like a place where truckers can fuel their rigs and get a little rest. In the end, when the controversy finally reaches the Eleventh Circuit the rational-basis test squashes any chance the truck stop has because . . . well because it’s a rational-basis case. Then Suranjan Sen takes us to the Sixth Circuit where an eight-year-old wore a hat with a gun on it that also says “Come and Take It.” The student was asked to take it off ostensibly because of a recent shooting in a nearby school. Did that violate the First Amendment? The court claims it did not but the matter seems a close case under the relevant caselaw. The crew looks at the relevance of the Tinker case from the Vietnam War era and also where the “come and take it” phrase comes from. Did you know it’s a Battle of Thermopylae thing?
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Corey v. Rockdale County
C.S. v. McCrumb
Tinker v. Des Moines Sch. Dist.
Angry Cheerleader Case
Roll On (Eighteen Wheeler)
Sometimes a short ride goes a long way. Casey Mattox of Stand Together comes on to tell us how a dirt biker in Nevada may end up making some constitutional history. Agents of the Bureau of Land Management gave the dirt biker a citation for riding without a license-plate light. His public defender argued the underlying law was unconstitutional because Congress hadn’t given the Bureau an “intelligible principle” to guide the underlying traffic regulation and thus violated the nondelegation doctrine. That argument won at the district court but then the Ninth Circuit recently overturned it on appeal. But there may be more life in the case to come. Then Arif Panju of IJ details the latest challenge to a university speech code. A judge twisted some arms to get the school to change its policy and then declared the case moot. The Fifth Circuit, however, said the game’s not over yet because there’s no guarantee the old code won’t come back.
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US v. Pheasant
Speech First v. McCall
Uzuegbunam v. Preczewski
FBI v. Fikre
2019 blog post on voluntary cessation
Zen & the Art of Motorcycle Maintenance
Two federal appellate opinions involving a murder and whether justice was served. First, IJ’s Dan Alban reports on a Sixth Circuit case where a man alleges he was wrongfully accused and spent seven years in jail waiting for trials on various false charges, including not just murder but others too—including sodomy—and where the trials never happened. All of this, the man claims, was because of a conspiracy directed toward getting him to testify—and lie—in another case. It’s a crazy story that the court doesn’t want to hear because it concluded the man’s civil rights lawsuit was filed too late. Then we hear from An Altik of IJ about the latest in the very long running saga of a man, Rodney Reed, trying to prove his innocence while on death row. Reed was successful at the Supreme Court last year in his attempt to have a claim for DNA testing to be heard. But now that the Fifth Circuit has considered the claim it has denied relief. The court declared that the underlying rule used in Texas courts is constitutional under the Due Process Clause.
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Reed v. Goertz
Brown v. Louisville-Jefferson County
Background on Rodney Reed case
The Murder on the Links
Constitutional rights protect everyone, even people we might not be terribly fond of. This week we discuss two defendants who perhaps don’t deserve a lot of sympathy but nevertheless had their rights vindicated in a way that protects those rights more broadly. First, an IJ alumna, Anna Goodman Lucardi, rejoins Short Circuit to update us on goings on in the Fifth Circuit where the court applied last year’s SCOTUS case about jury trial rights, SEC v. Jarkesy, to a similar situation involving the FCC and fines. The court found that the FCC’s system violated both the Seventh Amendment and Article III of the Constitution. This even though the well-known defendant, AT&T, is a “common carrier.” Then Jessica Bigbie of IJ reports on a Tenth Circuit matter where a warrant led to police finding some not-legal images on someone’s phone. But the warrant itself had some not-constitutional language under the Fourth Amendment. Language allowing the authorities to basically search everything for anything. Jessica applies her background as a public defender and assesses why this “unicorn” of a case came out the way it did. We then end the show with some “where are they now” on cases from Short Circuits past.
Click here for transcript.
AT&T v. FCC
U.S. v. Santiago
SEC v. Jarkesy
Lawson’s The Rise & Rise of the Admin State
The Mouse’s Tale
All kinds of constitutional goodies this week, from sovereign immunity to the First Amendment right to dance. But we begin with our annual Kentucky Derby preview from IJ’s Kentucky boy, Brian Morris. After that Brian keeps things local with a case from the Derby’s home circuit, the Sixth, which features another old favorite of the podcast, Ex parte Young. That precedent helps a pipeline company with some litigation against the governor of Michigan concerning an easement under the Straits of Mackinac (a name we proudly pronounce correctly). Then Evan Lisull, IJ’s legal writing guru, fresh from editing a round of recent briefing, gives some tips for writing at the Supreme Court. He also shares with us an Eleventh Circuit case concerning Jacksonville, Florida’s efforts to stymy the dancing opportunities of 18-20 year olds. The facts are very “Florida Man” (well, “Florida Young Women” technically) and although we give a brief and clinical description of the activities that Jacksonville is trying to ban, parents may want to hit pause if they have younger children listening. The larger issue we spend far more time addressing is whether content-based restrictions on speech related to zoning and unwanted “secondary effects” receive strict scrutiny or not. As a bonus, there’s even a fan-favorite: a Judge Newsom concurrence. We close with some reflections on a favorite of Evan’s during Derby week, Hunter S. Thompson’s 1970 essay on the circus surrounding the run for the roses.
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Enbridge Energy v. Whitmer
Wacko’s Too v. Jacksonville
Ex parte Young
The Kentucky Derby Is Decadent & Depraved
Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the passage of Colorado’s reforms and gives us his perspective from the civil rights litigation side. Then he describes a Tenth Circuit case he litigated about a woman who was brutally injured by a police officer. The court said her rights were indeed violated, but not in a way that overcame qualified immunity. Finally, we hear from Professor Laurent Sacharoff of Denver Law. He tells us of a recent Tenth Circuit case where a couple of officers got their dog to run into a house without first contacting the resident but after telling the dog to bite the first person it sees. Sig, the dog, then did what it was told and bit the resident—who was asleep in bed—and was allowed to hold on for a minute before the police commanded it to stop. The court found that this was so obviously wrong that it not only violated the Constitution but that the plaintiff overcame qualified immunity. The panel discusses why QI was defeated in one case and not the other and how this makes for unpredictability in legal practice.
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SB 20-217
Surat v. Klamser
Luethje v. Kyle
Tenth Circuit courtrooms
An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just about no one rents these things anymore, the statute still applies to rentals of movies online. Both the Sixth Circuit and the Seventh Circuit recently ruled on the scope of the law and came to opposite conclusions. Along the way, Jacob provides a dramatic reading of the original article about Bork’s video rentals. And stay tuned to the end for a segment of “Where Are They Now?”
Click here for transcript.
Villarreal v. City of Laredo
Gardner v. Me-TV National Limited Partnership
Salazar v. Paramount Global
Short Circuit episode with JT Morris
1987 article on Judge Bork’s video rentals
Short Circuit episode on Papa Johns’ website
Nietzsche’s Eternal Recurrence
Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode.
Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and, as many listeners will know, the Dean of what some still call #AppellateTwitter. Eugene begins the episode with a recent en banc ruling from the Ninth Circuit which upheld California’s ban on gun magazines with more than 10 rounds. He analyzes the majority’s reasoning but what the audience really enjoyed was his—and Raffi and Anya’s—thoughts about the video dissent by Judge Van Dyke, wherein the judge displayed a number of firearms and how they work. Then we move to Raffi for a few litigation tips from Lord of the Rings. We don’t do a lot of arbitration cases on Short Circuit but, wow, if you’re ever going to hear about one it’s got to be this. Four different arbitrators all heard one dispute, gave mutually inconsistent awards, and even sanctioned one and other. How does this story end? The Fifth Circuit hopes with one last arbitration to rule them all. If it doesn’t go to the Supreme Court first.
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Duncan v. Bonta
Sullivan v. Feldman
Judge Van Dyke’s video dissent
Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard.
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Daniel Nelson and Patrick Jaicomo’s Section 1983 article
Thaler v. Perlmutter
Iron Bar Holdings v. Cape
John Connor’s speech
Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don’t have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they’re relying on—go astray.
Click here for transcript.
Littlejohn v. School Board of Leon County
Sacramento v. Lewis
Judge Newsom’s article on incorporation
The One and Only Substantive Due Process Clause
Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our panel discuss how the issue can get complicated.
Click here for transcript.
Fugenschuh v. Minnehan
Seals v. Wayne County
Whren v. U.S.
Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you.
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Good Governing (free download!)
Good Governing (physical copy for purchase)
Dan’s NYU Journal of Law & Liberty article
What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of privacy” test comes up as does the complete mess that the Fourth Amendment finds itself in these days.
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U.S. v. Sittenfeld
U.S. v. Poller
Kyllo v. U.S.
Herculaneum scrolls
Plunkitt of Tammany Hall
A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening.
Register for the Tavern Debate on March 28, 2025 in Westlake Village, California!
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Click here for transcript.
Wagner v. Scheirer
McKinney v. Goins
inversecondemnation.com
Bound By Oath episode on Pennsylvania Coal
SC episode on the British Constitution
Tess of the d’Urbervilles
Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed.
Click here for transcript.
S.C. Coastal Conservation League v. Corps of Engineers
City of Martinsville v. Express Scripts
TVA v. Hill
Adam’s Legal Newsletter post on the snail darter
Short Circuit episode on Mark Meadows case
Short Circuit episode on PBMs
Dracula
Corleone, Sicily
You probably know that all-too-many jobs require a license to work. But how is that license administered, who enforces its rules, and who makes the decision on whether to take the license away? Almost always it’s a board composed of people with the same license. Rebecca Haw Allensworth joins us to discuss her new book The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong. Unlike other studies on licensing it digs deep into how licensing boards operate, what their incentives are, and how they are hard on outsiders who haven’t hurt anyone but all-too-easy on insiders who are truly bad actors. She tells stories of what makes boards act this way, how it relates to antitrust law, and what has and could be done to reform how we regulate professions. Also, did you know Tennessee used to have a “beauty pageant operator license”? Listen in to hear that story and much more.
Click here for transcript.
The Licensing Racket
N.C. Board v. FTC (“The Case That Shall Not Be Named”)
Licensed to Work (3d ed.)
Bona Law
Two cases, from the Fourth and Sixth Circuits, came out within just a few days of each other, and each was about a city tearing a house down. And whether that was OK. They came to different conclusions, partly because one seemed to have been litigated a bit better, but also for other reasons we discuss. First, IJ’s Christian Lansinger describes a Virginia property that wasn’t in great shape, but also where the officials didn’t act quite right before they tore it down for being a nuisance. Unfortunately, the owner sued too late for the court to address most of his claims. In Kentucky, on the other hand, the owner sued in time after being told he couldn’t appeal to the city’s property review board because although it’s mentioned in the city code, city officials told him it didn’t exist. The court was not impressed by this and allowed the case to move forward. Joe Gay of IJ brings this matter to our attention, along with an interesting concurrence about how our property rights have suffered from a slow boil.
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Listen to Bound By Oath!
Click here for transcript.
D.A. Realestate Investment v. City of Norfolk
McIntosh v. City of Madisonville
Robert Thomas’ blog post
IJ’s Brody case
The Wrong House by A.A. Milne
We welcome back Easha Anand of Stanford Law’s Supreme Court Litigation Clinic for her third (or is it fourth?) appearance. Last time she was on she had not yet argued at the Supreme Court, but now she’s done it four times. She tells us if it gets easier (not so far) and then gives a report on a recent Third Circuit case where the court got qualified immunity all wrong. In ruling on a malicious prosecution claim the court helped the pernicious doctrine of QI grow from just being about rights to about causes of action. Then IJ’s Anya Bidwell takes us up to the First Circuit for a civil forfeiture matter concerning 30,000 drug prosecutions that were thrown out and whether the federal courts can help those wrongfully convicted get their property back (“no” is the answer). Also, at the end (after some discussion of biker gangs) there’s some joking about how the Supreme Court has relisted two IJ cases. What your host and guests didn’t know at the time, though, is that the Court would grant cert in one of them just an hour afterward! It’s Martin v. United States, and we’re sure you’ll hear more about it in future podcasts.
Click here for transcript.
RSVP for our 10th Anniversary Party and Show on April 3d in DC!
Rivera-Guadalupe v. City of Harrisburg
Cotto v. Campbell
Williams v. Aguirre
O’Connor v. Eubanks
How to Fix a Drug Scandal
Policing for Profit grade for Massachusetts
DOJ report on Springfield, Mass
IJ page on Martin v. U.S.
Tea-Cup Reading & Fortune-Telling By Tea Leaves
If you have a greenhouse, and a government agent sees it on Google Maps, is that fact probable cause to charge you with growing illegal cannabis, fine you $10,000 a day, and not give you a hearing for years? Humboldt County, California thought it was and threatened ruinous fines against innocent property owners for years in an abusive enforcement scheme. IJ represents innocent property owners in the county who had to take their case to the Ninth Circuit to move forward with their constitutional claims. The lead attorney, Jared McClain, joins us to detail the lawsuit and what the court said about the Excessive Fines Clause plus several other parts of the Constitution. Then, Andrew Ward of IJ takes us to the Fourth Circuit for a challenge to racial preference policies of the Small Business Administration. The case didn’t get to the merits because the court thought the plaintiff wouldn’t be eligible for benefits even without any racial preferences. In light of that there’s some discussion of how best to plead one’s case.
Come to our 10th anniversary show and party in DC on April 3d!
Click here for transcript.
Thomas v. Humboldt (excessive fines)
Thomas v. Humboldt (other claims)
Hierholzer v. Guzman
United States v. Bajakajian
A lot going on this week, including a lot of Short Circuit news. On the law side we talk about two recent opinions, one from the Fourth Circuit and one from the Sixth. Jeff Rowes of IJ explains the latest on abstention—Pullman abstention in this instance—where federal courts don’t do their job because state law is complicated. The Fourth Circuit said it wasn’t complicated enough, though, and allowed a religious liberties lawsuit to go forward. Then, IJ’s Brian Morris explains the latest news on net neutrality rules and why the FCC doesn’t get to decide them anymore. The Sixth Circuit won the lottery—literally—on where challenges to the latest rules would go. And once the challenges got there the panel of judges were not very impressed. There’s some discussion of the new post-Chevron world of Loper Bright, plus some discussion of how the internet worked in 1996, when Congress last spoke on this issue. Finally, we close with a reprise of a show we did a year ago about the Scottish poet Robert Burns! A real Scotswoman joins us to recite Burns’s “A Man’s a Man for A’ That.”
But the biggest news this week is our 10th Anniversary! Join us to celebrate ten years of Short Circuit on Thursday, April 3, 2025 in Washington, D.C. The show (and party) will feature a slew of folks from IJ plus retired judges Diane Wood (Seventh Circuit) and Kent Jordan (Third Circuit), Adam Liptak of the New York Times, Professor Eugene Volokh, Dean of #AppellateTwitter Raffi Melkonian, and our old friend Clark Neily, now at the Cato Institute. We have a lot of seats, but they may go fast. Register here today!
W.V. Parents for Religious Freedom v. Waldron
In re: MCP No. 185
Railroad Comm. v. Pullman
Loper Bright Enter. v. Raimondo
Short Circuit 308: Burns Night
A Man’s a Man for A’ That
Can state officers simply come on your land and take samples of your dirt (and water) without a warrant? Well, it’s hard to know when the court abstains from telling you. That’s what happened in the Sixth Circuit where a property owner went to federal court to stop an investigation but couldn’t because there was already a state court proceeding. Regular listeners will recognize an old familiar: Younger abstention. Mike Greenberg of IJ joins us to explain this convoluted story and how a case he litigated at the Michigan Supreme Court about drones plays a part in it. Then IJ’s Nick DeBenedetto discusses an en banc Fifth Circuit opinion about the SEC. The agency has to approve certain rules in private stock markets, but are there limits on what those rules can be about? Turns out hot-button diversity issues are a little too far afield. The Major Questions Doctrine makes an appearance, although in a new and perhaps unjustified way. And what does this whole system mean when private entities are beholden to the government approving their own rules?
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Satkowiak v. McClain
Alliance for Fair Board Recruitment v. SEC (en banc)
Bound By Oath episode with Professor Bob Williams
Trading Places stock market speech
City council meetings are usually sparsely attended, low key, unwatched affairs. Except when they’re not. This week we have two cases where those in power were so offended by what members of the public had to say at a meeting that they were later arrested, in violation of their right to free speech under the First Amendment. Or that’s what the plaintiffs claim, anyway. First, Katrin Marquez of IJ tells us of a meeting in Texas of a “court” that wasn’t exactly a court but really a county board. However, that didn’t stop the “judge” who led the meeting from trying to find an audience member in contempt. Sovereign, judicial, and qualified immunities all raise their heads in the subsequent Fifth Circuit lawsuit, as does the First Amendment retaliation claim. Then, IJ’s Michael Peña brings us to the Sixth Circuit where a local citizen called for the termination of a city manager and later found himself under arrest. Was there a connection between the two? The court seems to think so, or at least enough that it lets the case move forward. Plus, with the close of 2024 we begin with a few words of remembrance of William “Chip” Mellor, IJ’s co-founder and longtime President who we lost recently.
Register for the Tavern Debate on January 24, 2025 in Westlake Village, California!
IJ’s statement on Chip Mellor passing away
Diaz v. Cantu
Blackwell v. Nocerini
Bound By Oath on Monroe v. Pape
IJ’s Iowa city council retaliation case
IJ’s Alabama city council “no” vote retaliation case
IJ’s Texas citizen journalist case
Seasons greetings from Short Circuit! While you’re enjoying your holiday week at the end of 2024 we’re giving you the content you need: Christmas sweaters. Don’t worry, there’s still plenty of legal stuff, but we start things off by delving into the mystery of where the Christmas sweater phenomenon came from. (Your host suspects it has something to do with Bridget Jones’s Diary the movie—but not, interestingly, the book.) If you’re on a non-YouTube platform, to give the episode full justice you might want to check out how the episode actually looks by peaking over at Short Circuit’s YouTube channel where you can see the panel’s fashion choices. As to the law, Bert Gall of IJ tell us of a Fourth Circuit case where some plaintiffs are trying to assert their voting rights by invoking Congress’s act readmitting Virginia to the Union after the Civil War. But that’s just in the background at this point as for now the court is just trying to figure out whether sovereign immunity prohibits the lawsuit. It turns out it does not. Then IJ’s Dan Knepper takes us into a mic-dropping DC Circuit case where the court declared void a slew of environmental regulations despite no party asking it to. Can judges do that? Reactions are mixed.
King v. Youngkin
Marin Audubon Society v. FAA
The untold story of Mr. Darcy’s sweater
Sweater scene from Bridget Jones‘s (movie)
Sweater description from Bridge Jones’s (book)
IJ’s Anya Bidwell guest hosts this special episode to ask what states and local governments can do to better protect their citizens’ rights, particularly when it comes to achieving justice in the courts. Professor Joanna Schwartz of UCLA and Kasia Symborski Wolfkot of the Brennan Center join Anya to dig into how a variety of laws and practices outside of Washington, D.C affect our rights. They discuss state legislative reform of causes of action and qualified immunity, the changing nature of state supreme courts, the limited involvement the Department of Justice has with local police departments, and other subjects. Plus, there’s information on how citizens themselves can make a difference, including the often-forgotten opportunity to serve on a jury.
Click here for transcript.
Civil Rights Ecosystems
Lessons From New Mexico
New Mexico Law Review Symposium
State Court Report
We start with a case that ticks a lot of Short Circuit boxes: eliminating governmental immunities, state constitutions, preliminary injunctions, conniving public officials, mootness, and en banc news. So what happened there? Nothing. At least for now. Beyond the Brief’s (and IJ’s) Keith Neely details a long journey a group is having to take to get a state constitutional amendment on Ohio’s ballot. Ohio’s Attorney General has had a lot of problems with their paperwork. So many problems that, as Keith explains, “at some point you run out of stupid.” The case concerns the First Amendment but at bottom it’s about bureaucratic bad faith. Then we hear from IJ’s Josh Fox about a Second Circuit opinion with a default judgment and a prisoner. Unusually, it’s not a default judgment against a prisoner but one a prisoner won against a prison guard. This story from Fishkill, New York deals with what happens when a plaintiff loses their claim against some defendants but wins the same claim against another defendant through default. Is that OK? The district court thought it was and awarded the prisoner $50,000. But things weren’t so great on appeal. This leads to your host describing himself as a default judgment lawyer. Also, Josh answers the perennial question: What’s up with the Court of Federal Claims?
Click here for transcript.
Brown v. Yost
Moore v. Booth
Beyond the Brief’s YouTube channel
Unpublished Opinions, Episode 9
Vogons
Notable—and quotable—Chicago lawyer Patrick Eckler joins us for a crash-course in Seventh Circuit paranoia (if you’re paranoid about jurisdictional questions at oral argument—which you really should be). A co-host of the Podium and Panel Podcast, Patrick gives a primer on how federal appellate judges look at things The Chicago Way and then explains how a recent oral argument went off the rails quite quickly. The resulting opinion about the Federal Arbitration Act and how it relates to Amtrak was pretty short, mostly because the lawyers seem to have forgotten they work for a railroad. Then Christie Hebert of IJ takes us on an up-and-down ride in the Eighth Circuit with a takings case (and a bit of Contract Clause thrown in) that despite its hopeful beginnings on appeal two years ago ends in a meaningless one-page opinion. Along the way she shares what she learned at the Supreme Court earlier this year in IJ’s property rights case, DeVillier. And, for those who can’t find such content anywhere else, there’s a spirited defense of Rule 12(c) motions.
Click here for transcript.
Montoya v. Amtrak
Oral argument in Montoya
Heights Apartments v. Walz (2022)
Heights Apartments v. Walz (D. Ct. 2023)
Heights Apartments v. Walz (2024)
Podium and Panel Podcast (Apple)
Patrick on LinkedIn
The Railway Children
Latest episode of Unpublished Opinions
We go online for some First Amendment content this week. First, IJ’s Jeff Redfern explains how the Eleventh Circuit concluded that CNN might be liable for defamation after one of its commentators said Project Veritas had been suspended from Twitter for “misinformation” when it had, in fact, very truthfully doxxed someone. That seems to pass the high bar of “actual malice” under the First Amendment’s free speech protections. Then Tahmineh Dehbozorgi of IJ brings us up to the Third Circuit where Section 230 immunity runs into a TikTok algorithm. Breaking with other circuits, the court says TikTok loses this one because the algorithm makes the content first-party speech, not third-party. It’s a ruling that could mean this issue is finally going up to the Supreme Court. What’s a “publisher” under the First Amendment vs. Section 230 vs. whatever? People are confused, the courts especially.
Click here for transcript.
Project Veritas v. CNN
Anderson v. TikTok
Techdirt article
Still William, Chapter II
A couple friends drop by this week who have overstayed their welcome: Rooker and Feldman. Together they make up the Rooker-Feldman doctrine, a weed that has grown to crowd out justiciable federal claims in the federal courts. But the good news is that they aren’t the only friends on this week. We also have Wisconsin appellate attorney Joseph Diedrich who shares the story of his massive Seventh Circuit case which went en banc and Rooker-Feldman and now might go to the Supreme Court. Joe details the ins and outs of how a doctrine that is supposed to simply prevent appeals from state court to the lower federal courts has become a catch-all to get rid of deserving cases, including his case where his client is suing child welfare agents for violating her custody rights. Joe also shares some knowledge about how state courts work in Wisconsin, including a rule about dicta that it shares with the Ninth Circuit. Then IJ’s Arif Panju relocates us to the Fifth Circuit where the press was excluded from bail hearings before Texas state magistrate judges. This violates the First Amendment, it turns out. You’ll also learn a bit about where to find the best brisket.
Click here for transcript.
Gilbank v. Wood County Dept of Human Services (en banc)
Texas Tribune v. Caldwell County
Short Circuit episode on Sixth Circuit case
Gilbank Cert Petition
Stats on Wisconsin Supreme Court cases
Can the U.S. government use civil forfeiture in a U.S. court to take property in another country? One of IJ’s directors of our National Initiative to End Forfeiture Abuse, Dan Alban, reports on a rare forfeiture loss for the federal government when it tried to forfeit money in a bank account in the principality of Liechtenstein. The Ninth Circuit thought that was a bridge too far, although the various judges disagreed with each other on why. Then IJ’s Matt Liles updates us on the latest on Second Amendment challenges to the District of Columbia’s gun laws. If your jam is gunpowder storage, nineteenth century trap guns, Bowie knives on the frontier, and diagrams of centuries-old guns that belong in Terminator movies, we’ve got you covered.
Click here for transcript.
U.S. v. Nasri
Hanson v. D.C.
End Forfeiture
The Parent’s Assistant
Did you know that you can be arrested for walking on the wrong side of the road? Neither did a Missouri police officer. Until he needed an excuse to put someone in handcuffs. Marie Miller of IJ details her recent victory at the Supreme Court—in a relatively terse, 20-word opinion—on behalf of her road-walking client after he lost at the Eighth Circuit, and how the First-Amendment-retaliation victory depended on an IJ case from last term, Gonzalez v. Trevino. Then IJ’s Anya Bidwell—who had something to do with that last-term victory—outlines a trilogy of recent opinions in the Eleventh Circuit where former federal officials have tried to remove their state criminal prosecutions to federal court. It may well be that one of the cases—involving former White House Chief of Staff Mark Meadows—has been taken by the Supreme Court by the time you listen. Also, in the podcast Anya says she’ll make a handy chart to help all of you navigate through the story. Well, afterward she actually did! Click on the link below to see it.
Click here for transcript.
Murphy v. Schmitt (8th Cir.)
Georgia v. Clark
Georgia v. Shafer
Georgia v. Meadows (11th Cir.)
SCOTUS docket for Meadows
Short Circuit episode with Andrew Fleischman
Ulysses
Anya’s chart
Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned portions of his opinion as well. Further, as a special treat, Jacob tells us of some work he’s done on legislative immunity and Reconstruction. Plus, do you know the difference between an acronym and an initialism? Whatever it is, we hope you won’t say the two flirted excessively.
Click here for transcript.
U.S. v. Schwarzbaum
Stein v. Kaiser Foundation Health Plan
Gorsuch dissent in Toth v. U.S. denial
Timbs v. Indiana
Short Circuit episode on dicta in 9th Cir.
Jacob’s Section 1983 article
Excessive flirting in Emma
With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Circuit case about foreigners and campaign contributions, a Ninth Circuit opinion about voter rolls, a Fifth Circuit decision on ballot collection, back to the Sixth Circuit for a flurry of opinions about RFJ Jr.’s quest to not be on a ballot, and finally to the Minnesota Supreme Court for what the heck “learned in the law” means. But we begin with the question of whether all that much has changed in politics in the last 100+ years.
Click here for transcript.
OPAWL v. Yost
AZ Alliance v. Mayes
La Union del Pueblo Entero v. Abbott
RFK Jr. v. Secretary of State (MI Ct App)
RFJ Jr. v. Secretary of State (MI Sup Ct)
RFK Jr. v. Benson (6th Cir panel)
RFK Jr. v. Benson (6th Cir en banc)
MacDonald v. Simon
Psmith in the City
When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in stating a Contracts Clause claim. Later on, however, the city of New York “remembered” that it didn’t actually enforce the law in question—a pandemic-era rent-collection abatement—which lead to the plaintiff landlords losing their standing. There’s a silver lining for them—but it’s very much a lining. Then we’re off to the Tenth Circuit where IJ’s Paul Sherman explains Utah’s online age verification law and how the state designed it to only be enforced by private actors. Similar to the Texas abortion law which the Supreme Court tussled with a few terms ago, the statute’s intent is to get the state out of the enforcement business, and therefore get the courts out of the business of finding content-based restrictions on speech unconstitutional under the First Amendment. And it seems this attempt succeeded, for now.
Click here for transcript.
Unpublished Opinions podcast
Bochner v. NYC
Free Speech Coalition v. Anderson
Whole Woman’s Health v. Jackson
IJ amicus brief in Obamacare
Charles Osgood’s Responsibility Poem
For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re joined by IJ attorney Ben Field. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on and a couple cert petitions that the Court has been considering. You’ll learn about the First Amendment’s history with the Internet, applications of the First Step Act, where things stand with speaking occupations, and the twilight status of the Bivens doctrine.
Click here for podcast.
Free Speech Coalition v. Paxton
Hewitt v. U.S.
360 Virtual Drone Services v. Ritter
Henning v. Snoden
“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” Then it’s off to the Fifth Circuit for some different views of video. Anya Bidwell of IJ relates that one particular video demonstrates—or does it?—that a police officer may have been out of line and violated the Fourth Amendment with excessive force. All three judges on the panel write a take about a roadside encounter between police and a driver’s boyfriend that was imperfectly—or was it?—captured by a video camera. Two judges think this means the whole question should go to a jury. Another judge disagrees, and pines for qualified immunity.
Spiller v. Harris County
U.S. v. Johnson
Scott v. Harris
Scene from Twelve Angry Men
“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in their possession. Michael Perloff of the ACLU argued and won the case and he joins us to discuss its ramifications. Several other circuits have gone the other way on the question, making it a prime issue for another court in Washington D.C. Also, Rob Frommer of IJ’s Fourth Amendment Project treats us to a qualified immunity/Fourth Amendment opinion from the Ninth Circuit about someone who was severely injured by a police officer’s foam baton. The judges address the extremely odd question of whether an officer gets the benefit of case law getting better for him after he commits a constitutional violation when it comes to qualified immunity. “Um, no” is the Ninth Circuit’s answer, which leads into a discussion of how qualified immunity may be changing.
Asinor v. D.C.
Sanderlin v. Dwyer
Baby blood case
Molly Brady’s “The Lost ‘Effects’” article
Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pizza—and, of course, that’s essentially everyone. What doesn’t include everyone, though, are those who enjoy having foreign websites track everything we do on our computers. Will Aronin of IJ tells us of a Third Circuit case that examines how various companies track users’ online activity while on the companies’ websites—including users ordering pizza. Is that tracking enough to mean you can sue the company in Pennsylvania? Well, we don’t know because the court didn’t allow the case to go forward. Will breaks it down while providing some strong views about invasions of one’s personal—and virtual—space, plus a throwback reference to shrinkwrap licensing. And did you know that on any given day 13% of Americans are eating pizza?
Kinsley v. Ace Speedway Racing
Hasson v. Fullstory, Inc.
Shrinkwrap license case
Short Circuit episode on Georgia economic liberty case
Anthony on Advisory Opinions about Justice Holmes
Dumas’ Marguerite de Valois
A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy.
Gonzalez v. Trevino case page
Villarreal v. City of Laredo en banc
Right on Crime
Over Ruled by Justice Gorsuch
Texas Observer
An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia.
Ramirez v. Killian
Wolfe v. Reading Blue Mountain
Bound By Oath episode on Pennsylvania and coal
IJ’s Georgia railroad eminent domain case
From a Railway Carriage
Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It involves the First Amendment, freedom of the press, the Fourth Amendment, arrest warrants, retaliation, and all kinds of Fifth Circuit drama. Then we move to the Eleventh Circuit where our own Anya Bidwell reports on an extremely strict version of qualified immunity that protected a forcible strip search made of a visitor to a prison without any probable cause. There are also concurrences disagreeing with the circuit’s own caselaw, including and one of our favorite staples: a Judge Newsom concurrence asking “what is the law?”
IJ event with the Texas Observer in Austin on September 4!
Short Circuit on YouTube
Villarreal v. Laredo (en banc)
Villarreal v. Laredo (panel)
Villarreal cert petition
Short Circuit 201 (discussing Villarreal panel opinion w/o dissent)
Pentagon Papers case
Gilmore v. Georgia Dept. of Corrections
One reason we have a Fourth Amendment is to be free from general warrants, permission slips for the government to search, well, everything. Is that what newfangled “geofence warrants” are? The Fifth Circuit thinks so, which is why it found one to be unconstitutional. Your host brings you the tale of a postal heist where the bandits were only found through a search of Google accounts—592 million of them. But was it a “search” in the first place? We hack into this high-tech matter. But first IJ’s Kirby Thomas West provides an example of special rules for government attorneys. The lawyers for some defendants in a civil rights case didn’t want to use qualified immunity, at least not before trial. But then the trial judge ordered them to. And then, by golly, they won. Was that, um, fair? Seems the Eighth Circuit thought it was hunky dory. Kirby, who has experienced much-less-forgiving judicial treatment while litigating on the other side, begs to differ.
