Short Circuit

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

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 Austen’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. Click here for transcript. 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

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! Click here for transcript. 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! Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. Unaccountable Unaccountable 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! Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. Vlex Short Circuit episode on robot law (2021) Paul’s letter to the Fifth Circuit on AI use

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

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.

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

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. Click here for transcript. 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). Click here for transcript. 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. Click here for episode transcript 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. Click here for transcript. 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.” Click here for episode transcript. Clarke v. CFTC OI European Group B.V. v. Venezuela

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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. 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. Click here for transcript. Rockett v. Eighmy U.S. v. Morgan Pennsylvania v. Dunlap (Roberts dissent)