Short Circuit

It's just so easy these days to put a camera on a pole and record everything that happens in someone's front yard for eight months. So easy that we keep getting cases where that's exactly what the police do. Without a warrant. IJ attorney Josh Windham unpacks the latest, out of the First Circuit, Courier font and all. The judges don't agree, but the rest of us can that this issue is likely heading to the Supreme Court soon. Then Anthony Sanders tells a story from Indiana where its supreme court drew a line in the sand dunes about what its legislature can delegate. But it's not the "nondelegation doctrine" you've heard about. RSVP for Short Circuit Live and Constitutional G.P.A. on June 30, 2022 in Los Angeles!, https://ij.org/event/constitutional-gpa-launch-at-ucla/ U.S. v. Moore-Bush, http://media.ca1.uscourts.gov/pdf.opinions/19-1582P2-01A.pdf Holcomb v. Bray, https://public.courts.in.gov/Decisions/api/Document/Opinion?Id=RRvDhps1kFgz0co94EC6Pod3mOXwtu9lxW0s2dBTG0ufJmLLaYvsh4WhpGXxa8iE0 The previous Short Circuit podcast on camera poles, https://shortcircuit.org/sc_podcast/183/ Blog post on Holcomb case, https://ij.org/cje-post/legislators-timing-themselves/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/

We discuss a couple legal immunities, one listeners will be familiar with and one that's pretty unknown. The second is being addressed by our special guest, Aliza Shatzman. She is the co-founder of The Legal Accountability Project, a new nonprofit whose mission is to ensure that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Aliza had a harrowing experience as a law clerk and found that the laws that apply to other government employees often don't extend to those in the judicial branch. She also presents a recent case from the Fourth Circuit about a judicial branch employee who brought a number of claims to try and get around sovereign immunity—and actually succeeded on a few of them. Then Kirby Thomas West of IJ discusses a Fifth Circuit case with terrible facts, but a good outcome on the qualified immunity front. Strickland v. U.S., https://www.ca4.uscourts.gov/opinions/211346.P.pdf Sims v. Griffin, https://www.ca5.uscourts.gov/opinions/pub/21/21-40457-CV0.pdf Aliza on Ipse Dixit, https://shows.acast.com/ipse-dixit/episodes/aliza-shatzman-on-holding-judges-accountable Untouchable Judges? What I've Learned About Harassment in the Judiciary, and What We Can do to Stop It, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4096245 Aliza's Statement for the Record to Congress, https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-20220317-SD005.pdf Aliza Shatzman and the Legal Accountability Project, https://www.legalaccountabilityproject.org/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/

Recording in front of a live audience at the 2022 Institute for Justice's Law Student Conference, we look at some of the best, and some of the worst, from the Fourth Circuit. First, Justin Pearson explains why a restriction on “political” advertising on the side of buses was unconstitutional even though it recognized the side of a bus is not a “public forum.” Then, Michael Bindas gives us his best sommelier (or is it wino?) impersonation and discusses a tipsy opinion allowing North Carolina to prevent out-of-state retailers from shipping wine to the state's consumers. It's pretty much not what the Supreme Court has said about the dormant Commerce Clause and alcohol. RSVP to Constitutional GPA and Short Circuit Live at UCLA on Thursday, June 30th!, https://ij.org/event/constitutional-gpa-launch-at-ucla/ White Coat Waste Project v. Greater Richmond Transit Co., https://www.ca4.uscourts.gov/opinions/201710.P.pdf B-21 Wines, Inc. v. Bauer, https://www.ca4.uscourts.gov/opinions/211906.P.pdf Tennessee Wine & Spirits Retailers Assoc. v. Thomas, https://www.supremecourt.gov/opinions/18pdf/18-96_5i36.pdf Michael Bindas, https://ij.org/staff/mbindas/ Justin Pearson, https://ij.org/staff/justin-pearson/ Anthony Sanders, https://ij.org/staff/asanders/

A couple headline-grabbing, government-thumping constitutional-heavyweight cases coming at you this week. First, Rob Johnson explains how he filed a brief on the importance of the right to a jury trial when he checked the news to find the Fifth Circuit had just said the same thing in a different case. He details why this is a big deal (and a good deal) and not the end-of-humanity some people have been shouting about. Then, Dan Alban tells us of how the Eleventh Circuit just found almost all of Florida's “social media law” unconstitutional, and why this isn't really that surprising. Except for the fact that the Fifth Circuit has cryptically upheld Texas's similar law. Also, it's towel day. Jarkesy v. SEC, https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf Netchoice, LLC v. Poitier, https://media.ca11.uscourts.gov/opinions/pub/files/202112355.pdf Rob's post on the SEC case, https://ij.org/cje-post/fifth-circuit-vindicates-ijs-fight-for-the-right-to-an-impartial-jury/ The BSG Big Mac episode (actually Season 1), https://galactica.fandom.com/wiki/The_Hand_of_God Dan Alban, https://ij.org/staff/dalban/ Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/

