Short Circuit

Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing. Click here for transcript. Sterling Hotels v. McKay Anibowei v. Morgan

Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is "[m]ore to come." Click here for transcript. CFPB v. Brown U.S. v. Jackson U.S. v. Cunningham Range v. Attorney General 2 Esdras 4:45-46 Commentary on Esdras (G.H. Box 1912) The lunch that launched #AppellateTwitter

We all know about the separation of powers. But this week IJ attorney Jaba Tsitsuashvili introduces us to something else: the concentration of powers. It’s pretty much what it sounds like, and it happens when people have to depend on legislatures to protect constitutional rights. That’s what unfortunately happened recently at the Iowa Supreme Court. Anya Bidwell gives us the details on that story. But sometimes the legislature actually does act to protect constitutional rights. Ok, so then what? Well, Jaba explains that the Louisiana Supreme Court essentially thought that wasn’t good enough to . . . actually protect constitutional rights. Finally, your host details a recent piece he wrote about remedies, constitutions, and statutes. See if your mind is blown by an old law review article like his was. Click here for transcript. Burnett v. Smith Jameson v. Montgomery Xi v. Haugen Some Reflections on Legislation, Adjudication, and Implied Private Actions (Foy article) Where Does the Law Come From? (Anthony’s article)

IJ attorney Paul Avelar seizes the means of production (and the Short Circuit microphone) and hosts this week’s episode, live from IJ’s annual Law Student Conference. He’s joined by IJ attorneys Arif Panju and Ari Bargil, who come on to demonstrate that they are, in fact, different people. Arif first details a recent IJ appellate victory in the Sixth Circuit, where Judge Sutton once again explained that if your name is not “Rooker” or “Feldman” then the Rooker-Feldman doctrine most likely does not apply. Arif also gives the facts of the tragic story of what our clients went through before the “Environmental Court” in Memphis, Tennessee, and where the lawsuit challenging its Kangaroo nature now stands. Then Ari digs into a police raid gone horribly wrong in Harris County, Texas. Not exactly a story of the Lone Star State’s finest, as the Fifth Circuit recently indicated. There’s also much ado about procedure. Click here for transcript Tuttle v. Sepolio Hohenberg v. Shelby County That book Paul won’t stop talking about

June 4, 2023 marks exactly 100 years since the Supreme Court handed down its opinion in Meyer v. Nebraska, where the Court ruled that it is unconstitutional for states to forbid the teaching of foreign languages. The case was a momentous decision both at the time and for the future. It lead to developments in many different areas of constitutional law, including free speech, religion, educational freedom, economic liberty, and the incorporation of the Bill of Rights. To celebrate the anniversary the Center for Judicial Engagement at the Institute for Justice held a conference on March 31, 2023 called “100 Years of Unenumerated Freedoms: Meyer v. Nebraska at a Century”. This episode of Short Circuit provides you with the keynote address from the conference, a speech by Professor William G. Ross of Samford University’s Cumberland School of Law. Professor Ross is the author of Forging New Freedoms: Nativism, Education and the Constitution, 1917-1927 (1994), the definitive account of Meyer and the other cases in the same “trilogy”: Pierce v. Society of Sisters and Farrington v. Tokushige. We were absolutely thrilled that he spoke at our conference and wanted to celebrate the anniversary date itself by sharing his remarks with you. And if you’re also interested in hearing what other scholars had to say at the conference please find the link in the shownotes that will bring you to the archived video of the event. Click here for transcript. Meyer v. Nebraska Forging New Freedoms Video of the conference “100 Years of Unenumerated Freedoms”

Today we're digging into the Fourteenth Amendment. No, not the part we usually talk about, Section 1, with its privileges or immunities, equal protection, and all that. Not even Section 4 (debt ceiling?) or Section 3 (rebellion stuff). No, we're digging into a super interesting case involving Section 2, the part that lowers a state's Congressional representation if it abridges the right to vote. Jared Pettinato of Citizens for Constitutional Integrity, counsel in the lawsuit, joins us to discuss what it's all about. We learn the history of Section 2, how Jared represents voters in states that lost members of Congress in the last census, how he's suing the Census Bureau via the Administrative Procedure Act, and what a three-judge panel recently said about his clients' standing. He also previews what's ahead at the D.C. Circuit. After all that IJ's Sam Gedge discusses Footnote 4. Not, not that Footnote 4, but a recent one from the Second Circuit that kind of said unpublished cases are actually published. Or did it? Click here for transcript. Citizens for Constitutional Integrity v. Census Bureau U.S. v. Montague Politico article on Jared's case Jared Pettinato Sam Gedge Anthony Sanders

If a sitting senator threatened you with censorship, would it matter what jacket she’s wearing? Although not an issue we discuss this week, it’s related to both of our cases. First, Justin Pearson tells us of a Ninth Circuit case considering whether a letter from Senator Elizabeth Warren crossed the constitutional line by discussing actions that could be taken against Amazon for selling a certain book. Then, Christie Hebert brings us to the Fifth Circuit and whether a man abandoned his jacket at his mother’s house. Does it matter that it was on top of the trash can? Click here for transcript. Download Anthony’s book for free! Robert F. Kennedy, Jr. v. Elizabeth Warren U.S. v. Ramirez

