Short Circuit

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 muc

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. 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. 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-tho

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. Register for March 31 conference on Meyer v. Nebraska! Article in UCLA Law Review, “One-Strike 2.0”

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. 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. 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”! 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.

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. 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. 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 A

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

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. 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

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