Short Circuit

A whole lot of searching going on this week. First, Scott Regan of IJ reports on a Ninth Circuit opinion involving, among other things, an iCloud account. How does the Fourth Amendment apply to the gazillions of pieces of data stored on our phones? It depends on what the officers are searching for, and their searches. Then, in a very different search, a DC police officer asks a guy to show his waistband. Twice. And then the guy runs and throws a gun in the bushes. Were the officer’s requests seizures? Searches? Unreasonable? The evidence is suppressed but the judges disagree on a few things. Your host reports on this case from the DC Circuit. U.S. v. Pelayo U.S. v. Gamble Edgar Allan Poe’s “Eldorado”

Ari Bargil of IJ visits the Short Circuit virtual studio to take a bet. Or, rather, to tell us why some of us can keep taking bets—for now. The Fifth Circuit recently granted a preliminary injunction to participants in PredictIt, a New Zealand-based research experiment where people can bet real money about the outcomes of elections. The CFTC, however, doesn’t want to put up with this business anymore and is trying to shut it down. Nevertheless, because of the Fifth Circuit you can place your bets, but only for now. Then, your host takes us on another internationally oriented adventure regarding the difference between the “government” and the “state” of Venezuela. It’s mighty important to a group of investors in the Third Circuit. Turns out rulers can change but “sovereignty survives.” Clarke v. CFTC OI European Group B.V. v. Venezuela

If someone sends you an unsolicited text message are you “injured”? In a constitutional sense, that is. Bob Belden swoops back to the podcast to explain the latest en banc business from the Eleventh Circuit on texting, common law causes of action, Article III of the Constitution, and Office Space. Your host then gives him a quick summary of The Case of the Thorns. After that we cross the continent to the Ninth Circuit where first-time guest Christian Lansinger tells us of a dissent from a denial of en banc (dissental?) on the state-created danger doctrine. The facts are disturbing, but the issue is one that might be going to the Supreme Court soon. Drazen v. Godaddy.com Murguia v. Langdon The Case of the Thorns Professor Andrew Hessick’s standing article Fractions of a Penny

We swing from one legal extreme to another this week. From the First Amendment protecting street entertainers in Vegas on the one hand to deference to the comments of the United States Sentencing Commission on the other. First, John Wrench walks us down the Vegas Strip with a couple “sexy cops” who bumped into some undercover real cops and then ran into some real trouble. The Ninth Circuit ruled in the case in 2017 and then after a petition for rehearing was filed did . . . nothing. Until this month when it filed an amended opinion. We try and figure out what happened with that and where the case stands now. Then it’s off to the Tenth Circuit where Jared McClain explains a developing circuit split over what deference courts owe to the Sentencing Commission’s interpretation of its own rules. Despite the split, though, Jared explains how it might be a while until this area gets sorted out. Santopietro v. Howell U.S. v. Maloid Law review article on Santopietro case (by Stephen Touchton)

We talk with a couple remarkable women who achieved something pretty remarkable for some other remarkable women in Georgia: Had the state supreme court strike down an occupational licensing law that would have put hundreds of women out of work. The law mandated a license for “lactation consultants,” women who help new moms breastfeed their babies. The license required vast amounts of training, far more than necessary and far more than most existing consultants had. IJ attorneys Jaimie Cavanaugh and Renée Flaherty join us to detail how they fought a five-year legal battle to the Georgia Supreme Court—twice—and how the Georgia Constitution and other state constitutions protect economic liberty. The case provides a lot of hope for the future, and not just to those who work with babies and breasts. Jackson v. Raffensberger (1st appeal) Jackson v. Raffensberger (2d appeal) Patel v. Texas Dept. of Licensing & Regulation Ladd v. Real Estate Comm. Anthony’s old article on states and economic liberty

Scott Michelman of the ACLU-DC joins us to discuss the ins-and-outs of a recent fascinating (yet disappointing) ruling of the D.C. Circuit. Remember when President Trump had a square cleared of protesters—with tear gas—so he could take a photo op? Scott represents some of the plaintiffs in that case, whose claims against federal officials were thrown out because the court said it wasn’t enough like three cases from over forty years ago. Yet, it seems like some of the judges were reluctant about that conclusion and even offered a theory about how a different lawsuit might work in a future. Then Anya Bidwell discusses a very different result from the Seventh Circuit where a claim against federal narcotics agents could go forward because the relevant precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was against, well, federal narcotics agents. Buchanan v. Barr Snowden v. Henning Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