Webb v. Lakey
U.S. v. Smith
U.S. v. Chatrie
Anyone who has ever grown enraged after seeing their comment deleted from a Facebook page will find solace in this week’s episode. We examine a free speech tussle between the National Institutes of Health and the animal rights folks at PETA. IJ’s Michael Soyfer brings us this First Amendment case from the D.C. Circuit which said that blocking certain hashtags isn’t necessarily right even when the posters say mean things. But before that we look at interstate commerce and truckers. The Fifth Circuit isn’t happy about its interstate commerce caselaw, but it’s not the Wickard v. Filburn variety concerning the Constitution. No, it’s an overtime showdown between the Motor Vehicle Carrier Act and the Fair Labor Standards Act. Time travel with us to the days of Schechter Poultry v. United States with your guide, fresh off his pandemic hobby escapades, IJ’s Suranjan Sen.
Escobedo v. Ace Gathering
PETA v. Tabak
Story of the Schechter butchers
A most unusual Fourth Amendment case this week: One cop claims there was a seizure while another says there was not. They disagree because one cop is suing the other. Guess which cop wins? It’s the one with the dog—named Thor—that got a little too eager in a cemetery while in hot pursuit. But apparently didn’t “seize” the other by mistakenly tearing into his leg. Dylan Moore of IJ brings us this canine caper from the Eighth Circuit. Then your host takes you to the en banc Fifth Circuit and tells a twisted tale of Jim Crow, felon disenfranchisement, the Eighth Amendment, and “evolving standards.” Historians of the 1890 Mississippi constitutional convention may want to take notice.
Irish v. McNamara
Hopkins v. Watson
Short Circuit on Section 2 of 14th Amendment
Puppy and I
Emphasizing the justice in our name, IJ recently launched a new project to fight back against zoning laws, Zoning Justice. We’ve been challenging overreaching zoning for years, but there’s now a new emphasis on how it inhibits people from providing housing and pursuing the American Dream. Joining us to talk about this new venture are the project’s leader Ari Bargil and IJ attorney Joe Gay. Joe tells us about some recent zoning reforms in Montana and an amicus brief he filed in the state’s supreme court supporting them. It recounts the history—and harms—of zoning and how allowing everyone to do more with their property doesn’t violate anyone’s constitutional rights. Then Ari tells us of an all-too-typical zoning dispute in Philadelphia where the neighborhood opposition to an attempt to rehab some apartments was anything but brotherly.
Zoning Justice Project
Amicus brief in MAID v. Montana
In Re: 3401 Sky Properties, LLC
Village of Belle Terre v. Boraas
Bound By Oath episode on zoning (1 of 3)
Short Circuit interview of Nolan Gray on Arbitrary Lines
It’s time for Short Circuit to head for the hills. Two cases from the mountainous Tenth Circuit, one on the Fourth Amendment and another on the Bivens doctrine. First, Bob Belden of IJ saddles up for a 911 call that may have led to the wrongful arrest of a Super Bowl reveler. What is enough evidence from an anonymous tip to stop a supposedly shady suspect? Not as much as was in a parking lot full of Broncos fans. Then your host gives an update on a terrorist who has been in prison for quite some time. He seems to have a good claim against his prison guards. But does the method for bringing that claim even still exist? And whether or not it exists can the government immediately appeal when a court says it does? It’s a quantum-mechanical question.
U.S. v. Daniels
Mohamed v. Jones
In Search of Schrödinger’s Cat
Free Fire by C.J. Box
The Perfect Crime
We join forces with the law firm of Hogan Lovells to bring you some “legal mumbo jumbo”—an episode recorded at their offices in Washington, D.C. before a gaggle of law students. Joining your guest host, IJ’s Ben Field, are IJ attorney Kirby Thomas West plus two of Hogan’s finest, appellate attorneys Sean Marotta and Danielle Desaulniers Stempel. Danielle begins things with a Fifth Circuit opinion about silencers and standing. Apparently the plaintiffs were a little silent about any harms that have befallen them. Then it’s on to Sean for a lesson about what makes the world go round. Funnily enough, it’s not money but shipping containers. That is, as the D.C. Circuit recounts, until a federal agency starts tacking into shipping contracts. Finally, Kirby brings us up to the First Circuit for a story of TikTok, retaliation, and judicial opinions that maybe aren’t as funny as their authors think they are.
Paxton v. Dettelbach
Evergreen Shipping Agency v. FMC
Macrae v. Mattos
Short Circuit episode on standing
This episode is a First Amendment 2-4-1. We begin with James Dickey of the Upper Midwest Law Center (and former golf pro). James tells us about a recent case he argued at the Eighth Circuit concerning the “government speech” doctrine. If a public school lets some people—but not others with a different viewpoint—come in and hang posters is that just fine because it’s the “government” speaking? In keeping with some recent Supreme Court rulings, the court said no, letting the case go forward. Then IJ’s campaign finance guru Paul Sherman steps forward to tease out a confusing opinion of the Second Circuit about a New York law that allows big contributions to big political parties but much smaller contributions to much smaller groups. It seems the reasoning is that major parties are above suspicion. Can that be right? Paul doesn’t think so.
Cajune v. Ind. Sch. Dist. 194
Upstate Jobs Party v. Kosinski
Huizenga v. Ind. Sch. Dist. 11
The Fourth of July holds a central place in American history. The day patriots threw off the shackles of King George. Which is why it’s a little ironic that this year it’s the day the British are holding a general election to democratically chose their government. To cash in on this coincidence, this episode highlights some recent cases that reflect the heritage of 1776 and also Anglo-American relations of the present day. And, breaking our usual mold, we start with a case from the Supreme Court, SEC v. Jarkesy. Rob Johnson of IJ joins us to explain why this case is such a big deal for the right to a jury trial, and how the preservation of that right was one of the causes of the Revolution itself. Then, Andrew Ward of IJ tells a much more modern story of a burglary of a British diplomat’s Texas home. The burglar was caught and plead guilty. But he wasn’t pleased with a limitation on his right to “drink excessively.” Andrew tells the whole Fifth Circuit story, and also provides education on what exactly a “consul general” does these days.
SEC v. Jarkesy
US v. Woods
Anthony’s piece “America is not British”
British Constitution episode
Everybody knows that the government can’t take property from you just because it doesn’t like you. But what if the government says it actually wants to turn the property into a park even though everybody knows it’s because it doesn’t like you? Recently the Second Circuit said that was A-OK. We had on IJ’s Jeff Redfern, an attorney in the case, to talk about this example of eminent domain abuse and how it’s now potentially heading to the Supreme Court. It involves a family that wanted to build a hardware store and a town that did everything it could to stop them. After that we hear from Jason LaFond, a Texas litigator with some Texas-sized stories. Especially one from the Supreme Court of Texas, which recently ruled on whether it violated the Texas Constitution for the state legislature to get rid of some claims related to pandemic shutdowns and lost tuition. The case gets into originalism in state constitutions, how different constitutions in the same state relate to each other, and the continuing fallout of pandemic policy.
Brinkmann v. Town of Southold
Hogan v. SMU
Cert Petition in Brinkmann
Rational Basis with Economic Bite
Ratification by Pauline Maier
Is “perceived speech” protected by the First Amendment? That straightforward question goes in a very complicated direction when a truck driver is fired from his government job. Christie Hebert of IJ joins us to explain this highly confusing tale from the Tenth Circuit. Then it’s pass-the-popcorn time with some Fifth Circuit drama, served up by IJ’s Rob Johnson. We heard in a recent episode about the objection to a transfer of venue in a challenge to a new rule about credit cards. Well, that same matter is already back at the Fifth Circuit concerning another attempt to transfer venue, replete with more intra-circuit squabbling. We also discuss forum shopping when it comes to nationwide injunctions.
Avant v. Doke
In re Chamber of Commerce (June 18, 2024)
Short Circuit 319
Much Ado, Act III, Scene 1
It’s a Short Circuit Live, recorded at the Institute for Justice’s annual law student conference! Patrick Jaicomo is your host, and he brings along IJ’s Michael Bindas and Katrin Marquez to dig into two very different but thought-provoking decisions for the young legal minds in the “studio” audience (and yours too, of course, dear listener). First, Michael reports on a decision from the Eleventh Circuit that on its face is a standard insurance and indemnification case. But, Judge Newsom adds a concurrence that will take your mind to different—and artificial?—places. Should we be asking our new AI Overlords what the meaning of words are? The panel thinks it’s perhaps not insane to look into, as does the judge. Then, Katrin reports on another Eleventh Circuit case with a civil rights violation that was so obvious that the court denied qualified immunity even though there was no on-point precedent. Listener beware, though, as it involves the loss of a dog. It does portend, however, some Hope for the future.
Snell v. United Specialty Ins. Co.
Plowright v. Miami Dade County
Hope v. Pelzer
Another episode of that podcast that’s not Short Circuit but features Institute for Justice attorneys talking about the law. Anya Bidwell rejoins the panel while she waits for the opinion in her Supreme Court case, Gonzalez v. Trevino. She says a few things about the Court’s recent ruling in NRA v. Vullo, a different First Amendment retaliation case. Multifactor tests are balanced as well. Then, Diana Simpson of IJ gives her thoughts on appeals in the middle of a case, and how often the rules concerning them are bent in favor of the government. The panel touches on ghostwritten briefs and whether there’s anything wrong with the practice. They close by figuring out what is a “spectacle” in the legal arena versus what’s just news.
NRA v. Vullo
Ghostwriters article
Diana’s Texas Mechanic case
In AI we trust
If you’re a fan of our furry friends (actual animals, that is) then this is the episode for you. First, we start with what’s important: What horses to pick in this weeks’ Belmont Stakes, the last leg of the Triple Crown, which will run (or ran, if you listen to this episode later on) in two days. IJ’s Brian Morris lends his horse sense to this question. Then he goes back to his Kentucky roots for a case about the first leg of the Triple Crown. A few gamblers would have won a lot of cash if a horse in a past Kentucky Derby had been disqualified on race day. But because the disqualification didn’t happen for nine months they got nothing. The Sixth Circuit said their case wasn’t a winner. Then we head south to the Fifth Circuit for a dog sniff case that isn’t about drugs but human trafficking. IJ’s Mike Greenberg is skeptical of the reasoning. He also lends his opinion to which states are placed in which reporters for their published opinions. It’s time for conference realignment!
Mattera v. Baffert
U.S. v. Martinez
Short Circuit 209 (drug dogs and animal book)
Short Circuit 271 (Brian mentions the Kentucky Derby)
IJ amicus brief on legal marijuana and drug dogs
First of all: PARENTAL ADVISORY! If you have children nearby you might want to save part of this episode for later. It doesn’t happen until just after 32 minutes into the episode, but the naughty language the Seventh Circuit quotes in one of this week’s cases forces IJ’s Sam Gedge to choose between dishonest modesty and, as he puts it, revealing the un-expurgated truth. Like a gentlemen, he goes for the latter while discussing a qualified immunity case about a “kung fu cop” with “multiple blackbelts” who gets a little punchy with a man who had a few too many. After that things just get weird as Sam introduces us to the first case in the American (reported, at least) tradition to use a certain word on George Carlin’s famous list. We close with a conversation about Patrick O’Brian’s and Jane Austin’s editing styles. But before any of that IJ’s Jared McClain tells us how to successfully make a mandamus claim against the Capitol Police. Although it seems you can get close in the D.C. Circuit, the common law gauntlet is a tough one.
Leopold v. Manger
Brumitt v. Smith
Edgar v. McCutchen
Memoirs of the Countess of Cardigan
Quart of Blood Technique
How does history inform our interpretation of the Constitution? In all kinds of ways, it seems, and perhaps in too many of them. We once again look at how history and the Second Amendment are mixing together, in a case from the Eighth Circuit. The opinion lets us do a bit of digging into a less-well-known founding father, Benjamin Rush, and his enthusiastic embrace of putting people behind bars. But before that IJ’s Bobbi Taylor details some of the latest class-action shenanigans in the Seventh Circuit. For the first time we address “mootness fees,” settlements extracted in some disclosure litigation against public corporations. And we consider whether they’re “a racket” as the court suggests.
Alcarez v. Akorn, Inc.
U.S. v. Veasley
Ted Frank episode, SC 154
Szasz, The Manufacture of Madness
We take a break from the federal courts of appeals and look into a brave new world—or is it an Orwellian one? Our thoughts—our inner mental processes—are the one aspect of our lives that is completely private. Right? Well, emerging technology is making that not so true anymore. IJ’s Anya Bidwell welcomes Professor Nita Farahany of Duke University to Short Circuit to discuss her recent book The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology. They talk about how neurotechnology works and how it has many potentially transformative implications, including many good ones. But in the wrong hands—especially the hands of the State—those implications can be quite unsettling. And there are so many gray areas in-between. People in China and other countries are already dealing with some of these implications and the legal and constitutional system in the United States is not yet ready for them if we are to keep the mental privacy we all value. Get ready for a conversation about what is private, what is human, and how liberal values and the Constitution can address the good and the bad of a future that is already here. And how to write a book via the Pomodoro method.
The Battle for Your Brain
Searching Secrets
Incriminating Thoughts
Pomodoro Technique
We’re gonna read you the Riot Act. Again. An old friend of Short Circuit returns, the Anti-Riot Act. Perhaps (?) named in homage to its 18th century predecessor, the Congressional statute received a facial test at the Seventh Circuit, and IJ’s Kirby Thomas West tells us how it fared in the face of a guy who requested that everyone bring their family and a brick to a “riot.” He did not do so well in court, but perhaps the Anti-Riot Act has problems anyway? Then we go for a drive down a Houston freeway where Sam Gedge makes a citizen’s arrest of a qualified immunity claim while drinking at a local flea market at 2am. The Fifth Circuit served up a wild ride of a case that is too good to pass up but also holds bigger lessons for how judges perceive “split-second decisions” and premeditated lies.
U.S. v. Betts
Hughes v. Garcia
The Riot Act
Short Circuit 146 (4th Cir. Anti-Riot Act case)
Stories we hope our listeners can relate to this week: borrowing cars and lousy neighbors. First, from the Sixth Circuit, IJ’s Rob Frommer details how a man sitting in the passenger seat of a running car somehow lost his Fourth Amendment standing. And went to prison. And then in the Second Circuit your host explores what can be done when your neighbor is an embassy. It’s an all-too-familiar tale of a building project gone awry but with a twist of sovereign immunity.
Register for the May 10 open fields conference!
U.S. v. Rogers
Harvey v. Sierra Leone
Neighbors 1980’s opening song
Fawlty Towers—The Builders
It’s been a while but we’re back with an episode of Unpublished Opinions. Herein IJ attorneys Anya Bidwell, Patrick Jaicomo, and your host talk about . . . Anya’s recent Supreme Court oral argument, how SCOTUS is surprisingly a friendlier place to argue than many other courts, the recent FTC rule about non-competes, why we still have a “Lawyers’ Edition” for SCOTUS cases, how perhaps lawyers can learn from magazine covers . . . and more!
Judge Posner liquidated damages case
Rob Johnson’s Tweet on FTC’s & non-competes
Anya’s SCOTUS argument
No Fly List case
We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars.
Register for the May 10 open fields conference!
Connell v. CIA
Lozano v. Collier
Audio Arguendo (Michel’s oral arguments podcast)
We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so.
Register for the May 10 open fields conference!
US v. Hay
Citizens United to Protect Our Neighborhoods v. Chestnut Ridge
Episode on 7th Cir pole camera case
Episode on 1st Cir pole camera case
End of The Usual Suspects (SPOILER ALERT!)
Two wild stories this week, one biblical and one of a more secular nature—but still wild. Jeff Redfern of IJ tells of a Texan judicial shootout in a fight between credit card companies and the Consumer Finance Protection Bureau. The companies got tired of waiting for the trial court to rule on an emergency motion so they appealed it—but around the same time the trial court transferred the case to a court in Washington, D.C. Was that wrong? Can anything be done about it? Opinions differ. Then Keith Neely of IJ takes us underwater to the Sixth Circuit for perhaps our first case involving baptism. An officer was ready to charge a driver with marijuana possession, but then offers to give her a lesser charge . . . if she lets him baptize her in a lake that night. Which, after she grabs some towels, goes forward. And in the ensuing lawsuit qualified immunity is denied because, well, this is pretty obviously unconstitutional. Right? Also, Keith gives a preview of IJ’s new show Beyond the Brief. Check it out!
Beyond the Brief
In re Fort Worth Chamber
White v. Hamilton County
Mark i:6-8
An all Seventh Circuit, all Chicago episode. IJ attorney Andrew Ward drops in to tell a tale of online support for terrorists. Or at least FBI agents posing as terrorists. This recent case does not weigh in on, but raises the issue, of whether computer code is speech. Then we turn to the nitty gritty of unions, small employers, pension plans, and legalized cartels. Things are a bit topsy turvy in this area—and often sound pretty unfair. Your host gives a bit of a lay of the land as it’s been expressed by Judge Easterbrook of the Seventh Circuit over the years.
IJ conference on the Open Fields Doctrine (May 10)
Cato conference on the right to earn a living (April 18)
U.S. v. Osadzinski
Bulk Transport Corp. v. Teamsters No. 142 Pension Fund
Central States v. Gerber Truck
The Short Circuit roadshow comes to UVA in Charlottesville, Virginia, where we finally focus on the Fourth Circuit. Fresh off her Supreme Court argument last week in Gonzales v. Trevino, Anya Bidwell turns back to the federal courts of appeals with some local guests. They are Professors Rachel Bayefsky and Lawrence Solum of UVA and Greg Cui of MacArthur Justice (and UVA). They discuss recent Fourth Circuit cases about cruel and unusual punishment in prison, a non-immune judge on a search, and the rational basis test turned up to 12 (that is, Rule 12(b)(6)) in a land use dispute.
Jones v. Solomon
Gibson v. Goldston
SAS Associates 1 v. Chesapeake
Video from Gibson case
Legal Theory Blog
Bayefsky on Judicial Institutionalism
Bayefsky on Public-Law Litigation
Solum on Legal Personhood for AI
Is qualified immunity a narrow doctrine focused on protecting the police when they make “split second decisions”? If you listen to its defenders you would get that impression. The reality is far, far different. And IJ now has the stats to back that up. In this special episode, we welcome on IJ’s Bob McNamara and data scientist Jason Tiezzi to discuss a new report Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises. It presents an analysis of over 7,000 federal appellate decisions over an eleven-year period and tells us a lot about how qualified immunity actually works in practice. We dig into many of its findings, such as that only 27% of appeals where qualified immunity was at issue involved excessive force. And that almost one in five qualified immunity appeals involved First Amendment claims. Listen in to hear the details, including about how this massive study was put together. And click below in the show notes to read the report itself.
UnaccountableUnaccountable finds qualified immunity hobbles victims of government abuses like these and fails to accomplish the goals supporters claim it’s needed to achieve, strengthening the case for ending the doctrine.
read report
A bit of a free speech derby this week, one opinion about free speech itself and another about how to just get to the First Amendment in the first place. We start in Florida with something that’s becoming a theme on the show: The Eleventh Circuit ruling that a law championed by the state’s governor and passed by the state legislature violates the First Amendment. The opinion concerns part of the “Stop WOKE Act” (acronym alert) and how the court pretty easily found that the law regulates speech, doesn’t pass scrutiny, and therefore is unconstitutional. But IJ’s Paul Avelar cautions that although the result may have seemed obvious it actually wasn’t that obvious because of some prior inconsistent cases. Then we hop over to California where IJ’s Christian Lansinger tells us of a horse that dare not speak its name. At least if it wants to race. But putting aside the right to give a horse a name that makes fun of someone else (in this case, the name is “Malpractice Meuser”), the Ninth Circuit focused on procedural hurdles (fences?) that stood in the way of the horse’s owner vindicating that right. It’s time to giddy up!
Honeyfund.com v. Florida
Jamgotchian v. Ferraro
Short Circuit episode on horse racing and nondelegation
Locke v. Shore (interior designer speech case)
Everyone says we need more housing, right? Not all local governments agree. Maybe they’re fine with more housing over there but not where developers actually want to build it. Justin Pearson of IJ joins us to tell a story of local shenanigans in his home town in New York state where a long saga to build some homes ended in a glorious flame-out of judicial abdication. There’s regulatory takings, zoning, ripeness, and even a religious liberty angle in this case from the Second Circuit. Then your host makes an offer that’s too good to be true. Because it isn’t. Crypto backed by gold might sound like an odd concept, and it was too odd for a scam artist to stay out of prison. But not before he bilked several million dollars from investors. However, that didn’t prevent him from arguing that the “history and tradition” of his Sixth Amendment right to force witnesses to testify meant he could rope in a few federal government employees. Did the denial of his request mean the court should throw out his conviction? Your host provides the answer from this First Circuit opinion. You’ll learn that even today just shouting “history and tradition” doesn’t get you very much.
BMG Monroe v. Village of Monroe
U.S. v. Crater
Laser scene from Goldfinger
A special episode on artificial intelligence and the law, including how we find the law. Ed Walters, a pioneer in bringing AI to legal research, joins us to separate the artificial wheat from the chaff. He explains that a lot of the recent news about the failures of AI models have been due to using the wrong models for the wrong things, not the models themselves. He walks us through a near future when lawyers can use AI to not just find points of law but write memos or briefs. We’re also joined by IJ’s Paul Sherman, our resident AI aficionado, who recently wrote a letter to the Fifth Circuit about a proposed rule it has regarding AI use and brief writing. There’s a lot of promise out there but also a lot of danger in the government—including courts—overreacting. We also talk a bit about copyright issues and AI and what’s on the horizon. Are we approaching the Singularity? Ed thinks likely not, but there’s still worries we should be aware of.
An electric episode where we just might short the circuits. That’s because we dive into some capital “D” Drama at the Federal Energy Regulatory Commission. Amid fighting and commissioner turnover related to renewable energy prices and an election, FERC makes a consequential decision without first going to the full board. And later the Sixth Circuit catches that hand in the judicial cookie jar. Dan Knepper of IJ drops by to explain some of the complexities of energy policy and how to remedy its violation when everyone doesn’t dot their i’s. Then Bobbi Taylor of IJ leads us (along with 43 police officers) into a home where no drugs (or the suspect) are found but many family members are seriously injured. Qualified immunity? The Third Circuit prefers a jury. Also, you learn what Sir Walter Scott meant by a “palmer.” And does anyone use paper copies of the Federal Reporter anymore?
PJM Interconnection v. FERC
Anglemeyer v. Ammons
Politico piece Dan mentions
Sir Walter Scott’s Marmion
We’re joined by the SCOTUS Ladies, two “Supreme Court super fans.” They are Anastasia Boden and Elizabeth Slattery and they’re here to talk about their new blogging project but also to share their wider knowledge of the Constitution, public interest litigation, and even the federal courts of appeals. They each pick a case from the Fifth Circuit by Judge Willett, who you’ll learn is a very self-proclaimed “middle-management circuit judge.” First it’s the big question everyone is asking: Has the Supreme Court impliedly overruled Humphrey’s Executor? Minds seem to differ among the judges. Plus we have a bit of a rumble about structure vs. substance. Then we Netflix and chill while a rogue prosecutor goes after the streaming service and won’t let go—until the court recognizes a loophole in Younger abstention.
Consumer Research v. CPSC
Netflix v. Babin
Humphrey’s Executor v. U.S.
SCOTUS Ladies
The Ninth Circuit recently had some pretty harsh words for the FBI’s egregious behavior when the Bureau decided to crack open some vaults in Los Angeles. The FBI tried to forfeit all kinds of property held in these vaults from innocent owners. Rob Frommer of IJ tells us all about this IJ case and the Ninth Circuit’s indignation. Then it’s off to the Second Circuit for a different kind of police misconduct, but misconduct nevertheless. IJ’s Katrin Marquez details a police officer’s attempts to silence someone simply because he told the cop to turn his headlights on. The case demonstrates how hard it can be to enforce the First Amendment and how necessary the courts of appeals can be. There’s also some ‘80s nostalgia for those into live TV syndicated specials.
Click here for transcript.
Snitko v. U.S.
Rupp v. Buffalo
Oral argument in Snitko v. U.S.
When Geraldo Rivera Opened Al Capone’s Vault
Buffalo News story on Rupp case
New IJ report on Qualified Immunity
It’s the latest episode of Unpublished Opinions, a Short Circuit podcast (but not actually Short Circuit). This is the podcast where Institute for Justice attorneys talk about the legal world beyond the federal courts of appeals. Diana Simpson and Josh Windham drop in to dialogue and diatribe about quite a few subjects you may—or may not—have your own opinions about. These include legal fictions, stare decisis, the vintage of the incorporation doctrine, and the Supreme Court’s recent opinion in Acheson Hotels v. Laufer (that’s the Americans with Disabilities Act case about mootness and standing–or should it be standing and mootness?).
Acheson Hotels v. Laufer
Richard Dietz, Factories of Generic Constitutionalism
Mazzone & Tecimer, Interconstitutionalism
General Law and the Fourteenth Amendment
It’s a clerk reunion this week, at least for two former clerks of Judge Diarmuid O’Scannlain of the Ninth Circuit. We welcome back David Lat of Original Jurisdiction who is joined by Daniel Sullivan, a New York litigator at Holwell, Shuster & Goldberg. Both clerked for Judge O’Scannlain at one time, giving them keen insights into clerking on the Ninth and what it’s like to be a judge in a jurisdiction where your colleagues often take a different point of view. However, we start things off not out west but in the southeast where David details Florida Governor Ron DeSantis’ efforts to suspend an elected prosecutor, Andrew Warren, and Warren’s resulting First Amendment lawsuit. In an opinion chock-a-block with facts the Eleventh Circuit rebuffed the suspension. David also highlights a Judge Newsom concurrence (something we’re getting quite used to on Short Circuit) and some interesting state-law issues. Then Dan turns the gas stove on to cook up a story of preemption and evolving standards of statutory interpretation. The City of Berkeley did a very Berkeley thing by trying to prevent new gas ranges, but the Ninth Circuit said federal law preempted that decision even though several judges thought maybe the law in this area isn’t all that up-to-date. Including Senior Judge O’Scannlain. Also, there’s a recommendation for where to get chicken next time you’re in Chicago.
Work at the Institute for Justice!
Click here for transcript.
Warren v. DeSantis
California Restaurant Assoc v. Berkeley
Original Jurisdiction
A more poetic Short Circuit this week. Coinciding with his birthday, January 25th, and with the phenomenon that it is these days, we pay homage to Scotland’s greatest poet, Robert Burns. What does this 18th century minstrel of haggis, lassies, and auld lang syne have to do with judicial engagement and the circuit courts of appeals? Well, if nothing else free spirited inquiry and the good cheer we try and support on the show. You’ll first hear what Burns might have thought of qualified immunity. Then Brian Morris of IJ joins us for his own reading of some bits of real Burns poems and then whisks us off to the Fifth Circuit where Texas tried to force publishers to rate their books. This attempt at compelled speech receives a heavy dose of judicial engagement, maybe one that would bring a smile to Burn’s face. Then it’s up to the Seventh Circuit where a lawyer just didn’t understand when to go home after his client had settled the case. And after the lawyer had been kicked out of the case for misbehavior. We finally end with the most cited poem of Burns in American judicial opinions. It’s one some listeners will recognize. All-in-all, we hope this episode is one of our best-laid schemes.
Click here for transcript.
Book People v. Wong
Bailey v. Worthington Cylinder Corp.
Jackson Coca-Cola Bottling v. Chapman
Burns Supper Guide
To a Mouse, On Turning Her Up In Her Nest With the Plough
A Man’s a Man for a’ That
Green Grow the Rashes
Burns BBC Documentary
An “utterly bonkers” case this week. Jaba Tsitsuashvili, attorney at IJ and attorney for his client Erma Wilson, tells us about the Fifth Circuit’s recent ruling in her case. By day a prosecutor worked for the office that prosecuted her but then moonlighted with the judge in her case by night. That’s what we call in constitutional law “a problem.” But she only found out about this years later, long after she had served her time. Now that this double-dealing story has come to light can she go back and clean up her record? With a result the Fifth Circuit admits is unjust, but mandated by the Circuit’s precedent, it says she can’t. If she were still in prison, though, she could. Which is pretty nuts. But that’s not all this week. Keith Neely of IJ skates onto the podcast with a story of “Chanukah on Ice,” and why religious groups were prevented from advertising it and other religious messages on the sides of buses in Tampa, Florida. The Eleventh Circuit figures out what to do with this obviously unconstitutional policy while showcasing a double lutz of concurrences.
Wilson v. Midland County
Young Israel of Tampa v. Hillsborough Area Regional Transit
Irons footnotes
If a defendant lies on the stand, and also hasn’t turned over records that would have helped answer the same question, is that discovery abuse? We dig into trial tactics with IJ’s Will Aronin in a civil rights case from the Fourth Circuit where a police officer defendant may not have been entirely truthful about how many times he had been sued. Then IJ’s Jeff Rowes gives the full Reno 911 about a man whose prescription drug mill was nabbed through a warrantless search of a massive government database. Does the Fourth Amendment protect your medical records? We learn how the Ninth Circuit recently grappled with—or, rather, didn’t grapple with—that issue.
Apply to work at IJ here!
Click here for transcript.
Morgan v. Tincher
U.S. v. Motley
Los Angeles v. Patel
Folsom Prison Blues
Friend of the Devil
An old favorite on our first show of 2024, a search incident to arrest. Was it reasonable for the police to open a man’s backpack when he already lay handcuffed on the ground? Or should they have gotten a warrant first? IJ’s John Wrench analyzes this matter from the First Circuit where a case from the ‘70s about a bank robber suppresses a motion to suppress. Then IJ’s Betsy Sanz takes us out west to Los Angeles—but should it have been only as far as Nebraska? That’s the question the Ninth Circuit addresses where we encounter a lying congressman, the Vicinage Clause, and our friends at the FBI.
Click here for transcript.
U.S. v. Perez
U.S. v. Fortenberry
Riley v. California
Blog post on an Illinois case and vicinage
If you ask someone on the street what’s the deal with the standard in employment discrimination cases they’ll likely exclaim “McDonnell Douglas!” And they’d be right. Except, the Eleventh Circuit just reminded us that that’s not the whole story. And Judge Newsom adds in that it shouldn’t be the story at all. IJ’s Joe Gay explains the ins and out of this opinion that’s got the whole employment law world talking. Then your host tells a story from the Fifth Circuit as it heavily indicates it’s ready to change precedent for certain Voting Rights Act claims. Along the way it makes a claim about what “the law” is. But is it?
Click here for transcript.
Tynes v. Florida Dept of Juvenile Justice
Petteway v. Galveston County (panel decision)
Petteway v. Galveston County (en banc grant of stay)
Daniel 5:5-7
Motions to suppress evidence of illegal firearms possession seem to be all the rage these days, or at least on this episode. IJ’s Christie Hebert starts things off in the Tenth Circuit where an altercation between former high school classmates (one of whom is a cop) leads to the discovery of an M-16 in the back of a tow truck. Was that a Fourth Amendment violation or a permissible inventory search? The court thinks the former and suppresses the evidence. The same is true in the Eighth Circuit, where IJ’s Evan Lisull tells us the police can’t get a warrant to search someone’s home just because the guy who lives there is a shady character. Evan also explains what it’s like to live on a nine-acre lot in rural Iowa and how “city mice” might not understand.
Click here for transcript.
U.S. v. Ramos
U.S. v. Ralston
12 Days of Short Circuit Christmas
Quite a bit to talk about today on Unpublished Opinions, the podcast where Institute for Justice attorneys muse on legal things other than the federal courts of appeals. Diana Simpson and Sam Gedge come on to give their takes on a whole list of topics: Supreme Court leaks, AI-writing briefs and plagiarism, sua sponte judges, footnotes, and not italicizing the “v” in a casename. It’s all there. It’s all Unpublished.
