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. S

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

First of all: PARENTAL ADVISORY! If you have children nearby you might want to save part of this episode for later. It doesn’t happen until just after 32 minutes into the episode, but the naughty language the Seventh Circuit quotes in one of this week’s cases forces IJ’s Sam Gedge to choose between dishonest modesty and, as he puts it, revealing the un-expurgated truth. Like a gentlemen, he goes for the latter while discussing a qualified immunity case about a “kung fu cop” with “multiple blackbelts” who gets a little punchy with a man who had a few too many. After that things just get weird as Sam introduces us to the first case in the American (reported, at least) tradition to use a certain word on George Carlin’s famous list. We close with a conversation about Patrick O’Brian’s and Jane Austin’s editing styles. But before any of that IJ’s Jared McClain tells us how to successfully make a mandamus claim against the Capitol Police. Although it seems you can get close in the D.C. Circuit, the common law gaunt

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 w

We’re gonna read you the Riot Act. Again. An old friend of Short Circuit returns, the Anti-Riot Act. Perhaps (?) named in homage to its 18th century predecessor, the Congressional statute received a facial test at the Seventh Circuit, and IJ’s Kirby Thomas West tells us how it fared in the face of a guy who requested that everyone bring their family and a brick to a “riot.” He did not do so well in court, but perhaps the Anti-Riot Act has problems anyway? Then we go for a drive down a Houston freeway where Sam Gedge makes a citizen's arrest of a qualified immunity claim while drinking at a local flea market at 2am. The Fifth Circuit served up a wild ride of a case that is too good to pass up but also holds bigger lessons for how judges perceive “split-second decisions” and premeditated lies. U.S. v. Betts Hughes v. Garcia The Riot Act Short Circuit 146 (4th Cir. Anti-Riot Act case)

Stories we hope our listeners can relate to this week: borrowing cars and lousy neighbors. First, from the Sixth Circuit, IJ’s Rob Frommer details how a man sitting in the passenger seat of a running car somehow lost his Fourth Amendment standing. And went to prison. And then in the Second Circuit your host explores what can be done when your neighbor is an embassy. It’s an all-too-familiar tale of a building project gone awry but with a twist of sovereign immunity.   Register for the May 10 open fields conference! U.S. v. Rogers Harvey v. Sierra Leone Neighbors 1980’s opening song Fawlty Towers—The Builders

We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars. Register for the May 10 open fields conference! Connell v. CIA Lozano v. Collier Audio Arguendo (Michel’s oral arguments podcast)

We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so. Register for the May 10 open fields conference! US v. Hay Citizens United to Protect Our Neighborhoods v. Chestnut Ridge Episode on 7th Cir pole camera case Episo

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! Beyo

An all Seventh Circuit, all Chicago episode. IJ attorney Andrew Ward drops in to tell a tale of online support for terrorists. Or at least FBI agents posing as terrorists. This recent case does not weigh in on, but raises the issue, of whether computer code is speech. Then we turn to the nitty gritty of unions, small employers, pension plans, and legalized cartels. Things are a bit topsy turvy in this area—and often sound pretty unfair. Your host gives a bit of a lay of the land as it’s been expressed by Judge Easterbrook of the Seventh Circuit over the years. IJ conference on the Open Fields Doctrine (May 10) Cato conference on the right to earn a living (April 18) U.S. v. Osadzinski Bulk Transport Corp. v. Teamsters No. 142 Pension Fund Central States v. Gerber Truck

The Short Circuit roadshow comes to UVA in Charlottesville, Virginia, where we finally focus on the Fourth Circuit. Fresh off her Supreme Court argument last week in Gonzales v. Trevino, Anya Bidwell turns back to the federal courts of appeals with some local guests. They are Professors Rachel Bayefsky and Lawrence Solum of UVA and Greg Cui of MacArthur Justice (and UVA). They discuss recent Fourth Circuit cases about cruel and unusual punishment in prison, a non-immune judge on a search, and the rational basis test turned up to 12 (that is, Rule 12(b)(6)) in a land use dispute. Jones v. Solomon Gibson v. Goldston SAS Associates 1 v. Chesapeake Video from Gibson case Legal Theory Blog Bayefsky on Judicial Institutionalism Bayefsky on Public-Law Litigation Solum on Legal Personhood for AI

