Short Circuit

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 deci

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. F

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 do

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 . . . 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 Fra

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 i

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

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 B