When is a case over? As you'll learn, that depends on a lot of weird stuff. IJ attorney Will Aronin walks us through the Ninth Circuit's recent decision on everybody's favorite bedtime reading, Rule 68 and offers of judgment. Seriously, it's an untapped resource of the federal courts with some counterintuitive traps for lawyers who don't read the rules. Then Jeff Redfern of IJ tells us about the latest chapter in mask lawsuits, this time from the Eighth Circuit. The court says part of the case (all of the case?) is moot, but with the pandemic it's hard to know with any finality. There's an invocation of Sisyphus that might not surprise you. Kubiak v. County of Ravalli, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/03/21-35542.pdf The Arc of Iowa v. Reynolds, https://ecf.ca8.uscourts.gov/opndir/22/05/213268P.pdf Will Aronin, https://ij.org/staff/will-aronin/ Jeffrey Redfern, https://ij.org/staff/jeffrey-redfern/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit is proud to present to you Professor Marin Levy of Duke University School of Law. She is a top scholar on the federal judiciary, including its history, how it has evolved, and how it actually works. Plus, she's educated the world about the federal (and state!) courts through the magic of Twitter threads. We talk to her about what's so interesting about the federal courts (with some “short” remarks about the “circuit” courts) and how she got started Tweeting them. After that Kirby Thomas West of IJ tells us about a Second Circuit case where the government didn't do enough to pass the First Amendment (at least for now) even though the plaintiff wasn't the most sympathetic. And we go back to Marin to detail a Ninth Circuit case with an even less sympathetic party, but where the court overlooked the importance of some pretty intriguing issues, such as whether there's a Fourth Amendment violation if the government comes in and copies all of your stuff. Register for IJ's Judicial Engagement Forum on the Michigan Constitution, https://ij.org/event/cje-forum-mi-constitution/ Duke Law Podcast on Marin's many threads, https://law.duke.edu/video/duke-law-podcast-prof-marin-k-levy-strikes-twitter-gold-judicial-gems Cornelio v. Connecticut, https://www.ca2.uscourts.gov/decisions/isysquery/a3e9962c-86fc-4de3-91af-d5775168c64e/13/doc/20-4106_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/a3e9962c-86fc-4de3-91af-d5775168c64e/13/hilite/ U.S. v. Rosenow, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/27/20-50052.pdf Professor Marin Levy, https://law.duke.edu/fac/levy/bibliography/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/

A couple issues near-and-dear to many of your hearts this week: Money and Facebook. First, if you win a case against the government are you a "prevailing party" deserving of an attorneys fees award? North Carolina officials argued you're not if you do so well that the law you're challenging actually disappears. Luckily the Fourth Circuit shot that argument down. Alexa Gervasi explains. But meanwhile the Sixth Circuit shot down quite a lot of the First and Fourth Amendments when a police department took great vengeance upon a man with the audacity to . . . create a parody Facebook page. As Ari Bargil tells us, it's a case demonstrating why everyone hates lawyers. If you're in Michigan sign up now for our May 20, 2022 forum on Judicial Engagement and the Michigan Constitution!, https://ij.org/event/cje-forum-mi-constitution/ Grabarczyk v. Stein, https://www.ca4.uscourts.gov/opinions/211209.P.pdf Novak v. City of Parma, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0090p-06.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Ari Bargil, https://ij.org/staff/ari-bargil/ Anthony Sanders, https://ij.org/staff/asanders/

It's a First Amendment fiesta at Short Circuit this week! Tori Clark explains how in the Eighth Circuit it's hard to sue the government to protect your right to free speech when the law is privately enforced. And we're not talking about Texas here, but people not acting so nice in Minnesota. Further down the trail, things went a little berserk in Oregon, and a pro se legislator won himself another day in court in the Ninth Circuit. Sam Gedge has hunted through the briefs. If you're in Michigan come to our State Forum on Judicial Engagement and the Michigan Constitution! Friday, May 20, 2022 at noon. There's also a free lunch. RSVP here: https://ij.org/event/cje-forum-mi-constitution/ Christian Action League v. Freeman, https://ecf.ca8.uscourts.gov/opndir/22/04/203618P.pdf Boquist v. Courtney, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/04/21/20-35080.pdf Tori Clark, https://ij.org/staff/tori-clark/ Sam Gedge, https://ij.org/staff/sam-gedge/ Anthony Sanders, https://ij.org/staff/asanders/

Suing the United States government is really hard. So hard that someone's family might not get to even if the government is at fault for that person dying in a flood. Adam Shelton explains why that luckily might not be true in this case, but all too often is. Then Diana Simpson walks us through a procedural pretzel of property rights preventing people from putting up homes. She also discusses some old cases you might not know about, but really should. Barron v. United States, https://www.ca5.uscourts.gov/opinions/pub/21/21-50776-CV0.pdf Rice v. Village of Johnstown, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0068p-06.pdf IJ's Amicus Brief in Xi v. Haugen, https://ij.org/wp-content/uploads/2021/11/Xiaoxing_Xi-amicus.pdf Eubank v. Richmond, https://supreme.justia.com/cases/federal/us/226/137/ Adam Shelton, https://ij.org/staff/adam-shelton/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/

We focus in on two Latin words this week: habeas and mandamus. Both usually mean "you lose." But things somehow turned out differently in the Fourth Circuit and Fifth Circuit. Hear the story of a man trapped in prison for a small drug sale for almost a decade who fights his way through the state and federal courts and wins himself a new trial. IJ's Bob Belden tells that tale. And then there's a story about guns, the Internet, speech, the differences between Texas and New Jersey, and transfer orders. Alexa Gervasi gets us up to speed on that saga. She also previews a new IJ case about a prosecutor working for a judge he practiced before. It's as bad as it sounds. Wilson v. Midland County (IJ's prosecutor case), https://ij.org/case/midland-prosecutor/ Witherspoon v. Stonebreaker, https://www.ca4.uscourts.gov/opinions/197276.P.pdf Defense Distributed v. Bruck, http://www.ca5.uscourts.gov/opinions/pub/21/21-50327-CV0.pdf Bob Belden, https://ij.org/staff/bob-belden/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit Live returns with an all-star all-D.C. Circuit panel! IJ attorney Anya Bidwell hosts a discussion with three Supreme Court lawyers (and former D.C. Circuit clerks), Lisa Blatt, Kelsi Brown Corkran, and Paul Clement. They reminisce about their days clerking for D.C. Circuit judges and analyze three recent circuit opinions on liability under terrorism laws, executive privilege, and no-fly lists. Atchley v. AstraZeneca UK Limited, https://www.cadc.uscourts.gov/internet/opinions.nsf/5758882D6D6A4186852587C00054938F/$file/20-7077-1929043.pdf Trump v. Thompson, https://www.cadc.uscourts.gov/internet/opinions.nsf/913002F9EFB94590852587A60075CC4F/$file/21-5254-1926128.pdf Jibril v. Mayorkas, https://www.cadc.uscourts.gov/internet/opinions.nsf/FFAEBA52B8CB71F4852587B20053253D/$file/20-5202-1927517.pdf Lisa Blatt, https://www.wc.com/Attorneys/Lisa-S-Blatt Kelsi Brown Corkran, https://www.law.georgetown.edu/faculty/kelsi-corkran/ Paul Clement, https://www.kirkland.com/lawyers/c/clement-paul-d Anya Bidwell, https://ij.org/staff/anya-bidwell/