Cars and free speech, what could be a more American combination? This week we’re playing a double-sided session that you can enjoy while honking your horn or writing your Facebook post. That’s because our two cases examine the free-speech implications of both of those activities. First, if you honk in support of a protest, is that protected by the First Amendment? We drive out to sunny California and the Ninth Circuit to answer that automotive question. Then, it’s off to the hills of Kentucky for another—not quite as fun—car activity: Calling the tow truck. For one towing company they found the calls stopped just around the time they criticized a local politician on Facebook. Coincidence? The Sixth Circuit thinks maybe not. Plus, with a speech bonus, you’ll hear what Rudyard Kipling thought of the motorcar. Click here for transcript. Porter v. Martinez Lemaster v. Lawrence County To Motorists Background to To Motorists

IJ attorney Josh Windham seizes the microphone and turns it around on your regular host, Anthony Sanders. Josh interviews Anthony about his new book, which comes out on May 9, 2023, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters. The book is part history, part legal theory, and part advocacy. It tells the story of how Americans took the words of the Ninth Amendment to the U.S. Constitution and put them in various state constitutions. It then explores what that means for how state constitutions protect our rights (a lot) and what judges have done to give those rights protection (not much). Josh and Anthony dig into these issues, how these provisions should be interpreted, how that would change how state constitutions protect our rights, and even how this story might change how we think about the U.S. Constitution itself. Further, as of May 9 you not only will be able to read the book, but download it for free! You can do that even from the comfort of the podcast app you're currently using, either from the publisher, University of Michigan Press, or, for Kindle users, from Amazon. Click here for transcript. University of Michigan Press page (with free download) for Baby Ninth Amendments Amazon page (including free Kindle version) Institute for Justice page for the book

It’s Special Short Circuit time. And this time that means we don’t just investigate a special legal issue, we journey to a special place (well, at least that’s what Shakespeare and John of Gaunt might say). This week we focus on the British Constitution, how it’s (quite) different from the United States Constitution, how it’s constituted, how it works, and how it’s been changing recently. Two scholars have edited a new volume full of scepticism (note the “c” instead of the “k”) about recent and proposed constitutional changes in the United Kingdom, a book called Sceptical Perspectives on the Changing Constitution of the United Kingdom. If you don’t know much about the constitutional order of America’s mother country you’ll learn quite a bit. If you’d like to learn more about the constitutional debates they’re having in Britain you’ll learn quite a bit more. And if you’d like to hear a bit of push-and-pull about the merits of a written constitution that judges can enforce versus one that’s ever changing then you might even learn a bit about that—whether you agree with our guests or not. Richard Johnson and Yuan Yi Zhu join us for all things British—with some elements of the English, the Scots, and even the Welsh—and your host throws in a bit of reminiscing about time spent in the remnants of the Duchy of Normandy. Click here for transcript. Sceptical Perspectives on the Changing Constitution of the United Kingdom Anthony’s essay that discusses the British Constitution The Act of Union Richard’s book The End of the Second Reconstruction

Who ever said insurance isn’t interesting? Certainly not the Eleventh Circuit, and certainly not IJ’s Ben Field. He tells us a harrowing story of a church—a church of all places!—which weathers two acts of God (hurricanes) while taking insurance contracts and kicking insurances claims (actually, the insurance company kicked the claims). Ben weaves together the competing views of contract interpretation as personified by Harvard’s Samuel Williston and Yale’s Arthur Corbin to explain how the court ended up where it did. We even delve into the Gospel of John for inspiration. Then, in slightly less theological matters than contractual interpretation, we look at what the Fifth Circuit cooked up when it comes to free speech. Whether you’re a veggie burger connoisseur or not, you’ll want to hear about Louisiana’s attempt to stymie the labeling of meatless meat such as Tofurky. IJ’s Betsy Sanz tells us why the court did not find the law unconstitutional, but also why that means the law might not end up doing very much. Click here for transcript. Shiloh Christian Center v. Aspen Specialty Insurance Co. Turtle Island Foods v. Strain

Just compensation is a pretty basic part of the Constitution. Which is why this week’s panel is a little confused how the State of Minnesota thought it could just take a bunch of insulin without paying for it. IJ attorney Joe Gay joins us to explain what the Eighth Circuit had to say not just about just compensation but where a property owner goes to get it. Then IJ’s Anna Goodman tells another Eighth Circuit tale of a speedy trial that was not so speedy. But it turns out that’s ok. Even when it’s the government’s fault. Click here for transcript. All about Anthony’s book! April 24 Feddie Night Fights debate PhRMA v. Williams U.S. v. Cooley

On a special Short Circuit IJ’s Marie Miller sits down with a trio of school choice experts to provide an overview on where school choice is today. Nicole Garnett and Rick Garnett, both professors at Notre Dame Law School, join IJ’s Michael Bindas to discuss the history of school choice, answer common objections to school choice programs, and walk through some of the litigation that has culminated in the explosion of school choice programs we now see in 2023. The episode was recorded at the University of Notre Dame after a conference celebrating the publication of The Case for Parental Choice, a collection of essays by John Coons and edited by Nicole and Rick along with their colleague Ernest Morrell. Click here for a transcript. The Case for Parental Choice Zelman v. Simmons-Harris Espinoza v. Montana Dept. of Revenue Carson v. Makin

