Short Circuit

A most unusual Fourth Amendment case this week: One cop claims there was a seizure while another says there was not. They disagree because one cop is suing the other. Guess which cop wins? It’s the one with the dog—named Thor—that got a little too eager in a cemetery while in hot pursuit. But apparently didn’t “seize” the other by mistakenly tearing into his leg. Dylan Moore of IJ brings us this canine caper from the Eighth Circuit. Then your host takes you to the en banc Fifth Circuit and tells a twisted tale of Jim Crow, felon disenfranchisement, the Eighth Amendment, and “evolving standards.” Historians of the 1890 Mississippi constitutional convention may want to take notice. Irish v. McNamara Hopkins v. Watson Short Circuit on Section 2 of 14th Amendment Puppy and I

Emphasizing the justice in our name, IJ recently launched a new project to fight back against zoning laws, Zoning Justice. We’ve been challenging overreaching zoning for years, but there’s now a new emphasis on how it inhibits people from providing housing and pursuing the American Dream. Joining us to talk about this new venture are the project’s leader Ari Bargil and IJ attorney Joe Gay. Joe tells us about some recent zoning reforms in Montana and an amicus brief he filed in the state’s supreme court supporting them. It recounts the history—and harms—of zoning and how allowing everyone to do more with their property doesn’t violate anyone’s constitutional rights. Then Ari tells us of an all-too-typical zoning dispute in Philadelphia where the neighborhood opposition to an attempt to rehab some apartments was anything but brotherly. Zoning Justice Project Amicus brief in MAID v. Montana In Re: 3401 Sky Properties, LLC Village of Belle Terre v. Boraas Bound By Oath episode on zoning (1 of 3)

It’s time for Short Circuit to head for the hills. Two cases from the mountainous Tenth Circuit, one on the Fourth Amendment and another on the Bivens doctrine. First, Bob Belden of IJ saddles up for a 911 call that may have led to the wrongful arrest of a Super Bowl reveler. What is enough evidence from an anonymous tip to stop a supposedly shady suspect? Not as much as was in a parking lot full of Broncos fans. Then your host gives an update on a terrorist who has been in prison for quite some time. He seems to have a good claim against his prison guards. But does the method for bringing that claim even still exist? And whether or not it exists can the government immediately appeal when a court says it does? It’s a quantum-mechanical question. U.S. v. Daniels Mohamed v. Jones In Search of Schrödinger’s Cat Free Fire by C.J. Box The Perfect Crime

We join forces with the law firm of Hogan Lovells to bring you some “legal mumbo jumbo”—an episode recorded at their offices in Washington, D.C. before a gaggle of law students. Joining your guest host, IJ’s Ben Field, are IJ attorney Kirby Thomas West plus two of Hogan’s finest, appellate attorneys Sean Marotta and Danielle Desaulniers Stempel. Danielle begins things with a Fifth Circuit opinion about silencers and standing. Apparently the plaintiffs were a little silent about any harms that have befallen them. Then it’s on to Sean for a lesson about what makes the world go round. Funnily enough, it’s not money but shipping containers. That is, as the D.C. Circuit recounts, until a federal agency starts tacking into shipping contracts. Finally, Kirby brings us up to the First Circuit for a story of TikTok, retaliation, and judicial opinions that maybe aren’t as funny as their authors think they are. Paxton v. Dettelbach Evergreen Shipping Agency v. FMC Macrae v. Mattos Short Circuit episode on st

This episode is a First Amendment 2-4-1. We begin with James Dickey of the Upper Midwest Law Center (and former golf pro). James tells us about a recent case he argued at the Eighth Circuit concerning the “government speech” doctrine. If a public school lets some people—but not others with a different viewpoint—come in and hang posters is that just fine because it’s the “government” speaking? In keeping with some recent Supreme Court rulings, the court said no, letting the case go forward. Then IJ’s campaign finance guru Paul Sherman steps forward to tease out a confusing opinion of the Second Circuit about a New York law that allows big contributions to big political parties but much smaller contributions to much smaller groups. It seems the reasoning is that major parties are above suspicion. Can that be right? Paul doesn’t think so. Cajune v. Ind. Sch. Dist. 194 Upstate Jobs Party v. Kosinski Huizenga v. Ind. Sch. Dist. 11

The Fourth of July holds a central place in American history. The day patriots threw off the shackles of King George. Which is why it’s a little ironic that this year it’s the day the British are holding a general election to democratically chose their government. To cash in on this coincidence, this episode highlights some recent cases that reflect the heritage of 1776 and also Anglo-American relations of the present day. And, breaking our usual mold, we start with a case from the Supreme Court, SEC v. Jarkesy. Rob Johnson of IJ joins us to explain why this case is such a big deal for the right to a jury trial, and how the preservation of that right was one of the causes of the Revolution itself. Then, Andrew Ward of IJ tells a much more modern story of a burglary of a British diplomat’s Texas home. The burglar was caught and plead guilty. But he wasn’t pleased with a limitation on his right to “drink excessively.” Andrew tells the whole Fifth Circuit story, and also provides education on what exactly a “con