Some property owners sued an arm of the State of Louisiana for damages and won a $10 million judgment. Wow, that's real money! Except, because the lawsuit was in state court they can't collect on it unless the legislature gives it to them. Which it doesn't want to do. So the money isn't so real after all. They then went to federal court, but the Fifth Circuit gave them some bad news. IJ's Jeff Redfern explains. When we move to the Ninth Circuit, however, it's all smiles. The court said an antitrust case could move forward against members of the California Dental Board. Your host Anthony Sanders gives the latest in turning the antitrust laws on the most anticompetitive of them all, the regulators. Ariyan, Inc. v. Sewerage & Water Board of New Orleans, https://www.ca5.uscourts.gov/opinions/pub/21/21-30335-CV0.pdf SmileDirectClub, LLC v. Tippins, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/17/20-55735.pdf Bound By Oath podcast, https://shortcircuit.org/center-for-judicial-engagement/sc/14th-at-150-podcast/ Remedying the Loss of a Right, https://ij.org/cje-post/remedying-the-loss-of-a-right/ Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Anthony Sanders, https://ij.org/staff/asanders/

Michigan lawyer and YouTube legal sensation Steve Lehto joins us this week. We talk a bit about his career as a broadcaster, consumer protection lawyer, and host of an internet show with 300,000 subscribers. Then we get into some language he never got to “play on the radio.” All because a few police officers threw a man out of a $3 county fair for wearing a t-shirt with a famous saying of the group NWA. Or at least that's what the Sixth Circuit said in denying the officers qualified immunity. Also, our old friend Rob Peccola comes back with the latest in the landlord wars in Minneapolis, and how the Eighth Circuit didn't see no takings. Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/ Steve's YouTube page, https://www.youtube.com/c/stevelehto Wood v. Eubanks, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0025p-06.pdf 301 LLC v. City of Minneapolis, https://ecf.ca8.uscourts.gov/opndir/22/03/203493P.pdf Yim v. City of Seattle, https://www.courts.wa.gov/opinions/pdf/968179.pdf (Seattle “first-in-time rule”) Law Office of Steve Lehto, http://lehtoslaw.com/ Rob Peccola, https://ij.org/staff/rpeccola/ Anthony Sanders, https://ij.org/staff/asanders/

Like owls? We've got owls. Two of them. But they don't like each other. Ben Field explains how the Ninth Circuit adjudicated with this Parliament of owls, and how a 12 gauge shotgun is involved. In addition, Evan Lisull tells a story of "chalking," the police, and the First Amendment. Both from another Ninth Circuit case, but also from his own brush with the law. Throw in some qualified immunity and admin law, and you've got a very festive St. Patrick's Day episode (minus anything Irish). Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/ Friends of Animals v. U.S. Fish & Wildlife Service, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/04/21-35062.pdf Ballentine v. Las Vegas Metropolitan Police Department, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/08/20-16805.pdf Rivas-Villegas v. Cortesluna (case questioning circuits clearly establishing law), https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pdf Ben Field, https://ij.org/staff/ben-field/ Evan Lisull, https://ij.org/staff/evan-lisull/ Anthony Sanders, https://ij.org/staff/asanders/

As news followers over the last few years will know, grand jury records are super secret. But sometimes judges allow the word to get out, under certain narrow circumstances. Is one of them just that the records are old and historians find them interesting? Sorry, says the First Circuit, in the latest installment of a circuit split. Rob Frommer tells us all the history. Also, can the IRS get around the Administrative Procedure Act through some creative lawyering? No, says the Sixth Circuit. John Wrench walks us through a rhetorical lashing of our tax collectors. Finally, come see Short Circuit Live in DC on April 6, 2022! The link to RSVP and join us is here: https://ij.org/event/scl/ In re: Petition for Order Directing Release of Records, http://media.ca1.uscourts.gov/pdf.opinions/20-1836P-01A.pdf Mann Construction, Inc. v. United States, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0041p-06.pdf Short Circuit Live at University of Georgia, https://shortcircuit.org/sc_podcast/124-live-at-uga-law/ Rob Frommer, https://ij.org/staff/rfrommer/ John Wrench, https://ij.org/staff/john-wrench/ Anthony Sanders, https://ij.org/staff/asanders/

How do you own a wild animal? Why are drug dogs given such a benefit of the doubt? Can bees "trespass?" Why did the Medieval French put pigs on trial for murder? And does the Queen of England really own all the swans? This is an episode for animal lovers, and lovers of legal mysteries more generally. Joining us are Professors Katy Barnett and Jeremy Gans of the University of Melbourne to discuss their new book "Guilty Pigs: The Weird and Wonderful History of Animal Law." It explores the ins and outs of all the ways that animals and the law intersect, from the curious to practical to the constitutional, from dogs to bees to foxes. Not only that, it marks the first time Short Circuit has had an Australian (two of them!) on the show. Come for the exploration of the intersection of drug dogs and civil forfeiture, stay for the ownership rights of the IKEA monkey. Guilty Pigs: The Weird and Wonderful History of Animal Law, https://www.amazon.com/Guilty-Pigs-Wonderful-History-Animal-ebook/dp/B09CGQDNGD Florida v. Harris, https://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf IJ amicus brief in Florida v. Harris, https://ij.org/amicus/florida-v-harris/ Florida v. Jardines, https://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf Short Circuit episode on Robot Law, https://shortcircuit.org/sc_podcast/163/ Katy Barnett, https://law.unimelb.edu.au/about/staff/katy-barnett Jeremy Gans, https://law.unimelb.edu.au/about/staff/jeremy-gans Anthony Sanders, https://ij.org/staff/asanders/