It’s hard to sue the police. But it’s even harder to sue a judge. Rob Johnson returns to tell us about an Eighth Circuit case where a suit against a judge can actually go forward . . . partly. Why one way and why the other? It seems it might be all because of the robe. It didn’t help the judge that he physically put two kids in jail himself. Then we swing through the Sixth Circuit for a cop who opens a car door and hilarity (and the community care doctrine) ensues. Sound a bit like a Mickey Spillane story? You can judge for yourself. Rockett v. Eighmy U.S. v. Morgan Pennsylvania v. Dunlap (Roberts dissent)

Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing. Sterling Hotels v. McKay Anibowei v. Morgan

Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is "[m]ore to come." CFPB v. Brown U.S. v. Jackson U.S. v. Cunni

We all know about the separation of powers. But this week IJ attorney Jaba Tsitsuashvili introduces us to something else: the concentration of powers. It’s pretty much what it sounds like, and it happens when people have to depend on legislatures to protect constitutional rights. That’s what unfortunately happened recently at the Iowa Supreme Court. Anya Bidwell gives us the details on that story. But sometimes the legislature actually does act to protect constitutional rights. Ok, so then what? Well, Jaba explains that the Louisiana Supreme Court essentially thought that wasn’t good enough to . . . actually protect constitutional rights. Finally, your host details a recent piece he wrote about remedies, constitutions, and statutes. See if your mind is blown by an old law review article like his was. Burnett v. Smith Jameson v. Montgomery Some Reflections on Legislation, Adjudication, and Implied Private Actions (Foy article) Where Does the Law Come From? (Anthony’s article)

IJ attorney Paul Avelar seizes the means of production (and the Short Circuit microphone) and hosts this week’s episode, live from IJ’s annual Law Student Conference. He’s joined by IJ attorneys Arif Panju and Ari Bargil, who come on to demonstrate that they are, in fact, different people. Arif first details a recent IJ appellate victory in the Sixth Circuit, where Judge Sutton once again explained that if your name is not “Rooker” or “Feldman” then the Rooker-Feldman doctrine most likely does not apply. Arif also gives the facts of the tragic story of what our clients went through before the “Environmental Court” in Memphis, Tennessee, and where the lawsuit challenging its Kangaroo nature now stands. Then Ari digs into a police raid gone horribly wrong in Harris County, Texas. Not exactly a story of the Lone Star State’s finest, as the Fifth Circuit recently indicated. There’s also much ado about procedure. Tuttle v. Sepolio Hohenberg v. Shelby County That book Paul won’t stop talking about

June 4, 2023 marks exactly 100 years since the Supreme Court handed down its opinion in Meyer v. Nebraska, where the Court ruled that it is unconstitutional for states to forbid the teaching of foreign languages. The case was a momentous decision both at the time and for the future. It lead to developments in many different areas of constitutional law, including free speech, religion, educational freedom, economic liberty, and the incorporation of the Bill of Rights. To celebrate the anniversary the Center for Judicial Engagement at the Institute for Justice held a conference on March 31, 2023 called “100 Years of Unenumerated Freedoms: Meyer v. Nebraska at a Century”. This episode of Short Circuit provides you with the keynote address from the conference, a speech by Professor William G. Ross of Samford University’s Cumberland School of Law. Professor Ross is the author of Forging New Freedoms: Nativism, Education and the Constitution, 1917-1927 (1994), the definitive account of Meyer and the other cases

Today we're digging into the Fourteenth Amendment. No, not the part we usually talk about, Section 1, with its privileges or immunities, equal protection, and all that. Not even Section 4 (debt ceiling?) or Section 3 (rebellion stuff). No, we're digging into a super interesting case involving Section 2, the part that lowers a state's Congressional representation if it abridges the right to vote. Jared Pettinato of Citizens for Constitutional Integrity, counsel in the lawsuit, joins us to discuss what it's all about. We learn the history of Section 2, how Jared represents voters in states that lost members of Congress in the last census, how he's suing the Census Bureau via the Administrative Procedure Act, and what a three-judge panel recently said about his clients' standing. He also previews what's ahead at the D.C. Circuit. After all that IJ's Sam Gedge discusses Footnote 4. Not, not that Footnote 4, but a recent one from the Second Circuit that kind of said unpublished cases are actually published. Or did

If a sitting senator threatened you with censorship, would it matter what jacket she’s wearing? Although not an issue we discuss this week, it’s related to both of our cases. First, Justin Pearson tells us of a Ninth Circuit case considering whether a letter from Senator Elizabeth Warren crossed the constitutional line by discussing actions that could be taken against Amazon for selling a certain book. Then, Christie Hebert brings us to the Fifth Circuit and whether a man abandoned his jacket at his mother’s house. Does it matter that it was on top of the trash can? Download Anthony’s book for free! Robert F. Kennedy, Jr. v. Elizabeth Warren U.S. v. Ramirez