Wouldn’t it be fun to own a time machine? If you said yes then you’re a lot like the Fifth Circuit. Last week its full set of judges trotted out their own Delorean and ran it at 88 miles an hour while issuing an order denying an en banc motion. We’re calling this “time travel” because unlike a normal denial of en banc the court did so after it already had over three months ago and the losing side (represented by IJ!) had already filed a cert petition with the Supreme Court. IJ’s Bob McNamara comes on to discuss this bending of the space-time continuum, but also the bending of long-established property rights principles. The case concerns a takings claim against the State of Texas where the state is trying to get away with not paying property owners for flooding their land. And if the Fifth Circuit’s ruling stands it’ll get away with it now and into the future. Continuing on the time traveling theme, your host then tells a tale straight out of a Donna Tartt novel (well, a combination of two of them): A six-thousand-year-old idol that’s sold on the New York art market and is of . . . uncertain provenance. Click here for transcript. Devillier v. Texas (cert petition) Devillier v. Texas (2d denial of en banc) Turkey v. Christie’s H.G Well’s The Time Machine Donna Tartt’s The Secret History Donna Tartt’s The Goldfinch

Can a city get a renter evicted for a crime they didn’t commit? Unfortunately, in cities across the country the answer is yes. On a special Short Circuit we dig into this outrageous, and immensely underreported, issue. Professor Katy Ramsey Mason of the University of Memphis joins us to discuss crime free rental ordinances, laws that allow cities for force landlords to evict tenants after anyone in their household is merely charged (not convicted) of a crime. And not a crime committed on the property, but anywhere in town. We also hear from IJ attorney Sam Gedge who is part of a team currently challenging one of the worst examples of these laws in Granite City, Illinois. The case is currently at the Seventh Circuit and will be argued later this year. We even play some audio clips of what the eviction process has been like in Granite City as people who have done nothing wrong are kicked out of their homes. Click here for transcript. Register for March 31 conference on Meyer v. Nebraska! Article in UCLA Law Review, “One-Strike 2.0” IJ’s Granite City compulsory evictions case ACLU case in Minnesota (now settled)

A nostalgic tale of judicial engagement where we examine whether recess is a crime and whether it’s fine for the government to follow your every move out on the water. First, Keith Neely of IJ joins us for the first time to discuss a Fourth Circuit opinion about a vague law that explicitly makes it illegal to be obnoxious. Then it’s his colleague Trace Mitchell’s turn with a Fifth Circuit tour of administrative law and the First Amendment. Keith also talks about the trivia test he had to take to become a circuit court clerk and how you pronounce “seconded.” (It’s not what you think. Unfortunately.) Plus, we close with a bit of rumination over “the youth of today” and how they can’t make obvious references to ‘60s sitcoms anymore. Click here for transcript. Register for March 31 conference on Meyer v. Nebraska! Carolina Youth Action Project v. Wilson Mexican Gulf Fishing Co. v. U.S. Dept of Commerce The British origins of "seconded"

A special Short Circuit Live at Georgetown University hosts Joanna Schwartz of UCLA to discuss her book Shielded: How the Police Became Untouchable. And not only that, but after hearing her introduce the book itself we do a full Short Circuit looking at a number of recent cases in light of it. Anya Bidwell and Professor Schwartz are joined by professors Seth Stoughton, Carlos Manuel Vazquez, and Alex Reinert. Recorded on Tuesday, March 7 and co-sponsored with our friends at the Georgetown Center for the Constitution. Click here for transcript. Our March 31, 2023 conference on Meyer v. Nebraska Come see Anthony on Thursday, March 16 at noon in Charleston, S.C.! Work at IJ! Shielded: How the Police Became Untouchable Edwards v. City of Florissant Sosa v. Martin County Pettibone v. RussellMack v. Williams Mack v. Williams

Short Circuit speaks with the law students at SMU in our first visit to The Big D. With Anya Bidwell as your host, she introduces us to Texas lawyers Zack Faircloth, Will Langley, and Don Tittle. They dig into recent cases on the Second Amendment, “premature bankruptcy,” vaping regulation, and (of course) qualified immunity. With more than one matter that seems to be on track for the Supreme Court this is the episode for Rick and Morty fans. Register for March 7 event with Joanna Schwartz on her book “Shielded”! Click here for podcast. United States v. Rahimi Wages and White Lion Investments v. FDA (motions panel) Wages and White Lion Investments v. FDA (merits panel) In re LTL Management Molina v. City of St. Louis Rick and Morty “Spa Planet” episode

For the first time Short Circuit welcomes the Jones-Act-hating, free-trade-loving, tariff-busting, T-shirt-writing, and top-5-ranking Scott Lincicome of the Cato Institute. Scott introduces us to a rare breed at Short Circuit, the Court of Appeals for the Federal Circuit. That’s because the court just issued (another) opinion upholding some of the dumbest steel tariffs of recent years (and that’s saying a lot). Scott walks us through the supposed national security issues, how tariff sausage gets made, and where the courts might go from here. After a somewhat difficult segue we then move to Andrew Ward of IJ, who tells a wild story from the Sixth Circuit of a shed that catches on fire, a sketchy warrant, security cameras, noises that sound like someone is ripping down a roof, and several kilos of a mysterious white substance in the sink. But none of it ever happened because of the fruit-of-the-poisonous-tree doctrine. Finally, we end with a top-5 list from Scott. Primesource Building Products, Inc. v. U.S. U.S. v. Waide Tariffs Foster Political Dysfunction T-shirt Capitolism newsletter

