Short Circuit

Constitutional rights protect everyone, even people we might not be terribly fond of. This week we discuss two defendants who perhaps don’t deserve a lot of sympathy but nevertheless had their rights vindicated in a way that protects those rights more broadly. First, an IJ alumna, Anna Goodman Lucardi, rejoins Short Circuit to update us on goings on in the Fifth Circuit where the court applied last year’s SCOTUS case about jury trial rights, SEC v. Jarkesy, to a similar situation involving the FCC and fines. The court found that the FCC’s system violated both the Seventh Amendment and Article III of the Constitution. This even though the well-known defendant, AT&T, is a “common carrier.” Then Jessica Bigbie of IJ reports on a Tenth Circuit matter where a warrant led to police finding some not-legal images on someone’s phone. But the warrant itself had some not-constitutional language under the Fourth Amendment. Language allowing the authorities to basically search everything for anything. Jessica applies her

All kinds of constitutional goodies this week, from sovereign immunity to the First Amendment right to dance. But we begin with our annual Kentucky Derby preview from IJ’s Kentucky boy, Brian Morris. After that Brian keeps things local with a case from the Derby’s home circuit, the Sixth, which features another old favorite of the podcast, Ex parte Young. That precedent helps a pipeline company with some litigation against the governor of Michigan concerning an easement under the Straits of Mackinac (a name we proudly pronounce correctly). Then Evan Lisull, IJ’s legal writing guru, fresh from editing a round of recent briefing, gives some tips for writing at the Supreme Court. He also shares with us an Eleventh Circuit case concerning Jacksonville, Florida’s efforts to stymy the dancing opportunities of 18-20 year olds. The facts are very “Florida Man” (well, “Florida Young Women” technically) and although we give a brief and clinical description of the activities that Jacksonville is trying to ban, parents m

Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the

An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just a

Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode. Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and

Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard. Daniel Nelson and Patrick Jaicomo’s Section 1983 article Thaler v. Perlmutter Iron Bar Holdings v. Cape

Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don't have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they

Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our pan

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even gett

What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of p

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to

Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed. S.C. Coastal Conservation League v. Corps of Engineers City of Martinsville v. Express Scripts TVA v. Hill Adam’s Legal Newsletter post on the snail darter Short Circuit episode on Mark Meadows case Short Circu

You probably know that all-too-many jobs require a license to work. But how is that license administered, who enforces its rules, and who makes the decision on whether to take the license away? Almost always it’s a board composed of people with the same license. Rebecca Haw Allensworth joins us to discuss her new book The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong. Unlike other studies on licensing it digs deep into how licensing boards operate, what their incentives are, and how they are hard on outsiders who haven’t hurt anyone but all-too-easy on insiders who are truly bad actors. She tells stories of what makes boards act this way, how it relates to antitrust law, and what has and could be done to reform how we regulate professions. Also, did you know Tennessee used to have a “beauty pageant operator license”? Listen in to hear that story and much more. The Licensing Racket N.C. Board v. FTC ("The Case That Shall Not Be Named") Licensed to Work (3d ed.) Bona

Two cases, from the Fourth and Sixth Circuits, came out within just a few days of each other, and each was about a city tearing a house down. And whether that was OK. They came to different conclusions, partly because one seemed to have been litigated a bit better, but also for other reasons we discuss. First, IJ’s Christian Lansinger describes a Virginia property that wasn’t in great shape, but also where the officials didn’t act quite right before they tore it down for being a nuisance. Unfortunately, the owner sued too late for the court to address most of his claims. In Kentucky, on the other hand, the owner sued in time after being told he couldn’t appeal to the city’s property review board because although it’s mentioned in the city code, city officials told him it didn’t exist. The court was not impressed by this and allowed the case to move forward. Joe Gay of IJ brings this matter to our attention, along with an interesting concurrence about how our property rights have suffered from a slow boil.