Supreme Court Style Guide
NTY piece relying on leaks
Essay on substantive due process and Dobbs
Short Circuit episode on sua sponte case
Justice Kavanaugh and his footnote
Short Circuit episode where we talk about the monkey
Two holiday delights this week: The right of a former president to say “Deranged prosecutor Jack Smith” and the proper standard when officials recklessly fail to keep a suicide watch. First it’s Paul Sherman with the D.C. Circuit’s analysis of how former President Trump’s speech can be curtailed while he’s being prosecuted in Washington, D.C. The First Amendment interest is high, but is it high enough? Even though the court applies strict scrutiny the answer is mostly no. Paul explains how it seems like a good precedent when it is applied to less exceptional cases in the future. Then Patrick Jaicomo brings us to the Fourth Circuit where a woman tragically killed herself while in a jail—and while the jail’s staff knew she had already tried to. To get there, though, the court needed to clean up some of its caselaw and square it with what the Supreme Court has said.
Click here for transcript.
U.S. v. Trump
Short v. Hartman
IJ page for Taylor v. LeBlanc
We’re joined by Braden Boucek, Director of Litigation at the Southeastern Legal Foundation, and IJ’s Arif Panju. Braden takes us to the Eighth Circuit where the court dismisses some claims as moot in a challenge to a school district’s transgender policy. But it finds the rest of the case live—and the policy vague. Braden makes the point that some other judges have seemed to think lawsuits are either not ripe or moot, but never actually justiciable. Along the way there’s some unenumerated rights talk. Then Arif uses his language skills to take us into a tale of French heritage and . . . oil and gas. It’s a bit of a wild issue in the Fifth Circuit about extraction, property rights, and the interplay of ancient French doctrine and modern American statutes. Also, what’s really going on with the court’s certification to the Louisiana Supreme Court? It’s a Cajun conundrum.
Click here for transcript.
Parents Defending v. Linn Mar Community School Dist.
Johnson v. Chesapeake Louisiana, LP
Event on Mere Natural Law
Short Circuit episode on Fourth Circuit standing case
It’s all about rights and voting this week. With a cause of action twist. We dig into the right to sue to enforce voting rights and the right to sue to keep others from voting for someone else. Confused? It seems so are the courts. First, Anya Bidwell breaks from SCOTUS prep to lay out what the Eighth Circuit said about Section 2 of the Voting Rights Act of 1965. She explains why courts are so stingy about suing to enforce rights these days but also why this particular question might be much ado about not that much. Then IJ’s Dylan Moore joins us for the first time and details one of the latest attempts to keep former President Trump off the ballot. Someone running against Trump (who you’ve probably never heard of) apparently didn’t run enough. Or much at all. Plus it’s our 300th episode! But we’re saving the Spartans for later.
Click here for transcript.
Arkansas NAACP v. Arkansas Board of Apportionment
Castro v. Scanlan
Episode on courts creating causes of action
Episode 200 & Short Circuit’s origins
Short Circuit 299 | The Gambler
We’re joined by Mike Greenberg of IJ, who flies in via drone. Or, rather, two drone cases. First Mike tells us of his recent argument at the Michigan Supreme Court in a Fourth Amendment matter that we first talked about on Short Circuit way back on Episode 167. Then he relates a recent Fifth Circuit ruling about a Texas law allegedly protecting Texans’ privacy. Maybe it does, maybe it does, but the our panel isn’t entirely impressed with how the Fifth Circuit’s panel dismissed a First Amendment challenge. Then a man walks in and puts his chips on the table. Actually, that’s IJ’s Jared McClain who antes-up with a story about a gambler who didn’t follow Kenny Roger’s advice. And then had his iCloud account seized by the cops. Was it a constitutional violation? For him it turns out it doesn’t matter as the dealin’s done.
Give to the Institute for Justice at this link!
Click here for transcript.
National Press Photographers v. McCraw
U.S. v. McCall
Michigan Drone Surveillance case
Short Circuit 167 (1st MI Drones episode)
The Gambler
You ever notice those warning labels saying the State of California has carcinogenic concerns about whatever the product is you are buying? Ever also notice that those labels seem to be on a lot of products? Well, you’re not the only one. It seems the state has been saying it “knows” things cause cancer when pretty much no one else does. This week IJ’s Ben Field tells us all about a Ninth Circuit case where the state’s over-inclusiveness ran into the First Amendment. Then it’s off to Texas where its governor asserts some plaintiffs have the wrong man. IJ’s Bob Belden rides into the Fifth Circuit’s investigation over who they should sue. As he explains, in cases like this one there’s often no exact answer.
Plus, Bound By Oath Season 3 is coming! As we discuss, get your podcast subscriptions ready.
Click here for transcript.
National Assoc. of Wheat Growers v. Bonta
U.S. v. Abbott
Ex parte Young
Denis Leary’s No Cure for Cancer (NSFW)
It’s the old and the new economy this week. First, IJ’s Dan Alban grabs his shovel and hardhat and heads deep down into the tunnels of administrative law to dig out a preamble that made a difference. In fact, it turns out preambles often make a difference in admin law cases, including those involving benefits for black lung disease. The Sixth Circuit seems kind of uncomfortable with this, as does our panel. Then we open up the TikTok app. The company wasn’t happy to be in federal court in Texas and tried to move to California with a writ of mandamus. IJ’s Suranjan Sen dances his way (in a bit more than 15 seconds) to why the Fifth Circuit issued the writ. It seems something was either lost in translation or lost in a file.
Wilgar Land Co v. Director
In re TikTok
Working in the Coal Mine
Wacko from Waco
Click here for transcript.
It’s another edition of the podcast where we talk about things other than the federal courts of appeals. Patrick Jaicomo and Sam Gedge clamber in to pick apart the recent trend of calling Attorney Generals and Solicitor Generals “generals.” It’s a pretty new phenomenon, it turns out. But is it wrong? We sort through the pros and cons. There’s also discussion of judicial robes and ex-officials clinging to their titles. Then we move to history. Sure, everyone loves history, and the Supreme Court is into it these days. But do we have too much of it floating around the constitutional law world? Maybe constitutions (and other laws) are supposed to change history, not lock it in place?
Mark Twain’s Does the Race of Man Love a Lord?
Michael Herz: Washington, Patton, Schwartzkopf and . . . Ashcroft?
A pair of qualified-immunity-infused opinions that will light a fire and inspire parenting solidarity. First, IJ’s Tori Clark brings us to the Ninth Circuit where a suspect to an arson exercised his right to remain silent. But it wasn’t that right to remain silent. So does this other one, that the First Amendment protects, actually exist? The court has qualified doubts. Then Katrin Marquez transports us to the Eleventh Circuit where a mom is doing her best by letting her 17-year-old son pick his school and spend time at a park. And then she insults a school resource officer. Who has the mom arrested. Free range parenting rage ensues, plus a denial of qualified immunity.
Click here for transcript.
Moore v. Garnand
Butler v. Smith
Gonzalez v. Trevino case page
Cert petition for JTH v. Spring Cook
It’s our Halloween special! Spooky stories from the federal courts of appeals that will keep you up at night. Erica “Specter” Smith Ewing and Bert “The Ghoul” Gall, both IJ attorneys, tell a couple recent terrifying tales from the Tenth and Seventh Circuits. First, Erica lays out how a small Colorado town repeatedly stymied a property owner with new land use regulations when the owner dared to compete with a business connected to members of the city government. The opinion features ghosts of IJ’s past and the biggest monster of them all, the rational basis test. Then, Bert outlines a lawsuit involving cable companies and cities losing out on cable fees. But the case takes an unexpected—and haunting—twist at oral argument. The worst nightmare of many of a Seventh Circuit practitioner makes an appearance: Judge Easterbrook asking jurisdictional questions outside of what was briefed. Listener discretion (at least for appellate advocates) is advised!
Click here for transcript.
Van Sant & Co. v. Calhan
East St. Louis v. Netflix
Oral argument in Netflix case
Schoolhouse Rock – I’m Just a Bill
Powers v. Harris
Short Circuit listeners may be familiar with occupational liberty cases brought by the Institute for Justice. But perhaps not with the kind of “through the looking glass” case we’re talking about this week, regarding a Chicago public school principal. Madison, Wisconsin attorney Joe Diedrich joins us to break apart the Seventh Circuit ruling. Then, IJ attorney Paul Sherman joins us to share his campaign finance expertise in a case that we don’t see much of anymore: a campaign finance case. It’s a Tenth Circuit opinion that updates the law a bit on campaign finance matters and also features a radio ad that Paul does his best to emulate.
Click here for transcript.
Biggs v. Chicago Board of Ed.
Wyoming Gun Owners v. Gray
Short Circuit episode on Devillier v. Texas
It’s a Short Circuit Special this week, all about that part of the Constitution that is supposed to keep away unreasonable searches and seizures—the Fourth Amendment. We’re joined by Professor Dan Epps of Washington University in St. Louis. Dan is the co-author, along with his Wash U colleague Danielle D’Onfro, of The Fourth Amendment and General Law, an article that the Yale Law Journal recently published. They make the argument there that when courts are trying to determine what’s a search or a seizure they should look to whether government officials have broken the law that the rest of us have to follow. And to figure out what that “law” is, courts should look to the general law of the United States, not the particular law of a particular state or city. And what is the “general law”? Well, listen to find out. Their piece is one of the latest arguments in an ongoing debate both at the Supreme Court and elsewhere about how the Court’s “reasonable expectation of privacy” test doesn’t work and how it should be replaced. We discuss some of the background of this debate, including some of Justice Scalia’s rulings late in his life that got it really going, other arguments for where the Court should go, and Dan and Danielle’s argument. Anyone interested in the Fourth Amendment and its intersection with property rights may find the conversation especially interesting, as well as anyone interested in the “general law,” the common law, and the conception of law as a spontaneous order and not just the command of a sovereign.
Click here for transcript.
The Fourth Amendment and General Law
The Positive Law Model of the Fourth Amendment
U.S. v. Jones (2012)
U.S. v. Carpenter (2018)
Blog post on Katz puns
A special Short Circuit Live in southern California with a special guest. We welcome Ken White, a/k/a Popehat to the show, along with IJ attorneys Patrick Jaicomo and Paul Avelar. Ken digs into Missouri v. Biden, the all-over-the-place litigation from the Fifth Circuit about pressure from the Biden Administration to have social media companies remove certain kinds of speech. Ken thinks the Fifth Circuit did a good job correcting some of the excesses of the district court ruling but ultimately agrees there seems to be something unconstitutional here. He also previews where this area of law might be going. We then turn to the Sixth Circuit where Patrick tells a tale of a judge who receives immunity for doing something that judges really aren’t supposed to do—jail someone without cause after they merely sat in his courtroom. And then Paul explains how you can’t copyright “the law,” and how that came up in a D.C. Circuit case involving private publishers of industry standards. Can a lawmaker co-opt J.K. Rowling’s copyrights by simply publishing her books in a statute book? Inquiring minds want to know.
PLEASE NOTE: This episode was recorded on October 1, 2023, before the Fifth Circuit issued an updated opinion in Missouri v. Biden. However, the only real change seems to have been that one agency, the Cybersecurity and Infrastructure Security Agency, was added back into the injunction.
Click here for transcript.
Missouri v. Biden (Sept 8 opinion)
Missouri v. Biden (Oct 3 opinion)
Orta v. Repp
American Soc for Testing & Materials v. Public.Resource.Org
We visit some friends of the Institute for Justice at the Supreme Court Litigation Clinic at Stanford Law School. The clinic allows law students to work, full time, alongside experienced Supreme Court litigators on a range of interesting cases. IJ’s Anya Bidwell recently traveled to Stanford and sat down with two clinic professors, Jeffrey Fisher and Easha Anand. They discuss the clinic and its model, cases pending at the Court this term, and arguments the clinic had at the Court last term. And, interspliced with the conversation, you’ll hear a few cuts from the actual arguments. Enjoy a fascinating look at how cases get to the Court, how they’re argued, and how the dynamics of the current Court are shaping those arguments.
Click here for transcript.
Dubin v. United States
Glacier Northwest v. Teamsters
O’Connor-Ratcliff v. Garnier
Chiaverini v. City of Napoleon
It’s the second episode of Unpublished Opinions, a Short Circuit podcast. This time we’re once again joined by Institute for Justice attorney Anya Bidwell, but also welcome along her colleague Josh Windham. We start things rolling and see where their legal minds go. And that begins with cameras in the courtroom, something that divides the panel quite sharply. Would the Supreme Court change if cameras were introduced? Would it change for the better? Then we shift to judges and their busy schedules. What’s up with judges not reading briefs before an argument? Is it really all that bad? How prepared must a judge be to be a “prepared judge”? After this we move along to legal writing and judges writing to be too “hip.” Josh has some thoughts on this, which the rest of the panel are . . . somewhat skeptical of. But we end on a compromise everyone can, hopefully, agree on.
Short Circuit episode on “cool judges” with Raffi Melkonian
Article on Judicial Opinions by Nina Varsava
For the 7th year in a row Short Circuit travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re also joined by IJ attorney, and UNC alum, Josh Windham. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on, plus two cert petitions that the Court may take up. You’ll learn about Second Amendment mechanics, Fourth Amendment fun, and standing quandaries.
Click here for transcript
U.S. v. Rahimi
Acheson Hotels v. Laufer
Verdun v. City of San Diego
Jackson v. Ohio
We celebrate, and dig into, two victories for property rights this week—both in IJ cases! First, IJ’s Wesley Hottot discusses the Sixth Circuit’s opinion in his clients’ challenge to Detroit’s vehicle seizure program. Wayne County, Michigan will seize cars on flimsy grounds and then wait months until the owner can even try and get the car back—unless you fork over some ransom money, in which case it doesn’t matter what the evidence is. The court found this a clear constitutional violation and ruled that owners should be able to contest these seizures within two weeks. Then, in a tale that will shock our bibliophile listeners, IJ’s Bob McNamara tells us of what the D.C. Circuit thought of the Library of Congress’s program of forcibly taking books as part of its copyright program, even when the taking of the books had nothing to do with copyright. For years small publishers have been threatened with fines if they don’t turn over books, without any compensation, and even though the books are copyrighted anyway. Many of these books are then literally thrown away. Sound like a taking? The court agrees. There’s also some grumbling about moving books between apartments.
Click here for transcript.
Ingram v. Wayne County
Valancourt Books v. Garland
Culley v. Marshall (pending SCOTUS case)
Baby Ninth book page (with events)
Two old favorites this week: The nondelegation doctrine and the phrase “come back with a warrant.” And both from the culturally varied Sixth Circuit. First, Justin Pearson of IJ explains the wide delegation of power that Congress gave OSHA and how the courts have hand-waived away any constitutional problems with that. That’s no different in the recent Sixth Circuit case, although there is an interesting dissent. Then, Brian Morris takes us down the Ohio River to a couple Kentucky cops who won’t take no—or “get a warrant”—for an answer. It’s a defeat for qualified immunity and a lesson on what the police will do even when the body cameras are on.
Allstates Refractory Contractors v. Su
Reed v. Campbell County
Navarette v. California
Map from “American Nations”
The members of the Nashville City Council are apparently big fans of sidewalks to nowhere. In order for property owners to get a permit they have to commit to building a sidewalk along their lot line, even if there’s no sidewalk anywhere else on the street. Or, they can just hand over a chunk of cash. The Sixth Circuit said earlier this year that there’s a big constitutional problem with that. Minnesota attorney Ryan Wilson stops in to tell us about that story. But first we hear from another Minnesota attorney (sense a theme here?) David Asp about everyone’s favorite topic: ERISA preemption. No, seriously, it’s a big deal that has a big impact on our health care system. Dave walks us through a recent opinion from the Tenth Circuit that marks a split and could be on its way to the Supreme Court. Also, you’ll learn a bit about how law students clean up after themselves (not well it turns out).
Pharmaceutical Care Management Assoc v. Mulready
Knight v. Nashville
Where the Sidewalk Ends
Apply to be a Senior Fellow at IJ!
We wade into a hotly contested subject this week: standing law under Article III of the U.S. Constitution. The cases by which we address that subject are about more mundane issues—abortion drugs and transgender transitioning in public schools—so we mostly ignore them. First, IJ’s Andrew Ward takes us to the rough-and-tumble Fifth Circuit where a group of doctors are challenging the FDA’s approval of a drug, resulting in a somewhat eyebrow-raising opinion (in more ways than one, but we focus on standing) where the bounds of a cognizable injury seem more expanded than normal. Then IJ’s Kirby Thomas West brings us to the Fourth Circuit where a group of parents challenge a school district’s gender transition policy. That leads to a result civil rights lawyers are more used to—a court excusing itself on standing grounds. What does this portent for the future of standing law? We have no idea, but we speculate about original meaning.
Alliance for Hippocratic Medicine v. FDA
John and Jane Parents v. Montgomery County Board of Education
Clapper v. Amnesty International
R.E.M. – Stand
A whole lot of searching going on this week. First, Scott Regan of IJ reports on a Ninth Circuit opinion involving, among other things, an iCloud account. How does the Fourth Amendment apply to the gazillions of pieces of data stored on our phones? It depends on what the officers are searching for, and their searches. Then, in a very different search, a DC police officer asks a guy to show his waistband. Twice. And then the guy runs and throws a gun in the bushes. Were the officer’s requests seizures? Searches? Unreasonable? The evidence is suppressed but the judges disagree on a few things. Your host reports on this case from the DC Circuit.
U.S. v. Pelayo
U.S. v. Gamble
Edgar Allan Poe’s “Eldorado”
Ari Bargil of IJ visits the Short Circuit virtual studio to take a bet. Or, rather, to tell us why some of us can keep taking bets—for now. The Fifth Circuit recently granted a preliminary injunction to participants in PredictIt, a New Zealand-based research experiment where people can bet real money about the outcomes of elections. The CFTC, however, doesn’t want to put up with this business anymore and is trying to shut it down. Nevertheless, because of the Fifth Circuit you can place your bets, but only for now. Then, your host takes us on another internationally oriented adventure regarding the difference between the “government” and the “state” of Venezuela. It’s mighty important to a group of investors in the Third Circuit. Turns out rulers can change but “sovereignty survives.”
Clarke v. CFTC
OI European Group B.V. v. Venezuela
Welcome to Short Circuit’s new podcast! In this free ranging side of the Center for Justice Engagement we welcome two Institute for Justice attorneys, Anya Bidwell and Patrick Jaicomo, to discuss what’s on their legal minds. Although we won’t be doing this every podcast, given its name we can’t help but begin by ranting about unpublished opinions. Why are they “unpublished” again? And perhaps that made sense at one point but in the age of the Internet, is that really true anymore? The gang chew the fat on this topic but also how it relates to qualified immunity and the relatively new dispute over whether “precedent” is the same thing as “clearly established.” Then we muse on the new Supreme Court, under the old adage that whenever the Court’s membership changes there’s a whole new “court.” There's a focus on the dynamics of oral argument and how there’s a lot more talking at 1 First Street these days. We also throw a football down the field for Justice Byron White.
Case where Judge Oldman talks about precedent
Draft en banc article
If someone sends you an unsolicited text message are you “injured”? In a constitutional sense, that is. Bob Belden swoops back to the podcast to explain the latest en banc business from the Eleventh Circuit on texting, common law causes of action, Article III of the Constitution, and Office Space. Your host then gives him a quick summary of The Case of the Thorns. After that we cross the continent to the Ninth Circuit where first-time guest Christian Lansinger tells us of a dissent from a denial of en banc (dissental?) on the state-created danger doctrine. The facts are disturbing, but the issue is one that might be going to the Supreme Court soon.
Drazen v. Godaddy.com
Murguia v. Langdon
The Case of the Thorns
Professor Andrew Hessick’s standing article
Fractions of a Penny
We swing from one legal extreme to another this week. From the First Amendment protecting street entertainers in Vegas on the one hand to deference to the comments of the United States Sentencing Commission on the other. First, John Wrench walks us down the Vegas Strip with a couple “sexy cops” who bumped into some undercover real cops and then ran into some real trouble. The Ninth Circuit ruled in the case in 2017 and then after a petition for rehearing was filed did . . . nothing. Until this month when it filed an amended opinion. We try and figure out what happened with that and where the case stands now. Then it’s off to the Tenth Circuit where Jared McClain explains a developing circuit split over what deference courts owe to the Sentencing Commission’s interpretation of its own rules. Despite the split, though, Jared explains how it might be a while until this area gets sorted out.
Santopietro v. Howell
U.S. v. Maloid
Law review article on Santopietro case (by Stephen Touchton)
We talk with a couple remarkable women who achieved something pretty remarkable for some other remarkable women in Georgia: Had the state supreme court strike down an occupational licensing law that would have put hundreds of women out of work. The law mandated a license for “lactation consultants,” women who help new moms breastfeed their babies. The license required vast amounts of training, far more than necessary and far more than most existing consultants had. IJ attorneys Jaimie Cavanaugh and Renée Flaherty join us to detail how they fought a five-year legal battle to the Georgia Supreme Court—twice—and how the Georgia Constitution and other state constitutions protect economic liberty. The case provides a lot of hope for the future, and not just to those who work with babies and breasts.
Jackson v. Raffensberger (1st appeal)
Jackson v. Raffensberger (2d appeal)
Patel v. Texas Dept. of Licensing & Regulation
Ladd v. Real Estate Comm.
Anthony’s old article on states and economic liberty
Lady Madonna
Scott Michelman of the ACLU-DC joins us to discuss the ins-and-outs of a recent fascinating (yet disappointing) ruling of the D.C. Circuit. Remember when President Trump had a square cleared of protesters—with tear gas—so he could take a photo op? Scott represents some of the plaintiffs in that case, whose claims against federal officials were thrown out because the court said it wasn’t enough like three cases from over forty years ago. Yet, it seems like some of the judges were reluctant about that conclusion and even offered a theory about how a different lawsuit might work in a future. Then Anya Bidwell discusses a very different result from the Seventh Circuit where a claim against federal narcotics agents could go forward because the relevant precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was against, well, federal narcotics agents.
Buchanan v. Barr
Snowden v. Henning
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
It’s hard to sue the police. But it’s even harder to sue a judge. Rob Johnson returns to tell us about an Eighth Circuit case where a suit against a judge can actually go forward . . . partly. Why one way and why the other? It seems it might be all because of the robe. It didn’t help the judge that he physically put two kids in jail himself. Then we swing through the Sixth Circuit for a cop who opens a car door and hilarity (and the community care doctrine) ensues. Sound a bit like a Mickey Spillane story? You can judge for yourself.
Rockett v. Eighmy
U.S. v. Morgan
Pennsylvania v. Dunlap (Roberts dissent)
Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing.
Sterling Hotels v. McKay
Anibowei v. Morgan
Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is "[m]ore to come."
CFPB v. Brown
U.S. v. Jackson
U.S. v. Cunningham
Range v. Attorney General
2 Esdras 4:45-46
Commentary on Esdras (G.H. Box 1912)
The lunch that launched #AppellateTwitter
We all know about the separation of powers. But this week IJ attorney Jaba Tsitsuashvili introduces us to something else: the concentration of powers. It’s pretty much what it sounds like, and it happens when people have to depend on legislatures to protect constitutional rights. That’s what unfortunately happened recently at the Iowa Supreme Court. Anya Bidwell gives us the details on that story. But sometimes the legislature actually does act to protect constitutional rights. Ok, so then what? Well, Jaba explains that the Louisiana Supreme Court essentially thought that wasn’t good enough to . . . actually protect constitutional rights. Finally, your host details a recent piece he wrote about remedies, constitutions, and statutes. See if your mind is blown by an old law review article like his was.
Burnett v. Smith
Jameson v. Montgomery
Some Reflections on Legislation, Adjudication, and Implied Private Actions (Foy article)
Where Does the Law Come From? (Anthony’s article)
IJ attorney Paul Avelar seizes the means of production (and the Short Circuit microphone) and hosts this week’s episode, live from IJ’s annual Law Student Conference. He’s joined by IJ attorneys Arif Panju and Ari Bargil, who come on to demonstrate that they are, in fact, different people. Arif first details a recent IJ appellate victory in the Sixth Circuit, where Judge Sutton once again explained that if your name is not “Rooker” or “Feldman” then the Rooker-Feldman doctrine most likely does not apply. Arif also gives the facts of the tragic story of what our clients went through before the “Environmental Court” in Memphis, Tennessee, and where the lawsuit challenging its Kangaroo nature now stands. Then Ari digs into a police raid gone horribly wrong in Harris County, Texas. Not exactly a story of the Lone Star State’s finest, as the Fifth Circuit recently indicated. There’s also much ado about procedure.
Tuttle v. Sepolio
Hohenberg v. Shelby County
That book Paul won’t stop talking about
June 4, 2023 marks exactly 100 years since the Supreme Court handed down its opinion in Meyer v. Nebraska, where the Court ruled that it is unconstitutional for states to forbid the teaching of foreign languages. The case was a momentous decision both at the time and for the future. It lead to developments in many different areas of constitutional law, including free speech, religion, educational freedom, economic liberty, and the incorporation of the Bill of Rights. To celebrate the anniversary the Center for Judicial Engagement at the Institute for Justice held a conference on March 31, 2023 called “100 Years of Unenumerated Freedoms: Meyer v. Nebraska at a Century”.
This episode of Short Circuit provides you with the keynote address from the conference, a speech by Professor William G. Ross of Samford University’s Cumberland School of Law. Professor Ross is the author of Forging New Freedoms: Nativism, Education and the Constitution, 1917-1927 (1994), the definitive account of Meyer and the other cases in the same “trilogy”: Pierce v. Society of Sisters and Farrington v. Tokushige. We were absolutely thrilled that he spoke at our conference and wanted to celebrate the anniversary date itself by sharing his remarks with you. And if you’re also interested in hearing what other scholars had to say at the conference please find the link in the shownotes that will bring you to the archived video of the event.
Meyer v. Nebraska
Forging New Freedoms
Video of the conference “100 Years of Unenumerated Freedoms”
Today we’re digging into the Fourteenth Amendment. No, not the part we usually talk about, Section 1, with its privileges or immunities, equal protection, and all that. Not even Section 4 (debt ceiling?) or Section 3 (rebellion stuff). No, we’re digging into a super interesting case involving Section 2, the part that lowers a state’s Congressional representation if it abridges the right to vote. Jared Pettinato of Citizens for Constitutional Integrity, counsel in the lawsuit, joins us to discuss what it’s all about. We learn the history of Section 2, how Jared represents voters in states that lost members of Congress in the last census, how he’s suing the Census Bureau via the Administrative Procedure Act, and what a three-judge panel recently said about his clients’ standing. He also previews what’s ahead at the D.C. Circuit. After all that IJ’s Sam Gedge discusses Footnote 4. Not, not that Footnote 4, but a recent one from the Second Circuit that kind of said unpublished cases are actually published. Or did it?
Citizens for Constitutional Integrity v. Census Bureau
U.S. v. Montague
Politico article on Jared’s case
Jared Pettinato
Sam Gedge
Anthony Sanders
If a sitting senator threatened you with censorship, would it matter what jacket she’s wearing? Although not an issue we discuss this week, it’s related to both of our cases. First, Justin Pearson tells us of a Ninth Circuit case considering whether a letter from Senator Elizabeth Warren crossed the constitutional line by discussing actions that could be taken against Amazon for selling a certain book. Then, Christie Hebert brings us to the Fifth Circuit and whether a man abandoned his jacket at his mother’s house. Does it matter that it was on top of the trash can?
Download Anthony’s book for free!
Robert F. Kennedy, Jr. v. Elizabeth Warren
U.S. v. Ramirez
Cars and free speech, what could be a more American combination? This week we’re playing a double-sided session that you can enjoy while honking your horn or writing your Facebook post. That’s because our two cases examine the free-speech implications of both of those activities. First, if you honk in support of a protest, is that protected by the First Amendment? We drive out to sunny California and the Ninth Circuit to answer that automotive question. Then, it’s off to the hills of Kentucky for another—not quite as fun—car activity: Calling the tow truck. For one towing company they found the calls stopped just around the time they criticized a local politician on Facebook. Coincidence? The Sixth Circuit thinks maybe not. Plus, with a speech bonus, you’ll hear what Rudyard Kipling thought of the motorcar.
Porter v. Martinez
Lemaster v. Lawrence County
To Motorists
Background to To Motorists
IJ attorney Josh Windham seizes the microphone and turns it around on your regular host, Anthony Sanders. Josh interviews Anthony about his new book, which comes out on May 9, 2023, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.
The book is part history, part legal theory, and part advocacy. It tells the story of how Americans took the words of the Ninth Amendment to the U.S. Constitution and put them in various state constitutions. It then explores what that means for how state constitutions protect our rights (a lot) and what judges have done to give those rights protection (not much). Josh and Anthony dig into these issues, how these provisions should be interpreted, how that would change how state constitutions protect our rights, and even how this story might change how we think about the U.S. Constitution itself.
Further, as of May 9 you not only will be able to read the book, but download it for free! You can do that even from the comfort of the podcast app you’re currently using, either from the publisher, University of Michigan Press, or, for Kindle users, from Amazon.
University of Michigan Press page (with free download) for Baby Ninth Amendments
Amazon page (including free Kindle version)
Institute for Justice page for the book
It’s Special Short Circuit time. And this time that means we don’t just investigate a special legal issue, we journey to a special place (well, at least that’s what Shakespeare and John of Gaunt might say). This week we focus on the British Constitution, how it’s (quite) different from the United States Constitution, how it’s constituted, how it works, and how it’s been changing recently. Two scholars have edited a new volume full of scepticism (note the “c” instead of the “k”) about recent and proposed constitutional changes in the United Kingdom, a book called Sceptical Perspectives on the Changing Constitution of the United Kingdom. If you don’t know much about the constitutional order of America’s mother country you’ll learn quite a bit. If you’d like to learn more about the constitutional debates they’re having in Britain you’ll learn quite a bit more. And if you’d like to hear a bit of push-and-pull about the merits of a written constitution that judges can enforce versus one that’s ever changing then you might even learn a bit about that—whether you agree with our guests or not. Richard Johnson and Yuan Yi Zhu join us for all things British—with some elements of the English, the Scots, and even the Welsh—and your host throws in a bit of reminiscing about time spent in the remnants of the Duchy of Normandy.
Sceptical Perspectives on the Changing Constitution of the United Kingdom
Anthony’s essay that discusses the British Constitution
The Act of Union
Richard’s book The End of the Second Reconstruction
Who ever said insurance isn’t interesting? Certainly not the Eleventh Circuit, and certainly not IJ’s Ben Field. He tells us a harrowing story of a church—a church of all places!—which weathers two acts of God (hurricanes) while taking insurance contracts and kicking insurances claims (actually, the insurance company kicked the claims). Ben weaves together the competing views of contract interpretation as personified by Harvard’s Samuel Williston and Yale’s Arthur Corbin to explain how the court ended up where it did. We even delve into the Gospel of John for inspiration. Then, in slightly less theological matters than contractual interpretation, we look at what the Fifth Circuit cooked up when it comes to free speech. Whether you’re a veggie burger connoisseur or not, you’ll want to hear about Louisiana’s attempt to stymie the labeling of meatless meat such as Tofurky. IJ’s Betsy Sanz tells us why the court did not find the law unconstitutional, but also why that means the law might not end up doing very much.
Shiloh Christian Center v. Aspen Specialty Insurance Co.
Turtle Island Foods v. Strain
Just compensation is a pretty basic part of the Constitution. Which is why this week’s panel is a little confused how the State of Minnesota thought it could just take a bunch of insulin without paying for it. IJ attorney Joe Gay joins us to explain what the Eighth Circuit had to say not just about just compensation but where a property owner goes to get it. Then IJ’s Anna Goodman tells another Eighth Circuit tale of a speedy trial that was not so speedy. But it turns out that’s ok. Even when it’s the government’s fault.
All about Anthony’s book!
April 24 Feddie Night Fights debate
PhRMA v. Williams
U.S. v. Cooley
On a special Short Circuit IJ’s Marie Miller sits down with a trio of school choice experts to provide an overview on where school choice is today. Nicole Garnett and Rick Garnett, both professors at Notre Dame Law School, join IJ’s Michael Bindas to discuss the history of school choice, answer common objections to school choice programs, and walk through some of the litigation that has culminated in the explosion of school choice programs we now see in 2023. The episode was recorded at the University of Notre Dame after a conference celebrating the publication of The Case for Parental Choice, a collection of essays by John Coons and edited by Nicole and Rick along with their colleague Ernest Morrell.