A qualified immunity and property rights pairing this week. But first we announce the winning answer from last episode’s “decretal language” competition. Then, Patrick Jaicomo explains why in the Fourth Circuit it can be unconstitutional for the police to prevent you from livestreaming an encounter, but you can’t sue them about it. Then Suranjan Sen walks us through a couple challenges to New York’s notorious rent control laws. The Second Circuit finds no taking there, whatever the realities of tenants who never move out. However, the question arises: Can these cases be heading somewhere higher? Also, courts, you’re not writing mystery novels. So stop opening your opinions like one. Click here for transcript. Register for Feb 18 Cleveland show, Comedy is not a Crime! Register for event with Joanna Schwartz on her book “Shielded”! Register for March 31 conference on Meyer v. Nebraska! Sharpe v. Winterville Police Dept. Community Housing Improvement Program v. City of New York 74 Pinehurst v. State of New York

Our newsletter begins announcements about federal en banc decisions with the phrase “And in en banc news.” And about a year ago we had an argument on the podcast on how to pronounce that fancy French-sounding phrase. Today we bring back the guests from that episode—Sam Gedge and Bob Belden—to settle the issue, once and for all. Along the way you’ll learn about how we have the Germans to thank for how we describe full sittings of the federal courts of appeals. You’ll also learn about two recent en banc cases, one from the Eleventh Circuit concerning how prisoners can sue in federal court, and one from the D.C. Circuit about how foreign students can stay in the country and get some work experience. There’s also a couple rabbit holes involving decretal language and whether a “dissental” is a thing. Click here for transcript. Register for Feb 17 panel at Case Western Reserve! Register for Feb 18 Cleveland show, Comedy is not a Crime! Register for Marc 31 conference on Meyer v. Nebraska! Buy Anthony’s book! Draft of article And in En Banc News . . . (to appear in Judicature) Judge Newman article on decretal language Wells v. Brown Washington Alliance v. DHS En banc argument episode

On this Groundhog Day special we’re sniffing out a couple eternally recurrent subjects: limits on government surveillance and limits on property rights. We’re joined by IJ’s Seth Young and also are very pleased to announce we once again have on Mike Chase, author of How to Become a Federal Criminal. Mike gives an overview of a case pending in the Fourth Circuit that could have major ramifications for everyone with a smart phone and a Google account—that is, everyone, period. After a bank robbery the police tried to track down a suspect using several layers of Google data. The court later found that the warrant in question violated the Fourth Amendment—yet excused it anyway. Mike explains the issues and also gives a preview of what’s coming in the world of federal crimes. Seth’s case is also from the Fourth Circuit, and it brings us to the happy days of March 2020 and what happened to a couple who simply wanted to access their own property. Was that a taking? The multifactored magic 8 ball says “no.” United States v. Chatrie Blackburn v. Dare County 16 USC § 668DD 50 CFR § 32.49 Phil Connors forecast

Could you identify a “bag of dope” through a tinted car window? A police officer in Euclid, Ohio thought he could, but it turns out the effort wasn’t close enough for government work. Under the Fourth Amendment, at least. IJ’s Rob Frommer joins us to tell the latest Sixth Circuit tale of cops not bothering to get a warrant. Then Suranjan Sen of IJ takes us to the Eighth Circuit where the police dispersed a crowd for “unlawful assembly.” That may have been unconstitutional, but when the protesters sue they encounter some pleading problems. Click here for transcript. Register for our Meyer v. Nebraska conference! 2023 IJ Summer Clerkship Application U.S. v. Loines Edwards v. City of Florissant Bound By Oath episode on municipal liability

We are joined by Texas “teenylaw” lawyer Kristen Vander-Plas LaFreniere. We talk about what it’s like to run a very small practice and then dig into the latest from the circuits. Kristen presents a religious victory over the Marines in the D.C. Circuit and gives a bit of background about what that service thinks of the Navy. If you’ve made it through basic training this is the episode for you. Then, Erica Smith Ewing of IJ takes us out to the Ninth Circuit where there’s a rare win against a zoning ordinance. Singh v. Berger SoCal Recovery v. City of Costa Mesa

In honor of the birthday of Martin Luther King, Jr. we invited on three civil rights lawyers to talk about their latest, pathbreaking, cases and the challenges they face in bringing justice for all. Anya Bidwell of IJ welcomes her colleague Marie Miller, as well as Mark Silverstein, Legal Director of the ACLU-Colorado, and Sam Thypin-Bermeo a civil rights lawyer in Miami. Each discusses a recently filed case where law enforcement officers are alleged to have gone far beyond the bounds of the Constitution. Click here for transcript. Johnson v. Staab (complaint) Maple v. Stella (complaint) Rosales v. Alexandria PD 50 Shades of Government Immunity Constitutional GPA