Wanna get mad? This week we've got you covered. Two cases where the government plays by different rules from the rest of us. First Jaba Tsitsuashvili explains how the 11th Circuit went out of its way to excuse the Department of Justice's failure to raise a legal argument to do with a traffic stop search that private attorneys would not get away with. And Josh House tells us what the 8th Circuit thinks about property when you don't pay property taxes. The result isn't pretty. Along the way, however, there's a few laughs and in the 11th Circuit case we hope you appreciate that "the dissent comes with receipts." United States v. Campbell, https://media.ca11.uscourts.gov/opinions/pub/files/201610128.enb.pdf Tyler v. Hennepin County, https://ecf.ca8.uscourts.gov/opndir/22/02/203730P.pdf https://ij.org/staff/joshua-house/ https://ij.org/staff/jaba-tsitsuashvili/ https://ij.org/staff/asanders/

Following in the footsteps of last week's Super Bowl halftime show, we're keeping it West Coast today. Two cases from the Ninth Circuit that are Very Ninth Circuit. First, Bob McNamara explains how the overbreadth doctrine invalidated a restriction on speech related to violating immigration law. Then, Joe Gay describes the many ways the court found an Oakland, California ordinance to be just fine constitutionally even though it forces people to pay a lot of money just to move back into their house. Nobody raps, but there are unintentional references to the Norwegian pop group a-ha. United States v. Hansen, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/10/17-10548.pdf Ballinger v. City of Oakland, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/01/19-16550.pdf Robert McNamara, https://ij.org/staff/robert-mcnamara/ Joe Gay, https://ij.org/staff/joe-gay/ Anthony Sanders, https://ij.org/staff/asanders/

The Institute for Justice just issued a new report, 50 Shades of Government Immunity, about what happens when you go to state--not federal--court after the government violates your rights. The report grades every state for its access to justice as an alternative to the federal judiciary. Unfortunately, with just a couple exceptions, it doesn't paint a pretty picture. Two IJ attorneys, Anya Bidwell and Patrick Jaicomo, and Professor Alex Reinert of Cardozo Law, join Short Circuit to discuss the report and Professor Reinert's related research. You'll learn that while going to state court isn't nearly as easy as some at the U.S. Supreme Court assume it to be, there are prospects for reform as well. 50 Shades of Government Immunity, https://ij.org/report/50-shades-of-government-immunity/ New Federalism and Civil Rights Enforcement, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1478&context=nulr Protecting Everyone's Constitutional Rights Act (IJ's model legislation), https://ij.org/legislation/protecting-everyones-constitutional-rights-act/ Alex Reinert, https://cardozo.yu.edu/directory/alexander-reinert Anya Bidwell, https://ij.org/staff/anya-bidwell/ Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/ Anthony Sanders, https://ij.org/staff/asanders/

Divorce can be hard on the kids. Especially when the divorce was 40 years ago, the government doesn't believe it happened, and your U.S. citizenship depends on whether it did. New York litigator Alexandra Tseitlin joins Short Circuit to discuss an unusual immigration case she recently won in the Third Circuit. Also, ineffective assistance of counsel claims are difficult to win. But they're a bit easier when the lawyer is just obviously wrong about what the law means. Tori Clark of IJ walks us through a tragic story that got a bit better on appeal. And finally, we have a winner in our Most Beautiful Courtroom contest. We hope you don't mind speaking in the library. Jaffal v. ICE, https://www2.ca3.uscourts.gov/opinarch/203148p.pdf U.S. v. Freeman, https://www.ca4.uscourts.gov/opinions/194104A.P.pdf Alexandra Tseitlin, https://www.tseitlinlaw.com/alexandra-tseitlin/ Tori Clark, https://ij.org/staff/tori-clark/ Anthony Sanders, https://ij.org/staff/asanders/

Sometimes when the government does bad things to you it violates the Constitution. And sometimes it just violates the contract. Jeff Rowes explains the difference, and how things went down with a development scheme in the Fifth Circuit. Also, Will Aronin brings his expertise he learned as a trial lawyer to examine some junk science that has now been put on trial. Plus he details why it would be nice for a criminal defendant to know if a witness testifying against him is known to "stretch the truth." Preston Hollow Capital, LLC v. Cottonwood Development Corp., https://www.ca5.uscourts.gov/opinions/pub/21/21-50389-CV0.pdf O'Donnell v. Yezzo, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0026n-06.pdf Judge Jon Newman article on "En Banc," https://static.reuters.com/resources/media/editorial/20200714/IN%20BANC%20PRACTICE%20IN%20THE%20SECOND%20CIRCUIT%20THE%20VIRTUES%20OF%20RESTRAINT.pdf Jeff Rowes, https://ij.org/staff/jrowes/ Will Aronin, https://ij.org/staff/will-aronin/ Anthony Sanders, https://ij.org/staff/asanders/

Is it "on bonk" or "n bank"? IJ lawyers disagree on how to pronounce a full court of appeals considering a case. But whatever your Latin/Old French skills, the en banc Fifth Circuit said some things about the Dallas County jail that even your crack team of experts can't understand. But Sam Gedge does his best to explain what might be going on, and how the court needlessly addressed his favorite topic, Younger abstention. But before that Bob Belden tells a story of a renegade sheriff sticking unauthorized anti-Halloween signs in rehabilitated sex offenders' yards. RSVP for our live event on the Georgia Constitution on February 4, 2022, https://ij.org/event/center-for-judicial-engagement-forum-on-the-georgia-constitution/ McClendon v. Long, https://media.ca11.uscourts.gov/opinions/pub/files/202110092.pdf Daves v. Dallas County, https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf Rival "How to Pronounce 'En Banc'" Videos: https://www.youtube.com/watch?v=vQexSbL8iDQ, https://www.youtube.com/watch?v=fsnW2JDc0G8 Sam Gedge, https://ij.org/staff/sam-gedge/ Bob Belden, https://ij.org/staff/bob-belden/ Anthony Sanders, https://ij.org/staff/asanders/