Everybody knows that the government can’t take property from you just because it doesn’t like you. But what if the government says it actually wants to turn the property into a park even though everybody knows it’s because it doesn’t like you? Recently the Second Circuit said that was A-OK. We had on IJ’s Jeff Redfern, an attorney in the case, to talk about this example of eminent domain abuse and how it’s now potentially heading to the Supreme Court. It involves a family that wanted to build a hardware store and a town that did everything it could to stop them. After that we hear from Jason LaFond, a Texas litigator with some Texas-sized stories. Especially one from the Supreme Court of Texas, which recently ruled on whether it violated the Texas Constitution for the state legislature to get rid of some claims related to pandemic shutdowns and lost tuition. The case gets into originalism in state constitutions, how different constitutions in the same state relate to each other, and the continuing fallout of

Is “perceived speech” protected by the First Amendment? That straightforward question goes in a very complicated direction when a truck driver is fired from his government job. Christie Hebert of IJ joins us to explain this highly confusing tale from the Tenth Circuit. Then it’s pass-the-popcorn time with some Fifth Circuit drama, served up by IJ’s Rob Johnson. We heard in a recent episode about the objection to a transfer of venue in a challenge to a new rule about credit cards. Well, that same matter is already back at the Fifth Circuit concerning another attempt to transfer venue, replete with more intra-circuit squabbling. We also discuss forum shopping when it comes to nationwide injunctions. Avant v. Doke In re Chamber of Commerce (June 18, 2024) Short Circuit 319 Much Ado, Act III, Scene 1

It’s a Short Circuit Live, recorded at the Institute for Justice’s annual law student conference! Patrick Jaicomo is your host, and he brings along IJ’s Michael Bindas and Katrin Marquez to dig into two very different but thought-provoking decisions for the young legal minds in the “studio” audience (and yours too, of course, dear listener). First, Michael reports on a decision from the Eleventh Circuit that on its face is a standard insurance and indemnification case. But, Judge Newsom adds a concurrence that will take your mind to different—and artificial?—places. Should we be asking our new AI Overlords what the meaning of words are? The panel thinks it’s perhaps not insane to look into, as does the judge. Then, Katrin reports on another Eleventh Circuit case with a civil rights violation that was so obvious that the court denied qualified immunity even though there was no on-point precedent. Listener beware, though, as it involves the loss of a dog. It does portend, however, some Hope for the future. S

If you’re a fan of our furry friends (actual animals, that is) then this is the episode for you. First, we start with what’s important: What horses to pick in this weeks’ Belmont Stakes, the last leg of the Triple Crown, which will run (or ran, if you listen to this episode later on) in two days. IJ’s Brian Morris lends his horse sense to this question. Then he goes back to his Kentucky roots for a case about the first leg of the Triple Crown. A few gamblers would have won a lot of cash if a horse in a past Kentucky Derby had been disqualified on race day. But because the disqualification didn’t happen for nine months they got nothing. The Sixth Circuit said their case wasn’t a winner. Then we head south to the Fifth Circuit for a dog sniff case that isn’t about drugs but human trafficking. IJ’s Mike Greenberg is skeptical of the reasoning. He also lends his opinion to which states are placed in which reporters for their published opinions. It’s time for conference realignment! Mattera v. Baffert U.S. v

First of all: PARENTAL ADVISORY! If you have children nearby you might want to save part of this episode for later. It doesn’t happen until just after 32 minutes into the episode, but the naughty language the Seventh Circuit quotes in one of this week’s cases forces IJ’s Sam Gedge to choose between dishonest modesty and, as he puts it, revealing the un-expurgated truth. Like a gentlemen, he goes for the latter while discussing a qualified immunity case about a “kung fu cop” with “multiple blackbelts” who gets a little punchy with a man who had a few too many. After that things just get weird as Sam introduces us to the first case in the American (reported, at least) tradition to use a certain word on George Carlin’s famous list. We close with a conversation about Patrick O’Brian’s and Jane Austin’s editing styles. But before any of that IJ’s Jared McClain tells us how to successfully make a mandamus claim against the Capitol Police. Although it seems you can get close in the D.C. Circuit, the common law gaunt

How does history inform our interpretation of the Constitution? In all kinds of ways, it seems, and perhaps in too many of them. We once again look at how history and the Second Amendment are mixing together, in a case from the Eighth Circuit. The opinion lets us do a bit of digging into a less-well-known founding father, Benjamin Rush, and his enthusiastic embrace of putting people behind bars. But before that IJ’s Bobbi Taylor details some of the latest class-action shenanigans in the Seventh Circuit. For the first time we address “mootness fees,” settlements extracted in some disclosure litigation against public corporations. And we consider whether they’re “a racket” as the court suggests. Alcarez v. Akorn, Inc. U.S. v. Veasley Ted Frank episode, SC 154 Szasz, The Manufacture of Madness