Two tales of the criminal justice system this week, with the Excessive Fines Clause and the Fourth Amendment both playing a part. First, in the Second Circuit, Ari Bargil tells us how an ingenious scheme of selling marijuana over an app hits a snag when the funds have to go through the bank. Which is subject to all kinds of federal laws. What about the law forbidding excessive fines? For that it gets a little complicated. Then it's off to the Ninth Circuit where John Wrench details a traffic stop with an “inventory search.” Did the cops really make it just to ensure the defendant didn’t lose his stuff? Many of us our skeptical, but somehow the conviction stands. Click here for transcript. U.S. v. Patterson U.S. v. Anderson Blow – Courtroom Scene World of Trouble

Not many lawyers alive today can say they’ve litigated a Thirteenth Amendment case (yes, that amendment; the one about slavery). But we at IJ have one, and we’re asking the Supreme Court to take a look at it. What’s before the Court is whether prosecutors who—under political pressure—made a bogus case against a group of nurses are “absolutely immune” from the nurses’ civil rights lawsuit. IJ’s Ben Field explains the stakes in this case from the Second Circuit. Then, Jaba Tsitsuashvili of IJ tells us of a Minnesota police department that holds every person who wasn’t born in the U.S. until it hears back from I.C.E., whether they’re a citizen or not. Um, is that a problem? Jaba explains how the Eighth Circuit explained that, oh yes, it is. Click here for transcript. Cert petition in Anilao v. Spota Anilao v. Spota (3d Circuit) Parada v. Anoka County Bound By Oath Episode on Absolute Immunity

You got insurance is not just a question they ask at the doctor’s office. Most of the time when someone sues the government—especially a local government—there’s at least some insurance potentially available to pay for the government’s defense and to pay a claim. But insurance policies are famous for having exclusions. And it turns out that in bunch of lawsuits in the Sixth Circuit there are exclusions for property rights and taxes that are making things complicated for property-tax-collecting counties. These come in the wake of “equity theft” cases, and court rulings that these can constitute a taking. IJ’s Dan Knepper joins us for this intersection of insurance and civil rights law. Also, we go down to the Eleventh Circuit for a life insurance policy and a tragic story of “suicide-by-cop.” Turns out the standard exclusion in a policy for suicide can count even if that happens indirectly. Finally, if you haven’t heard our “12 Days of Short Circuit Christmas” on our separate bonus episode, stick around until the end for a song about 12 days and 12 federal circuits. Click here for transcript. Law Students: Apply to be a 2023 summer fellow at IJ! Safety Specialty Insurance Co. v. Genesee County Board North American Co. for Life & Health Insurance v. Caldwell Rafaeli, LLC v. Oakland County Short Circuit episode on Rafaeli

A very short episode for the Holidays. Sung by members of the Institute for Justice. Click to listen, but here are the words: On the 1st day of Short Circuit Christmas my federal reporter gave to me A thesaurus under Judge Selya's pine tree On the 2d day of Short Circuit Christmas my federal reporter gave to me Two Calabresi tort rules And a thesaurus under Judge Selya's pine tree. On the 3d day of Short Circuit Christmas my federal reporter gave to me Et al. [Yeah, you know how the song goes. Let’s skip to the 12th, i.e. D.C. Cir., verse & you can see all of them at once] Twelve vacaturs granted Eleven judges named Pryor Ten library courtrooms Nine en banc reversals Eight qualified immunities Seven Chicago professors Six Sutton Stanzas Five Judge Hos Four ex-prosecutors Three Jersey convictions Two Calabresi tort rules And a thesaurus under Judge Selya's pine tree.

One of our oldest friends (well, not really a “friend”) is back, the rational basis test. Turns out the government can justify refusing to give someone a license on the grounds that it’s extra work for the government itself to have to issue the license. That sounds kinda weird, right? IJ attorney Josh House agrees, as he discusses a new case from the Fifth Circuit. But it’s not all bad news this week. In the Sixth Circuit the police can’t receive qualified immunity when they lie on a police report. Turns out that’s an “obvious” constitutional violation. Yeah, who knew? Jared McClain of IJ explains pretty much everyone did. Click here for transcript. Newell-Davis v. Phillips Caskey v. Fenton St. Joseph Abbey v. Castille Taylor v. Riojas

For millions of lower-income Americans, state licensing laws make finding work or opening a small business harder and more expensive—if not outright impossible. So claims the third edition of Licensed to Work, a report of the Institute for Justice. We talk to Lisa Knepper, a co-author of the report, to hear why occupational licensing is such a big deal—and such a big barrier to so many—and what has changed in the five years since the last edition. There’s good news! Yet, so many challenges remain. And as Short Circuit listeners know one way to address those challenges is through judicial engagement. Thus, Josh Windham of IJ also joins us to discuss a recent decision in Pennsylvania where a court found a licensing requirement to be unconstitutional, clearing the way for entrepreneurs like Josh’s client. We hope you enjoy a little policy along with a little law, and we promise there will be no (well, not much) math. Click here for transcript. Licensed to Work 3 Ladd v. Real Estate Commission (2022 decision) Ladd (2020 decision) Bang the Drum All Day

Money makes the world go round. And sometimes the Constitution and our civil rights laws help money out with that. We examine a couple recent cases where bankruptcy and attorney fees awards intersected with constitutional law. First, IJ’s Rob Peccola describes how the Second Circuit followed the Supreme Court’s recent instructions to take Constitution’s use of the word “uniform” seriously. Then, IJ’s Bert Gall joins us for the first time to walk through what the Sixth Circuit had to say on who a “prevailing party” is and what “enduring” means. A whole lot of cash can turn on the answer. Plus, if you like Shel Silverstein, this might be the episode for you. Click here for transcript. In re Clinton Nurseries, Inc. Tennessee NAACP v. Hargett Siegel v. Fitzgerald Smart, read by Shel Silverstein