Ever wondered when the police can pull you over and what they can do once you stop? Then this episode brings news you can use through a couple recent traffic stop cases. Wesley Hottot reports on the Eighth Circuit's blessing of a stop supposedly brought on by some pretty smelly weed (although not everyone is convinced of the story). Then, your host Anthony Sanders tells us of a new development in Oregon where its high court has rejected the "automobile exception" to the requirement to get a warrant before a search. Also, please keep your nominations for the most beautiful federal circuit courtroom rolling in. Our listeners have demonstrated there's some architecturally fierce, yet lovely, competition out there. United States v. Shumaker, https://ecf.ca8.uscourts.gov/opndir/21/12/203467P.pdf Oregon v. McCarthy, https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9463/rec/2 Post on Oregon v. McCarthy, https://ij.org/cje-post/state-con-law-case-of-the-week-oregon-stops/ IJ's Project on the Fourth Amendment, https://ij.org/issues/ijs-project-on-the-4th-amendment/ Wesley Hottot, https://ij.org/staff/whottot/ Anthony Sanders, https://ij.org/staff/asanders/

It's a new year but little is new with qualified immunity in the Fifth Circuit. Or is it? Easha Anand of the MacArthur Justice Center joins us to discuss a recent denial of qualified immunity in a police brutality case. IJ's Anya Bidwell joins in and reports on a couple other developments that demonstrate perhaps there's some "split second" thinking going on among those judges. Further, we ask our listeners to send in your nominations for the "most beautiful" U.S. Court of Appeals courtrooms. Got a favorite? Let us know! Either send us an email or find us on Twitter. Also, apply to be an IJ summer fellow! The deadline is January 14, 2022, https://ij.org/opportunities/students/ Timpa v. Dillard, https://cases.justia.com/federal/appellate-courts/ca5/20-10876/20-10876-2021-12-15.pdf?ts=1639614617 Villarreal v. City of Laredo, https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV0.pdf Harmon v. City of Arlington, http://www.ca5.uscourts.gov/opinions/pub/20/20-10830-CV0.pdf IJ's Gonzalez v. City of Castle Hills, https://new.ij.org/case/castle-hills-retaliation/ Easha Anand, https://www.macarthurjustice.org/team_member/easha-anand/ Anya Bidwell, https://ij.org/staff/anya-bidwell/ Anthony Sanders, https://ij.org/staff/asanders/

It's our 200th episode! We're taking this second century as an excuse to explore where Short Circuit came from and what it's done, both the podcast and the newsletter. We start things off at the very beginning with Short Circuit's editor and the podcast's original host John Ross. Then it's a blast-from-the-past with Clark Neily and Evan Bernick. We close things off with guest host Paul Sherman and Short Circuit Live host Anya Bidwell. You've heard how Spiderman and Batman came to be, but do you know what traumatic event led to Short Circuit? Ok, there's no radiation or mugging, but you will learn how reading way too many qualified immunity opinions can radicalize your worldview. Enjoy! Also, a quick update to the episode. None of us really remembered where the idea for the podcast actually came from, but further deep (and actual) research has revealed it was our sound engineer and producer Mark. Thank you! https://ij.org/staff/jross/ https://www.cato.org/people/clark-neily https://www.niu.edu/law/about/directory/bernick.shtml https://ij.org/staff/psherman/ https://ij.org/staff/anya-bidwell/ https://ij.org/staff/asanders/

In what may be the most obvious of examples of obvious constitutional violations, we discuss the right to not have the police put you in prison. Alexa Gervasi of IJ explains how this was too much even for qualified immunity to defeat, at least in the Third Circuit. And IJ's Ryan Wilson explains why a case involving a Greek boat accident can go forward in Boston. No, the captain's name was not Odysseus. Dave Kennedy Fellowship, https://www.ij.org/opportunities/students Litigation Fellowship, https://www.ij.org/opportunities/employment-opportunities/ Dennis v. City of Philadelphia, https://www2.ca3.uscourts.gov/opinarch/192390p.pdf Curtis v. Galakatos, http://media.ca1.uscourts.gov/pdf.opinions/20-1846P-01A.pdf For 25 Years, Jimmy Dennis Was on Death Row. Then One Day, He Wasn't., https://www.phillymag.com/news/2021/02/06/jimmy-dennis-musician-death-row/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Ryan Wilson, https://ij.org/staff/ryan-wilson/ Anthony Sanders, https://ij.org/staff/asanders/

Where do you go to challenge an illegal tax? Well, if that tax is a tariff your destination is the United States Court of International Trade. Learn all about this corner of the Article III judiciary, and how tariffs for once took a beating before it, from Eric Boehm, a reporter at Reason. Also, we return to a frequent subject on Short Circuit, the Pennsylvania Supreme Court, with IJ's Josh Windham. That court just made it a little easier to challenge restrictions on gun rights, although it really shouldn't have been that hard in the first place. Solar Energy Industries Assoc. v. U.S., https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf Firearm Owners Against Crime v. City of Harrisburg, https://casetext.com/case/firearm-owners-against-crime-v-city-of-harrisburg-1 A Judge Just Did What Biden Wouldn't: Dump Some Trump Tariffs, https://reason.com/2021/11/17/a-judge-just-did-what-biden-wouldnt-kill-some-trump-tariffs/ Eric Boehm, https://reason.com/people/eric-boehm/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/

Fans of the Hart-Fuller debate are gonna love this one. As will normal people who have no idea what that means. Legal philosopher HLA Hart asked whether a rule saying “no vehicles in the park” included bicycles, toy cars and airplanes. But now the D.C. Circuit has been asked, what about trailers? D.C. Circuit guru and IJ attorney Jeff Redfern explains what's a vehicle and what isn't according to that court's recent opinion on fuel efficiency standards. Meanwhile out West, it's hard to get on the ballot in Big Sky Country. IJ election expert Paul Sherman walks us through how the Ninth Circuit found Montana's rather bizarre system of ballot access partly constitutional, but partly not. Our apologies, but there's some math. Truck Trailer Manufacturers Assoc. v. EPA, https://www.cadc.uscourts.gov/internet/opinions.nsf/233083B9809082A28525878B0053FE5B/$file/16-1430-1922005.pdf Montana Green Party v. Jacobsen, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/08/20-35340.pdf HLA Hart, Positivism and the Separation of Law and Morals, http://www.horty.umiacs.io/courses/readings/hart-1958-positivism-separation.pdf Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, https://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-%20A%20Reply%20to%20Professor%20Hart.pdf HLA Hart Interview, https://www.youtube.com/watch?v=xgigb36aC7Y Richard Winger's Ballot Access News, https://ballot-access.org/ Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/