The Case for Parental Choice
Zelman v. Simmons-Harris
Espinoza v. Montana Dept. of Revenue
Carson v. Makin
Wouldn’t it be fun to own a time machine? If you said yes then you’re a lot like the Fifth Circuit. Last week its full set of judges trotted out their own Delorean and ran it at 88 miles an hour while issuing an order denying an en banc motion. We’re calling this “time travel” because unlike a normal denial of en banc the court did so after it already had over three months ago and the losing side (represented by IJ!) had already filed a cert petition with the Supreme Court. IJ’s Bob McNamara comes on to discuss this bending of the space-time continuum, but also the bending of long-established property rights principles. The case concerns a takings claim against the State of Texas where the state is trying to get away with not paying property owners for flooding their land. And if the Fifth Circuit’s ruling stands it’ll get away with it now and into the future. Continuing on the time traveling theme, your host then tells a tale straight out of a Donna Tartt novel (well, a combination of two of them): A six-thousand-year-old idol that’s sold on the New York art market and is of . . . uncertain provenance.
Devillier v. Texas (cert petition)
Devillier v. Texas (2d denial of en banc)
Turkey v. Christie’s
H.G Well’s The Time Machine
Donna Tartt’s The Secret History
Donna Tartt’s The Goldfinch
Can a city get a renter evicted for a crime they didn’t commit? Unfortunately, in over 2,000 cities across the country the answer is yes. On a special Short Circuit we dig into this outrageous, and immensely underreported, issue. Professor Katy Ramsey Mason of the University of Memphis joins us to discuss crime free rental ordinances, laws that allow cities for force landlords to evict tenants after anyone in their household is merely charged (not convicted) of a crime. And not a crime committed on the property, but anywhere in town. We also hear from IJ attorney Sam Gedge who is part of a team currently challenging one of the worst examples of these laws in Granite City, Illinois. The case is currently at the Seventh Circuit and will be argued later this year. We even play some audio clips of what the eviction process has been like in Granite City as people who have done nothing wrong are kicked out of their homes.
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Article in UCLA Law Review, “One-Strike 2.0”
IJ’s Granite City compulsory evictions case
ACLU case in Minnesota (now settled)
A nostalgic tale of judicial engagement where we examine whether recess is a crime and whether it’s fine for the government to follow your every move out on the water. First, Keith Neely of IJ joins us for the first time to discuss a Fourth Circuit opinion about a vague law that explicitly makes it illegal to be obnoxious. Then it’s his colleague Trace Mitchell’s turn with a Fifth Circuit tour of administrative law and the First Amendment. Keith also talks about the trivia test he had to take to become a circuit court clerk and how you pronounce “seconded.” (It’s not what you think. Unfortunately.) Plus, we close with a bit of rumination over “the youth of today” and how they can’t make obvious references to ‘60s sitcoms anymore.
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Carolina Youth Action Project v. Wilson
Mexican Gulf Fishing Co. v. U.S. Dept of Commerce
The British origins of “seconded”
A special Short Circuit Live at Georgetown University hosts Joanna Schwartz of UCLA to discuss her book Shielded: How the Police Became Untouchable. And not only that, but after hearing her introduce the book itself we do a full Short Circuit looking at a number of recent cases in light of it. Anya Bidwell and Professor Schwartz are joined by professors Seth Stoughton, Carlos Manuel Vazquez, and Alex Reinert. Recorded on Tuesday, March 7 and co-sponsored with our friends at the Georgetown Center for the Constitution.
Our March 31, 2023 conference on Meyer v. Nebraska
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Work at IJ!
Shielded: How the Police Became Untouchable
Edwards v. City of Florissant
Sosa v. Martin County
Pettibone v. RussellMack v. Williams
Mack v. Williams
Short Circuit speaks with the law students at SMU in our first visit to The Big D. With Anya Bidwell as your host, she introduces us to Texas lawyers Zack Faircloth, Will Langley, and Don Tittle. They dig into recent cases on the Second Amendment, “premature bankruptcy,” vaping regulation, and (of course) qualified immunity. With more than one matter that seems to be on track for the Supreme Court this is the episode for Rick and Morty fans.
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United States v. Rahimi
Wages and White Lion Investments v. FDA (motions panel)
Wages and White Lion Investments v. FDA (merits panel)
In re LTL Management
Molina v. City of St. Louis
Rick and Morty “Spa Planet” episode
For the first time Short Circuit welcomes the Jones-Act-hating, free-trade-loving, tariff-busting, T-shirt-writing, and top-5-ranking Scott Lincicome of the Cato Institute. Scott introduces us to a rare breed at Short Circuit, the Court of Appeals for the Federal Circuit. That’s because the court just issued (another) opinion upholding some of the dumbest steel tariffs of recent years (and that’s saying a lot). Scott walks us through the supposed national security issues, how tariff sausage gets made, and where the courts might go from here. After a somewhat difficult segue we then move to Andrew Ward of IJ, who tells a wild story from the Sixth Circuit of a shed that catches on fire, a sketchy warrant, security cameras, noises that sound like someone is ripping down a roof, and several kilos of a mysterious white substance in the sink. But none of it ever happened because of the fruit-of-the-poisonous-tree doctrine. Finally, we end with a top-5 list from Scott.
Primesource Building Products, Inc. v. U.S.
U.S. v. Waide
Tariffs Foster Political Dysfunction T-shirt
Capitolism newsletter
A qualified immunity and property rights pairing this week. But first we announce the winning answer from last episode’s “decretal language” competition. Then, Patrick Jaicomo explains why in the Fourth Circuit it can be unconstitutional for the police to prevent you from livestreaming an encounter, but you can’t sue them about it. Then Suranjan Sen walks us through a couple challenges to New York’s notorious rent control laws. The Second Circuit finds no taking there, whatever the realities of tenants who never move out. However, the question arises: Can these cases be heading somewhere higher? Also, courts, you’re not writing mystery novels. So stop opening your opinions like one.
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Sharpe v. Winterville Police Dept.
Community Housing Improvement Program v. City of New York
74 Pinehurst v. State of New York
Our newsletter begins announcements about federal en banc decisions with the phrase “And in en banc news.” And about a year ago we had an argument on the podcast on how to pronounce that fancy French-sounding phrase. Today we bring back the guests from that episode—Sam Gedge and Bob Belden—to settle the issue, once and for all. Along the way you’ll learn about how we have the Germans to thank for how we describe full sittings of the federal courts of appeals. You’ll also learn about two recent en banc cases, one from the Eleventh Circuit concerning how prisoners can sue in federal court, and one from the D.C. Circuit about how foreign students can stay in the country and get some work experience. There’s also a couple rabbit holes involving decretal language and whether a “dissental” is a thing.
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Draft of article And in En Banc News . . . (to appear in Judicature)
Judge Newman article on decretal language
Wells v. Brown
Washington Alliance v. DHS
En banc argument episode
On this Groundhog Day special we’re sniffing out a couple eternally recurrent subjects: limits on government surveillance and limits on property rights. We’re joined by IJ’s Seth Young and also are very pleased to announce we once again have on Mike Chase, author of How to Become a Federal Criminal. Mike gives an overview of a case pending in the Fourth Circuit that could have major ramifications for everyone with a smart phone and a Google account—that is, everyone, period. After a bank robbery the police tried to track down a suspect using several layers of Google data. The court later found that the warrant in question violated the Fourth Amendment—yet excused it anyway. Mike explains the issues and also gives a preview of what’s coming in the world of federal crimes. Seth’s case is also from the Fourth Circuit, and it brings us to the happy days of March 2020 and what happened to a couple who simply wanted to access their own property. Was that a taking? The multifactored magic 8 ball says “no.”
United States v. Chatrie
Blackburn v. Dare County
16 USC § 668DD
50 CFR § 32.49
Phil Connors forecast
Could you identify a “bag of dope” through a tinted car window? A police officer in Euclid, Ohio thought he could, but it turns out the effort wasn’t close enough for government work. Under the Fourth Amendment, at least. IJ’s Rob Frommer joins us to tell the latest Sixth Circuit tale of cops not bothering to get a warrant. Then Suranjan Sen of IJ takes us to the Eighth Circuit where the police dispersed a crowd for “unlawful assembly.” That may have been unconstitutional, but when the protesters sue they encounter some pleading problems.
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2023 IJ Summer Clerkship Application
U.S. v. Loines
Edwards v. City of Florissant
Bound By Oath episode on municipal liability
We are joined by Texas “teenylaw” lawyer Kristen Vander-Plas LaFreniere. We talk about what it’s like to run a very small practice and then dig into the latest from the circuits. Kristen presents a religious victory over the Marines in the D.C. Circuit and gives a bit of background about what that service thinks of the Navy. If you’ve made it through basic training this is the episode for you. Then, Erica Smith Ewing of IJ takes us out to the Ninth Circuit where there’s a rare win against a zoning ordinance.
Singh v. Berger
SoCal Recovery v. City of Costa Mesa
In honor of the birthday of Martin Luther King, Jr. we invited on three civil rights lawyers to talk about their latest, pathbreaking, cases and the challenges they face in bringing justice for all. Anya Bidwell of IJ welcomes her colleague Marie Miller, as well as Mark Silverstein, Legal Director of the ACLU-Colorado, and Sam Thypin-Bermeo a civil rights lawyer in Miami. Each discusses a recently filed case where law enforcement officers are alleged to have gone far beyond the bounds of the Constitution.
Click here for transcript.
Johnson v. Staab (complaint)
Maple v. Stella (complaint)
Rosales v. Alexandria PD
50 Shades of Government Immunity
Constitutional GPA
Two tales of the criminal justice system this week, with the Excessive Fines Clause and the Fourth Amendment both playing a part. First, in the Second Circuit, Ari Bargil tells us how an ingenious scheme of selling marijuana over an app hits a snag when the funds have to go through the bank. Which is subject to all kinds of federal laws. What about the law forbidding excessive fines? For that it gets a little complicated. Then it’s off to the Ninth Circuit where John Wrench details a traffic stop with an “inventory search.” Did the cops really make it just to ensure the defendant didn’t lose his stuff? Many of us our skeptical, but somehow the conviction stands.
U.S. v. Patterson
U.S. v. Anderson
Blow – Courtroom Scene
World of Trouble
Not many lawyers alive today can say they’ve litigated a Thirteenth Amendment case (yes, that amendment; the one about slavery). But we at IJ have one, and we’re asking the Supreme Court to take a look at it. What’s before the Court is whether prosecutors who—under political pressure—made a bogus case against a group of nurses are “absolutely immune” from the nurses’ civil rights lawsuit. IJ’s Ben Field explains the stakes in this case from the Second Circuit. Then, Jaba Tsitsuashvili of IJ tells us of a Minnesota police department that holds every person who wasn’t born in the U.S. until it hears back from I.C.E., whether they’re a citizen or not. Um, is that a problem? Jaba explains how the Eighth Circuit explained that, oh yes, it is.
Cert petition in Anilao v. Spota
Anilao v. Spota (3d Circuit)
Parada v. Anoka County
Bound By Oath Episode on Absolute Immunity
You got insurance is not just a question they ask at the doctor’s office. Most of the time when someone sues the government—especially a local government—there’s at least some insurance potentially available to pay for the government’s defense and to pay a claim. But insurance policies are famous for having exclusions. And it turns out that in bunch of lawsuits in the Sixth Circuit there are exclusions for property rights and taxes that are making things complicated for property-tax-collecting counties. These come in the wake of “equity theft” cases, and court rulings that these can constitute a taking. IJ’s Dan Knepper joins us for this intersection of insurance and civil rights law. Also, we go down to the Eleventh Circuit for a life insurance policy and a tragic story of “suicide-by-cop.” Turns out the standard exclusion in a policy for suicide can count even if that happens indirectly. Finally, if you haven’t heard our “12 Days of Short Circuit Christmas” on our separate bonus episode, stick around until the end for a song about 12 days and 12 federal circuits.
Law Students: Apply to be a 2023 summer fellow at IJ!
Safety Specialty Insurance Co. v. Genesee County Board
North American Co. for Life & Health Insurance v. Caldwell
Rafaeli, LLC v. Oakland County
Short Circuit episode on Rafaeli
A very short episode for the Holidays. Sung by members of the Institute for Justice. Click to listen, but here are the words:
On the 1st day of Short Circuit Christmas my federal reporter gave to me
A thesaurus under Judge Selya’s pine tree
On the 2d day of Short Circuit Christmas my federal reporter gave to me
Two Calabresi tort rules
And a thesaurus under Judge Selya’s pine tree.
On the 3d day of Short Circuit Christmas my federal reporter gave to me
Et al.
[Yeah, you know how the song goes. Let’s skip to the 12th, i.e. D.C. Cir., verse & you can see all of them at once]
Twelve vacaturs granted
Eleven judges named Pryor
Ten library courtrooms
Nine en banc reversals
Eight qualified immunities
Seven Chicago professors
Six Sutton Stanzas
Five Judge Hos
Four ex-prosecutors
Three Jersey convictions
Two Calabresi tort rules
And a thesaurus under Judge Selya’s pine tree.
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.
Newell-Davis v. Phillips
Caskey v. Fenton
St. Joseph Abbey v. Castille
Taylor v. Riojas
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.
Licensed to Work 3
Ladd v. Real Estate Commission (2022 decision)
Ladd (2020 decision)
Bang the Drum All Day
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.
In re Clinton Nurseries, Inc.
Tennessee NAACP v. Hargett
Siegel v. Fitzgerald
Smart, read by Shel Silverstein
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!
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
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.
Click here for transcript.
Wearry v. Foster (3 judge panel)
Wearry v. Foster (denial of en banc)
Furlow v. Belmar
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.
Texas State LULAC v. Elfant
U.S. v. Palomares
Letter to the People of Texas and All Americans in the World
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.
Texas State LULAC v. Elfant
U.S. v. Palomares
Letter to the People of Texas and All Americans in the World
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.
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
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.
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
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.
McKinney v. City of Middletown
Carroll v. Trump
United States v. Green
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.
Click here for transcript.
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Tiwari v. Friedlander (Sixth Circuit)
Tiwari v. Friedlander (cert petition)
Hall v. Meisner
Short Circuit 175
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.”
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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
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!
Click here for transcript.
Tingley v. Ferguson
U.S. v. Chen
Courthouse News Service v. Gilmer
IJ’s Diet Speech Cert Petition
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 . . .
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!)
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.
Paugh v. Uintah County
Franklin v. U.S.
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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.
Click here for transcript.
L.B. v. United States
State v. Wellknown
Montana Youth Action v. Jacobsen
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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Silva v. U.S.
Bauserman v. Unemployment Insurance Agency
50 Shades of Government Immunity
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.
Hignell-Stark v. City of New Orleans
Nekrilov v. City of Jersey City
John Lyly, Euphues and His England
Gideon Kanner, Making Laws & Sausages
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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.
Click here for transcript.
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
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Scott Flaherty
Sam Gedge
Anthony Sanders
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.
Stevens v. City of Columbus
Wineries v. Township of Peninsula
Shaw v. Nashville
Code Snitching in Nashville (Radley Balko story)
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.
Arbitrary Lines
Village of Euclid v. Ambler Realty Co.
Nolan Gray
California YIMBY
Anthony Sanders
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.
Tyson v. County of Sabine
Toshikawa v. Seguirant
Register for Short Circuit Live in NYC on October 26!
Cert petition in Minnesota CSI (IJ case)
Anya & Patrick’s article on Recalibrating Qualified Immunity
Anya Bidwell
Patrick Jaicomo
Anthony Sanders
Georgia criminal defense attorney Andrew Fleischman joins us to talk about a unicorn. Yes, the Eleventh Circuit recently found a state prosecutor was not absolutely immune from a civil rights lawsuit, where a witness was arrested for not testifying . . . after he actually showed up to testify. This kind of case is extremely rare, and Andrew discusses how rare, and what its effect might be in a place like the Fulton County prosecutor’s office. Then it’s off to the Fifth Circuit where Alexa Gervasi of IJ discusses an absolutely tragic case where a prisoner dies and the guards are notgranted qualified immunity. Not quite a unicorn, but also a rare beast.
Also, speaking of Fulton County, STICK AROUND TO THE END. Andrew educates us on why if the Fulton County District Attorney prosecutes former President Trump the case could be removed to federal court. And, he gives a prediction about whether that will happen.
Transcript forthcoming.
Kassa v. Fulton County
Moore v. LaSalle Management Co.
Bound By Oath episode on prosecutorial immunity (with Lara Bazelon)
Removal statute for federal officials prosecuted in state court
The First Amendment protects your right to record the police. Yes, we already knew that, said the Tenth Circuit. Um, you did? Dan Alban presents a case where an officer blatantly tried to stop a vblogger from recording him by threatening to run him over, and where the court did a few interesting gymnastics in order to say what always should have been obvious. Quality immunity hijinks ensue, but with a happy ending. Then Jeff Rowes takes us to prison in the Fifth Circuit. Was a lawsuit there moot? Not this time, but concurring judge Jim Ho explains that courts say the M-word all too often.
Irizarry v. Yehia
Tucker v. Gaddis
Alexa Gervasi & Anya Bidwell oped
Sledge Hammer! intro
A town made it illegal to hold a sign. Anywhere. Really, just holding a sign is illegal. Sound like a First Amendment violation? That’s what we thought. And that’s what David Markese of the American Liberties Institute thought too. David joins us to discuss a recent Eleventh Circuit ruling in favor of his client after they took the town of Fort Myers Beach to court. Then it’s off to Texas to settle the great question, how the heck do you pronounce amicus curiae? After settling that once and for all IJ’s Dan Rankin explains that Tyson Foods can’t move a COVID-19 case to federal court just because it might have feared it was under arrest.
Click here for transcript.
Glenn v. Tyson Foods, Inc.
LaCroix v. Town of Fort Myers Beach
Background on Universal/Nationwide Injunctions
David Markese
Dan Rankin
Anthony Sanders
Ever worked in a salt mine? It seems some non-union employees hadn't either when their boss joked that they might be sent to one. That wasn't funny to someone completely unconnected to the employer, who filed an unfair labor practice. Jared McClain joins us to discuss this funny case from the Third Circuit. And get a refresher on the open fields doctrine--and how it doesn't apply to seizures--from John Wrench as he tells us about a few not-very-well-looked-after cows.
Click here for transcript.
Recorded live at UCLA, we're introducing a new study from the Institute for Justice: Constitutional G.P.A., is your Government Preventing Accountability? The study grades each state on how its citizens are able--or all too often, are not able--to hold government officials accountable when their rights are violated. It's also a research tool you can use yourself. Hosted by IJ attorney Anya Bidwell we hear about three recent cases through the prism of the study. They are presented by UCLA law professor (and Chief Conspirator at the Volokh Conspiracy) Eugene Volokh, President of the National Police Accountability Project Julia Yoo, and California civil rights attorney Nicholas Yoka.
Feel free to follow along with us by checking out the interactive study here.
Click here for transcript.
On a special Short Circuit, we sit down with Michael Bindas, a senior attorney at the Institute for Justice and lead attorney in Carson v. Makin. There, the Supreme Court just ruled in favor of Michael’s clients and thousands of children whose parents now have additional options for their education. We talk to Michael about the underlying religious liberty and school choice issues, what it’s like to argue a case at the Supreme Court, and the future of school choice in the wake of this important victory. Somehow we also work bourbon and rye into the conversation.
RSVP for our event at UCLA on June 30th, https://ij.org/event/constitutional-gpa-launch-at-ucla/
It's just so easy these days to put a camera on a pole and record everything that happens in someone's front yard for eight months. So easy that we keep getting cases where that's exactly what the police do. Without a warrant. IJ attorney Josh Windham unpacks the latest, out of the First Circuit, Courier font and all. The judges don't agree, but the rest of us can that this issue is likely heading to the Supreme Court soon. Then Anthony Sanders tells a story from Indiana where its supreme court drew a line in the sand dunes about what its legislature can delegate. But it's not the "nondelegation doctrine" you've heard about.
RSVP for Short Circuit Live and Constitutional G.P.A. on June 30, 2022 in Los Angeles!
Click here for transcript.
It's just so easy these days to put a camera on a pole and record everything that happens in someone's front yard for eight months. So easy that we keep getting cases where that's exactly what the police do. Without a warrant. IJ attorney Josh Windham unpacks the latest, out of the First Circuit, Courier font and all. The judges don't agree, but the rest of us can that this issue is likely heading to the Supreme Court soon. Then Anthony Sanders tells a story from Indiana where its supreme court drew a line in the sand dunes about what its legislature can delegate. But it's not the "nondelegation doctrine" you've heard about.
RSVP for Short Circuit Live and Constitutional G.P.A. on June 30, 2022 in Los Angeles!, https://ij.org/event/constitutional-gpa-launch-at-ucla/
U.S. v. Moore-Bush, http://media.ca1.uscourts.gov/pdf.opinions/19-1582P2-01A.pdf
Holcomb v. Bray, https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=RRvDhps1kFgz0co94EC6Pod3mOXwtu9lxW0s2dBTG0ufJmLLaYvsh4WhpGXxa8iE0
The previous Short Circuit podcast on camera poles, https://shortcircuit.org/sc_podcast/183/
Blog post on Holcomb case, https://ij.org/cje-post/legislators-timing-themselves/
Josh Windham, https://ij.org/staff/joshua-windham/
Anthony Sanders, https://ij.org/staff/asanders/
We discuss a couple legal immunities, one listeners will be familiar with and one that’s pretty unknown. The second is being addressed by our special guest, Aliza Shatzman. She is the co-founder of The Legal Accountability Project, a new nonprofit whose mission is to ensure that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Aliza had a harrowing experience as a law clerk and found that the laws that apply to other government employees often don’t extend to those in the judicial branch. She also presents a recent case from the Fourth Circuit about a judicial branch employee who brought a number of claims to try and get around sovereign immunity—and actually succeeded on a few of them. Then Kirby Thomas West of IJ discusses a Fifth Circuit case with terrible facts, but a good outcome on the qualified immunity front.
Strickland v. U.S., https://www.ca4.uscourts.gov/opinions/211346.P.pdf
Sims v. Griffin, https://www.ca5.uscourts.gov/opinions/pub/21/21-40457-CV0.pdf
Aliza on Ipse Dixit, https://shows.acast.com/ipse-dixit/episodes/aliza-shatzman-on-holding-judges-accountable
Untouchable Judges? What I’ve Learned About Harassment in the Judiciary, and What We Can do to Stop It, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4096245
Aliza’s Statement for the Record to Congress, https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-20220317-SD005.pdf
Aliza Shatzman and the Legal Accountability Project, https://www.legalaccountabilityproject.org/
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/
Recording in front of a live audience at the 2022 Institute for Justice’s Law Student Conference, we look at some of the best, and some of the worst, from the Fourth Circuit. First, Justin Pearson explains why a restriction on “political” advertising on the side of buses was unconstitutional even though it recognized the side of a bus is not a “public forum.” Then, Michael Bindas gives us his best sommelier (or is it wino?) impersonation and discusses a tipsy opinion allowing North Carolina to prevent out-of-state retailers from shipping wine to the state’s consumers. It’s pretty much not what the Supreme Court has said about the dormant Commerce Clause and alcohol.
RSVP to Constitutional GPA and Short Circuit Live at UCLA on Thursday, June 30th!, https://ij.org/event/constitutional-gpa-launch-at-ucla/
White Coat Waste Project v. Greater Richmond Transit Co., https://www.ca4.uscourts.gov/opinions/201710.P.pdf
B-21 Wines, Inc. v. Bauer, https://www.ca4.uscourts.gov/opinions/211906.P.pdf
Tennessee Wine & Spirits Retailers Assoc. v. Thomas, https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf
Michael Bindas, https://ij.org/staff/mbindas/
Justin Pearson, https://ij.org/staff/justin-pearson/
Anthony Sanders, https://ij.org/staff/asanders/
A couple headline-grabbing, government-thumping constitutional-heavyweight cases coming at you this week. First, Rob Johnson explains how he filed a brief on the importance of the right to a jury trial when he checked the news to find the Fifth Circuit had just said the same thing in a different case. He details why this is a big deal (and a good deal) and not the end-of-humanity some people have been shouting about. Then, Dan Alban tells us of how the Eleventh Circuit just found almost all of Florida’s “social media law” unconstitutional, and why this isn’t really that surprising. Except for the fact that the Fifth Circuit has cryptically upheld Texas’s similar law. Also, it’s towel day.
Jarkesy v. SEC, https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf
Netchoice, LLC v. Poitier, https://media.ca11.uscourts.gov/opinions/pub/files/202112355.pdf
Rob’s post on the SEC case, https://ij.org/cje-post/fifth-circuit-vindicates-ijs-fight-for-the-right-to-an-impartial-jury/
The BSG Big Mac episode (actually Season 1), https://galactica.fandom.com/wiki/The_Hand_of_God
Dan Alban, https://ij.org/staff/dalban/
Rob Johnson, https://ij.org/staff/rjohnson/
Anthony Sanders, https://ij.org/staff/asanders/
When is a case over? As you'll learn, that depends on a lot of weird stuff. IJ attorney Will Aronin walks us through the Ninth Circuit's recent decision on everybody's favorite bedtime reading, Rule 68 and offers of judgment. Seriously, it's an untapped resource of the federal courts with some counterintuitive traps for lawyers who don't read the rules. Then Jeff Redfern of IJ tells us about the latest chapter in mask lawsuits, this time from the Eighth Circuit. The court says part of the case (all of the case?) is moot, but with the pandemic it's hard to know with any finality. There's an invocation of Sisyphus that might not surprise you.
Kubiak v. County of Ravalli, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/03/21-35542.pdf
The Arc of Iowa v. Reynolds, https://ecf.ca8.uscourts.gov/opndir/22/05/213268P.pdf
Will Aronin, https://ij.org/staff/will-aronin/
Jeffrey Redfern, https://ij.org/staff/jeffrey-redfern/
Anthony Sanders, https://ij.org/staff/asanders/
Short Circuit is proud to present to you Professor Marin Levy of Duke University School of Law. She is a top scholar on the federal judiciary, including its history, how it has evolved, and how it actually works. Plus, she’s educated the world about the federal (and state!) courts through the magic of Twitter threads. We talk to her about what’s so interesting about the federal courts (with some “short” remarks about the “circuit” courts) and how she got started Tweeting them.
After that Kirby Thomas West of IJ tells us about a Second Circuit case where the government didn’t do enough to pass the First Amendment (at least for now) even though the plaintiff wasn’t the most sympathetic. And we go back to Marin to detail a Ninth Circuit case with an even less sympathetic party, but where the court overlooked the importance of some pretty intriguing issues, such as whether there’s a Fourth Amendment violation if the government comes in and copies all of your stuff.
Register for IJ’s Judicial Engagement Forum on the Michigan Constitution, https://ij.org/event/cje-forum-mi-constitution/
Duke Law Podcast on Marin’s many threads, https://law.duke.edu/video/duke-law-podcast-prof-marin-k-levy-strikes-twitter-gold-judicial-gems
Cornelio v. Connecticut, https://www.ca2.uscourts.gov/decisions/isysquery/a3e9962c-86fc-4de3-91af-d5775168c64e/13/doc/20-4106_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/a3e9962c-86fc-4de3-91af-d5775168c64e/13/hilite/
U.S. v. Rosenow, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/27/20-50052.pdf
Professor Marin Levy, https://law.duke.edu/fac/levy/bibliography/
Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/
Anthony Sanders, https://ij.org/staff/asanders/
A couple issues near-and-dear to many of your hearts this week: Money and Facebook. First, if you win a case against the government are you a "prevailing party" deserving of an attorneys fees award? North Carolina officials argued you're not if you do so well that the law you're challenging actually disappears. Luckily the Fourth Circuit shot that argument down. Alexa Gervasi explains. But meanwhile the Sixth Circuit shot down quite a lot of the First and Fourth Amendments when a police department took great vengeance upon a man with the audacity to . . . create a parody Facebook page. As Ari Bargil tells us, it's a case demonstrating why everyone hates lawyers.
If you're in Michigan sign up now for our May 20, 2022 forum on Judicial Engagement and the Michigan Constitution!, https://ij.org/event/cje-forum-mi-constitution/
Grabarczyk v. Stein, https://www.ca4.uscourts.gov/opinions/211209.P.pdf
Novak v. City of Parma, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0090p-06.pdf
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Ari Bargil, https://ij.org/staff/ari-bargil/
Anthony Sanders, https://ij.org/staff/asanders/
It's a First Amendment fiesta at Short Circuit this week! Tori Clark explains how in the Eighth Circuit it's hard to sue the government to protect your right to free speech when the law is privately enforced. And we're not talking about Texas here, but people not acting so nice in Minnesota. Further down the trail, things went a little berserk in Oregon, and a pro se legislator won himself another day in court in the Ninth Circuit. Sam Gedge has hunted through the briefs.
If you're in Michigan come to our State Forum on Judicial Engagement and the Michigan Constitution! Friday, May 20, 2022 at noon. There's also a free lunch. RSVP here: https://ij.org/event/cje-forum-mi-constitution/
Christian Action League v. Freeman, https://ecf.ca8.uscourts.gov/opndir/22/04/203618P.pdf
Boquist v. Courtney, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/21/20-35080.pdf
Tori Clark, https://ij.org/staff/tori-clark/
Sam Gedge, https://ij.org/staff/sam-gedge/
Anthony Sanders, https://ij.org/staff/asanders/
Suing the United States government is really hard. So hard that someone's family might not get to even if the government is at fault for that person dying in a flood. Adam Shelton explains why that luckily might not be true in this case, but all too often is. Then Diana Simpson walks us through a procedural pretzel of property rights preventing people from putting up homes. She also discusses some old cases you might not know about, but really should.
Barron v. United States, https://www.ca5.uscourts.gov/opinions/pub/21/21-50776-CV0.pdf
Rice v. Village of Johnstown, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0068p-06.pdf
IJ's Amicus Brief in Xi v. Haugen, https://ij.org/wp-content/uploads/2021/11/Xiaoxing_Xi-amicus.pdf
Eubank v. Richmond, https://supreme.justia.com/cases/federal/us/226/137/
Adam Shelton, https://ij.org/staff/adam-shelton/
Diana Simpson, https://ij.org/staff/diana-simpson/
Anthony Sanders, https://ij.org/staff/asanders/
We focus in on two Latin words this week: habeas and mandamus. Both usually mean "you lose." But things somehow turned out differently in the Fourth Circuit and Fifth Circuit. Hear the story of a man trapped in prison for a small drug sale for almost a decade who fights his way through the state and federal courts and wins himself a new trial. IJ's Bob Belden tells that tale. And then there's a story about guns, the Internet, speech, the differences between Texas and New Jersey, and transfer orders. Alexa Gervasi gets us up to speed on that saga. She also previews a new IJ case about a prosecutor working for a judge he practiced before. It's as bad as it sounds.
Wilson v. Midland County (IJ's prosecutor case), https://ij.org/case/midland-prosecutor/
Witherspoon v. Stonebreaker, https://www.ca4.uscourts.gov/opinions/197276.P.pdf
Defense Distributed v. Bruck, http://www.ca5.uscourts.gov/opinions/pub/21/21-50327-CV0.pdf
Bob Belden, https://ij.org/staff/bob-belden/
Alexa Gervasi, https://ij.org/staff/alexa-gervasi/
Anthony Sanders, https://ij.org/staff/asanders/
Short Circuit Live returns with an all-star all-D.C. Circuit panel! IJ attorney Anya Bidwell hosts a discussion with three Supreme Court lawyers (and former D.C. Circuit clerks), Lisa Blatt, Kelsi Brown Corkran, and Paul Clement. They reminisce about their days clerking for D.C. Circuit judges and analyze three recent circuit opinions on liability under terrorism laws, executive privilege, and no-fly lists.