Is qualified immunity a narrow doctrine focused on protecting the police when they make “split second decisions”? If you listen to its defenders you would get that impression. The reality is far, far different. And IJ now has the stats to back that up. In this special episode, we welcome on IJ’s Bob McNamara and data scientist Jason Tiezzi to discuss a new report Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises. It presents an analysis of over 7,000 federal appellate decisions over an eleven-year period and tells us a lot about how qualified immunity actually works in practice. We dig into many of its findings, such as that only 27% of appeals where qualified immunity was at issue involved excessive force. And that almost one in five qualified immunity appeals involved First Amendment claims. Listen in to hear the details, including about how this massive study was put together. And click below in the show note

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

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

A special episode on artificial intelligence and the law, including how we find the law. Ed Walters, a pioneer in bringing AI to legal research, joins us to separate the artificial wheat from the chaff. He explains that a lot of the recent news about the failures of AI models have been due to using the wrong models for the wrong things, not the models themselves. He walks us through a near future when lawyers can use AI to not just find points of law but write memos or briefs. We’re also joined by IJ’s Paul Sherman, our resident AI aficionado, who recently wrote a letter to the Fifth Circuit about a proposed rule it has regarding AI use and brief writing. There’s a lot of promise out there but also a lot of danger in the government—including courts—overreacting. We also talk a bit about copyright issues and AI and what’s on the horizon. Are we approaching the Singularity? Ed thinks likely not, but there’s still worries we should be aware of.

An electric episode where we just might short the circuits. That’s because we dive into some capital “D” Drama at the Federal Energy Regulatory Commission. Amid fighting and commissioner turnover related to renewable energy prices and an election, FERC makes a consequential decision without first going to the full board. And later the Sixth Circuit catches that hand in the judicial cookie jar. Dan Knepper of IJ drops by to explain some of the complexities of energy policy and how to remedy its violation when everyone doesn’t dot their i’s. Then Bobbi Taylor of IJ leads us (along with 43 police officers) into a home where no drugs (or the suspect) are found but many family members are seriously injured. Qualified immunity? The Third Circuit prefers a jury. Also, you learn what Sir Walter Scott meant by a “palmer.” And does anyone use paper copies of the Federal Reporter anymore? PJM Interconnection v. FERC Anglemeyer v. Ammons Politico piece Dan mentions Sir Walter Scott's Marmion

We’re joined by the SCOTUS Ladies, two “Supreme Court super fans.” They are Anastasia Boden and Elizabeth Slattery and they’re here to talk about their new blogging project but also to share their wider knowledge of the Constitution, public interest litigation, and even the federal courts of appeals. They each pick a case from the Fifth Circuit by Judge Willett, who you’ll learn is a very self-proclaimed “middle-management circuit judge.” First it’s the big question everyone is asking: Has the Supreme Court impliedly overruled Humphrey’s Executor? Minds seem to differ among the judges. Plus we have a bit of a rumble about structure vs. substance. Then we Netflix and chill while a rogue prosecutor goes after the streaming service and won’t let go—until the court recognizes a loophole in Younger abstention. Consumer Research v. CPSC Netflix v. Babin Humphrey’s Executor v. U.S. SCOTUS Ladies

The Ninth Circuit recently had some pretty harsh words for the FBI’s egregious behavior when the Bureau decided to crack open some vaults in Los Angeles. The FBI tried to forfeit all kinds of property held in these vaults from innocent owners. Rob Frommer of IJ tells us all about this IJ case and the Ninth Circuit’s indignation. Then it’s off to the Second Circuit for a different kind of police misconduct, but misconduct nevertheless. IJ’s Katrin Marquez details a police officer’s attempts to silence someone simply because he told the cop to turn his headlights on. The case demonstrates how hard it can be to enforce the First Amendment and how necessary the courts of appeals can be. There’s also some ‘80s nostalgia for those into live TV syndicated specials. 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 interpret