We take a break from the federal courts of appeals and look into a brave new world—or is it an Orwellian one? Our thoughts—our inner mental processes—are the one aspect of our lives that is completely private. Right? Well, emerging technology is making that not so true anymore. IJ’s Anya Bidwell welcomes Professor Nita Farahany of Duke University to Short Circuit to discuss her recent book The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology. They talk about how neurotechnology works and how it has many potentially transformative implications, including many good ones. But in the wrong hands—especially the hands of the State—those implications can be quite unsettling. And there are so many gray areas in-between. People in China and other countries are already dealing with some of these implications and the legal and constitutional system in the United States is not yet ready for them if we are to keep the mental privacy we all value. Get ready for a conversation about w

We’re gonna read you the Riot Act. Again. An old friend of Short Circuit returns, the Anti-Riot Act. Perhaps (?) named in homage to its 18th century predecessor, the Congressional statute received a facial test at the Seventh Circuit, and IJ’s Kirby Thomas West tells us how it fared in the face of a guy who requested that everyone bring their family and a brick to a “riot.” He did not do so well in court, but perhaps the Anti-Riot Act has problems anyway? Then we go for a drive down a Houston freeway where Sam Gedge makes a citizen's arrest of a qualified immunity claim while drinking at a local flea market at 2am. The Fifth Circuit served up a wild ride of a case that is too good to pass up but also holds bigger lessons for how judges perceive “split-second decisions” and premeditated lies. U.S. v. Betts Hughes v. Garcia The Riot Act Short Circuit 146 (4th Cir. Anti-Riot Act case)

Stories we hope our listeners can relate to this week: borrowing cars and lousy neighbors. First, from the Sixth Circuit, IJ’s Rob Frommer details how a man sitting in the passenger seat of a running car somehow lost his Fourth Amendment standing. And went to prison. And then in the Second Circuit your host explores what can be done when your neighbor is an embassy. It’s an all-too-familiar tale of a building project gone awry but with a twist of sovereign immunity.   Register for the May 10 open fields conference! U.S. v. Rogers Harvey v. Sierra Leone Neighbors 1980’s opening song Fawlty Towers—The Builders

We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars. Register for the May 10 open fields conference! Connell v. CIA Lozano v. Collier Audio Arguendo (Michel’s oral arguments podcast)

We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so. Register for the May 10 open fields conference! US v. Hay Citizens United to Protect Our Neighborhoods v. Chestnut Ridge Episode on 7th Cir pole camera case Episo

Two wild stories this week, one biblical and one of a more secular nature—but still wild. Jeff Redfern of IJ tells of a Texan judicial shootout in a fight between credit card companies and the Consumer Finance Protection Bureau. The companies got tired of waiting for the trial court to rule on an emergency motion so they appealed it—but around the same time the trial court transferred the case to a court in Washington, D.C. Was that wrong? Can anything be done about it? Opinions differ. Then Keith Neely of IJ takes us underwater to the Sixth Circuit for perhaps our first case involving baptism. An officer was ready to charge a driver with marijuana possession, but then offers to give her a lesser charge . . . if she lets him baptize her in a lake that night. Which, after she grabs some towels, goes forward. And in the ensuing lawsuit qualified immunity is denied because, well, this is pretty obviously unconstitutional. Right? Also, Keith gives a preview of IJ’s new show Beyond the Brief. Check it out! Beyo

An all Seventh Circuit, all Chicago episode. IJ attorney Andrew Ward drops in to tell a tale of online support for terrorists. Or at least FBI agents posing as terrorists. This recent case does not weigh in on, but raises the issue, of whether computer code is speech. Then we turn to the nitty gritty of unions, small employers, pension plans, and legalized cartels. Things are a bit topsy turvy in this area—and often sound pretty unfair. Your host gives a bit of a lay of the land as it’s been expressed by Judge Easterbrook of the Seventh Circuit over the years. IJ conference on the Open Fields Doctrine (May 10) Cato conference on the right to earn a living (April 18) U.S. v. Osadzinski Bulk Transport Corp. v. Teamsters No. 142 Pension Fund Central States v. Gerber Truck

The Short Circuit roadshow comes to UVA in Charlottesville, Virginia, where we finally focus on the Fourth Circuit. Fresh off her Supreme Court argument last week in Gonzales v. Trevino, Anya Bidwell turns back to the federal courts of appeals with some local guests. They are Professors Rachel Bayefsky and Lawrence Solum of UVA and Greg Cui of MacArthur Justice (and UVA). They discuss recent Fourth Circuit cases about cruel and unusual punishment in prison, a non-immune judge on a search, and the rational basis test turned up to 12 (that is, Rule 12(b)(6)) in a land use dispute. Jones v. Solomon Gibson v. Goldston SAS Associates 1 v. Chesapeake Video from Gibson case Legal Theory Blog Bayefsky on Judicial Institutionalism Bayefsky on Public-Law Litigation Solum on Legal Personhood for AI