Atchley v. AstraZeneca UK Limited, https://www.cadc.uscourts.gov/internet/opinions.nsf/5758882D6D6A4186852587C00054938F/$file/20-7077-1929043.pdf
Trump v. Thompson, https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf
Jibril v. Mayorkas, https://www.cadc.uscourts.gov/internet/opinions.nsf/FFAEBA52B8CB71F4852587B20053253D/$file/20-5202-1927517.pdf
Lisa Blatt, https://www.wc.com/Attorneys/Lisa-S-Blatt
Kelsi Brown Corkran, https://www.law.georgetown.edu/faculty/kelsi-corkran/
Paul Clement, https://www.kirkland.com/lawyers/c/clement-paul-d
Anya Bidwell, https://ij.org/staff/anya-bidwell/
Some property owners sued an arm of the State of Louisiana for damages and won a $10 million judgment. Wow, that's real money! Except, because the lawsuit was in state court they can't collect on it unless the legislature gives it to them. Which it doesn't want to do. So the money isn't so real after all. They then went to federal court, but the Fifth Circuit gave them some bad news. IJ's Jeff Redfern explains. When we move to the Ninth Circuit, however, it's all smiles. The court said an antitrust case could move forward against members of the California Dental Board. Your host Anthony Sanders gives the latest in turning the antitrust laws on the most anticompetitive of them all, the regulators.
Ariyan, Inc. v. Sewerage & Water Board of New Orleans, https://www.ca5.uscourts.gov/opinions/pub/21/21-30335-CV0.pdf
SmileDirectClub, LLC v. Tippins, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/17/20-55735.pdf
Bound By Oath podcast, https://shortcircuit.org/center-for-judicial-engagement/sc/14th-at-150-podcast/
Remedying the Loss of a Right, https://ij.org/cje-post/remedying-the-loss-of-a-right/
Jeff Redfern, https://ij.org/staff/jeffrey-redfern/
Anthony Sanders, https://ij.org/staff/asanders/
Michigan lawyer and YouTube legal sensation Steve Lehto joins us this week. We talk a bit about his career as a broadcaster, consumer protection lawyer, and host of an internet show with 300,000 subscribers. Then we get into some language he never got to “play on the radio.” All because a few police officers threw a man out of a $3 county fair for wearing a t-shirt with a famous saying of the group NWA. Or at least that’s what the Sixth Circuit said in denying the officers qualified immunity. Also, our old friend Rob Peccola comes back with the latest in the landlord wars in Minneapolis, and how the Eighth Circuit didn’t see no takings.
Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/
Steve’s YouTube page, https://www.youtube.com/c/stevelehto
Wood v. Eubanks, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0025p-06.pdf
301 LLC v. City of Minneapolis, https://ecf.ca8.uscourts.gov/opndir/22/03/203493P.pdf
Yim v. City of Seattle, https://www.courts.wa.gov/opinions/pdf/968179.pdf (Seattle “first-in-time rule”)
Law Office of Steve Lehto, http://lehtoslaw.com/
Rob Peccola, https://ij.org/staff/rpeccola/
Anthony Sanders, https://ij.org/staff/asanders/
Like owls? We've got owls. Two of them. But they don't like each other. Ben Field explains how the Ninth Circuit adjudicated with this Parliament of owls, and how a 12 gauge shotgun is involved. In addition, Evan Lisull tells a story of "chalking," the police, and the First Amendment. Both from another Ninth Circuit case, but also from his own brush with the law. Throw in some qualified immunity and admin law, and you've got a very festive St. Patrick's Day episode (minus anything Irish).
Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/
Friends of Animals v. U.S. Fish & Wildlife Service, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/04/21-35062.pdf
Ballentine v. Las Vegas Metropolitan Police Department, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/08/20-16805.pdf
Rivas-Villegas v. Cortesluna (case questioning circuits clearly establishing law), https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pdf
Ben Field, https://ij.org/staff/ben-field/
Evan Lisull, https://ij.org/staff/evan-lisull/
Anthony Sanders, https://ij.org/staff/asanders/
As news followers over the last few years will know, grand jury records are super secret. But sometimes judges allow the word to get out, under certain narrow circumstances. Is one of them just that the records are old and historians find them interesting? Sorry, says the First Circuit, in the latest installment of a circuit split. Rob Frommer tells us all the history. Also, can the IRS get around the Administrative Procedure Act through some creative lawyering? No, says the Sixth Circuit. John Wrench walks us through a rhetorical lashing of our tax collectors.
Finally, come see Short Circuit Live in DC on April 6, 2022! The link to RSVP and join us is here: https://ij.org/event/scl/
In re: Petition for Order Directing Release of Records, http://media.ca1.uscourts.gov/pdf.opinions/20-1836P-01A.pdf
Mann Construction, Inc. v. United States, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0041p-06.pdf
Short Circuit Live at University of Georgia, https://shortcircuit.org/sc_podcast/124-live-at-uga-law/
Rob Frommer, https://ij.org/staff/rfrommer/
John Wrench, https://ij.org/staff/john-wrench/
Anthony Sanders, https://ij.org/staff/asanders/
How do you own a wild animal? Why are drug dogs given such a benefit of the doubt? Can bees "trespass?" Why did the Medieval French put pigs on trial for murder? And does the Queen of England really own all the swans?
This is an episode for animal lovers, and lovers of legal mysteries more generally. Joining us are Professors Katy Barnett and Jeremy Gans of the University of Melbourne to discuss their new book "Guilty Pigs: The Weird and Wonderful History of Animal Law." It explores the ins and outs of all the ways that animals and the law intersect, from the curious to practical to the constitutional, from dogs to bees to foxes. Not only that, it marks the first time Short Circuit has had an Australian (two of them!) on the show. Come for the exploration of the intersection of drug dogs and civil forfeiture, stay for the ownership rights of the IKEA monkey.
Guilty Pigs: The Weird and Wonderful History of Animal Law, https://www.amazon.com/Guilty-Pigs-Wonderful-History-Animal-ebook/dp/B09CGQDNGD
Florida v. Harris, https://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf
IJ amicus brief in Florida v. Harris, https://ij.org/amicus/florida-v-harris/
Florida v. Jardines, https://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf
Short Circuit episode on Robot Law, https://shortcircuit.org/sc_podcast/163/
Katy Barnett, https://law.unimelb.edu.au/about/staff/katy-barnett
Jeremy Gans, https://law.unimelb.edu.au/about/staff/jeremy-gans
Anthony Sanders, https://ij.org/staff/asanders/
Wanna get mad? This week we've got you covered. Two cases where the government plays by different rules from the rest of us. First Jaba Tsitsuashvili explains how the 11th Circuit went out of its way to excuse the Department of Justice's failure to raise a legal argument to do with a traffic stop search that private attorneys would not get away with. And Josh House tells us what the 8th Circuit thinks about property when you don't pay property taxes. The result isn't pretty. Along the way, however, there's a few laughs and in the 11th Circuit case we hope you appreciate that "the dissent comes with receipts."
United States v. Campbell, https://media.ca11.uscourts.gov/opinions/pub/files/201610128.enb.pdf
Tyler v. Hennepin County, https://ecf.ca8.uscourts.gov/opndir/22/02/203730P.pdf
https://ij.org/staff/joshua-house/
https://ij.org/staff/jaba-tsitsuashvili/
https://ij.org/staff/asanders/
Following in the footsteps of last week's Super Bowl halftime show, we're keeping it West Coast today. Two cases from the Ninth Circuit that are Very Ninth Circuit. First, Bob McNamara explains how the overbreadth doctrine invalidated a restriction on speech related to violating immigration law. Then, Joe Gay describes the many ways the court found an Oakland, California ordinance to be just fine constitutionally even though it forces people to pay a lot of money just to move back into their house. Nobody raps, but there are unintentional references to the Norwegian pop group a-ha.
United States v. Hansen, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/10/17-10548.pdf
Ballinger v. City of Oakland, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/01/19-16550.pdf
Robert McNamara, https://ij.org/staff/robert-mcnamara/
Joe Gay, https://ij.org/staff/joe-gay/
Anthony Sanders, https://ij.org/staff/asanders/
The Institute for Justice just issued a new report, 50 Shades of Government Immunity, about what happens when you go to state--not federal--court after the government violates your rights. The report grades every state for its access to justice as an alternative to the federal judiciary. Unfortunately, with just a couple exceptions, it doesn't paint a pretty picture.
Two IJ attorneys, Anya Bidwell and Patrick Jaicomo, and Professor Alex Reinert of Cardozo Law, join Short Circuit to discuss the report and Professor Reinert's related research. You'll learn that while going to state court isn't nearly as easy as some at the U.S. Supreme Court assume it to be, there are prospects for reform as well.
50 Shades of Government Immunity, https://ij.org/report/50-shades-of-government-immunity/
New Federalism and Civil Rights Enforcement, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1478&context=nulr
Protecting Everyone's Constitutional Rights Act (IJ's model legislation), https://ij.org/legislation/protecting-everyones-constitutional-rights-act/
Alex Reinert, https://cardozo.yu.edu/directory/alexander-reinert
Anya Bidwell, https://ij.org/staff/anya-bidwell/
Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/
Anthony Sanders, https://ij.org/staff/asanders/
Divorce can be hard on the kids. Especially when the divorce was 40 years ago, the government doesn't believe it happened, and your U.S. citizenship depends on whether it did. New York litigator Alexandra Tseitlin joins Short Circuit to discuss an unusual immigration case she recently won in the Third Circuit. Also, ineffective assistance of counsel claims are difficult to win. But they're a bit easier when the lawyer is just obviously wrong about what the law means. Tori Clark of IJ walks us through a tragic story that got a bit better on appeal. And finally, we have a winner in our Most Beautiful Courtroom contest. We hope you don't mind speaking in the library.
Jaffal v. ICE, https://www2.ca3.uscourts.gov/opinarch/203148p.pdf
U.S. v. Freeman, https://www.ca4.uscourts.gov/opinions/194104A.P.pdf
Alexandra Tseitlin, https://www.tseitlinlaw.com/alexandra-tseitlin/
Tori Clark, https://ij.org/staff/tori-clark/
Anthony Sanders, https://ij.org/staff/asanders/
Sometimes when the government does bad things to you it violates the Constitution. And sometimes it just violates the contract. Jeff Rowes explains the difference, and how things went down with a development scheme in the Fifth Circuit. Also, Will Aronin brings his expertise he learned as a trial lawyer to examine some junk science that has now been put on trial. Plus he details why it would be nice for a criminal defendant to know if a witness testifying against him is known to "stretch the truth."
Preston Hollow Capital, LLC v. Cottonwood Development Corp., https://www.ca5.uscourts.gov/opinions/pub/21/21-50389-CV0.pdf
O'Donnell v. Yezzo, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0026n-06.pdf
Judge Jon Newman article on "En Banc," https://static.reuters.com/resources/media/editorial/20200714/IN%20BANC%20PRACTICE%20IN%20THE%20SECOND%20CIRCUIT%20THE%20VIRTUES%20OF%20RESTRAINT.pdf
Jeff Rowes, https://ij.org/staff/jrowes/
Will Aronin, https://ij.org/staff/will-aronin/
Anthony Sanders, https://ij.org/staff/asanders/
Is it "on bonk" or "n bank"? IJ lawyers disagree on how to pronounce a full court of appeals considering a case. But whatever your Latin/Old French skills, the en banc Fifth Circuit said some things about the Dallas County jail that even your crack team of experts can't understand. But Sam Gedge does his best to explain what might be going on, and how the court needlessly addressed his favorite topic, Younger abstention. But before that Bob Belden tells a story of a renegade sheriff sticking unauthorized anti-Halloween signs in rehabilitated sex offenders' yards.
RSVP for our live event on the Georgia Constitution on February 4, 2022, https://ij.org/event/center-for-judicial-engagement-forum-on-the-georgia-constitution/
McClendon v. Long, https://media.ca11.uscourts.gov/opinions/pub/files/202110092.pdf
Daves v. Dallas County, https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf
Rival "How to Pronounce 'En Banc'" Videos: https://www.youtube.com/watch?v=vQexSbL8iDQ, https://www.youtube.com/watch?v=fsnW2JDc0G8
Sam Gedge, https://ij.org/staff/sam-gedge/
Bob Belden, https://ij.org/staff/bob-belden/
Anthony Sanders, https://ij.org/staff/asanders/
Ever wondered when the police can pull you over and what they can do once you stop? Then this episode brings news you can use through a couple recent traffic stop cases. Wesley Hottot reports on the Eighth Circuit's blessing of a stop supposedly brought on by some pretty smelly weed (although not everyone is convinced of the story). Then, your host Anthony Sanders tells us of a new development in Oregon where its high court has rejected the "automobile exception" to the requirement to get a warrant before a search. Also, please keep your nominations for the most beautiful federal circuit courtroom rolling in. Our listeners have demonstrated there's some architecturally fierce, yet lovely, competition out there.
United States v. Shumaker, https://ecf.ca8.uscourts.gov/opndir/21/12/203467P.pdf
Oregon v. McCarthy, https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9463/rec/2
Post on Oregon v. McCarthy, https://ij.org/cje-post/state-con-law-case-of-the-week-oregon-stops/
IJ's Project on the Fourth Amendment, https://ij.org/issues/ijs-project-on-the-4th-amendment/
Wesley Hottot, https://ij.org/staff/whottot/
Anthony Sanders, https://ij.org/staff/asanders/
It's a new year but little is new with qualified immunity in the Fifth Circuit. Or is it? Easha Anand of the MacArthur Justice Center joins us to discuss a recent denial of qualified immunity in a police brutality case. IJ's Anya Bidwell joins in and reports on a couple other developments that demonstrate perhaps there's some "split second" thinking going on among those judges.
Further, we ask our listeners to send in your nominations for the "most beautiful" U.S. Court of Appeals courtrooms. Got a favorite? Let us know! Either send us an email or find us on Twitter.
Also, apply to be an IJ summer fellow! The deadline is January 14, 2022, https://ij.org/opportunities/students/
Timpa v. Dillard, https://cases.justia.com/federal/appellate-courts/ca5/20-10876/20-10876-2021-12-15.pdf?ts=1639614617
Villarreal v. City of Laredo, https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV0.pdf
Harmon v. City of Arlington, http://www.ca5.uscourts.gov/opinions/pub/20/20-10830-CV0.pdf
IJ's Gonzalez v. City of Castle Hills, https://new.ij.org/case/castle-hills-retaliation/
Easha Anand, https://www.macarthurjustice.org/team_member/easha-anand/
Anya Bidwell, https://ij.org/staff/anya-bidwell/
Anthony Sanders, https://ij.org/staff/asanders/
It's our 200th episode! We're taking this second century as an excuse to explore where Short Circuit came from and what it's done, both the podcast and the newsletter. We start things off at the very beginning with Short Circuit's editor and the podcast's original host John Ross. Then it's a blast-from-the-past with Clark Neily and Evan Bernick. We close things off with guest host Paul Sherman and Short Circuit Live host Anya Bidwell. You've heard how Spiderman and Batman came to be, but do you know what traumatic event led to Short Circuit? Ok, there's no radiation or mugging, but you will learn how reading way too many qualified immunity opinions can radicalize your worldview. Enjoy!
Also, a quick update to the episode. None of us really remembered where the idea for the podcast actually came from, but further deep (and actual) research has revealed it was our sound engineer and producer Mark. Thank you!
https://ij.org/staff/jross/ https://www.cato.org/people/clark-neily https://www.niu.edu/law/about/directory/bernick.shtml https://ij.org/staff/psherman/ https://ij.org/staff/anya-bidwell/ https://ij.org/staff/asanders/
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://www.ij.org/opportunities/students Litigation Fellowship, https://www.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/
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/
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/
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
For the fifth year in a row the Center for Judicial Engagement travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term. Once again there’s trivia, deep dives on a couple cases about to be argued, and a couple cert petitions. Professor Andy Hessick battles IJ attorney Justin Pearson for top SCOTUS trivia dog and your host Anthony Sanders enjoys the first LIVE Short Circuit since the world shut down.
Cummings v. Premier Rehab Keller, PLLC, https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/ City of Austin v. Reagan National Advertising of Texas, Inc., https://www.scotusblog.com/case-files/cases/city-of-austin-texas-v-reagan-national-advertising-of-texas-inc/ Mohamud v. Weyker , https://ij.org/case/federal-police-immunity-cert-petitions/ Torres v. Texas Department of Public Safety, https://www.scotusblog.com/case-files/cases/torres-v-texas-department-of-public-safety/ Andy Hessick, https://law.unc.edu/people/andrew-hessick/ Justin Pearson, https://ij.org/staff/justin-pearson/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Ever rolled your tires to try and cover up the meter maid’s chalk mark? No, me neither . . . But even if you haven’t, you might not have to worry about tire chalk marks much longer. Josh Windham explains how the Sixth Circuit has said that’s an unreasonable search. And out West it turns out there’s so much law in Yellowstone National Park (the Wyoming bit, at least) that a camper gets out of an assault charge because of a law called the ACA (just not the one you’re thinking of). The camper didn’t commit the Perfect Crime, but Dan Alban talks about it while he’s in the district.
IJ’s Will of the People Conference, https://ij.org/event/does-the-will-of-the-people-actually-exist/ Taylor v. City of Saginaw, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0194p-06.pdf United States v. Harris, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdf Brian Kalt, The Perfect Crime, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdfthe p C.J. Box, Free Fire, https://www.cjbox.net/free-fire Dan Alban, https://ij.org/staff/dalban/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
The Third Circuit allowed a Second Amendment case challenging Robinson Township’s new zoning ordinance to proceed. Did they town change their zoning laws just to prevent a gun club from fulling opening? Possibly, we’ll have to wait and see. But in the meantime, Andrew Ward walks us through this decision exploring just which level of scrutiny applies to Second Amendment challenges. And there was a very colorful dissent in the Ninth Circuit from Judge VanDyke. Patrick Jaicomo explains this dissent and its problems with the Ninth Circuit’s binding dicta rule.
Drummond v. Robinson Township: https://www2.ca3.uscourts.gov/opinarch/201722p.pdf
Ford v. Peery: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf
IJ’s Conference on the Will of the People: https://ij.org/event/does-the-will-of-the-people-actually-exist/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you’re not “chilled,” and therefore not “injured,” even if you’re breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was not unfair for Uber to compete against taxicabs when its own right to operate was, shall we say, a grey area. Plus, some nostalgia for the halcyon days of 2013 when getting in a ridesharing car was something you didn’t tell your mother.
Transcript forthcoming. IJ’s Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ Rio Grande Foundation v. City of Sante Fe, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110556757.pdf Anoush Cab, Inc. v. Uber Technologies, Inc., http://media.ca1.uscourts.gov/pdf.opinions/19-2001P-01A.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
More on two of America’s favorite subjects this week. Josh House rejoins us as we analyze six separate opinions about one football coach. Josh last came on in the spring when the Ninth Circuit said the coach didn’t have a prayer. Although that ruling stands for now, a number of judges recently exercised their freedom to speak differently. And maybe it’s because of the name, but there’s a lot of Second Amendment law firing out of the Second Circuit. Adam Griffin explains how the court was on target in a case about individual versus collective rights.
Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-185_otter.ai-002-FINAL.pdf Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/19/20-35222.pdf (en banc) Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf (panel decision) Henry v. County of Nassau, https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/doc/20-1027_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/hilite/ Episode on the Right to “Bear” Arms, https://ij.org/sc_podcast/174/ Josh House, https://ij.org/staff/joshua-house/ Adam Griffin, https://ij.org/staff/adam-griffin/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state’s highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts who run the California Constitution Center at the University of California at Berkeley, Dr. David Carrillo and Stephen Duvernay. We also discuss how to research a state constitution, what resources are available online to both litigators and scholars, and how useful those materials might turn out to be. Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-184_otter-FINAL.pdf IJ’s Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ California Constitution, https://law.justia.com/constitution/california/ California Constitution Center, https://www.law.berkeley.edu/research/california-constitution-center/ David A. Carrillo, https://www.law.berkeley.edu/our-faculty/faculty-profiles/david-carrillo/ Stephen Duvernay, https://www.law.berkeley.edu/our-faculty/faculty-profiles/stephen-duvernay/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you’re doing can be seen from a public place (or in this case, three cameras mounted on a utility pole for 18 months). But the court isn’t happy with the result and utters a cry for help. Also, have you ever had to fill out forms that don’t make any sense? Ben Field joins the podcast to tell the tale of what forms you need to lose your U.S. Citizenship, and how it’s difficult to sign them from federal prison.
Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-183_otter.ai-FINAL.pdf United States v. Tuggle, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-14/C:20-2352:J:Flaum:aut:T:fnOp:N:2733467:S:0 Farrell v. Blinken, https://www.cadc.uscourts.gov/internet/opinions.nsf/E73FAF5B041FF05685258711005181D8/$file/19-5357-1906101.pdf Katz v. United States, https://www.law.cornell.edu/supremecourt/text/389/347 Vogon Bureaucracy (21:30), https://www.dailymotion.com/video/x4syjrl Rob Frommer, https://ij.org/staff/rfrommer/ Ben Field, https://ij.org/staff/ben-field/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it’s supposed to protect, well, equal protection. Yet if you bring a claim that you’re not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tragic case where the court did take “protection” seriously, denying qualified immunity to police officers who failed to protect a woman from her stalking ex-partner. She joins us to discuss the victory and its wider impact. Also, what’s a “closely-regulated industry?” That term is often used to deny businesses some of their Fourth Amendment protections, and the Ninth Circuit recently ruled that massage parlors qualify. IJ’s Josh Windham joins us to analyze whether this is becoming an exception that swallows the rule, i.e. the rule that the government come back with a warrant.
Transcript forthcoming. Dalton v. Reynolds, https://www.ca10.uscourts.gov/opinions/19/19-2047.pdf Killgore v. City of South El Monte, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/08/20-55666.pdf DeShaney v. Winnebago County, https://supreme.justia.com/cases/federal/us/489/189/#tab-opinion-1957769 New York v. Burger, https://supreme.justia.com/cases/federal/us/482/691/ Laura Schauer Ives, http://nmcivilrights.com/laura-schauer-ives/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
It’s not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whether these kinds of requirements are constitutional, overruling itself but also not overruling itself at the same time. What do you do with that confusing precedent if you’re a lower court federal judge? IJ attorney Rob Johnson joins us to walk through who now does—or does not?—have to join their state bar association, and how all of this may (quickly?) make its way back to the Supreme Court.
Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-181.pdf Schell v. The Chief Justice, https://www.ca10.uscourts.gov/opinions/20/20-6044.pdf McDonald v. Longley, https://www.ca5.uscourts.gov/opinions/pub/20/20-50448-CV0.pdf Boudreaux v. Louisiana State Bar Assoc., https://www.ca5.uscourts.gov/opinions/pub/20/20-30086-CV0.pdf Janus v. AFSCME, https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf Keller v. State Bar of California, https://supreme.justia.com/cases/federal/us/496/1/ Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown’s Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ’s Anya Bidwell then sends us in the other direction where the circuit denied qualified immunity to a pair of paramedics who refused to help a prisoner, and we discuss whether the Supreme Court’s recent tea leaves pushed it in that direction. Finally, we take apart an en banc denial where a majority of the circuit most definitely is not reading those tea leaves—although Judge Willet may be in the form of a telegraph message.
Transcript: https://ij.org/wp-content/uploads/2021/07/short-circuit-180.pdf J.W. v. Paley, http://www.ca5.uscourts.gov/opinions/unpub/19/19-20429.0.pdf Kelson v. Clark, http://www.ca5.uscourts.gov/opinions/pub/20/20-10764-CV0.pdf Ramirez v. Guadarrama, https://www.ca5.uscourts.gov/opinions/pub/20/20-10055-CV0.pdf Taylor v. Riojas, https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf Nicolas Riley, https://www.law.georgetown.edu/icap/our-team/ Anya Bidwell, https://ij.org/staff/anya-bidwell/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Something that is not the bee’s knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don’t get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal employees go to court so they can feel free to Tweet #Resistance? Not any more, and perhaps not ever, as Adam Shelton tells us of another Fourth Circuit opinion.
Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-179_otter.ai-FINAL.pdf AFGE v. Office of Special Counsel, https://www.ca4.uscourts.gov/opinions/201976.P.pdf Yawn v. Dorchester County, https://www.ca4.uscourts.gov/opinions/201584.P.pdf Cert petition in Lech (tank case), https://ij.org/wp-content/uploads/2019/11/Lech-rehearing-petition-filed.pdf Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don’t know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one after (perhaps unwittingly) funding terrorist groups in Syria.
Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-178_otter-FINAL.pdf Burns v. Town of Palm Beach, https://media.ca11.uscourts.gov/opinions/pub/files/201814515.pdf United States v. Harcevic, https://ecf.ca8.uscourts.gov/opndir/21/06/192755P.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast, trying to thread the needle on whether “Your right to remain silent” is a “constitutional right” or merely a “constitutional rule.” What’s the difference? We’re not really sure.
Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-177_otter.ai-FINAL.pdf Tekoh v. County of Los Angeles (en banc), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/18-56414.pdf Tekoh v. County of Los Angeles (panel opinion), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-56414.pdf Briseno v. Henderson, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/01/19-56297.pdf McCaughtry v. City of Red Wing (Phil Simms quote), https://casetext.com/case/mccaughtry-v-city-of-red-wing-3 Raffi Melkonian, https://www.wrightclosebarger.com/attorneys/raffi-melkonian/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue over an unsolicited text message? Alexa Gervasi tells us what the Fifth Circuit said about this question, including how it relates to a public nuisance.
Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-176_otter-FINAL.pdf United States v. Garcon, https://media.ca11.uscourts.gov/opinions/pub/files/201914650.pdf United States v. Lopez, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf Cranor v. 5 Star Nutrition, LLC, https://www.ca5.uscourts.gov/opinions/pub/19/19-51173-CV0.pdf Justice Paul Thissen, When Rules Get in the Way of Reason: One judge’s view of legislative interpretation, https://cdn.ymaws.com/mcaa-mn.org/resource/resmgr/files/mcaa_news/J_Thissen_article_in_Bench_a.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Wesley Hottot, https://ij.org/staff/whottot/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued their land is a reservation under some often-neglected, and often-dishonored, agreements with the federal government. It’s an all Sixth Circuit, all Big Ten, property rights edition of Short Circuit.
Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-175_otter.ai-FINAL.pdf Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0103p-06.pdf Oral argument in Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-29-2021%20-%20Thursday/20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH.mp3&name=20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH Little Traverse Bay Band of Odawa Indians v. Whitmer, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0109p-06.pdf McGirt v. Oklahoma, https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf Thread on Oklahoma history, https://threadreaderapp.com/thread/1288098856346034179.html Emily White, https://www.dannlaw.com/attorney-profile/emily-white/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Second Amendment scholar David Kopel sits down with us to set the stage for a big issue we’ll hear a lot about over the next year: What “keep and bear arms” means outside of the home. Whether it’s conceal carry or open carry, does the Constitution protect that right, and if so, how? There’s a case at the Supreme Court from the Second Circuit challenging New York’s conceal carry law, and another case waiting in the wings from the Ninth Circuit. We get into some history, some legal tactics, and some judicial speculation—although only of a healthy kind.
Transcript: https://ij.org/wp-content/uploads/2021/05/Short-Circuit-174_otter.ai-FINAL.pdf New York State Rifle & Pistol Assoc. v. Corlett (cert petition), https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf Young v. Hawaii, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf Errors of Omission, https://www.illinoislawreview.org/online/errors-of-omission/ David Kopel, https://davekopel.org/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Legal raconteur and writer David Lat joins us for some underneath-their-robes hijinks. David talks a bit about his new venture and his battle with COVID-19. Then he examines a disability case from the Eleventh Circuit which tries to figure out the relationship between a “public accommodation” under the Americans with Disabilities Act and a website. After that, Bob McNamara tells us a tragic story from the Ninth Circuit involving some “Snaps” and how they relate to Section 230.
Transcript: https://ij.org/wp-content/uploads/2021/05/short-circuit-173_otter.ai-FINAL.pdf Gil v. Winn-Dixie Stores, Inc., https://www.courthousenews.com/wp-content/uploads/2021/04/winn-dixie-ca11.pdf Lemmon v. Snap, Inc., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf David’s “Original Jurisdiction,” https://davidlat.substack.com/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
What does Sir Walter Raleigh have to do with a Tennessee murder trial? You’ll learn from Rob Johnson, as he confronts his witness with a devastating cross-examination while presenting a unique habeas case from the Sixth Circuit. And does 50 years seem a long time for a case to last? Even in Cook County, Illinois it’s a bit of a stretch. But, as Jeff Rowes explains, given the county’s, and its most famous city’s, Untouchable history of corruption, the case can go on. For now.
Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-172_otter.ai-FINAL.pdf Miller v. Genovese, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0086p-06.pdf Shakman v. Clerk of Cook County, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D04-16/C:20-1828:J:Scudder:aut:T:fnOp:N:2691064:S:0 Hemphill v. New York, https://www.scotusblog.com/case-files/cases/hemphill-v-new-york/ Rob Johnson, https://ij.org/staff/rjohnson/ Jeff Rowes, https://ij.org/staff/jrowes/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
On a special Short Circuit, professors Christopher Green and Evan Bernick join your host Anthony Sanders to examine one of the great questions of the Fourteenth Amendment: When courts apply the Bill of Rights to the States, should they give those provisions the meaning they had when they were adopted, in 1791, or how they were understood when the Fourteenth Amendment was adopted, in 1868? The question is important, argue our guests, both methodologically and practically. Among other things, using the meaning the Bill of Rights had in 1868 might better fulfill the promise of Reconstruction, which was largely lost when the Supreme Court buried much of the Fourteenth Amendment in the years following the Civil War.
And speaking of Reconstruction, click here to see our 150th anniversary celebration of Section 1983, that we held earlier this week! https://www.youtube.com/watch?v=MlrAK4OXvPQ
Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-171_otterFINAL.docx Torres v. Madrid, https://www.supremecourt.gov/opinions/20pdf/19-292_21p3.pdf McDonald v. City of Chicago, https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf Graham v. Connor, https://supreme.justia.com/cases/federal/us/490/386/ Ramos v. Louisiana, https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf Christopher Green, https://law.olemiss.edu/faculty-directory/christopher-green/ Evan Bernick, https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2547295 Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
What can a court say in 325 pages? So much that we don’t have much of a clue. Diana Simpson slices and dices the Fifth Circuit’s analysis of a challenge to the Indian Child Welfare Act as it gets set for a highly likely trip up to the Supreme Court. And did you know you can sue the Federal Election Commission if they don’t investigate someone you don’t like? Well, you could, until the D.C. Circuit found some magic words. Adam Shelton pulls a rabbit out of a hat in explaining this prosecutorial discretion case.
Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-170_otter.ai-FINAL.docx Brackeen v. Haaland, https://www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf CREW v. FEC, https://www.cadc.uscourts.gov/internet/opinions.nsf/2E3A562AA93DFCDA852586B2004F2355/$file/19-5161-1893809.pdf Diana Simpson, https://ij.org/staff/diana-simpson/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
If you’re not a major party candidate it can be really hard to get on the ballot. So hard it’s sometimes unconstitutional. Paul Sherman explains how a Michigan candidate fought the elections bureaucracy in the Sixth Circuit and won (well, at least got on the ballot). Plus, can the City of New York sue to stop global warning? Actually, no. Andrew Ward walks us through a case from the Second Circuit on federal common law, this thing lawyers call Erie, and international relations.
Register here for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-169-FINAL.pdf Graveline v. Johnson, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0072p-06.pdf City of New York v. Chevron Corp., https://www.ca2.uscourts.gov/decisions/isysquery/63c19c68-c35d-4c5f-9962-aee09bd4e76f/1/doc/18-2188_opn.pdf Ballot Access News, https://ballot-access.org/ Paul Sherman, https://ij.org/staff/psherman/ Andrew Ward, https://ij.org/staff/andrew-ward/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Can the police stop and frisk your person based on their “training and experience?” Not if that training and experience is simply that drug dealers like to shake hands, says the Fourth Circuit. Ari Bargil provides the details of a drug dealer that the police were a tad too impatient to lock-up. And can an assistant football coach for a public high school publicly pray at the 50 yard line right after a game? The answer is it depends. Not every penitent man will pass the Ninth Circuit’s analysis. Plus, there’s a circuit split update on bump stocks and the CDC.