In addition to some other civil rights anniversaries, 2021 marks 50 years since the Supreme Court decided Younger v. Harris. There, the Court made it extremely hard for federal courts to stop an unconstitutional state prosecution. This “Younger abstention” doctrine has been with us ever since. Professor Fred Smith of Emory Law joins us to discuss what Younger's impact has been and how it has especially made it difficult to fight state court systems that have become de facto debtors' prisons. Additionally, we hear from Sam Gedge of IJ who gives us some of the background on the case and perspective on litigating civil rights cases with it looming in the background. We close with an investigation on where the heck the term “Our Federalism” (which Younger relies upon without citation) came from. Hint: Its first name is Felix. Younger v. Harris, https://supreme.justia.com/cases/federal/us/401/37/ Fred Smith Jr., Abstention in the Time of Ferguson, https://harvardlawreview.org/wp-content/uploads/2018/06/2283-2358_Online.pdf Michael Collins, Whose Federalism?, https://core.ac.uk/download/pdf/217202953.pdf Fred Smith Jr., https://law.emory.edu/faculty/faculty-profiles/smith-fred-profile.html Sam Gedge, https://ij.org/staff/sam-gedge/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

What's too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court's bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you've already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to. Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf Miranda v. City of Casa Grande, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/19/20-16905.pdf Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of the landowner's mitigation efforts. At least that's what Wesley Hottot reports the Sixth Circuit said last week. There's also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He's also a birdwatcher, which comes in handy in this tree case. Meanwhile, there's some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There's also some Commerce Clause talk and what's a “substantial effect” on commerce these days. F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf Jingrong v. Chinese Anti-Cult World Alliance, Inc., https://www.ca2.uscourts.gov/decisions/isysquery/e636d947-d9e2-44a4-9967-bbad7fe70ba6/1/doc/18-2626_complete_opn.pdf The Sidewalks of New York, https://www.youtube.com/watch?v=wsx_uxISjM0 Kirtland's Warbler, https://www.allaboutbirds.org/guide/Kirtlands_Warbler/id Hermit Thrush, https://www.allaboutbirds.org/guide/Hermit_Thrush/id Wesley Hottot, https://ij.org/staff/whottot/ Daniel Rankin, https://ij.org/staff/daniel-rankin/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil forfeiture case. Yet that came to pass in the First Circuit, and IJ attorney Bob Belden explains why it turns out the family that owned the letter were throwing away their shot. Meanwhile in the Second Circuit a fire on a movie set turns into a First Amendment retaliation claim. Kirby Thomas West joins us not to warn of the dangers of shouting fire, but what a fire chief who is your boss might do to you if you speak up on other topics. Specht v. City of New York, https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/hilite/ United States v. Letter from Alexander Hamilton to the Marquis de Lafayette Dated July 21, 1780, http://media.ca1.uscourts.gov/pdf.opinions/20-2061P-01A.pdf Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Bob Belden, https://ij.org/staff/bob-belden/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

It's taken five years, but the clients of IJ senior attorney Paul Avelar can now finally get their day in court thanks to a ruling in the Ninth Circuit. Paul joins us to explain why it takes so long to just try and vindicate your rights, and how Arizona's (thankfully former) civil forfeiture system allowed prosecutors to keep people's property over and over again, including, at first, his client's car. Meanwhile things got SALT-y in the Second Circuit where whatever you think about the state-and-local-income-tax deduction the court says it's not constitutionally guaranteed. Former New Yorker and IJ attorney Will Aronin uses some family-friendly yet SALT-y language to describe the state's high taxes and it and a few other states' successful efforts to have standing, but unsuccessful attempts at anything else. Transcript forthcoming. Platt v. Moore, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/04/19-15610.pdf State of New York v. Yellen, https://www.ca2.uscourts.gov/decisions/isysquery/3d29ff16-5377-4bc7-8ba4-429d01cedd38/1/doc/19-3962_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3d29ff16-5377-4bc7-8ba4-429d01cedd38/1/hilite/ Adam Shelton, The Article IV, Section 3 Controversy, https://ij.org/cje-post/the-article-iv-section-iii-controversy/ Paul Avelar, https://ij.org/staff/pavalar/ Will Aronin, https://ij.org/staff/will-aronin/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Frustrated with the deeply complicated issue of homelessness on Los Angeles's skid row, a district court took the law into its own hands and ordered a lot of stuff to happen. One problem (of many) with that was the plaintiffs didn't ask for the stuff. So it wasn't too hard for the Ninth Circuit to reverse, as Jeff Rowes explains. He and his colleague Diana Simpson also discuss their own work on homelessness issues at the Institute for Justice and how the law often prevents small solutions to a very large problem. Diana also explains why you're unlikely to have an insurance policy that covers the pandemic, as a colorful Sixth Circuit opinion tells us about a usually colorless subject. Finally, your host learns that asteroids actually have killed some people. IJ's Fall 2021 Legal Intensive in Chicago, https://ij.org/opportunities/students/legalintensive-fall2021/ LA Alliance for Human Rights v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf Santo's Italian Café, LLC v. Acuity Insurance Co., https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0224p-06.pdf IJ's North Carolina Right to Shelter case, https://ij.org/case/north-carolina-shelter-zoning/ Jeff Rowes, https://ij.org/staff/jrowes/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Mike Chase, author of “How to Become a Federal Criminal” and the man behind the @CrimeADay Twitter account, joins us to lay out the Eighth Circuit's take on Congressman Devin Nunes suing people he doesn't agree with. IJ attorney Diana Simpson then explains how an especially talented prisoner has won two cases at the Ninth Circuit over the cold turkey tactics of his jailers. Mike also relates to us some of his experiences representing prisoners and how they often have very meritorious claims. Nunes v. Lizza, https://ecf.ca8.uscourts.gov/opndir/21/09/202710P.pdf Coston v. Nangalama, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/19-16450.pdf 8th Circuit's Bizarre Ruling in Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza, https://www.techdirt.com/articles/20210915/12225347567/8th-circuits-bizarre-ruling-devin-nunes-slapp-suit-against-reporter-ryan-lizza.shtml Mike Chase, How to Become a Federal Criminal, https://www.amazon.com/How-Become-Federal-Criminal-Illustrated/dp/1982112514 Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