Just in time for Thanksgiving we have two extremely juicy opinions (from a judicial engagement standpoint), one about the right to earn a living and one on the nondelegation doctrine. First, it’s our old friend Jeff Rowes of IJ who discusses how the Fifth Circuit ruled against a tanning salon that didn’t want to be shut down during the pandemic, but where the court really didn’t seem to want to. And then there’s a concurring opinion that’s all about how the right to earn a living is “deeply rooted.” Then, Trace Mitchell of IJ grabs the reins and takes us for a ride around nondelegation jurisprudence. It’s a case considering Congress’s decision to give governmental power to a private group as a method of regulating the horse racing industry. Giddy up! Click here for transcript. Golden Glow Tanning Salon v. City of Columbus Nat. Horsemen’s Benevolent & Protective Assoc. v. Black Short Circuit Episode on Kentucky right to earn a living case IJ Nondelegation doctrine case

We’re joined by two friends from the MacArthur Justice Center, Emily Washington and Eric Foley, to tell us all about a blood-boiling case of prosecutorial misconduct, concocted evidence, and lying to put a man on death row. They are fighting an epic battle in the Fifth Circuit against many things in their case, but this week we focus on one especially: absolute immunity, a special benefit prosecutors often—but not always—enjoy. Did the prosecutor enjoy it in their lawsuit? Listen to find out. There’s not just one, but two concurrences by Judge Jim Ho of the Fifth Circuit (who news reports say festively sends out Christmas cards, along with his family, using the slogan “Ho, Ho, Ho”). And then IJ’s own Anya Bidwell tells us about “Wanteds.” They’re not warrants, but they’re nevertheless often used. Were they a thing at common law, and are they “reasonable” under the Fourth Amendment? There’s another concurrence that makes the case. Click here for transcript. Wearry v. Foster (3 judge panel) Wearry v. Foster (denial of en banc) Furlow v. Belmar

Everything’s big in Texas. Including that famous English conjunction “and.” For the first time on Short Circuit we have two IJ attorneys based in the Lone Star State on the same episode, Arif Panju and Christie Hebert. They introduce us to two Texan cases from the Texas-dominated Fifth Circuit. First, Arif explains why some voting rights groups didn’t have standing to challenge a few changes to the state’s voting laws even though the new rules seem to have problems. Then, Christie tells the story of “and” under the First Step Act and how two Fifth Circuit Texan judges can disagree so strongly. Further, William Travis—and the em dash—make appearances. Click here for transcript. Texas State LULAC v. Elfant U.S. v. Palomares Letter to the People of Texas and All Americans in the World

When Americans vote it usually means one other thing. Americans suing. And this year is no different. Diana Simpson of IJ joins us, as she did on the eve of the 2020 election, to help summarize and scrutinize hot-off-the-press opinions on ballot access and voting rules for the election on November 8, 2022. We discuss cases in federal and state court involving laws in Pennsylvania, Nebraska, Nevada, Alaska, Georgia, and the town of Mason, Tennessee. Plus, we’re excited to announce the first appearance of Richard Nixon on the podcast. Click here for transcript. Ball v. Chapman (Pa. Supreme Court) Migliori v. Lehigh County Bd. of Elections (3d Circuit) Eggers v. Evnen (8th Circuit) ACLU v. County of Nye (Nevada Supreme Court) Curling v. Raffensperger (11th Circuit) Burrell v. Tipton County Elec. Comm’n (6th Circuit) Nixon’s “last press conference” Carhenge

We recorded an episode live before an audience in New York City! NYC is home to the United States Court of Appeals for the Second Circuit, and it’s an all Second Circuit special. Join IJ’s Patrick Jaicomo as he talks with three former Second Circuit clerks: Maaren Shah, Bruce Green, and Alex Reinert. They dive into three recent Second Circuit cases—a certain defamation action against former President Trump, a case combining qualified immunity and a dog bite, and an attack on the irrationality of how the feds classify marijuana. There’s also reminiscing about our guests' time working for the court. Click here for transcript. McKinney v. City of Middletown Carroll v. Trump United States v. Green

The Institute for Justice has asked the Supreme Court to take a case challenging Kentucky’s Certificate of Need law (aka a “CON law”—very much a double entendre). Two attorneys in the case, Andrew Ward and Bob Belden, discuss how their clients simply want to provide home health care to their own immigrant community, why the law that prevents that violates the Constitution, and how the Sixth Circuit disagreed. There’s a lot of discussion about how the rational basis test turns out to not be so rational. Then the panel moves on to a property rights case, also in the Sixth Circuit, challenging “equity theft.” You’ll learn a few things about law versus equity and why theft by the government is still theft. Click here for transcript. RSVP for Short Circuit Live in NYC on 10/26 here! Tiwari v. Friedlander (Sixth Circuit) Tiwari v. Friedlander (cert petition) Hall v. Meisner Short Circuit 175

