Short Circuit

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 fin

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

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! 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. 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? 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. 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.   Parents Defending v. Linn Mar Community School Dist. Johnson v. Chesapeake Louisiana, LP Event on Mere Natural Law Short Circuit e

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. 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! National Press Photographers v. McCraw U.S. v. McCall Michigan Drone Surveillance case Short Cir

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. 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

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. 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! Van Sant & Co. v. Calhan East St. Louis v. Netflix Ora

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. 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

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

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. 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. 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.