For the fifth year in a row the Center for Judicial Engagement travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term. Once again there's trivia, deep dives on a couple cases about to be argued, and a couple cert petitions. Professor Andy Hessick battles IJ attorney Justin Pearson for top SCOTUS trivia dog and your host Anthony Sanders enjoys the first LIVE Short Circuit since the world shut down. Cummings v. Premier Rehab Keller, PLLC, https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/ City of Austin v. Reagan National Advertising of Texas, Inc., https://www.scotusblog.com/case-files/cases/city-of-austin-texas-v-reagan-national-advertising-of-texas-inc/ Mohamud v. Weyker , https://ij.org/case/federal-police-immunity-cert-petitions/ Torres v. Texas Department of Public Safety, https://www.scotusblog.com/case-files/cases/torres-v-texas-department-of-public-safety/ Andy Hessick, https://law.unc.edu/people/andrew-hessick/ Justin Pearson, https://ij.org/staff/justin-pearson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Ever rolled your tires to try and cover up the meter maid's chalk mark? No, me neither . . . But even if you haven't, you might not have to worry about tire chalk marks much longer. Josh Windham explains how the Sixth Circuit has said that's an unreasonable search. And out West it turns out there's so much law in Yellowstone National Park (the Wyoming bit, at least) that a camper gets out of an assault charge because of a law called the ACA (just not the one you're thinking of). The camper didn't commit the Perfect Crime, but Dan Alban talks about it while he's in the district. IJ's Will of the People Conference, https://ij.org/event/does-the-will-of-the-people-actually-exist/ Taylor v. City of Saginaw, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0194p-06.pdf United States v. Harris, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdf Brian Kalt, The Perfect Crime, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdfthe p C.J. Box, Free Fire, https://www.cjbox.net/free-fire Dan Alban, https://ij.org/staff/dalban/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

The Third Circuit allowed a Second Amendment case challenging Robinson Township's new zoning ordinance to proceed. Did they town change their zoning laws just to prevent a gun club from fulling opening? Possibly, we'll have to wait and see. But in the meantime, Andrew Ward walks us through this decision exploring just which level of scrutiny applies to Second Amendment challenges. And there was a very colorful dissent in the Ninth Circuit from Judge VanDyke. Patrick Jaicomo explains this dissent and its problems with the Ninth Circuit's binding dicta rule. Drummond v. Robinson Township: https://www2.ca3.uscourts.gov/opinarch/201722p.pdf Ford v. Peery: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf IJ's Conference on the Will of the People: https://ij.org/event/does-the-will-of-the-people-actually-exist/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you're not “chilled,” and therefore not “injured,” even if you're breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was not unfair for Uber to compete against taxicabs when its own right to operate was, shall we say, a grey area. Plus, some nostalgia for the halcyon days of 2013 when getting in a ridesharing car was something you didn't tell your mother. Transcript forthcoming. IJ's Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ Rio Grande Foundation v. City of Sante Fe, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110556757.pdf Anoush Cab, Inc. v. Uber Technologies, Inc., http://media.ca1.uscourts.gov/pdf.opinions/19-2001P-01A.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

More on two of America's favorite subjects this week. Josh House rejoins us as we analyze six separate opinions about one football coach. Josh last came on in the spring when the Ninth Circuit said the coach didn't have a prayer. Although that ruling stands for now, a number of judges recently exercised their freedom to speak differently. And maybe it's because of the name, but there's a lot of Second Amendment law firing out of the Second Circuit. Adam Griffin explains how the court was on target in a case about individual versus collective rights. Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/19/20-35222.pdf (en banc) Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf (panel decision) Henry v. County of Nassau, https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/doc/20-1027_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/hilite/ Episode on the Right to “Bear” Arms, https://ij.org/sc_podcast/174/ Josh House, https://ij.org/staff/joshua-house/ Adam Griffin, https://ij.org/staff/adam-griffin/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state's highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts who run the California Constitution Center at the University of California at Berkeley, Dr. David Carrillo and Stephen Duvernay. We also discuss how to research a state constitution, what resources are available online to both litigators and scholars, and how useful those materials might turn out to be. Transcript forthcoming. IJ's Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ California Constitution, https://law.justia.com/constitution/california/ California Constitution Center, https://www.law.berkeley.edu/research/california-constitution-center/ David A. Carrillo, https://www.law.berkeley.edu/our-faculty/faculty-profiles/david-carrillo/ Stephen Duvernay, https://www.law.berkeley.edu/our-faculty/faculty-profiles/stephen-duvernay/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you're doing can be seen from a public place (or in this case, three cameras mounted on a utility pole for 18 months). But the court isn't happy with the result and utters a cry for help. Also, have you ever had to fill out forms that don't make any sense? Ben Field joins the podcast to tell the tale of what forms you need to lose your U.S. Citizenship, and how it's difficult to sign them from federal prison. Transcript forthcoming United States v. Tuggle, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-14/C:20-2352:J:Flaum:aut:T:fnOp:N:2733467:S:0 Farrell v. Blinken, https://www.cadc.uscourts.gov/internet/opinions.nsf/E73FAF5B041FF05685258711005181D8/$file/19-5357-1906101.pdf Katz v. United States, https://www.law.cornell.edu/supremecourt/text/389/347 Vogon Bureaucracy (21:30), https://www.dailymotion.com/video/x4syjrl Rob Frommer, https://ij.org/staff/rfrommer/ Ben Field, https://ij.org/staff/ben-field/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it's supposed to protect, well, equal protection. Yet if you bring a claim that you're not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tragic case where the court did take “protection” seriously, denying qualified immunity to police officers who failed to protect a woman from her stalking ex-partner. She joins us to discuss the victory and its wider impact. Also, what's a “closely-regulated industry?” That term is often used to deny businesses some of their Fourth Amendment protections, and the Ninth Circuit recently ruled that massage parlors qualify. IJ's Josh Windham joins us to analyze whether this is becoming an exception that swallows the rule, i.e. the rule that the government come back with a warrant. Transcript forthcoming. Dalton v. Reynolds, https://www.ca10.uscourts.gov/opinions/19/19-2047.pdf Killgore v. City of South El Monte, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/08/20-55666.pdf DeShaney v. Winnebago County, https://supreme.justia.com/cases/federal/us/489/189/#tab-opinion-1957769 New York v. Burger, https://supreme.justia.com/cases/federal/us/482/691/ Laura Schauer Ives, http://nmcivilrights.com/laura-schauer-ives/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