The Supreme Court has said that once the police find a reason to pull you over, they can pull you over—even if that’s not at all why they actually want to pull you over. Patrick Jaicomo joins us to discuss a tragic story from the Fifth Circuit where the court denied qualified immunity to an officer, but also questioned why the police should be allowed to conduct pretextual stops in the first place. We also police tactics that seem designed to turn the temperature up, not down. Then it’s off to the First Circuit where Anna Goodman tells us about standing and the Americans with Disabilities Act. Be sure to keep your standing from your merits while listening. Also, we close with a little bit about “cleaned up.” RSVP for Short Circuit Live in NYC on 10/26 here! Click here for transcript. Crane v. City of Arlington Laufer v. Acheson Hotels, LLC Novak v. City of Parma cert petition The Onion’s amicus brief in Novak “Cleaning Up Quotations” by Jack Metzler

Enjoy some intra-Ivy League ribbing with two Yale grads talking law and clerkships from deep inside New York’s oldest university. Short Circuit welcomes David Lat of Original Jurisdiction (f/k/a Article III Groupie) and Michael Yaeger of Carlton Fields and Empirical Justice. After some throat clearing about their alma mater being in the news quite a bit lately—and how for that reason maybe it’s a good thing David and Michael already got their clerkships in—we discuss their experiences working on the Ninth and Third Circuits. We then dive into some cases: David outlines a speech-and-licensing decision where IJ filed an amicus brief, Michael guides us through the weeds of a sentencing case applying the First Step Act, and your host lays out a sovereign immunity opinion involving state court staff where (unlike a certain recent case involving Texas courts) the government doesn’t win (plus—for interested listener(s)—there’s even some Younger abstention!). It’s the first half of a New York Short Circuit Live double header this month. As for the second, on October 26th, you’re invited! Click to RSVP below. RSVP for Short Circuit Live in NYC on 10/26 here! Click here for transcript. Tingley v. Ferguson U.S. v. Chen Courthouse News Service v. Gilmer IJ’s Diet Speech Cert Petition

What’s new in OT22? Quite a bit, it turns out. This is our sixth annual Short Circuit Live Supreme Court Preview from the University of North Carolina School of Law. Once again, the student Federalist Society chapter graciously asked us to visit and preview the upcoming term of the United States Supreme Court, with some lighthearted trivia, a deep dive into a couple cases already being heard by the Court, and a couple more that it might. As in past years, it’s Justin Pearson of IJ vs. Professor Andrew Hessick of UNC. One note for you listeners is that there’s questions from the crowd at the end (which were great!) but you can’t hear them on the podcast. However, don’t worry as our panelists helpfully repeat them for you. By the way, one of those questions comes from a mystery guest . . . Click here for transcript. National Pork Producers Council v. Ross Moore v. Harper Kokesch v. Florida Dept. of Health Moses v. United States Book by the Mystery Guest (that you should read!)

If a doctor says a prisoner needs to take his medication, and you’re a prison guard, you should give the prisoner his medication. A number of prison officials in Utah seem to have failed to do this for someone in detox, leading to his death. Does that violate the Eighth Amendment’s prohibition on cruel and unusual punishments? Yes, said the Tenth Circuit, and the right is clearly established too, defeating qualified immunity. Tori Clark brings us this sobering case where, at least this time, the drunken logic of qualified immunity didn’t rear its ugly head. Also, we discuss what happens when you don’t pay your taxes and then sue about them. Turns out you can’t do that. You also might have your passport taken away. Which raises the question of whether you have a right to do that thing the passport is for—international travel. We pontificate about a Fifth Circuit case concerning taxes and a passport where there’s also a couple elephants in the room. Click here for transcript. Paugh v. Uintah County Franklin v. U.S. Register for Short Circuit Live in New York!

It’s the first Big Sky Short Circuit! Recorded in front of students at the University of Montana School of Law, we examine three cases from the Montana Supreme Court (or heading quickly toward it) from three eminent Montana attorneys. There’s cases on government immunity, racial balance on juries, and voting rights, intersecting with state law and the Montana Constitution. We also explore practicing in Big Sky Country and reforms the state supreme court might want to consider. The podcast was recorded in conjunction with a symposium of the Montana Law Review’s celebration of the 50th anniversary of the adoption of the Montana Constitution. Whether you’re interested in Montana itself, or just in state law principles and how state constitutions interact with the rest of our legal system, we hope you’ll enjoy this broad exploration of those topics. Click here for transcript. L.B. v. United States State v. Wellknown Montana Youth Action v. Jacobsen

When you sue the government for violating your rights do you first need the government’s permission? Unfortunately, the answer is usually “yes.” We look at a pair of recent cases that go in different directions on the issue, and this leads us to some pretty “deep thoughts” about where law comes from and what roles courts and legislatures have in finding remedies to address constitutional violations. The words “common law” come up much more than is generally common for the podcast. First Anya Bidwell explains how the Tenth Circuit denied a prisoner a chance to sue a prison guard based on a recent Supreme Court decision that effectively closed the door on new remedies when federal officials violate the Constitution. Then, in contrast, Ben Field details a case from the Michigan Supreme Court where the majority recognized a remedy for violations of the state constitution. In addition, the dissent says some interesting things about legal history that we explore. It’s often repeated that if there is a right there is a remedy too. We try to find out how true that actually is. Click here for transcript. Join us for Short Circuit Live in NYC on Oct 26! Silva v. U.S. Bauserman v. Unemployment Insurance Agency 50 Shades of Government Immunity