Cars and free speech, what could be a more American combination? This week we’re playing a double-sided session that you can enjoy while honking your horn or writing your Facebook post. That’s because our two cases examine the free-speech implications of both of those activities. First, if you honk in support of a protest, is that protected by the First Amendment? We drive out to sunny California and the Ninth Circuit to answer that automotive question. Then, it’s off to the hills of Kentucky for another—not quite as fun—car activity: Calling the tow truck. For one towing company they found the calls stopped just around the time they criticized a local politician on Facebook. Coincidence? The Sixth Circuit thinks maybe not. Plus, with a speech bonus, you’ll hear what Rudyard Kipling thought of the motorcar. Porter v. Martinez Lemaster v. Lawrence County To Motorists Background to To Motorists

IJ attorney Josh Windham seizes the microphone and turns it around on your regular host, Anthony Sanders. Josh interviews Anthony about his new book, which comes out on May 9, 2023, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters. The book is part history, part legal theory, and part advocacy. It tells the story of how Americans took the words of the Ninth Amendment to the U.S. Constitution and put them in various state constitutions. It then explores what that means for how state constitutions protect our rights (a lot) and what judges have done to give those rights protection (not much). Josh and Anthony dig into these issues, how these provisions should be interpreted, how that would change how state constitutions protect our rights, and even how this story might change how we think about the U.S. Constitution itself. Further, as of May 9 you not only will be able to read the book, but download it for free! You can do that even from the comfort of the podcast app

It’s Special Short Circuit time. And this time that means we don’t just investigate a special legal issue, we journey to a special place (well, at least that’s what Shakespeare and John of Gaunt might say). This week we focus on the British Constitution, how it’s (quite) different from the United States Constitution, how it’s constituted, how it works, and how it’s been changing recently. Two scholars have edited a new volume full of scepticism (note the “c” instead of the “k”) about recent and proposed constitutional changes in the United Kingdom, a book called Sceptical Perspectives on the Changing Constitution of the United Kingdom. If you don’t know much about the constitutional order of America’s mother country you’ll learn quite a bit. If you’d like to learn more about the constitutional debates they’re having in Britain you’ll learn quite a bit more. And if you’d like to hear a bit of push-and-pull about the merits of a written constitution that judges can enforce versus one that’s ever changing then y

Who ever said insurance isn’t interesting? Certainly not the Eleventh Circuit, and certainly not IJ’s Ben Field. He tells us a harrowing story of a church—a church of all places!—which weathers two acts of God (hurricanes) while taking insurance contracts and kicking insurances claims (actually, the insurance company kicked the claims). Ben weaves together the competing views of contract interpretation as personified by Harvard’s Samuel Williston and Yale’s Arthur Corbin to explain how the court ended up where it did. We even delve into the Gospel of John for inspiration. Then, in slightly less theological matters than contractual interpretation, we look at what the Fifth Circuit cooked up when it comes to free speech. Whether you’re a veggie burger connoisseur or not, you’ll want to hear about Louisiana’s attempt to stymie the labeling of meatless meat such as Tofurky. IJ’s Betsy Sanz tells us why the court did not find the law unconstitutional, but also why that means the law might not end up doing very muc

Just compensation is a pretty basic part of the Constitution. Which is why this week’s panel is a little confused how the State of Minnesota thought it could just take a bunch of insulin without paying for it. IJ attorney Joe Gay joins us to explain what the Eighth Circuit had to say not just about just compensation but where a property owner goes to get it. Then IJ’s Anna Goodman tells another Eighth Circuit tale of a speedy trial that was not so speedy. But it turns out that’s ok. Even when it’s the government’s fault. All about Anthony’s book! April 24 Feddie Night Fights debate PhRMA v. Williams U.S. v. Cooley

On a special Short Circuit IJ’s Marie Miller sits down with a trio of school choice experts to provide an overview on where school choice is today. Nicole Garnett and Rick Garnett, both professors at Notre Dame Law School, join IJ’s Michael Bindas to discuss the history of school choice, answer common objections to school choice programs, and walk through some of the litigation that has culminated in the explosion of school choice programs we now see in 2023. The episode was recorded at the University of Notre Dame after a conference celebrating the publication of The Case for Parental Choice, a collection of essays by John Coons and edited by Nicole and Rick along with their colleague Ernest Morrell. The Case for Parental Choice Zelman v. Simmons-Harris Espinoza v. Montana Dept. of Revenue Carson v. Makin