Short Circuit

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. 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. 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. 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. 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. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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