It's not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whether these kinds of requirements are constitutional, overruling itself but also not overruling itself at the same time. What do you do with that confusing precedent if you're a lower court federal judge? IJ attorney Rob Johnson joins us to walk through who now does—or does not?—have to join their state bar association, and how all of this may (quickly?) make its way back to the Supreme Court. Transcript forthcoming. Schell v. The Chief Justice, https://www.ca10.uscourts.gov/opinions/20/20-6044.pdf McDonald v. Longley, https://www.ca5.uscourts.gov/opinions/pub/20/20-50448-CV0.pdf Boudreaux v. Louisiana State Bar Assoc., https://www.ca5.uscourts.gov/opinions/pub/20/20-30086-CV0.pdf Janus v. AFSCME, https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf Keller v. State Bar of California, https://supreme.justia.com/cases/federal/us/496/1/ Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown's Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ's Anya Bidwell then sends us in the other direction where the circuit denied qualified immunity to a pair of paramedics who refused to help a prisoner, and we discuss whether the Supreme Court's recent tea leaves pushed it in that direction. Finally, we take apart an en banc denial where a majority of the circuit most definitely is not reading those tea leaves—although Judge Willet may be in the form of a telegraph message. Transcript forthcoming. J.W. v. Paley, http://www.ca5.uscourts.gov/opinions/unpub/19/19-20429.0.pdf Kelson v. Clark, http://www.ca5.uscourts.gov/opinions/pub/20/20-10764-CV0.pdf Ramirez v. Guadarrama, https://www.ca5.uscourts.gov/opinions/pub/20/20-10055-CV0.pdf Taylor v. Riojas, https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf Nicolas Riley, https://www.law.georgetown.edu/icap/our-team/ Anya Bidwell, https://ij.org/staff/anya-bidwell/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Something that is not the bee's knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don't get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal employees go to court so they can feel free to Tweet #Resistance? Not any more, and perhaps not ever, as Adam Shelton tells us of another Fourth Circuit opinion. AFGE v. Office of Special Counsel, https://www.ca4.uscourts.gov/opinions/201976.P.pdf Yawn v. Dorchester County, https://www.ca4.uscourts.gov/opinions/201584.P.pdf Cert petition in Lech (tank case), https://ij.org/wp-content/uploads/2019/11/Lech-rehearing-petition-filed.pdf Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don't know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one after (perhaps unwittingly) funding terrorist groups in Syria. Burns v. Town of Palm Beach, https://media.ca11.uscourts.gov/opinions/pub/files/201814515.pdf United States v. Harcevic, https://ecf.ca8.uscourts.gov/opndir/21/06/192755P.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast, trying to thread the needle on whether “Your right to remain silent” is a “constitutional right” or merely a “constitutional rule.” What's the difference? We're not really sure. Tekoh v. County of Los Angeles (en banc), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/18-56414.pdf Tekoh v. County of Los Angeles (panel opinion), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-56414.pdf Briseno v. Henderson, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/01/19-56297.pdf McCaughtry v. City of Red Wing (Phil Simms quote), https://casetext.com/case/mccaughtry-v-city-of-red-wing-3 Raffi Melkonian, https://www.wrightclosebarger.com/attorneys/raffi-melkonian/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue over an unsolicited text message? Alexa Gervasi tells us what the Fifth Circuit said about this question, including how it relates to a public nuisance. United States v. Garcon, https://media.ca11.uscourts.gov/opinions/pub/files/201914650.pdf United States v. Lopez, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf Cranor v. 5 Star Nutrition, LLC, https://www.ca5.uscourts.gov/opinions/pub/19/19-51173-CV0.pdf Justice Paul Thissen, When Rules Get in the Way of Reason: One judge’s view of legislative interpretation, https://cdn.ymaws.com/mcaa-mn.org/resource/resmgr/files/mcaa_news/J_Thissen_article_in_Bench_a.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Wesley Hottot, https://ij.org/staff/whottot/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued their land is a reservation under some often-neglected, and often-dishonored, agreements with the federal government. It’s an all Sixth Circuit, all Big Ten, property rights edition of Short Circuit. Transcript forthcoming Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0103p-06.pdf Oral argument in Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-29-2021%20-%20Thursday/20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH.mp3&name=20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH Little Traverse Bay Band of Odawa Indians v. Whitmer, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0109p-06.pdf McGirt v. Oklahoma, https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf Thread on Oklahoma history, https://threadreaderapp.com/thread/1288098856346034179.html Emily White, https://www.dannlaw.com/attorney-profile/emily-white/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Second Amendment scholar David Kopel sits down with us to set the stage for a big issue we’ll hear a lot about over the next year: What “keep and bear arms” means outside of the home. Whether it’s conceal carry or open carry, does the Constitution protect that right, and if so, how? There’s a case at the Supreme Court from the Second Circuit challenging New York’s conceal carry law, and another case waiting in the wings from the Ninth Circuit. We get into some history, some legal tactics, and some judicial speculation—although only of a healthy kind. Transcript forthcoming. New York State Rifle & Pistol Assoc. v. Corlett (cert petition), https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf Young v. Hawaii, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf Errors of Omission, https://www.illinoislawreview.org/online/errors-of-omission/ David Kopel, https://davekopel.org/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org