Register here for the April 20th online event on the 150th anniversary of Section 1983: https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-168-FINAL.pdf United States v. Drakeford, https://www.ca4.uscourts.gov/opinions/194912.P.pdf Kennedy v. Bremerton School Dist., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf Gun Owners of America v. Garland, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0070p-06.pdf Tiger Lily, LLC v. HUD, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0074p-06.pdf Aril Bargil, https://ij.org/staff/ari-bargil/ Josh House, https://ij.org/staff/joshua-house/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story about a drone that flew above someone’s property, and thereby committed a “search” under the Fourth Amendment (well, the government in charge of the drone did). This very interesting case from the Michigan Court of Appeals allows us to talk about drones, reasonable expectations of privacy, and whether the air above your house is an “open field.”
Transcript forthcoming: https://ij.org/wp-content/uploads/2021/03/short-circuit-167.pdf Register here for the April 20th online event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ New IJ drones case, https://ij.org/case/north-carolina-drones/ Greg McNeal, Police Drones, the Fourth Amendment, and Drone Trespass, https://gsmcneal.com/police-drones-the-fourth-amendment-and-drone-trespass-a-new-case-in-michigan/ Domen v. Vimeo, https://www.ca2.uscourts.gov/decisions/isysquery/01ae9011-839d-4391-a5f8-59d94d49c45b/3/doc/20-616_opn.pdf Long Lake Township v. Maxon, http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF Long Lake Township dissent, http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_48_349230D.OPN.PDF Mike Masnick, https://www.techdirt.com/user/mmasnick Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textbook into one little case about a ranch in Louisiana. The plaintiff scored a hit, but not a very palpable one.
Register for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-166.pdf Aposhian v. Wilkinson, https://www.ca10.uscourts.gov/opinions/19/19-4036.pdf Grace Ranch, LLC v. BP America Production Company, http://www.ca5.uscourts.gov/opinions/pub/20/20-30224-CV1.pdf Hamlet, Act. III, Sec. 1, ln. 51, https://www.gutenberg.org/files/27761/27761-h/27761-h.htm#tagIII_8 Josh Blackman, In Bump Stock Case, Tenth Circuit Dismisses Grant of Rehearing En Banc As Improvidently Granted, https://reason.com/volokh/2021/03/06/in-bump-stock-case-tenth-circuit-dismisses-grant-of-rehearing-en-banc-as-improvidently-granted/?utm_source=dlvr.it&utm_medium=twitter Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa Gervasi walks us through the latest challenge to mandatory bar association dues. The Ninth Circuit says a Supreme Court precedent is on pretty shaky grounds these days, but as it’s the Supremes’ job to sort its own cases out, the lower court’s hands are tied. That’s true for the free speech claim, but on freedom of association there’s more wriggle room.
Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-165.pdf Terkel v. Centers for Disease Control and Prevention, https://files.texaspolicy.com/uploads/2021/02/25160210/045-Opinion-and-Order.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-_yj38m8dsqQuMMefjgKOjTMn-r345C5gtARN0qLZ_Yb3dh8Eo_3Ifdh6baGpsGd07pTnKW Crowe v. Oregon State Bar, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/19-35463.pdf Michael Bindas, https://ij.org/staff/mbindas/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’s what the First Circuit says, at least. Adam Shelton breaks down this alarming ruling, which we’ll all want to keep in mind when leaving the country becomes a thing again.
Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-164.pdf Uniformed Fire Officers Association v. De Blasio, https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/doc/20-2789_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/hilite/ Alasaad v. Mayorkas, http://media.ca1.uscourts.gov/pdf.opinions/20-1077P-01A.pdf Tiffany Wright, https://www.orrick.com/en/People/2/6/8/Tiffany-Wright Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circuit, we look into all of these questions with our guest Ed Walters, founder and CEO of Fastcase, and an adjunct professor who teaches robot and artificial intelligence law at Georgetown Law School.
Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-163_otter.ai_.pdf Copyrighting all the melodies to avoid accidental-infringement, https://www.ted.com/talks/damien_riehl_copyrighting_all_the_melodies_to_avoid_accidental_infringement I, Robot, http://ekladata.com/-Byix64G_NtE0xI4A6PA1--o1Hc/Asimov-Isaac-I-Robot.pdf Ed Walters: https://www.law.georgetown.edu/faculty/edward-j-walters/ Anthony Sanders: https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells the plaintiff he will “crush” her.
Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-162_otter.ai_.pdf Williams v. Marinelli, https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/doc/18-1263_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/hilite/ Miller v. Sam Houston State University, https://www.ca5.uscourts.gov/opinions/pub/19/19-20752-CV0.pdf Anya Bidwell, https://ij.org/staff/anya-bidwell/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
A triad of important things in life are tweets, stateless vessels, and fonts. IJ attorneys Tatiana Pino and Patrick Jaicomo join your host Anthony Sanders to outline how a politician in the Eighth Circuit almost turned her Twitter account into a public forum, which would have prevented her from blocking anyone based on a viewpoint she disagrees with. Also, ever wanted to sail your own boat onto the high seas, free from any nation’s sovereign arm? Too bad. At least says the First Circuit to an unlucky mariner who happened to be transporting quite a lot of cocaine. Finally, Anthony takes us on a tour of the fonts of the federal circuits. Will others follow the Fifth Circuit’s lead and not pretend they issue opinions with typewriters anymore?
Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-161.pdf Campbell v. Reisch, https://ecf.ca8.uscourts.gov/opndir/21/01/192994P.pdf United States v. Aybar-Ulloa, http://media.ca1.uscourts.gov/pdf.opinions/15-2377P2-01A.pdf Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/ Tatiana Pino, https://ij.org/staff/tatiana-pino/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Even though ex-President Trump is off of Twitter, his tweets are still abundant in federal legal filings. IJ Senior Attorney Jeff Rowes explains the First Amendment defenses (spoiler: he thinks there aren’t many) Rudy Giuliani might have to the new lawsuit filed against him by a Canadian voting machine company. But if that’s not international enough for you, IJ attorney Kirby Thomas West shares the saga of a family that thought they were free from diplomatic immunity, but instead failed to obtain citizenship for a women who went on to fight for ISIS, and lost her passport in the process—a decision affirmed by Presidential Tweet. In the process your host Anthony Sanders explains how he never really thought about the “Reception Clause” before (which, unfortunately, has nothing to do with football).
Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-160.pdf Complaint in US Dominion, Inc. v. Giuliani, https://assets.documentcloud.org/documents/20463220/dominion-v-giuliani-complaint.pdf Muthana v. Pompeo, https://www.cadc.uscourts.gov/internet/opinions.nsf/97F4C9BA474983DE8525866200567816/$file/19-5362-1880558.pdf Anthony’s Twitter thread about US citizens born abroad, https://twitter.com/IJSanders/status/1127307781139308549 Jeff Rowes, https://ij.org/staff/jrowes/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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.
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
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.
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
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.
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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
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.
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
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/
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/
For the fourth year in a row, the Institute for Justice has teamed up with the University of North Carolina Federalist Society Chapter to preview cases for the Supreme Court’s upcoming term. IJ’s Justin Pearson and Erica Smith join with UNC Professor Andy Hessick to share their wisdom on what’s interesting, and what may get even more interesting, in the months to come.
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
Transcript: https://ij.org/wp-content/uploads/2020/10/short-circuit-149.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Erica Smith, https://ij.org/staff/esmith/ Andy Hessick, https://law.unc.edu/people/andrew-hessick/ Brownback v. King, https://ij.org/case/brownback-v-king/
In a special Short Circuit, Harvard Law Professor Molly Brady joins us to talk about an untold story from the rise of zoning law. A lot of the blame for our affordable housing crisis is often placed on the case Euclid v. Ambler Realty, where the Supreme court declared zoning (which includes prohibiting apartments) constitutional. But zoning was not the first try at limiting multifamily housing in certain neighborhoods. Professor Brady discusses how property covenants and nuisance law were employed to limit the availability of housing, and how when that didn’t work planners turned to the heavy hand of zoning. Along the way we discuss property deeds, spontaneous order, immigration, and the ever-beloved Coase Theorem.
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/Episode-148-Transcript.pdf Professor Molly Brady, http://www.maureenebrady.com/ Village of Euclid v. Ambler Realty Co., https://supreme.justia.com/cases/federal/us/272/365/ The Coase Theorem, https://www.libertarianism.org/topics/ronald-h-coase From the IJ Archives: Let’s Take Zoning to Court, https://ij.org/sc_blog/lets-take-zoning-to-court/
Will former White House Counsel Don McGahn ever testify to the House Judiciary Committee? That partly depends on how you squint when reading the Declaratory Judgment Act. University of Texas law professor (and Twitter Laureate of federal jurisdiction) Steve Vladeck checks off the justiciability boxes and tells us it didn’t use to be so complicated. Meanwhile, cities continue to hate billboards, and the Supreme Court continues to not speak as clearly as it could, even in cases involving content-based restrictions on speech. Bob McNamara explains why you have to read a sign to see if it’s “on premises.”
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-147-Transcript.pdf IJ Legal Intensive: https://ij.org/ijs-legal-intensive/ Committee on the Judiciary v. McGahn, https://www.cadc.uscourts.gov/internet/opinions.nsf/6402FB14D0F73EDD852585D5005DA953/$file/19-5331-1859039.pdf Reagan National Advertising v. City of Austin, http://www.ca5.uscourts.gov/opinions/pub/19/19-50354-CV0.pdf Steve Vladeck, https://law.utexas.edu/faculty/stephen-i-vladeck Robert McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/
Rejoining us after a very long break is Rob Johnson, who has some things to say about the Anti-Riot Act and a case finding part of it overbroad and unconstitutional. The case comes out of a prosecution of some racist rioters who attended a Unite the Right rally in Charlottesville in 2017. Also, Rob Frommer tells us a tale about a woman who spent a decade in prison for a crime she did not commit, and that there was plenty of evidence she did not commit before she was imprisoned. Despite all this, prosecutorial and qualified immunity do their best to bar her access to justice. Plus, learn a bit about what happened when the Hanoverians took over from the Stuarts.
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-146-transcript-1.pdf United States v. Miselis, https://www.ca4.uscourts.gov/opinions/194550.P.pdf Weimer v. County of Fayette, https://www2.ca3.uscourts.gov/opinarch/191823p.pdf The Riot Act, https://www.gutenberg.org/files/8142/8142-h/8142-h.htm Robert Frommer, https://ij.org/staff/rfrommer/ Robert Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/
Can a city hold on to your car for three years for no reason? Unfortunately, the Sixth Circuit seems to think the answer is “yes,” although over a fiery dissent. This week Wesley Hottot presents Nichols v. Wayne County and the team muses about the application of a case from 1978 and whether it even applies in Detroit anymore. Also, Paul Sherman takes us into campaign season with a campaign through campaign finance (and administrative) law with CREW v. FEC. After the Supreme Court decided Citizens United v. FEC, nonprofits that are not generally required to disclose their donors began running political ads. A watchdog group sued the Federal Election Commission, alleging that federal law requires disclosure of donors to any group spending more than $250 on such ads and that the FEC is failing to enforce this requirement. And it won. Paul presents the case, but discusses whether it’s really a good idea to require disclosures of relatively small contributions in the “Google Age.”
iTunes: podcasts.apple.com/us/podcast/shor…uit/id309062019 Spotify: podcasters.spotify.com/podcast/1DFCq…Ehed/overview Stitcher: www.stitcher.com/podcast/institut…ce/short-circuit Google: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-145-Transcript.pdf Nichols v. Wayne County https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0486n-06.pdf CREW v. FEC https://www.cadc.uscourts.gov/internet/opinions.nsf/DCEFA4F3D6438109852585CB005860AC/$file/18-5261-1857631.pdf Monell v. Department of Social Services https://supreme.justia.com/cases/federal/us/436/658/ Buckley v. Valeo, https://supreme.justia.com/cases/federal/us/424/1/
What brings all lawyers together? Hatred of PACER. Some nonprofits challenged the fees the federal courts charge for accessing court filings on the electronic records system. And they won. Kind of. But this doesn’t mean you get to stop paying to see legal documents. This week Diana Simpson explains the history of accessing court documents via modem, where those fees go, and how the Federal Circuit interpreted some obscure statutory language. Also, Congress has never defined the term, but for well over a century Congress has barred immigrants who are likely to become a "public charge." Can the Department of Homeland Security adopt a definition of the term that will render way more people inadmissible? The Fourth Circuit said yes, and went on to opine on the continuing controversy over “nationwide injunctions.” Adam Shelton discusses that case, as well as a couple other recent cases from the Second Circuit—on the exact same issue—and a different injunction case from Puerto Rico.
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/Short-Circuit-144-Transcript.pdf National Veterans Legal Services Program v. United States, http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1081.OPINION.8-6-2020_1631951.pdf A Week of Universal Injunctions, https://ij.org/cje-post/a-week-of-universal-injunctions/
Religious freedom v. anti-discrimination and a promise not to do bad things.
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/09/short-circuit-143.pdf Jamison v. McClendon: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf New Hope Family Services v. Poole: https://ij.org/wp-content/uploads/2020/07/19-1715_opn_formatted.pdf?mkt_tok=eyJpIjoiTURBeU1qWTJNalUxTURrMyIsInQiOiJOR3BaVTdkZFFDbndIbWJ1T0VtSmp2N1wvQmVienRrVXQ3YnN5N1wvSTJzZVY4S2R3YjBNUDZBTk5pUXFXT3dYRExVKzBkWXdcLzhJNDIzRFY2QjhwbmhXeEdFaDlrNTlSTlROZlcwNGxwbkhKOXEzaUN2ckl1eVJRZjZRdGRPdWMwUyJ9 Speech First v. Killeen: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D07-28/C:19-2807:J:Brennan:condis:T:fnOp:N:2554247:S:0 Walter Olson: https://www.cato.org/people/walter-olson
Excessive home foreclosures and parking fines.
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-142-edited.pdf Rafaeli, LLC v. Oakland County, https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/19-20-Term-Opinions/156849.pdf Pimentel v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/22/18-56553.pdf Christina Martin, https://pacificlegal.org/staff/christina-martin/
A police pizza raid and Fourth Amendment fireworks in the Fourth Circuit
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: play.google.com/music/listen?u=0#…odkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Transcript: https://ij.org/wp-content/uploads/2020/10/Short-Circuit-141-edited.pdf Chicago Freedom School complaint: https://peopleslawoffice.com/wp-content/uploads/2020/06/1-CFS-Complaint-Filed.pdf 4A fireworks: https://www.ca4.uscourts.gov/opinions/184233A.P.pdf
End times at the sheriff's department and Euclidean policing.
Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-140.pdf iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Sheriff case: https://ecf.ca8.uscourts.gov/opndir/20/06/191213P.pdf Police brutality case: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0185p-06.pdf
A Week of Heavy Lifts: Closing Down Gyms in Michigan and a High-Profile Prosecution in DC.
Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-139_otter.ai-final.pdf iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Gym Injunction: https://ij.org/wp-content/uploads/2020/06/09915820907.pdf Gym Injunction stayed: https://ij.org/wp-content/uploads/2020/06/Document.pdf Mike Flynn: https://www.cadc.uscourts.gov/internet/opinions.nsf/79798A0FA0633B7985258591004DD3E7/$file/20-5143-1848728.pdf
A bunch of bad apples.
Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-138.pdf iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Case 1: http://www.ca5.uscourts.gov/opinions/unpub/19/19-40217.0.pdf Case 2: https://www.ca4.uscourts.gov/opinions/182142.P.pdf Case 3: http://media.ca11.uscourts.gov/opinions/pub/files/201812061.pdf Case 4: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0161p-06.pdf
Qualified Immunity and George Floyd
iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Sticher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Qualified immunity FAQ: https://ij.org/frequently-asked-questions-about-ending-qualified-immunity/ Cato Institute on QI: https://www.unlawfulshield.com/ Anya's USA Today op-ed on QI: https://www.usatoday.com/story/opinion/2020/05/30/police-george-floyd-qualified-immunity-supreme-court-column/5283349002/ West: https://www.scotusblog.com/case-files/cases/west-v-winfield/ Baxter: https://www.scotusblog.com/case-files/cases/baxter-v-bracey/
Ever wonder what it's like to argue at the Supreme Court? In a special episode, Anya Bidwell interviews four IJ attorneys who have been in the hot seat.
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Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-136_otter.ai-FINAL.pdf Kelo: https://ij.org/case/kelo/ Bennett: https://ij.org/press-release/arizona-campaign-finance-release-6-27-2011/ Espinoza: https://ij.org/case/montana-school-choice/ Timbs: https://ij.org/case/timbs-v-indiana/
Constitutional guarantees during emergencies.
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Right to counsel: https://ij.org/wp-content/uploads/2020/03/19-1778_opn.pdf Wisconsin’s stay-at-home order https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868
Is the Supreme Court finally going to do something about qualified immunity?
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Is Qualified Immunity Unlawful? https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=13555&context=journal_articles West: https://ij.org/case/west-v-city-of-caldwell/ King: https://ij.org/case/brownback-v-king/ Zadeh: https://www.scotusblog.com/case-files/cases/zadeh-v-robinson/ Jessop: https://www.scotusblog.com/case-files/cases/jessop-v-city-of-fresno-california/ IJ's Jessop amicus: https://www.supremecourt.gov/DocketPDF/19/19-1021/138419/20200317143611916_39525%20pdf%20Gammon.pdf
Forcing kids to attend crummy schools and forcing prisoners to stay in a COVID-infested prison.
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The right to a basic minimum education: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0124p-06.pdf Medically vulnerable inmates (district court order): https://www.acluohio.org/wp-content/uploads/2020/04/2020-04-21-022-PI-Order.pdf Medically vulnerable inmates (Sixth Circuit ruling): https://www.acluohio.org/wp-content/uploads/2020/05/2020-05-04-023-Order.pdf
A prostitution sting, alcohol, and government debt collectors.
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Arresting a reporter: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D04-20/C:19-1945:J:Rovner:aut:T:fnOp:N:2504353:S:0 Arresting the flow of alcohol: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0119p-06.pdf Robocalls: http://www.ca4.uscourts.gov/opinions/181588.P.pdf IJ's robocall amicus: https://ij.org/wp-content/uploads/2020/04/Barr-v-AAPC-Amicus.pdf
The Real RBT and the King's Bench (in Pennsylvania) Approves COVID-19 Restrictions.
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SSI benefits in Puerto Rico: http://media.ca1.uscourts.gov/pdf.opinions/19-1390P-01A.pdf Pennsylvania COVID restrictions: http://www.pacourts.us/assets/opinions/Supreme/out/68MM2020mo%20-%2010439399799476700.pdf
No suing the feds for hiding Jeffrey Epstein’s non-prosecution deal, no suing the feds for killing cows in a quarantine, and no suing over government speech.
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Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-130.pdf Non-prosecution agreement: http://media.ca11.uscourts.gov/opinions/pub/files/201913843.pdf Fever tick quarantine: http://www.ca5.uscourts.gov/opinions/pub/19/19-40077-CV0.pdf Janus table turning: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D04-07/C:19-1349:J:Rovner:aut:T:fnOp:N:2498138:S:0 Lynching grand jury records: http://media.ca11.uscourts.gov/opinions/pub/files/201715016.enb.pdf Anthony Pitch's book on the Moore's Ford lynching: https://smile.amazon.com/Last-Lynching-Anthony-S-Pitch/dp/1543627471?sa-no-redirect=1
Fines & fees, completed misdemeanors, and jail debit cards.
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Sherwood, Ark fines and fees: https://ecf.ca8.uscourts.gov/opndir/20/01/182982P.pdf IJ's Sherwood en banc petition: https://ij.org/wp-content/uploads/2020/03/Williams-Petition-File-Stamped.pdf Completed misdemeanors: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0088p-06.pdf Jail debit cards: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/16/18-35735.pdf
Did you know your city might go bankrupt because it doesn’t respect property rights? Strong Towns, Zoning, and Engineering Licensing
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Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-128_otter.ai-FINAL.pdf Charles “Chuck” Marohn, Strong Towns https://www.strongtowns.org/contributors-journal/charles-marohn Strong Towns (the book): https://www.strongtowns.org/book Village of Euclid v. Ambler Realty Co.: https://supreme.justia.com/cases/federal/us/272/365/ Oregon Engineering Speech: https://ij.org/case/oregon-engineering-speech/
A cert grant, a cert petition, sanctuary cities, and pilfered Spanish gold.
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Cert grant: https://ij.org/press-release/u-s-supreme-court-will-hear-police-accountability-case/ Cert petition: https://ij.org/case/miami-forfeiture-attorneys-fees/ Sanctuary cities: http://media.ca1.uscourts.gov/pdf.opinions/19-1802P-01A.pdf Gold bar: http://media.ca11.uscourts.gov/opinions/pub/files/201813282.pdf
Cert petitions, a prison shank public records request and an arrest for being a smart mouth.
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Prison shank: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/0EE1E9783C2A9C9D8525852700504E8C/$file/18-5068-1832659.pdf Smart mouth QI: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0083p-06.pdf Carousel Farms: https://ij.org/case/woodcrest-homes-inc-v-carousel-farms-metro-dis/ Task Force accountability: https://ij.org/case/brownback-v-king/ Police theft: https://ij.org/press-release/police-stole-225k-in-cash-and-coins-and-the-courts-said-okay/
Double jeopardy, the Air Force’s effective ban on deploying HIV-positive airmen, and leaving supplies in the desert for migrants crossing the border.
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Double jeopardy: https://www.armfor.uscourts.gov/newcaaf/opinions/2019OctTerm/170263.pdf New Yorker: https://www.newyorker.com/magazine/2011/11/14/three-trials-for-murder Air Force & HIV: http://www.ca4.uscourts.gov/opinions/191410.P.pdf Leaving supplies in the desert: https://assets.documentcloud.org/documents/6763128/2020-02-03-Hoffman-DE22-Order-Reversing.pdf
Lynching & grand jury secrecy, property destruction during a wrongful arrest, and a minimum wage fight.
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Andrew Fleischman: https://www.rossandpines.com/attorneys/andrew-s-fleischman/ Eric Segall: https://law.gsu.edu/profile/eric-j-segall/ Michael Wells: http://www.law.uga.edu/profile/michael-l-wells Anya Bidwell: https://ij.org/staff/anya-bidwell/
Cases:
Lewis v. Governor of Alabama (panel): http://media.ca11.uscourts.gov/opinions/pub/files/201711009.pdf Lewis v. Governor of Alabama (en benc): http://media.ca11.uscourts.gov/opinions/pub/files/201711009.enb.pdf Glenn v. The State: https://ij.org/wp-content/uploads/2020/02/Glenn-v.-The-State.pdf Pitch v. United States: http://media.ca11.uscourts.gov/opinions/pub/files/201715016.pdf
Prohibitions on excessive fines date back at least as far as Magna Carta in 1215, and the U.S. Constitution has barred excessive fines since 1791. But the Supreme Court has only recently begun to interpret what the Excessive Fines Clause means, and it wasn't until 2019 that the Court said the Clause applies to the states.
On this episode: the story of how the Supreme Court finally began to incorporate the Bill of Rights rights against the states and the history of excessive fines.
A police officer’s suit against a Black Lives Matter protest leader, a qualified immunity cert petition, and Frank Easterbrook rips the DOJ.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Black Lives Matter (April 2019): https://www.courtlistener.com/opinion/4613290/john-doe-v-deray-mckesson/ Black Lives Matter (August 2019): http://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV0.pdf Black Lives Matter cert petition: https://www.aclu.org/sites/default/files/field_document/mckesson_v_doe_cert_petn_and_appendix.pdf Black Lives Matter (December 2019): http://www.ca5.uscourts.gov/opinions/pub/17/17-30864-CV1.pdf Kelsay v. Ernst panel decision: https://ecf.ca8.uscourts.gov/opndir/18/09/172181P.pdf Kelsay v. Ernst en banc decision: https://ecf.ca8.uscourts.gov/opndir/19/08/172181P.pdf Kelsay v. Ernst cert petition: https://www.supremecourt.gov/DocketPDF/19/19-682/123715/20191126132451862_19-__%20PetitionForAWritOfCertiorari.pdf Easterbrook is not pleased: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0
Learn all about a topic many people can’t stop talking about: “nationwide injunctions.” Scott Keller of Baker Botts, and formerly the Solicitor General for the State of Texas, speaks with CJE Director Anthony Sanders about injunctions, the constitution, and even courts of equity in jolly ol’ England.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
SPEAKERS Scott Keller, appellate lawyer: https://www.bakerbotts.com/people/k/keller-scott-a Anthony Sanders, Director of the Center for Judicial Engagement: https://ij.org/staff/asanders/
RESOURCES:
Texas, et al. v. United States (DAPA case):https://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-40238-CV0.pdf Facial Unconstitutionality & Universal Injunctions: https://ij.org/sc_blog/facial-unconstitutionality-universal-injunctions/ Multiple Chancellors: Reforming the National Injunction: https://harvardlawreview.org/2017/12/multiple-chancellors-reforming-the-national-injunction/ The Lost History of the “Universal” Injunction: https://harvardlawreview.org/2020/01/the-lost-history-of-the-universal-injunction/
On January 22, 2020, the U.S. Supreme Court will hear oral argument in an IJ case, Espinoza v. Montana Dept. of Revenue. At issue is a Montana school choice program that allowed families to send their children to private schools, including religious ones. The Montana Supreme Court said the program violated the state’s Blaine Amendment, a relic of 19th-century anti-Catholic hysteria that lives on today in 37 states constitutions, and struck the program down in 2018. The U.S. Supreme Court, however, will consider whether discriminating against religious options violates the First Amendment. On this podcast, we take a look at the history of Blaine Amendments, school choice, and one-size-fits-all schooling.
https://ij.org/case/montana-school-choice/
Maryland political advertising, Texas liquor protectionism, and sham review of habeas petitions.
Planned Giving: http://ij.plannedgiving.org/
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Election interference: http://www.ca4.uscourts.gov/opinions/191132.P.pdf Wal-Mart liquor: http://www.ca5.uscourts.gov/opinions/pub/18/18-50299-CV1.pdf IJ’s equal protection amicus: https://libationlawblog.com/wp-content/uploads/2019/02/Walmart-v-Texas-Institute-for-Justice-Amicus-Brief.pdf Sham review cert petition: https://www.supremecourt.gov/DocketPDF/18/18-8341/91333/20190311112740772_00000007.pdf Justice Sotomayor’s statement respecting denial of cert (starts page 14): https://www.supremecourt.gov/orders/courtorders/120919zor_ihdj.pdf
IJ.org/donate
Seattle homelessness, privacy for political donors, and a city sues a state.
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Delaware judicial appointments: https://www.scotusblog.com/case-files/cases/carney-v-adams/ Seattle homeless sweeps: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/29/18-35053.pdf Donor privacy: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/29/16-55727.pdf IJ's amicus in support of cert: https://www.supremecourt.gov/DocketPDF/19/19-251/116781/20190924125402029_Brief%20of%20Amicus%20Curiae%20Institute%20for%20Justice%20in%20Support%20of%20Petitioners.pdf Austin v. Texas housing vouchers: http://www.ca5.uscourts.gov/opinions/pub/18/18-50646-CV0.pdf
Oyster takings, eminent domain in Colorado, and eminent domain in the Philippines.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Virginia oystermen: https://www.inversecondemnation.com/inversecondemnation/2019/11/city-we-have-the-right-to-pollute-virginia-oystermens-petition-asserting-a-taking-.html Colorado eminent domain: https://ij.org/case/woodcrest-homes-inc-v-carousel-farms-metro-dis/ Philippines eminent domain: https://www.inversecondemnation.com/inversecondemnation/2019/09/berman-international-takings-must-undergo-painstaking-judicial-scrutiny.html
SWAT destroys an innocent persons house, Baltimore food trucks, and making innocent owners whole in civil forfeiture cases.
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Consent to SWAT destroying your house: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/25/18-35300.pdf Maryland’s law of the land clause: https://ij.org/wp-content/uploads/2016/05/Court-of-Appeals-Brief-FINAL.pdf Miami forfeiture cert petition: https://ij.org/wp-content/uploads/2019/11/Salgado-v.-United-States-of-America-Petition-for-a-Writ-of-Certiorari.pdf
Dry celling, panhandler speech, and judicial abdication most foul at the Washington Supreme Court.
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Dry cell: https://www2.ca3.uscourts.gov/opinarch/181811p.pdf Arkansas panhandling: https://ecf.ca8.uscourts.gov/opndir/19/11/173219P.pdf Property rights in Washington state: https://ij.org/wp-content/uploads/2019/11/95813-1-Opinion.pdf Washington appendix: https://ij.org/wp-content/uploads/2019/11/Yim-v-Seattle-Op.-Appendix.pdf
If the government is going to take away life, liberty, or property, the due process of law requires it to follow fair procedures. But, according to the Supreme Court, that’s not all that due process requires. The government also must have a good reason to take life, liberty, or property. On this episode, we head to Akron, Ohio where city officials have shut down a privately run homeless community—without a good reason.
SWAT destroys an innocent person’s house, privacy in your backyard, and productive use of abandoned property.
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https://ij.org/opportunities/employment-opportunities/
SWAT takings: https://www.ca10.uscourts.gov/opinions/18/18-1051.pdf Tree camera: https://ij.org/wp-content/uploads/2019/11/treecamera.pdf Adverse possession: https://ij.org/wp-content/uploads/2019/11/adverse-possession.pdf
A special Third Circuit episode featuring Claire Finkelstein, Mitch Berman, and Matthew Stiegler. Recorded before a live student audience at the invitation of the Penn Law chapter of the Federalist Society.
Claire Finkelstein and Mitch Berman are professors at Penn Law. Matthew Stiegler is an appellate attorney and the proprietor of CA3blog.
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Adams v. Governor of Delaware: https://www2.ca3.uscourts.gov/opinarch/181045p.pdf
Pellegrino v. TSA: https://www2.ca3.uscourts.gov/opinarch/153047pen.pdf
Want to learn about the cases at the Supreme Court this year? Want to challenge your knowledge of “SCOTUS Geography”? Then listen into the Center for Judicial Engagement’s annual Supreme Court preview! Recorded earlier this week at the University of North Carolina.
Espinoza v. Montana Department of Revenue, https://ij.org/case/montana-school-choice/
Allen v. Cooper, https://www.scotusblog.com/case-files/cases/allen-v-cooper/
U.S. v. $70,670.00, http://media.ca11.uscourts.gov/opinions/pub/files/201810312.pdf
City of Boise v. Martin, https://www.scotusblog.com/case-files/cases/city-of-boise-idaho-v-martin/
A Ninth Circuit episode featuring Eugene Volokh, Richard Re, and Robert Everett Johnson. Recorded live before a student audience at the invitation of the UCLA chapter of the Federalist Society.
Eugene Volokh and Richard Re are professors at UCLA Law. Robert Everett Johnson is an associate at Jones Day.
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The Koala v. Khosla: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/24/17-55380.pdf
City of Los Angeles v. Barr: https://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/18-55599.pdf
Biel v. St. James School panel decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/17/17-55180.pdf
Biel v. St. James School dissent from denial of en banc review: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/25/17-55180.pdf
In 1842, the city of New Orleans prosecuted Father Bernard Permoli, a Catholic priest, for conducting an open casket funeral. A violation of the Free Exercise Clause of the First Amendment? The Supreme Court said no: The protections in the Bill of Rights did not bind state and local governments. Then in 1868, the Fourteenth Amendment is ratified, and it incorporated the Bill of Rights against the states–or did it? On this episode, the failure of incorporation after Reconstruction.