We welcome back Easha Anand of Stanford Law’s Supreme Court Litigation Clinic for her third (or is it fourth?) appearance. Last time she was on she had not yet argued at the Supreme Court, but now she’s done it four times. She tells us if it gets easier (not so far) and then gives a report on a recent Third Circuit case where the court got qualified immunity all wrong. In ruling on a malicious prosecution claim the court helped the pernicious doctrine of QI grow from just being about rights to about causes of action. Then IJ’s Anya Bidwell takes us up to the First Circuit for a civil forfeiture matter concerning 30,000 drug prosecutions that were thrown out and whether the federal courts can help those wrongfully convicted get their property back (“no” is the answer). Also, at the end (after some discussion of biker gangs) there’s some joking about how the Supreme Court has relisted two IJ cases. What your host and guests didn’t know at the time, though, is that the Court would grant cert in one of them just

If you have a greenhouse, and a government agent sees it on Google Maps, is that fact probable cause to charge you with growing illegal cannabis, fine you $10,000 a day, and not give you a hearing for years? Humboldt County, California thought it was and threatened ruinous fines against innocent property owners for years in an abusive enforcement scheme. IJ represents innocent property owners in the county who had to take their case to the Ninth Circuit to move forward with their constitutional claims. The lead attorney, Jared McClain, joins us to detail the lawsuit and what the court said about the Excessive Fines Clause plus several other parts of the Constitution. Then, Andrew Ward of IJ takes us to the Fourth Circuit for a challenge to racial preference policies of the Small Business Administration. The case didn’t get to the merits because the court thought the plaintiff wouldn’t be eligible for benefits even without any racial preferences. In light of that there’s some discussion of how best to plead on

A lot going on this week, including a lot of Short Circuit news. On the law side we talk about two recent opinions, one from the Fourth Circuit and one from the Sixth. Jeff Rowes of IJ explains the latest on abstention—Pullman abstention in this instance—where federal courts don’t do their job because state law is complicated. The Fourth Circuit said it wasn’t complicated enough, though, and allowed a religious liberties lawsuit to go forward. Then, IJ’s Brian Morris explains the latest news on net neutrality rules and why the FCC doesn’t get to decide them anymore. The Sixth Circuit won the lottery—literally—on where challenges to the latest rules would go. And once the challenges got there the panel of judges were not very impressed. There’s some discussion of the new post-Chevron world of Loper Bright, plus some discussion of how the internet worked in 1996, when Congress last spoke on this issue. Finally, we close with a reprise of a show we did a year ago about the Scottish poet Robert Burns! A real Scot

Short Circuit 358 | Motte-and-Bailey Game Can state officers simply come on your land and take samples of your dirt (and water) without a warrant? Well, it’s hard to know when the court abstains from telling you. That’s what happened in the Sixth Circuit where a property owner went to federal court to stop an investigation but couldn’t because there was already a state court proceeding. Regular listeners will recognize an old familiar: Younger abstention. Mike Greenberg of IJ joins us to explain this convoluted story and how a case he litigated at the Michigan Supreme Court about drones plays a part in it. Then IJ’s Nick DeBenedetto discusses an en banc Fifth Circuit opinion about the SEC. The agency has to approve certain rules in private stock markets, but are there limits on what those rules can be about? Turns out hot-button diversity issues are a little too far afield. The Major Questions Doctrine makes an appearance, although in a new and perhaps unjustified way. And what does this whole system mean

City council meetings are usually sparsely attended, low key, unwatched affairs. Except when they’re not. This week we have two cases where those in power were so offended by what members of the public had to say at a meeting that they were later arrested, in violation of their right to free speech under the First Amendment. Or that’s what the plaintiffs claim, anyway. First, Katrin Marquez of IJ tells us of a meeting in Texas of a “court” that wasn’t exactly a court but really a county board. However, that didn’t stop the “judge” who led the meeting from trying to find an audience member in contempt. Sovereign, judicial, and qualified immunities all raise their heads in the subsequent Fifth Circuit lawsuit, as does the First Amendment retaliation claim. Then, IJ’s Michael Peña brings us to the Sixth Circuit where a local citizen called for the termination of a city manager and later found himself under arrest. Was there a connection between the two? The court seems to think so, or at least enough that it let

Seasons greetings from Short Circuit! While you’re enjoying your holiday week at the end of 2024 we’re giving you the content you need: Christmas sweaters. Don’t worry, there’s still plenty of legal stuff, but we start things off by delving into the mystery of where the Christmas sweater phenomenon came from. (Your host suspects it has something to do with Bridget Jones’s Diary the movie—but not, interestingly, the book.) If you’re on a non-YouTube platform, to give the episode full justice you might want to check out how the episode actually looks by peaking over at Short Circuit’s YouTube channel where you can see the panel’s fashion choices. As to the law, Bert Gall of IJ tell us of a Fourth Circuit case where some plaintiffs are trying to assert their voting rights by invoking Congress’s act readmitting Virginia to the Union after the Civil War. But that’s just in the background at this point as for now the court is just trying to figure out whether sovereign immunity prohibits the lawsuit. It turns out i