We all know that guests, like fish, begin to smell after three days, But what about short-term rental ordinances? We look at a pair of regulations from New Orleans and Jersey City. One the Constitution bids farewell to, but the other still stinks. Ari Bargil explains how the Fifth Circuit found the New Orleans scheme lacking under the dormant Commerce Clause. However, Erica Smith Ewing—after explaining how Jersey mayors shake down various industry groups—tells us how the Jersey City ordinance survived a trio of challenges, but at least sparked an interesting concurrence about the future of regulatory takings law. Come for the guests, stay for the fish. And you’ll learn a smidgen about Elizabethan author John Lyly as well. Click here for transcript. Hignell-Stark v. City of New Orleans Nekrilov v. City of Jersey City John Lyly, Euphues and His England Gideon Kanner, Making Laws & Sausages Register for Short Circuit Live in NYC!

Do you know your Indian Law from your Tribal Law? If not, Minnesota appellate attorney Scott Flaherty joins us to discuss a recent Seventh Circuit case where a Wisconsin band of the Ojibwe vindicated their treaty rights. Indian law is notoriously complicated with a lot of unsettling history, but Scott helpfully walks us through this latest chapter. Also, pursuing his white whale of Younger abstention, Sam Gedge of IJ details a refreshing rejection of that doctrine in the Fourth Circuit. Could this harpoon hit the spot? Captain Ahab himself also makes an appearance. Click here for transcript. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Evers Jonathan R. v. Justice Younger v. Harris Episode on Younger v. Harris with Fred Smith Register for Short Circuit Live in New York! Scott Flaherty Sam Gedge Anthony Sanders

Property rights leads the way this week, with a little bit of intervention thrown in. Paul Avelar of IJ joins us to present a Sixth Circuit case where the owners committed the crime of landscaping their lawn without permission. He also discusses some recent goings on in the city of Nashville, Tennessee to do with home based businesses and code enforcement, including a recent ruling of the Tennessee Supreme Court. In addition, your host Anthony Sanders tells a tale of wine and intervention, also in the Sixth Circuit. Don’t worry, there wasn’t “an intervention” related to wine, but the intervenors who aren’t happy about wineries were able to intervene. Click here for transcript. See Short Circuit Live in New York on October 26! Stevens v. City of Columbus Wineries v. Township of Peninsula Shaw v. Nashville Code Snitching in Nashville (Radley Balko story)

We welcome Nolan Gray on this week, author of the new book Arbitrary Lines: How Zoning Broke the American City and How to Fix It. Nolan is a city planner, scholar, and writer on all things urban. And he has it out for “zoning,” that method city planners love so much where they separate land uses from each other and end up controlling the finest details of what people get up to on their own property. He joins us for a detailed journey through zoning’s history, how humans got along for so long without it, why it creates so many more problems than it solves, and why it’s become so much worse. Further, he explains why often what we think of as “zoning” is actually something else and that there are many land-use tools cities have that would work fine without it. Click here for episode transcript. Arbitrary Lines Village of Euclid v. Ambler Realty Co. Nolan Gray California YIMBY Anthony Sanders

A couple cases this week where federal courts, at least in part, paid attention to the right things. Joined by the leaders of IJ’s Project on Immunity and Accountability, Anya Bidwell and Patrick Jaicomo, we dig into a couple recent denials of qualified immunity. Patrick discusses a case from the Fifth Circuit where a sheriff’s deputy committed some extremely heinous acts while on a “welfare check.” There’s Fourth Amendment and due process claims, and they’re addressed in a rather unusual way. Then Anya flies us out to Honolulu for a building inspector who was very hard to please. It’s a racial discrimination appeal under a civil rights law that goes back to before the Fourteenth Amendment. But first Patrick tells us of his musical exploits on a home synthesizer. Click here for transcript. Tyson v. County of Sabine Toshikawa v. Seguirant Register for Short Circuit Live in NYC on October 26! Cert petition in Minnesota CSI (IJ case) Anya & Patrick’s article on Recalibrating Qualified Immunity Anya Bidwell Patrick Jaicomo Anthony Sanders

Georgia criminal defense attorney Andrew Fleischman joins us to talk about a unicorn. Yes, the Eleventh Circuit recently found a state prosecutor was not absolutely immune from a civil rights lawsuit, where a witness was arrested for not testifying . . . after he actually showed up to testify. This kind of case is extremely rare, and Andrew discusses how rare, and what its effect might be in a place like the Fulton County prosecutor’s office. Then it’s off to the Fifth Circuit where Alexa Gervasi of IJ discusses an absolutely tragic case where a prisoner dies and the guards are notgranted qualified immunity. Not quite a unicorn, but also a rare beast. Also, speaking of Fulton County, STICK AROUND TO THE END. Andrew educates us on why if the Fulton County District Attorney prosecutes former President Trump the case could be removed to federal court. And, he gives a prediction about whether that will happen. Click here for transcript. Kassa v. Fulton County Moore v. LaSalle Management Co. Bound By Oath episode on prosecutorial immunity (with Lara Bazelon) Removal statute for federal officials prosecuted in state court