Auer deference, the citizenship question, and the nondelegation doctrine.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Kisor v. Wilkie (Auer deference): https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/ Department of Commerce v. New York (Citizenship question) https://www.scotusblog.com/case-files/cases/department-of-commerce-v-new-york/ Gundy v. United States (Nondelegation): https://www.scotusblog.com/case-files/cases/gundy-v-united-states/ IJ amicus in support of reinvigorating the nondelegation doctrine: https://ij.org/wp-content/uploads/2018/10/SCOTUS-Gundy-v.-US-Brief-of-Amicus-Curiae-Institute-for-Justice_6.1.2018.pdf
Bitten by a police dog, shot by a police officer, and sexually assaulted by a corrections officer.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Dog bite: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf ACLU petition for cert: https://www.acludc.org/sites/default/files/field_documents/baxter_petition_for_certiorari.pdf Shot by police: http://media.ca11.uscourts.gov/opinions/pub/files/201715566.pdf Corrections officer sex assault: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D06-26/C:18-1498:J:Brennan:aut:T:fnOp:N:2361273:S:0 IJ amicus in support of en banc review: https://ij.org/wp-content/uploads/2019/07/ML-brief.pdf
Criticizing the police, prayers at public meetings, and Twitter as public forum.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Police non-disparagement: http://www.ca4.uscourts.gov/opinions/172444.P.pdf
Prayers at gov’t meetings: http://media.ca11.uscourts.gov/opinions/pub/files/201715769.pdf
Trump on Twitter: https://ij.org/wp-content/uploads/2019/07/18-1691_opn.pdf
Litigating under seal, flags as gov’t speech, and dangerous cell phones.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Epstein redactions: https://ij.org/wp-content/uploads/2019/07/18-2868_16-3945_complete_opn.pdf Boston flag: http://media.ca1.uscourts.gov/pdf.opinions/18-1898P-01A.pdf Cell phone radiation: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/02/16-15141.pdf
Before the government can take away your life, liberty, or property, it must first give you due process: fair and meaningful procedure. On this episode, we trace the history of due process from 1215 to today. And we head to Harris County, Texas, which operates the the third-largest jail in the country, to see why federal courts say its system of money bail violated that ancient guarantee.
Cursing at the police, suspending drivers’ licenses over unpaid court debt, and eight months of warrantless home surveillance.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Cursing at the police: https://ecf.ca8.uscourts.gov/opndir/19/06/173419P.pdf Nieves v. Bartlett: https://www.scotusblog.com/case-files/cases/nieves-v-bartlett/ Court debt: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0086p-06.pdf Warrantless surveillance: https://ij.org/wp-content/uploads/2019/06/u.s.-v.-daphne-moore.pdf
A Seventh Circuit extravaganza featuring Tacy Flint, Will Baude, and Jim Pfander. The episode was recorded before a live student audience at the University of Chicago Law School at the invitation of UChicago chapter of the Federalist Society. Tacy Flint is a partner at Sidley Austin who has practiced before the U.S. Supreme Court and numerous federal courts of appeal. She clerked for Justice Stephen Breyer and Judge Richard Posner. Tacy is a UChicago law grad. Will Baude is a professor at UChicago Law and the author of Is Qualified Immunity Unlawful? Will clerked for Chief Justice John Roberts, Judge Michael McConnell and at the Institute for Justice. Jim Pfander is a professor at Northwestern Law and the author of many articles examining Bivens and the importance of remedies against federal officers for constitutional violations. Jim clerked for Judge Levin Campbell.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Pretrial detention: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D01-23/C:17-1510:J:Sykes:aut:T:fnOp:N:2282458:S:0 Vicarious liability: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D04-03/C:17-3618:J:Hamilton:con:T:fnOp:N:2318717:S:0 Indianapolis forfeiture: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D02-26/C:17-2933:J:Manion:aut:T:fnOp:N:2299727:S:0
After the Civil War, what many Americans needed most was protection from violence. That’s what the Equal Protection Clause was meant to guarantee, but today the Clause does entirely different work. On this episode: a tour of the history and meaning of the Clause and how African-style hair braiders use it today to protect their right to earn an honest living.
For more resources: https://ij.org/sc_long_podcast/episode-5-tangled-the-equal-protection-clause/
Police theft, forfeiture pleading standards, and fetal tissue transfers.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Police theft: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/20/17-16756.pdf Civil forfeiture: https://ecf.ca8.uscourts.gov/opndir/19/03/163646P.pdf Fetal tissue: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D03-14/C:18-1146:J:Easterbrook:aut:T:fnOp:N:2308370:S:0
In 1873, the Supreme Court said that the Privileges or Immunities Clause protects a right to “use the navigable waters of the United States”—and not much else. But in the nearly 150 years since, the Court has never examined what the right to use the navigable waters means in practice. On this episode: a pair of brothers from Stehekin, Washington, try to change that.
Facebooking jurors, an unpopular church, a very bad cop, and a tire-tapping trespass.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Facebooking jurors: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0015p-06.pdf Church zoning: http://www.ca4.uscourts.gov/opinions/181450.P.pdf Little Rock’s finest: http://media.ca8.uscourts.gov/opndir/19/02/172079P.pdf Tire tap search: http://www.ca5.uscourts.gov/opinions/pub/17/17-40299-CR0.pdf
The Privileges or Immunities Clause was meant to be one of the key liberty-protecting provisions of the Fourteenth Amendment. The Clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That sounds like a big deal, right? It’s not. The Clause has been virtually read out of the Constitution, and for people trying to vindicate their civil rights in court, it’s been of little practical use. That story—the near redaction of the Clause—begins with the Slaughterhouse Cases, which the U.S. Supreme Court decided in 1873.
On Episode Three of Bound By Oath: What rights were the Framers of the Fourteenth Amendment seeking to protect through the Privileges or Immunities Clause? And what happened to the Clause?
More resources here: https://ij.org/sc_long_podcast/all-but-redacted-the-privileges-or-immunities-clause/
No Fly List games and no sovereign immunity over Flint’s water crisis or Ferguson’s fines and fees.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
No Fly List games: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/02/14-16161.pdf Flint water crisis: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0003p-06.pdf Ferguson fines and fees: http://media.ca8.uscourts.gov/opndir/19/01/181472P.pdf
Flight risks, using police databases for personal reasons, and a sentencing brouhaha.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Flight risk: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0262p-06.pdf Police databases: https://ij.org/wp-content/uploads/2018/12/gorman.pdf Concurrent v. consecutive sentencing: http://www.ca4.uscourts.gov/opinions/177082.P.pdf
At the close of the Civil War, some 4 million slaves became free. But almost immediately after hostilities ceased, leaders in the ex-Confederate states began to impose a series of laws, the Black Codes, that re-instituted slavery in all but name. Just as swiftly, a wave of terrorist violence swept across the South, targeting blacks seeking education, economic independence, and a voice in civic and political life—and also whites with Union sympathies. In Washington, D.C., Republican leaders grappled with another problem: When the Southern states rejoined the Union, they would do so with more political power than they’d enjoyed prior to secession—the consequence of each African-American now counting as five-fifths, rather than three-fifths, of a person.
iTunes: https://itunes.apple.com/us/podcast/bound-by-oath-by-ij/id1445199346?mt=2
Ep. 1: Before the Fourteenth: John Rock and the Birth of Birthright Citizenship by Institute for Justice
The defense of hearth and home, peonage, a gag order about hog farms, and dueling dinosaurs.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Gun permits: http://media.ca1.uscourts.gov/pdf.opinions/17-2202P-01A.pdf Debt peonage: http://media.ca11.uscourts.gov/opinions/pub/files/201711554.pdf Hog farm speech: http://www.ca4.uscourts.gov/opinions/181762.P.pdf Dueling dinos: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/06/16-35506.pdf
A Fifth Circuit extravaganza featuring Jane Webre, Kyle Hawkins, Steve Vladeck, and Evan Young. The episode was recorded before a LIVE student audience at the University of Texas School of Law in Austin at the invitation of the UT chapter of the Federalist Society.
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Jane Webre is a partner at Scott Douglass and McConnico. She handles most of the firm’s appeals, including in the Fifth Circuit and the U.S. Supreme Court. Jane prevailed as counsel for petitioners in Gunn v. Minton, a SCOTUS case involving jurisdiction of state courts. She clerked for Judge Reynaldo Garza on the Fifth Circuit, a Jimmy Carter appointee. Jane is a UT Law grad.
Kyle Hawkins is the current solicitor general of Texas. Prior to this appointment, he served as an assistant to solicitor general Scott Keller. He clerked for the Fifth Circuit’s Edith Jones and the U.S. Supreme Court’s Samuel Alito. A graduate of the University of Minnesota Law School, Hawkins also worked in the appellate and constitutional law practice group for Gibson, Dunn & Crutcher.
Steve Vladeck is a law professor at UT Law. Just last term, he argued Dalmazzi v. U.S. in the United States Supreme Court. His teaching and research focus on federal jurisdiction, constitutional law, national security law, and military justice. Steve graduated from Yale Law School and clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit.
Evan Young is a Federal Courts professor at UT Law. He is also a partner at Baker Botts and its chair of the Supreme Court and Constitutional Law practice. Evan graduated from Yale Law School and served as a law clerk to Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, and then to Justice Antonin Scalia at the U.S. Supreme Court.
Hernandez v. Mesa: http://www.scotusblog.com/wp-content/uploads/2015/10/Hernandez-op-below.pdf
Whole Women’s Health: http://www.ca5.uscourts.gov/opinions/pub/18/18-50484-CV0.pdf
Alvarez v. City of Brownsville: http://www.ca5.uscourts.gov/opinions/pub/16/16-40772-CR2.pdf
Sciencing the heck out of Auer deference, cruel and unusual punishment of the homeless, and Pride Festival picketing.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Positional isomers: http://media.ca11.uscourts.gov/opinions/pub/files/201710397.pdf Homeless citations: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15-35845.pdf Pride picketing: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0472n-06.pdf
This week, we traveled to Chapel Hill to record a special live edition at the UNC school of law at the invitation of the UNC chapter of the Federalist Society. The episode features special guest Chris Brook of the ACLU of North Carolina as well as IJ’s very own Justin Pearson.
Work at IJ! https://ij.org/opportunities/employment-opportunities/?p=job%2FoUzy8fwT
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Gundy: https://ij.org/wp-content/uploads/2018/10/SCOTUS-Gundy-v.-US-Brief-of-Amicus-Curiae-Institute-for-Justice_6.1.2018.pdf Bladensburg Cross: http://www.ca4.uscourts.gov/Opinions/Published/152597.P.pdf Chris Brook: https://www.acluofnorthcarolina.org/en/biographies/chris-brook Justin Pearson: https://ij.org/staff/justin-pearson/
Ignorance of the law, immigration deference, war deference, and Honey Badger copyrighting.
Texas admin appeal: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=94188990-8353-45e1-9475-1433233a37e3&coa=cossup&DT=BRIEFS&MediaID=722c1e4d-e466-45f9-b217-ae16f263008f Immigration: http://www.ca5.uscourts.gov/opinions/pub/17/17-60460-CV0.pdf Gitmo detainee habeas: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/27A95EB827865F50852582E2004EDEFF/$file/17-5067-1744312.pdf Honey Badger: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-56715.pdf
Amtrak’s self-serving regulations, the FHFA’s unconstitutional structure, and Auer deference.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Amtrak: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/24EE112787109B8F852582D00056A944/$file/17-5123.pdf FHFA: http://www.ca5.uscourts.gov/opinions/pub/17/17-20364-CV0.pdf Auer: http://yalejreg.com/nc/new-supreme-court-cert-petition-to-overrule-auer-deference-kisor-v-orourke/
Willett’s concurrence in Patel: http://www.txcourts.gov/media/1008502/120657c1.pdf
No suing TSA screeners, state protections against unreasonable searches, and FERC’s incentive to approve pipelines.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
TSA screeners: http://www2.ca3.uscourts.gov/opinarch/153047p.pdf Iowa inventory searches: https://www.iowacourts.gov/courtcases/155/embed/SupremeCourtOpinion FERC incentives: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf
With special guest Arthur Spitzer of the ACLU of DC: Detaining an American citizen abroad, jury trials for petty crimes, and banning displays of the First and Second Amendment.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
American detainee: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/2F0BD717C260711D85258288006F69C0/$file/18-5032-1730182.pdf Jury trials: http://ij.org/wp-content/uploads/2018/06/Bado-reversed-and-remanded-2018-06-21-district-of-columbia-court-of-appeals.pdf D.C. metro’s advertising ban: http://ij.org/wp-content/uploads/2018/06/wmata-tro-decision.pdf
LabMD and the FTC’s cybersecurity crackdowns, LabMD and qualified immunity, and a virulently racist lawyer.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
The best qualified immunity decision Clark Neily has ever read: https://drive.google.com/file/d/1UJPgPwpcasU8QKJTEX35woe3rFVGqd1o/view
LabMD cease and desist: http://media.ca11.uscourts.gov/opinions/pub/files/201616270.pdf LabMD retaliation: https://www.cadc.uscourts.gov/internet/opinions.nsf/844689C3A54628E78525829F004FD229/$file/17-5128-1733811.pdf Virulently racist lawyer: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/07/16-56188.pdf
Offensively Big Pimpin’, age limits for judges, beach access/inverse condemnation, and Virginia motorist fines.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Big Pimpin’: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/31/16-55213.pdf Age limits: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0097p-06.pdf Beach access: http://media.ca11.uscourts.gov/opinions/pub/files/201616402.pdf Motorist fines: http://www.ca4.uscourts.gov/opinions/171740.U.pdf
Our amicus on Rooker-Feldman: http://ij.org/wp-content/uploads/2018/05/Filed-IJ-amicus-in-Stinnie-v.-Holcomb.pdf
Eminent domain for private gain, searching phones at the border, and illegal structuring.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Glendale, Colo. blight: https://www.ca10.uscourts.gov/opinions/16/16-1492.pdf Phone search: http://www.ca4.uscourts.gov/opinions/164687.P.pdf Structuring: http://www2.ca3.uscourts.gov/opinarch/171772np.pdf
The monkey selfie, the Pharma Bro, eternal damnation & the minimum wage, and a murder confession from a drunk arrestee.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Monkey selfie: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/23/16-15469.pdf Pharma Bro: http://www.ca4.uscourts.gov/opinions/172166.P.pdf Eternal damnation: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0072p-06.pdf Drunk confession: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D04-19/C:17-1898:J:Manion:aut:T:fnOp:N:2142122:S:0
The checkmate doctrine, right to pre-indictment counsel, and Uber antitrust. With special guest William C. Marra of Cooper & Kirk.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Checkmate: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0065p-06.pdf Pre-indictment counsel: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0058p-06.pdf Uber monopoly: http://www2.ca3.uscourts.gov/opinarch/171871p.pdf
This week on the podcast: D.C. Circuit extravaganza featuring special guests Professor Aaron Nielson, wanted “Anti-Administrativist” and Sage of the C.A.D.C.; and Cate Stetson, Hogan Lovells’ legendary appellate litigator who is one of the D.C. Circuit’s most frequent (and successful litigators). We record the episode with a LIVE student audience at Georgetown Law Center (thanks to our hosts, the students of the Georgetown chapter of the Federalist Society).
Hear Aaron and Cate discuss what makes the D.C. Circuit unique? What are the biggest admin law issues coming out of the court? And just who is Judge Posner’s “mystery” D.C. Circuit judge, anyway? Plus: a lightning round of trivia about the current judges. WARNING: this episode’s guests may be armed with anti-deference arguments.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Links to a few items we discuss on this episode:
Aaron Nielson's JREG post on the Lucia v. SEC oral argument: http://yalejreg.com/nc/d-c-circuit-review-reviewed-en-banc-oral-argument-part-ii/
Law Prof Kent Barnett’s article on Administrative Law Judges (ALJs): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144217
Aaron Nielson’s JREG post on Judge Posner’s D.C. Circuit “Mystery Judge”: http://yalejreg.com/nc/d-c-circuit-review-reviewed-can-you-guess-the-mystery-judge/
IJ’s latest lawsuit, a free speech challenge to the FDA’s Orwellian “skim milk” labeling regulations: http://ij.org/case/fda-skim-milk/
Aaron Nielson’s JREG post on the D.C. Circuit’s quirky “asterisk rule”: http://yalejreg.com/nc/d-c-circuit-review-reviewed-by-aaron-nielson/
A trio of property rights cases: group homes for the disabled, a 20-year permitting process to build two houses, and graveyard access.
Use iTunes? https://itunes.apple.com/us/podcast/short-circuit/id309062019 Use Android (RSS)? http://feeds.soundcloud.com/users/soundcloud:users:84493247/sounds.rss Newsletter: http://ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org
Family care residences: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D03-01/C:17-2773:J:Flaum:aut:T:fnOp:N:2115579:S:0 20-year process: http://www.courts.ca.gov/opinions/nonpub/A149633.PDF Graveyard: http://www2.ca3.uscourts.gov/opinarch/163587p.pdf
Sheldon’s tweet thread on Cleburne: https://twitter.com/sheldongilbert/status/975587574893961216
IJ’s amicus on Williamson County: https://www.supremecourt.gov/DocketPDF/17/17-647/22413/20171204141848160_KNICK%20-%20Amicus%20Curiae%20Brief%20IJ%2012-4.pdf
Anonymous political speech, a post-SWAT raid building inspection, and license plate scanners.
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Citizens United: http://ij.org/wp-content/uploads/2018/02/16-3310_opn.pdf SWAT inspection: http://media.ca8.uscourts.gov/opndir/18/02/171058P.pdf Kentucky plates: http://ij.org/wp-content/uploads/2018/02/2018-2015-sc-000470-dg.pdf
Non-neutral forensics in DUI cases, felon re-enfranchisement, and the constitutionality of the Consumer Financial Protection Bureau’s single director model.
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Impartial forensics: http://www.tsc.state.tn.us/sites/default/files/rosemary_decosimo_opinion.pdf Felon re-enfranchisement: http://ij.org/wp-content/uploads/2018/02/144-Order-Granting-Plaintiffs-Motion-for-Summary-Judgment.pdf CFPB constitutionality: https://www.cadc.uscourts.gov/internet/opinions.nsf/0/B7623651686D60D585258226005405AC/$file/15-1177.pdf
A seven-year jail stint awaiting trial, out-of-state voting, and the ban on out-of-state gun sales.
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Not so speedy trial: http://ij.org/wp-content/uploads/2018/01/15-3073_opn.pdf Territorial voting: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D01-18/C:16-4240:J:Manion:aut:T:fnOp:N:2093121:S:0 Handgun sales: http://www.ca5.uscourts.gov/opinions/pub/15/15-10311-CV0.pdf
McCoy v. Louisiana: http://www.scotusblog.com/2018/01/argument-analysis-concern-death-row-inmates-rights-likely-trump-line-drawing-worries/ Eagle Pass forfeiture: http://ij.org/case/eagle-pass-civil-forfeiture/ PA funeral homes cert petition: http://ij.org/wp-content/uploads/2018/01/14-53-Heffmer-reply-brief.pdf
Wasteful requirements for hair braiders, restrictions on free newspapers, and the ban on gun ownership for domestic violence misdemeanants.
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Hair braiding: http://media.ca8.uscourts.gov/opndir/18/01/163968P.pdf Free papers: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0008p-06.pdf Guns and domestic violence: http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0003p-06.pdf
Clerk at IJ: http://ij.org/opportunities/students Litigate at IJ-Minnesota: http://ij.org/opportunities/employment-opportunities/?p=job%2Fo5yM5fwe
School uniforms, wedding venue permits, and a police shooting.
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Tomorrow’s leaders: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/11/15-15448.pdf Wedding permits: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/17-55472.pdf Qualified immunity: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0292p-06.pdf
Compelled masturbation, a lying prosecutor, a jailed glider pilot, and state eminent domain reform.
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Illicit photos: http://www.ca4.uscourts.gov/opinions/162174.P.pdf Lying prosecutor: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0659n-06.pdf Glider pilot: http://www.ca4.uscourts.gov/opinions/166625.P.pdf Eminent domain: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2017/15CA1956-PD.pdf
Special guest Clark Neily talks qualified immunity: Police shootings, detaining a witness to a police shooting, and denying a pre-trial detainee access to a judge for 96 days.
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Pauly v. White: https://www.ca10.uscourts.gov/opinions/14/14-2035.pdf Lincoln v. Turner: http://www.ca5.uscourts.gov/opinions/pub/16/16-10856-CV0.pdf Lincoln v. Barnes: http://www.ca5.uscourts.gov/opinions/pub/16/16-10327-CV0.pdf Jauch v. Choctaw County: http://www.ca5.uscourts.gov/opinions/pub/16/16-60690-CV0.pdf
Aaron Nielson & Christopher Walker article: http://law.emory.edu/elj/_documents/volumes/66/1/nielson-walker.pdf
Will Baude article: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2070&context=public_law_and_legal_theory
Prostitution, gun sales too close to a residence, self-storage too close to a school, and leafleting too close to a circus.
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Prostitution (oral argument): https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012398 Gun zoning: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/13-17132.pdf Self-storage: http://www.ca4.uscourts.gov/Opinions/Published/161732.P.pdf Leafleting: http://www.ca4.uscourts.gov/Opinions/Published/161767.P.pdf
Suspending indigent drivers’ licenses, forfeiture standing, and a wayward cop’s sign ban.
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Suspending licenses: http://ij.org/wp-content/uploads/2017/10/TRO-Order.pdf Forfeiture standing: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0219p-06.pdf Sign ban: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D09-22/C:15-2627:J:Easterbrook:aut:T:fnOp:N:2034013:S:0
The mark of the beast on campus, defamation on campus, and due process on campus.
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$666: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0523n-06.pdf Rolling Stone defamation: http://ij.org/wp-content/uploads/2017/09/16-2465_complete_amd_opn.pdf Sexual assault on campus: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0224p-06.pdf
Forfeiting money turned over to post bail, “buying food” at Costco, and Wyoming’s ag-gag law.
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Forfeiting bail money: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/05/14-35717.pdf Buying food: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/15-10621.pdf Wyoming ag-gag: http://www.ca10.uscourts.gov/opinions/16/16-8083.pdf
Funeral picketing, abortion protesting, and escheatment.
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Eugene Volokh on banning white supremacist speech: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/16/un-american-activities/
Westboro funeral picketing: http://media.ca8.uscourts.gov/opndir/17/08/161902P.pdf Maine abortion protesting: http://media.ca1.uscourts.gov/pdf.opinions/16-1771P-01A.pdf Delaware escheatment: http://www2.ca3.uscourts.gov/opinarch/163631p.pdf
This special podcast features the Harte family, whose home was raided by a SWAT team after police found tea leaves in the family’s trash.
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Rob Bernstein: https://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=12024 Cheryl Pilate: https://www.linkedin.com/in/cheryl-pilate-a009415/ Tenth Circuit decision: http://www.ca10.uscourts.gov/opinions/16/16-3014.pdf District court decision: http://ij.org/wp-content/uploads/2017/08/tomatoesdistrictmemorandum.pdf Johnson County’s petition for en banc review: http://ij.org/wp-content/uploads/2017/08/Document.pdf Nielson and Walker article: https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2763135 Washington Post/Radley Balko article: https://www.washingtonpost.com/news/the-watch/wp/2015/12/28/federal-judge-drinking-tea-shopping-at-a-gardening-store-is-probable-cause-for-a-swat-raid-on-your-home/ Radley Balko book: https://www.amazon.com/Rise-Warrior-Cop-Militarization-Americas/dp/1610394577
Recording cops in public, recording cops in police stations, and recording cops raiding your business.
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Public: http://www2.ca3.uscourts.gov/opinarch/161650p.pdf Police station: http://media.ca11.uscourts.gov/opinions/pub/files/201514642.pdf Business bust: http://www.courts.ca.gov/opinions/documents/G053126M.PDF
Correction: The Philly officer was put on desk duty, not suspended. See here: http://www.epgn.com/news/breaking-news/9794-officer-caught-in-homophobic-interaction-okd-for-street-patrol
An unseemly cash seizure, misleading pregnancy-related speech, and an unseemly vehicle impounding rule.
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Cash seizure: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/15-16600.pdf Misleading speech: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/27/15-15434.pdf Impounding: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/21/15-55479.pdf
Dead man's conviction vacated—can the gov't keep the fine he paid? Sovereign immunity in a just compensation case. An unconstitutional traffic stop. Uber and unfair competition.
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Dead man's fine: http://ij.org/wp-content/uploads/2017/05/15-3979_opn.pdf Sovereign immunity: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0115p-06.pdf Traffic stop: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/01/15-10385.pdf Uber: http://www2.ca3.uscourts.gov/opinarch/163301np.pdf
The Secret Service takes down Dr. Evil, Trump’s travel ban, cell-phone surveillance, and the FAA’s hobby drone registry.
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Dr. Evil: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0105p-06.pdf Travel ban: http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf Cell-phone surveillance: http://www.ca5.uscourts.gov/opinions/pub/16/16-40702-CR0.pdf Hobby drone registry: https://www.cadc.uscourts.gov/internet/opinions.nsf/FA6F27FFAA83E20585258125004FBC13/$file/15-1495-1675918.pdf
A spooky cellphone warning, a sign on a stick, a “ruminating” judge, and an update from the civil forfeiture hotbed of Tenaha, TX.
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Cellphone warning: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/21/16-15141.pdf?mc_cid=30ca413c30&mc_eid=04fa1e224a Sign on a stick: http://media.ca8.uscourts.gov/opndir/17/05/161190P.pdf?mc_cid=93a80a669c&mc_eid=04fa1e224a “Ruminating”: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/05/14-16514.pdf?mc_cid=93a80a669c&mc_eid=04fa1e224a Tenaha: http://www.ca5.uscourts.gov/opinions/pub/15/15-41641-CR0.pdf?mc_cid=30ca413c30&mc_eid=04fa1e224a
A suspiciously relaxed motorist, no deference to an EPA emissions exemption, prairie dogs, and illegal tattooing.
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Relaxed motorist: http://media.ca8.uscourts.gov/opndir/17/03/153399P.pdf?mc_cid=cbcf1c688c&mc_eid=6e8e76319f EPA emissions: https://www.cadc.uscourts.gov/internet/opinions.nsf/2E91F70B0AF28BBE852580FF004E33FF/$file/09-1017-1670473.pdf Prairie dogs: http://www.ca10.uscourts.gov/opinions/14/14-4151.pdf?mc_cid=cbcf1c688c&mc_eid=6e8e76319f Long Beach tattoo shops: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/29/15-56158.pdf?mc_cid=cbcf1c688c&mc_eid=6e8e76319f
FL skim milk, Portland sedans, an exoneree's suit against the detective who framed her, and Chevron deference.
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FL skim milk: http://media.ca11.uscourts.gov/opinions/pub/files/201612049.pdf?mc_cid=97cd98bdab&mc_eid=6e8e76319f Portland sedans: https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/30/14-35608.pdf?mc_cid=cbcf1c688c&mc_eid=6e8e76319f Exoneration: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0070p-06.pdf?mc_cid=cbcf1c688c&mc_eid=6e8e76319f Chevron: http://www2.ca3.uscourts.gov/opinarch/161471p.pdf?mc_cid=97cd98bdab&mc_eid=6e8e76319f
Life sentences for juveniles, a union’s “neat trick,” opening prisoners’ legal mail, and undergarments & prison tattoos.
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Life sentence: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-16/C:17-1244:J:Manion:aut:T:fnOp:N:1930438:S:0&mc_cid=fe91fc0e02&mc_eid=6e8e76319f Union’s neat trick: https://www.cadc.uscourts.gov/internet/opinions.nsf/E011044428F84FB7852580DC0053A523/$file/15-1412-1664674.pdf Legal mail: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/03/14-35078.pdf?mc_cid=79b78eccb3&mc_eid=6e8e76319f and http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/03/14-15271.pdf?mc_cid=79b78eccb3&mc_eid=6e8e76319f Underwear and prison tattoos: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-09/C:16-1711:J:Hamilton:aut:T:fnOp:N:1926216:S:0&mc_cid=79b78eccb3&mc_eid=6e8e76319f
Maryland’s assault weapons ban, Iowa State’s treatment of a pro-marijuana student group, mine-safety inspections, and a tragic prison death.
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Assault weapons: http://www.ca4.uscourts.gov/Opinions/Published/141945A.P.pdf?mc_cid=a5155579d1&mc_eid=6e8e76319f Pro-pot student group: http://media.ca8.uscourts.gov/opndir/17/02/161518P.pdf?mc_cid=e78ec10245&mc_eid=6e8e76319f Mine-safety inspections: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0031p-06.pdf?mc_cid=e78ec10245&mc_eid=6e8e76319f Prisoner death: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D02-21/C:15-1419:J:Wood:aut:T:fnOp:N:1916643:S:0&mc_cid=a5155579d1&mc_eid=6e8e76319f
Flashbang grenades, Docs v. Glocks, and D.C.’s sign code.
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Flashbangs: http://media.ca11.uscourts.gov/opinions/pub/files/201514373.pdf Docs v. Glocks: http://media.ca11.uscourts.gov/opinions/pub/files/201214009.enbc.pdf D.C. event signs: https://www.cadc.uscourts.gov/internet/opinions.nsf/0DA2030DC5C27220852580B20054D628/$file/12-7139-1657053.pdf
Chicago gun range ban, irrational alcohol advertising restrictions, political lawn signs, and a concealed carry case.
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Chicago gun ranges: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-18/C:14-3312:J:Rovner:condis:T:fnOp:N:1897637:S:0&mc_cid=eea47bd290&mc_eid=6e8e76319f Unhappy hour: http://media.ca8.uscourts.gov/opndir/17/01/162006P.pdf Political lawn signs: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0027n-06.pdf Terry & concealed carry: http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf?mc_cid=75be99580b&mc_eid=6e8e76319f
Indefinite detention of sex offenders, qualified immunity for social workers, the SEC’s unconstitutional ALJs, and a vexing property rights case.
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Indefinite detention: http://media.ca8.uscourts.gov/opndir/17/01/153485P.pdf Social workers QI: https://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/03/15-55563.pdf SEC ALJs: http://www.ca10.uscourts.gov/opinions/15/15-9586.pdf Regulatory takings: http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0007n-06.pdf
Will Baude on the unlawfulness of qualified immunity: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/10/is-it-time-to-hold-police-officers-accountable-for-constitutional-violations/?utm_term=.261a23fd8290
Due process in campus sexual assault cases, hunting trophies, drug forfeiture, and puppycide.
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Campus due process: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0656n-06.pdf?mc_cid=5c65b578ab&mc_eid=6e8e76319f Elephant trophies: https://www.cadc.uscourts.gov/internet/opinions.nsf/A1FE5DC9E36B8AF38525808100540B42/$file/15-5170-1649481.pdf Drug forfeiture: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0056p-06.pdf?mc_cid=906bece3cd&mc_eid=6e8e76319f Puppycide: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0293p-06.pdf
Sex-offender restrictions; Stingrays; and a Speedy Trial Act violation.
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Sex-offender restrictions: http://www.ca4.uscourts.gov/Opinions/Published/166026.P.pdf Stingray: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-23/C:15-2443:J:Easterbrook:aut:T:fnOp:N:1868256:S:0 Speedy Trial: http://media.ca11.uscourts.gov/opinions/pub/files/201312044.pdf
Student punished for off-campus speech; the CFPB’s unconstitutional structure; the right to intrastate travel; and compelled speech in the context of abortion.
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Student speech: http://media.ca8.uscourts.gov/opndir/16/10/142988P.pdf?mc_cid=717ad17d2a&mc_eid=6e8e76319f CFPB: https://www.cadc.uscourts.gov/internet/opinions.nsf/AAC6BFFC4C42614C852580490053C38B/$file/15-1177-1640101.pdf Memphis street sweeps: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0258p-06.pdf?mc_cid=73b37b80ab&mc_eid=6e8e76319f Pregnancy counseling clinics: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/14/16-55249.pdf?mc_cid=73b37b80ab&mc_eid=6e8e76319f
A series of unfortunate events leads to SWAT raid; a Ten Commandments monument on public property; Michigan ballot selfies; and privacy in one’s pants pockets.
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SWAT raid: https://www.cadc.uscourts.gov/internet/opinions.nsf/2315119AA5742E35852580650053A5CB/$file/15-7098-1645021.pdf Ten Commandments: https://www.ca10.uscourts.gov/opinions/14/14-2149.pdf Ballot selfies: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0266p-06.pdf Pants pocket privacy: http://media.ca8.uscourts.gov/opndir/16/11/153705P.pdf
Mandatory transvaginal ultrasounds, Syrian refugees, and a pair of taxi cases.
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Ultrasounds: http://media.ca11.uscourts.gov/opinions/pub/files/201515240.pdf?mc_cid=dc597992a9&mc_eid=6e8e76319f Syrian refugees: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D10-03/C:16-1509:J:Posner:aut:T:fnOp:N:1838881:S:0&mc_cid=dc597992a9&mc_eid=6e8e76319f Milwaukee taxicabs: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D10-07/C:16-1008:J:Posner:aut:T:fnOp:N:1842445:S:0 Chicago ridesharing: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D10-07/C:16-2077:J:Posner:aut:T:fnOp:N:1842509:S:0
Ballot selfies, 3-D printer guns, and a new trial for a death-row prisoner.
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Ballot selfies: http://media.ca1.uscourts.gov/pdf.opinions/15-2021P-01A.pdf 3-D guns: http://www.ca5.uscourts.gov/opinions/pub/15/15-50759-CV0.pdf?mc_cid=27a733e5bf&mc_eid=6e8e76319f Habeas petition: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D09-23/C:14-1898:J:Hamilton:dis:T:fnOp:N:1833767:S:0
Cato Unbound: http://www.cato-unbound.org/2016/09/12/evan-bernick/supreme-court-needs-new-judicial-approach-case-judicial-engagement
Federal prosecutions of medical-marijuana in states where its legal, bogus arson charges, sex-offender registries, and judicial speech.
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Medical marijuana: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10117.pdf Bogus arson: http://www2.ca3.uscourts.gov/opinarch/153399p.pdf?mc_cid=b21d53d726&mc_eid=6e8e76319f Sex-offender registries: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0207p-06.pdf Judicial speech: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf
Evan's paper: http://www.cato-unbound.org/issues/september-2016/do-we-need-judicial-engagement
Two Second Amendment cases, taxicab surveillance, and a call for engagement.
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Marijuana and guns: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf Felons and guns: http://www2.ca3.uscourts.gov/opinarch/144549p.pdf Taxi GPS: http://ij.org/wp-content/uploads/2016/08/14-405-el-nahal-v-yassky-2016-08-26.pdf Gorsuch/Chevron: https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf
A sex toy ban, IRS misconduct continues, FEC runs afoul of the First Amendment, and a truthful endodontist.
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A sex toy ban http://media.ca11.uscourts.gov/opinions/pub/files/201415499.pdf IRS misconduct continues https://www.cadc.uscourts.gov/internet/opinions.nsf/9E185ADE3F8838CF852580060052B4BB/$file/14-5316-1628783.pdf FEC runs afoul of the First Amendment https://www.cadc.uscourts.gov/internet/opinions.nsf/BE823FAEEAD9111185258003005090F3/$file/15-5264-1628137.pdf A truthful endodontist http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0186p-06.pdf
Sexual assault on campus, an engaged Miranda decision, a spurious arrest, and some ill-considered commentary at a sentencing hearing.
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Sex assault: http://ij.org/wp-content/uploads/2016/07/15-1536_opn.pdf?mc_cid=b3b6a19052&mc_eid=6e8e76319f Right to remain silent: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/22/13-56360.pdf?mc_cid=b3b6a19052&mc_eid=6e8e76319f Obstruction of justice: http://www.ca4.uscourts.gov/Opinions/Published/151521.P.pdf?mc_cid=b3b6a19052&mc_eid=6e8e76319f Sentencing comments: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D07-22/C:15-2019:J:Wood:aut:T:fnOp:N:1797738:S:0&mc_cid=b3b6a19052&mc_eid=6e8e76319f
Booking photos and privacy, visiting a website without permission, due process and parole hearings, and pulling Planned Parenthood’s public funding.
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Mugshots: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0164p-06.pdf?mc_cid=06940c3bd8&mc_eid=6e8e76319f Computer fraud: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/12/13-17102.pdf?mc_cid=06940c3bd8&mc_eid=6e8e76319f Partial parole hearings: http://media.ca8.uscourts.gov/opndir/16/07/152900P.pdf?mc_cid=06940c3bd8&mc_eid=6e8e76319f Planned Parenthood: https://www.ca10.uscourts.gov/opinions/15/15-4189.pdf?mc_cid=06940c3bd8&mc_eid=6e8e76319f
A Fourth Amendment benchslap, an SEC show trial, and Net neutrality.
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Search without probable cause: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0148p-06.pdf?mc_cid=6081192094&mc_eid=6e8e76319f SEC administrative law: http://media.ca11.uscourts.gov/opinions/pub/files/201512831.pdf?mc_cid=9efa2cf479&mc_eid=6e8e76319f Net neutrality: https://www.cadc.uscourts.gov/internet/opinions.nsf/3F95E49183E6F8AF85257FD200505A3A/$file/15-1063-1619173.pdf
Regulatory overreach at the Dept. of Labor, solitary confinement for publishing an article, and California’s concealed-carry law.
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Rhea Lana: https://www.cadc.uscourts.gov/internet/opinions.nsf/6A3276A0C47AC99B85257FC700502E47/$file/15-5014-1616477.pdf Publishing under a byline: http://www.ca2.uscourts.gov/decisions/isysquery/5dfe61ca-60cc-42d6-90f9-526770afdde8/3/doc/15-1786_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5dfe61ca-60cc-42d6-90f9-526770afdde8/3/hilite/ Concealed carry: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/09/10-56971.pdf?mc_cid=deded7e073&mc_eid=6e8e76319f
Confused government lawyers, parking while black, a threatening union election, and police misconduct.
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Confusing regulations: https://www.ca10.uscourts.gov/opinions/14/14-3243.pdf Parking while black: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-17/C:15-1366:J:Easterbrook:aut:T:fnOp:N:1755259:S:0&mc_cid=a3459c79a2&mc_eid=6e8e76319f Union election: https://www.cadc.uscourts.gov/internet/opinions.nsf/CB73764FCD43A04685257FB900514709/$file/14-1166-1614284.pdf San Diego barbecue: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/24/14-55387.pdf?mc_cid=a3459c79a2&mc_eid=6e8e76319f
Defective arrest warrants, mandatory probation visits at home, and a pair of polygraph cases.
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Evan’s George Mason Law Review article: http://www.georgemasonlawreview.org/wp-content/uploads/23_3_Bernick.pdf
Arrest warrants: http://www.ca6.uscourts.gov/opinions.pdf/16a0113p-06.pdf?mc_cid=b413fb09b9&mc_eid=%5bUNIQID%5d Home visits: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-06/C:15-2899:J:Easterbrook:aut:T:fnOp:N:1749434:S:0&mc_cid=b413fb09b9&mc_eid=%5bUNIQID%5d Polygraph reliability: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D05-04/C:14-3791:J:Bauer:dis:T:fnOp:N:1747876:S:0&mc_cid=dc5e519308&mc_eid=6e8e76319f Polygraph self-incrimination: https://www.ca10.uscourts.gov/opinions/15/15-1033.pdf?mc_cid=b413fb09b9&mc_eid=%5bUNIQID%5d
An unconstitutional railroad regulator, deferred prosecution agreements, an allegedly biased judge, and law enforcement behaving badly.
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Amtrak case: https://www.cadc.uscourts.gov/internet/opinions.nsf/7DB0A5319D2F70D385257FA4004FAB2B/$file/12-5204-1611061.pdf Deferred prosecution: https://www.cadc.uscourts.gov/internet/opinions.nsf/E7CE07715B86640185257F8C00512106/$file/15-3016-1607222.pdf Biased judge: http://media.ca11.uscourts.gov/opinions/pub/files/201510390.pdf?mc_cid=76dea1302e&mc_eid=6e8e76319f Qualified immunity: http://media.ca11.uscourts.gov/opinions/pub/files/201512529.pdf
Office space, bathroom access for transgender students, restrictions on a lawyer’s speech, and the right to remain silent.
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Lawyer office space: http://www.ca2.uscourts.gov/decisions/isysquery/e7748672-2f49-4599-9054-b29294aaa670/4/doc/11-4283_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e7748672-2f49-4599-9054-b29294aaa670/4/hilite/ Va. transgender student: http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf?mc_cid=3387b54123&mc_eid=6e8e76319f Lawyer speech restriction: http://www.ca5.uscourts.gov/opinions/pub/15/15-30643-CV0.pdf?mc_cid=3387b54123&mc_eid=6e8e76319f Right to remain silent: http://www2.ca3.uscourts.gov/opinarch/144610p.pdf?mc_cid=3387b54123&mc_eid=6e8e76319f
Free speech on campus, free speech off campus, jury nullification, and union wages for private construction.
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Campus speech: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/04/07/13-16279.pdf Rap video: http://www.ca5.uscourts.gov/opinions/pub/12/12-60264-CV2.pdf Jury nullification: https://www.ca10.uscourts.gov/opinions/15/15-1319.pdf Prevailing wages: https://www.cadc.uscourts.gov/internet/opinions.nsf/43BA48A2AECCE14085257F8C005120D0/$file/14-5132-1607187.pdf
The IRS ruins a tea party, absolute prosecutorial immunity, a police chief’s brazen disregard for human life, and the rights of the civilly committed.
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IRS Tea Party abuse: http://www.ca6.uscourts.gov/opinions.pdf/16a0069p-06.pdf?mc_cid=d24e9da447&mc_eid=6e8e76319f Prosecutorial immunity: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D03-29/C:14-1635:J:Sykes:aut:T:fnOp:N:1728477:S:0 Memphis police shooting: http://www.ca6.uscourts.gov/opinions.pdf/16a0074p-06.pdf Civil commitment: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D03-23/C:15-3482:J:Posner:aut:T:fnOp:N:1725046:S:0&mc_cid=d24e9da447&mc_eid=6e8e76319f
No Trespassing signs, specialty license plates, and a malicious prosecution.
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No trespassing: https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf Specialty plates: http://www.ca4.uscourts.gov/Opinions/Published/131030A.P.pdf?mc_cid=eae9150815&mc_eid=6e8e76319f Malicious prosecution: http://www.ca2.uscourts.gov/decisions/isysquery/588b235d-d686-4619-8a19-9d77ea53fbda/1/doc/14-2475_opn.pdf?mc_cid=eae9150815&mc_eid=6e8e76319f#xml=http://www.ca2.uscourts.gov/decisions/isysquery/588b235d-d686-4619-8a19-9d77ea53fbda/1/hilite/
Illegal bank deposits, an unseemly parole rescission, cuffing a quadriplegic to a hospital bed, and a fatal police raid.
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Structuring: http://www.ca2.uscourts.gov/decisions/isysquery/47b180d0-1c92-448d-a550-1b83e5214c48/1/doc/14-360_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/47b180d0-1c92-448d-a550-1b83e5214c48/1/hilite/ Parole officials: http://www.ca2.uscourts.gov/decisions/isysquery/67a2ffc8-ce58-44e2-9858-557fdbed4b93/2/doc/13-3592_amended_opn.pdf?mc_cid=a28b9d18b8&mc_eid=6e8e76319f#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67a2ffc8-ce58-44e2-9858-557fdbed4b93/2/hilite/ Cuffed quadriplegic: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-26/C:15-2493:J:Bauer:aut:T:fnOp:N:1710096:S:0&mc_cid=a28b9d18b8&mc_eid=6e8e76319f Qualified immunity: http://www.ca5.uscourts.gov/opinions/pub/14/14-11134-CV0.pdf?mc_cid=a28b9d18b8&mc_eid=6e8e76319f
Funny looks. False political statements. Fiddling while driving. And more!
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Weird look: http://www.ca4.uscourts.gov/Opinions/Published/144902.P.pdf False statements: http://www.ca6.uscourts.gov/opinions.pdf/16a0048p-06.pdf Neck brace: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-17/C:15-1419:J:Bauer:aut:T:fnOp:N:1705120:S:0&mc_cid=f509be176a&mc_eid=6e8e76319f Texting while driving: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D02-18/C:15-2540:J:Posner:aut:T:fnOp:N:1706108:S:0&mc_cid=f509be176a&mc_eid=6e8e76319f
Maryland’s assault-weapons ban, surveillance from a utility pole, and a fatal police shooting.
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Assault-weapons ban: http://www.ca4.uscourts.gov/Opinions/Published/141945.P.pdf?mc_cid=26006ef34a&mc_eid=6e8e76319f Video surveillance: http://www.ca6.uscourts.gov/opinions.pdf/16a0031p-06.pdf Police shooting: http://www.scotusblog.com/wp-content/uploads/2016/11/16-67-opinion-below-10th-cir.pdf
IJ wins, California judicial candidates lose, and a habeas petitioner gets a second chance.
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Habeas: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/27/11-17634.pdf?mc_cid=5e0235919f&mc_eid=6e8e76319f Campaign contributions: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/27/11-17634.pdf?mc_cid=5e0235919f&mc_eid=6e8e76319f IJ sign victory: http://www.ca4.uscourts.gov/Opinions/Published/131996A.P.pdf?mc_cid=5e0235919f&mc_eid=6e8e76319f
A fishy boat seizure, deadly health-care red tape, and a campaign-finance collision.
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Sailboat seizure: http://media.ca11.uscourts.gov/opinions/pub/files/201412482.pdf VA CON: http://www.ca4.uscourts.gov/Opinions/Published/142283.P.pdf?mc_cid=11067cea46&mc_eid=6e8e76319f Campaign-finance disclosure: https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
Unlicensed practice of psychology, alcohol advertising, and free speech for student teachers.
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Psychology licensing: http://www.ca5.uscourts.gov/opinions/pub/14/14-51151-CV0.pdf Tied-house restriction: http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/07/13-56069.pdf?mc_cid=2d69df7f59&mc_eid=6e8e76319f Student teacher speech: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/13-16524.pdf?mc_cid=d4f8bb2f3a&mc_eid=6e8e76319f
Tattooing in Margaritaville, dark money in California, prison guard negligence, and targeting Rosa Parks.
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Tattoo shop/First Amendment: http://media.ca11.uscourts.gov/opinions/pub/files/201415354.pdf?mc_cid=d4f8bb2f3a&mc_eid=6e8e76319f Compelled disclosure: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/15-55446.pdf?mc_cid=d4f8bb2f3a&mc_eid=6e8e76319f Prison guard negligence: http://www.ca4.uscourts.gov/Opinions/Published/147204.P.pdf?mc_cid=d4f8bb2f3a&mc_eid=6e8e76319f Rosa Parks’ likeness: http://media.ca11.uscourts.gov/opinions/pub/files/201510880.pdf
Ride-sharing in the sky, the taxman cometh for legal marijuana businesses, and child-protective services takes a medical-marijuana patient’s son.
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Flytenow: https://www.cadc.uscourts.gov/internet/opinions.nsf/77E3D4B73DFDB22685257F1F005456E8/$file/14-1168-1589331.pdf IRS and marijuana: https://www.ca10.uscourts.gov/opinions/15/15-1333.pdf?mc_cid=18e0802337&mc_eid=6e8e76319f Medical marijuana and CPS: http://www.ca6.uscourts.gov/opinions.pdf/15a0296p-06.pdf
Docs v Glocks III, cold Indiana beer, and a stop prolonged without reasonable suspicion.
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Docs v Glocks: http://media.ca11.uscourts.gov/opinions/pub/files/201214009.reh2.pdf Indiana beer: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-14/C:14-2559:J:Sykes:aut:T:fnOp:N:1671685:S:0 Prolonged highway stop: http://www.ca4.uscourts.gov/Opinions/Published/144049.P.pdf
Drug doggie, suspicionless drug testing of college students, and adult advertisements.
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Drug dog: http://media.ca8.uscourts.gov/opndir/15/11/143213P.pdf Drug testing: http://media.ca8.uscourts.gov/opndir/15/12/133264P.pdf Backpage: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D11-30/C:15-3047:J:Posner:aut:T:fnOp:N:1663542:S:0&mc_cid=c40105bc96&mc_eid=6e8e76319f
Illegal incense, hydroelectric power, and your right to an attorney in a civil case.
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Incense: https://www.ca10.uscourts.gov/opinions/14/14-5147.pdf Power permit: https://www.cadc.uscourts.gov/internet/opinions.nsf/F87FD55090FD4B1B85257F0300537EB7/$file/14-1153-1584580.pdf Right to counsel: http://www.ca5.uscourts.gov/opinions/pub/13/13-50541-CV0.pdf?mc_cid=d1b1e1df14&mc_eid=6e8e76319f Evan on HuffPo: http://www.huffingtonpost.com/evan-bernick/
Louisiana school choice, an anticompetitive grocer, and a reversed false-statement conviction.
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Louisiana school choice: http://www.ca5.uscourts.gov/opinions/pub/14/14-31010-CV0.pdf?mc_cid=9fd4215587&mc_eid=6e8e76319f Grocery antitrust: http://www2.ca3.uscourts.gov/opinarch/144183p.pdf?mc_cid=9fd4215587&mc_eid=6e8e76319f False statement: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D11-09/C:13-1586:J:Williams:aut:T:fnOp:N:1653506:S:0&mc_cid=9fd4215587&mc_eid=6e8e76319f
Credit-card surcharges, forced sterilization, prosecutor misconduct, and the IRS’ tax-prep certification program
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Credit-card surcharges: http://media.ca11.uscourts.gov/opinions/pub/files/201414426.pdf?mc_cid=853f0652bb&mc_eid=6e8e76319f Forced sterilization: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-26/C:15-1261:J:Kanne:aut:T:fnOp:N:1645796:S:0&mc_cid=b04a16f85a&mc_eid=6e8e76319f Recanting perjury: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D10-27/C:13-3327:J:Ellis:aut:T:fnOp:N:1646590:S:0&mc_cid=b04a16f85a&mc_eid=6e8e76319f Tax-preparer certification: https://www.cadc.uscourts.gov/internet/opinions.nsf/E5266889ADFBFAB885257EEE004D44D8/$file/14-5309.wpd.pdf
Abdication on NSA surveillance; engagement (this time around) on offensive speech; and an outrageous case of police misconduct.
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NSA surveillance: http://www.ca2.uscourts.gov/decisions/isysquery/425dfa04-013f-4b69-a7f8-c5097536276f/1/doc/14-42_mot_opn.pdf?mc_cid=b04a16f85a&mc_eid=6e8e76319f#xml=http://www.ca2.uscourts.gov/decisions/isysquery/425dfa04-013f-4b69-a7f8-c5097536276f/1/hilite/ Heckler’s veto: http://www.ca6.uscourts.gov/opinions.pdf/15a0258p-06.pdf Police misconduct: http://www.ca10.uscourts.gov/opinions/14/14-2163.pdf?mc_cid=b04a16f85a&mc_eid=6e8e76319f Law review article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297534
Connecticut and New York’s assault-weapons bans, mumbling in a high-crime area, and an appalling guilty plea.
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Assault-weapons bans: http://www.ca2.uscourts.gov/decisions/isysquery/2b315bfa-fccc-463c-8f97-a30da267788f/3/doc/14-36_14-319_opn.pdf?mc_cid=b95d8e63b8&mc_eid=6e8e76319f#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b315bfa-fccc-463c-8f97-a30da267788f/3/hilite/ Mumbling in a high-crime area: http://www.ca4.uscourts.gov/Opinions/Published/144733.P.pdf?mc_cid=b95d8e63b8&mc_eid=6e8e76319f Non-voluntary guilty plea: http://media.ca1.uscourts.gov/pdf.opinions/12-1965P-01A.pdf?mc_cid=b95d8e63b8&mc_eid=6e8e76319f
The NYPD’s not-so-secret surveillance of Muslim-Americans, a hold on the new Clean Water Rule, and specious reasoning in a civil forfeiture case.
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NYPD surveillance: http://www2.ca3.uscourts.gov/opinarch/141688p.pdf?mc_cid=822bb07fe9&mc_eid=6e8e76319f EPA Clean Water Rule: http://www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf?mc_cid=822bb07fe9&mc_eid=6e8e76319f Civil forfeiture fees: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/06/13-55266.pdf?mc_cid=51f2427403&mc_eid=6e8e76319f
Goodyear discovery abuse, Posner on weeds, and a fishy fishing case.
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Goodyear: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/20/12-17718.pdf?mc_cid=566b313e6c&mc_eid=c3e0671ade Constitutional weeds: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D09-28/C:14-3678:J:Posner:aut:T:fnOp:N:1629733:S:0 California commercial fishing: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/18/13-17358.pdf?mc_cid=bdc3cdddaa&mc_eid=6e8e76319f
Occupational speech, credit card fees, Seattle’s minimum wage, and a vexatious search.
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Kentucky speech: http://ij.org/wp-content/uploads/2013/07/Memorandum-Opinion-Order-IJ072926xA6322.pdf Credit card fees: http://ij.org/wp-content/uploads/2017/01/13-4537_opn.pdf Seattle minimum wage: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/25/15-35209.pdf CBP search: http://ij.org/wp-content/uploads/2017/01/14-338_opn.pdf
Knives, guns, and hunch-based searches that turn up guns.
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Gravity knives: http://www.ca2.uscourts.gov/decisions/isysquery/93e5c2bd-9ffc-4d07-bcdc-638a09c8b1c5/2/doc/13-4840_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93e5c2bd-9ffc-4d07-bcdc-638a09c8b1c5/2/hilite/ Slouching in a high-crime area: http://www.ca6.uscourts.gov/opinions.pdf/15a0637n-06.pdf D.C. gun law: http://www.cadc.uscourts.gov/internet/opinions.nsf/46AD1BE68518069B85257EC400534ABB/$file/14-7071-1573768.pdf Village Voice article: http://www.villagevoice.com/news/how-a-50s-era-new-york-knife-law-has-landed-thousands-in-jail-6662589
Clark on Twitter: http://www.twitter.com/conlawwarrior Evan on Twitter: http://www.twitter.com/evanbernick
An infamous criminal “gang”; a drunken bike ride with a painful ending; suicide by cop; and juvenile strip searches.
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Juggalos: http://www.ca6.uscourts.gov/opinions.pdf/15a0230p-06.pdf Bike ride: http://media.ca8.uscourts.gov/opndir/15/09/142985P.pdf Suicide by cop: http://www.ca6.uscourts.gov/opinions.pdf/15a0227p-06.pdf Juvenile strip searches: http://www2.ca3.uscourts.gov/opinarch/143905p.pdf
Warrantless cell phone tracking, baseless business harassment, and some winners go to jail.
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Winner of drug-sniffing dog case goes to jail anyway: http://media.ca8.uscourts.gov/opndir/15/09/131176P.pdf?mc_cid=d06874ffe2&mc_eid=6e8e76319f Cell phone tracking: http://www.ca4.uscourts.gov/Opinions/Published/124659.P.pdf?mc_cid=81e8b80bc6&mc_eid=f37e88430a Harassing a local business over personality conflict: http://www.ca6.uscourts.gov/opinions.pdf/15a0223p-06.pdf “Family” includes spouse: http://www.ca6.uscourts.gov/opinions.pdf/15a0214p-06.pdf?mc_cid=d06874ffe2&mc_eid=6e8e76319f
Conflict minerals, the FTC’s cybersecurity crackdown, and a reckless SWAT raid.
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Conflict minerals: http://www.cadc.uscourts.gov/internet/opinions.nsf/7677C9E435244EC985257EA50054F3D4/$file/13-5252-1568402.pdf FTC cybersecurity: http://www2.ca3.uscourts.gov/opinarch/143514p.pdf?mc_cid=0f524477c3&mc_eid=f37e88430a Flash bombs: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-31/C:15-1207:J:Posner:aut:T:fnOp:N:1597456:S:0&mc_cid=81e8b80bc6&mc_eid=f37e88430a
A judge Googles outside of the record, legalized sports gambling in New Jersey goes boink, and prosecutorial misconduct at the DOJ.
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Legal research: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D08-19/C:14-3316:J:Posner:aut:T:fnOp:N:1607993:S:0 Sports gambling: http://www2.ca3.uscourts.gov/opinarch/144546p.pdf DOJ misconduct: http://www.ca5.uscourts.gov/opinions/pub/13/13-31078-CR0.pdf
The right to marry an inmate, free speech at the Iowa State Fair, police abuse in Chicago, and a sarcastic public defender winds up in handcuffs.
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The right to marry: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D08-14/C:14-2910:J:Ripple:aut:T:fnOp:N:1605102:S:0 Iowa State Fair: http://media.ca8.uscourts.gov/opndir/15/08/143039P.pdf Chicago police abuse: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D08-14/C:14-2862:J:Wood:aut:T:fnOp:N:1604994:S:0 Chicago police abuse district court ruling: https://scholar.google.com/scholar_case?case=2413773905670108862&q=%22seneca+adams%22+v.+chicago&hl=en&as_sdt=4,112,127,332 Arrested public defender: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/14/12-57197.pdf
Probable-cause-creating dogs, Docs vs. Glocks Part Deux, and a whole mess of engaged judging.
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Drug dog: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D08-07/C:13-3581:J:Easterbrook:aut:T:fnOp:N:1600912:S:0 EPA foot-dragging: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/10/14-72794.pdf Lamborghini without a warrant: http://www.ca2.uscourts.gov/decisions/isysquery/fd0ae78f-363c-4a10-93e2-c1eb75ed078b/3/doc/14-1625_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fd0ae78f-363c-4a10-93e2-c1eb75ed078b/3/hilite/ Panhandling after Reed: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D08-07/C:13-3581:J:Easterbrook:aut:T:fnOp:N:1600912:S:0 Docs vs. glocks: http://media.ca11.uscourts.gov/opinions/pub/files/201214009.reh.pdf?mc_cid=3d37ae687c&mc_eid=6e8e76319f
A teeth-whitening opinion that’s nothing to smile about, a pair of Fourth Amendment cases, and a corrupt former governor of Illinois.
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Blagojevich convictions: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-21/C:11-3853:J:Easterbrook:aut:T:fnOp:N:1591124:S:0 Air fresheners: http://www.ca5.uscourts.gov/opinions/unpub/14/14-40126.0.pdf Bike cops: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-20/C:14-2982:J:Williams:aut:T:fnOp:N:1590344:S:0 Teeth whitening: http://www.ca2.uscourts.gov/decisions/isysquery/22fcc8f1-3c2a-4edc-80e1-ce028c9dd1cf/2/doc/14-1381_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/22fcc8f1-3c2a-4edc-80e1-ce028c9dd1cf/2/hilite/
Seizing a baby without a warrant, a doctrine most dormant, and the gun rights of U.S. citizens living abroad
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Warrantless seizure of a baby: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/10/12-15080.pdf The most dormant doctrine in dormant commerce clause jurisprudence: https://www.ca10.uscourts.gov/opinions/14/14-1216.pdf U.S. citizen living abroad gun rights: http://www.cadc.uscourts.gov/internet/opinions.nsf/AEDA31C1E55B3DC685257E6D00539B9A/$file/12-5305-1559075.pdf
Indefensible government litigation tactics; cruel and unusually hot prison cells; and a primer on the Fourth Amendment.
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Dept of Labor investigation: http://www.ca5.uscourts.gov/opinions/pub/14/14-40585-CV0.pdf Cruel and unusual prison: http://www.ca5.uscourts.gov/opinions/pub/14/14-30067-CV0.pdf Unjustified search: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-02/C:14-2262:J:Williams:aut:T:fnOp:N:1580852:S:0
Judicial engagement at the Supreme Court; a pair of Sixth Amendment cases from the federal circuits; and a huge victory for economic liberty in the Texas Supreme Court.
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First Circuit public view of jury selection http://media.ca1.uscourts.gov/pdf.opinions/10-1974P-01A.pdf Seventh Circuit marijuana deportation http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-26/C:14-3579:J:Posner:aut:T:fnOp:N:1577050:S:0 Eyebrow threading decision http://www.txcourts.gov/media/1008501/120657.pdf Willett concurrence http://www.txcourts.gov/media/1008502/120657c1.pdf
Did a federal court just put a nail in the coffin of the Guantanamo Bay military commissions? We sit down with special guest Steve Vladeck, an American University professor and an expert on terrorism and the rule of law.
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Police try to kick a skeptical judge off a case; a federal agent tries to take a shortcut past the Fourth Amendment; and a major abortion decision. http://www.ij.org/short-circuit
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Recusal case: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-09/C:15-1848:J:Hamilton:aut:T:fnOp:N:1566838:S:0 Wrong-door search: http://www.ca2.uscourts.gov/decisions/isysquery/baba88c6-7058-40ce-b701-0ce4ae825e56/1/doc/13-3145_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/baba88c6-7058-40ce-b701-0ce4ae825e56/1/hilite/ Racial slurs: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/09/12-17503.pdf Texas TRAP law: http://www.ca5.uscourts.gov/opinions/pub/14/14-50928-CV0.pdf
A holding-cell beatdown; an epic zoning battle in Chicago; and whether judges should ever criticize prosecutors.
Holding-cell beatdown: http://www.ca2.uscourts.gov/decisions/isysquery/d5100874-f164-4d40-89c2-a75e0befec9e/2/doc/14-2472_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d5100874-f164-4d40-89c2-a75e0befec9e/2/hilite/ Zoning battle: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-01/C:13-3669:J:Cudahy:con:T:fnOp:N:1561456:S:0 Judges and prosecutors: http://www.ca4.uscourts.gov/Opinions/Published/134360R1.P.pdf
The resume that sent a man back to prison; an ostrich causes reversible error; and a “patently offensive” license plate.
Resume: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-21/C:14-1204:J:Ripple:aut:T:fnOp:N:1556299:S:0 Ostrich: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-26/C:13-2166:J:Posner:aut:T:fnOp:N:1557799:S:0 License plate: http://www.ca2.uscourts.gov/decisions/isysquery/d6be891c-6438-4ad9-8708-4478ee85b421/3/doc/11-5199_opn%20w-dissen.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d6be891c-6438-4ad9-8708-4478ee85b421/3/hilite/
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The case of the disappearing marijuana, an EPA maneuver to evade judicial review, and a burglary-for-hire gone wrong.
Marijuana: http://media.ca11.uscourts.gov/opinions/pub/files/201412801.pdf EPA: http://www.cadc.uscourts.gov/internet/opinions.nsf/1570793BF8ECB93D85257E460050A96E/$file/13-5290-1552699.pdf Burglary: http://www.ca6.uscourts.gov/opinions.pdf/15a0093p-06.pdf
Courts require evidence to ban speech but not guns, and a tragedy at the border goes en banc.
Speech: http://www.ca6.uscourts.gov/opinions.pdf/15a0078p-06.pdf Guns: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-27/C:14-3091:J:Easterbrook:aut:T:fnOp:N:1541776:S:0 Border tragedy: http://www.ca5.uscourts.gov/opinions/pub/11/11-50792-CV1.pdf
Pimps, pirate treasure, and police on pistol patrol.
Pimps: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/21/13-30223.pdf Pirate treasure: http://www2.ca3.uscourts.gov/opinarch/124574p.pdf Police patrolling for pistols in the Nation’s capital: http://www.cadc.uscourts.gov/internet/opinions.nsf/3A4AECFC912850FA85257E2E00509DD3/$file/13-3102-1548318.pdf
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When cops don’t know the law, a heartbreaking deportation case, and charity donation bins … that speak!
Cops: http://www.ca5.uscourts.gov/opinions/pub/13/13-50745-CR0.pdf Deportation: media.ca1.uscourts.gov/pdf.opinions/13-1550P-01A.pdf Charity bins: http://www.ca6.uscourts.gov/opinions.pdf/15a0063p-06.pdf
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A veterinarian’s free speech rights, a prisoner’s cruel and unusual garb, and a farmer busted for swampbusting.
Vet Speech: http://www.ca5.uscourts.gov/opinions/pub/14/14-40403-CV0.pdf Prisoner: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-27/C:13-1769:J:PerCuriam:aut:T:fnOp:N:1524418:S:0 Swampbusting: http://www.ca6.uscourts.gov/opinions.pdf/15a0058p-06.pdf
A questionable murder conviction, $60,000 seized from a man never charged with a crime, and an immigrant who may face persecution if she’s deported.
A naughty beer label, censorship on city buses, and a heart-healthy butter substitute that isn't.
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An exotic dancing ban, prison guards who ignored sexual abuse, and a successful (!) ineffective-assistance claim.
Subscribe today to receive Short Circuit, a weekly email roundup of important decisions from the U.S. Courts of Appeal. It’s a Friday afternoon treat for the legal world. ij.org/short-circuit
A Border Patrol checkpoint, missing evidence, and an officer who crossed the thin blue line.
Subscribe today to receive Short Circuit, a weekly email roundup of important decisions from the U.S. Courts of Appeal. It’s a Friday afternoon treat for the legal world. ij.org/short-circuit
Subscribe today to receive Short Circuit, a weekly email roundup of important decisions from the U.S. Courts of Appeal. It’s a Friday afternoon treat for the legal world. http://ij.org/short-circuit