Short Circuit

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

Wouldn’t it be fun to own a time machine? If you said yes then you’re a lot like the Fifth Circuit. Last week its full set of judges trotted out their own Delorean and ran it at 88 miles an hour while issuing an order denying an en banc motion. We’re calling this “time travel” because unlike a normal denial of en banc the court did so after it already had over three months ago and the losing side (represented by IJ!) had already filed a cert petition with the Supreme Court. IJ’s Bob McNamara comes on to discuss this bending of the space-time continuum, but also the bending of long-established property rights principles. The case concerns a takings claim against the State of Texas where the state is trying to get away with not paying property owners for flooding their land. And if the Fifth Circuit’s ruling stands it’ll get away with it now and into the future. Continuing on the time traveling theme, your host then tells a tale straight out of a Donna Tartt novel (well, a combination of two of them): A six-tho

Can a city get a renter evicted for a crime they didn’t commit? Unfortunately, in cities across the country the answer is yes. On a special Short Circuit we dig into this outrageous, and immensely underreported, issue. Professor Katy Ramsey Mason of the University of Memphis joins us to discuss crime free rental ordinances, laws that allow cities for force landlords to evict tenants after anyone in their household is merely charged (not convicted) of a crime. And not a crime committed on the property, but anywhere in town. We also hear from IJ attorney Sam Gedge who is part of a team currently challenging one of the worst examples of these laws in Granite City, Illinois. The case is currently at the Seventh Circuit and will be argued later this year. We even play some audio clips of what the eviction process has been like in Granite City as people who have done nothing wrong are kicked out of their homes. Register for March 31 conference on Meyer v. Nebraska! Article in UCLA Law Review, “One-Strike 2.0”

A nostalgic tale of judicial engagement where we examine whether recess is a crime and whether it’s fine for the government to follow your every move out on the water. First, Keith Neely of IJ joins us for the first time to discuss a Fourth Circuit opinion about a vague law that explicitly makes it illegal to be obnoxious. Then it’s his colleague Trace Mitchell’s turn with a Fifth Circuit tour of administrative law and the First Amendment. Keith also talks about the trivia test he had to take to become a circuit court clerk and how you pronounce “seconded.” (It’s not what you think. Unfortunately.) Plus, we close with a bit of rumination over “the youth of today” and how they can’t make obvious references to ‘60s sitcoms anymore. Register for March 31 conference on Meyer v. Nebraska! Carolina Youth Action Project v. Wilson Mexican Gulf Fishing Co. v. U.S. Dept of Commerce The British origins of "seconded"

A special Short Circuit Live at Georgetown University hosts Joanna Schwartz of UCLA to discuss her book Shielded: How the Police Became Untouchable. And not only that, but after hearing her introduce the book itself we do a full Short Circuit looking at a number of recent cases in light of it. Anya Bidwell and Professor Schwartz are joined by professors Seth Stoughton, Carlos Manuel Vazquez, and Alex Reinert. Recorded on Tuesday, March 7 and co-sponsored with our friends at the Georgetown Center for the Constitution. Our March 31, 2023 conference on Meyer v. Nebraska Come see Anthony on Thursday, March 16 at noon in Charleston, S.C.! Work at IJ! Shielded: How the Police Became Untouchable Edwards v. City of Florissant Sosa v. Martin County Pettibone v. RussellMack v. Williams Mack v. Williams

Short Circuit speaks with the law students at SMU in our first visit to The Big D. With Anya Bidwell as your host, she introduces us to Texas lawyers Zack Faircloth, Will Langley, and Don Tittle. They dig into recent cases on the Second Amendment, “premature bankruptcy,” vaping regulation, and (of course) qualified immunity. With more than one matter that seems to be on track for the Supreme Court this is the episode for Rick and Morty fans. Register for March 7 event with Joanna Schwartz on her book “Shielded”! United States v. Rahimi Wages and White Lion Investments v. FDA (motions panel) Wages and White Lion Investments v. FDA (merits panel) In re LTL Management Molina v. City of St. Louis Rick and Morty “Spa Planet” episode

For the first time Short Circuit welcomes the Jones-Act-hating, free-trade-loving, tariff-busting, T-shirt-writing, and top-5-ranking Scott Lincicome of the Cato Institute. Scott introduces us to a rare breed at Short Circuit, the Court of Appeals for the Federal Circuit. That’s because the court just issued (another) opinion upholding some of the dumbest steel tariffs of recent years (and that’s saying a lot). Scott walks us through the supposed national security issues, how tariff sausage gets made, and where the courts might go from here. After a somewhat difficult segue we then move to Andrew Ward of IJ, who tells a wild story from the Sixth Circuit of a shed that catches on fire, a sketchy warrant, security cameras, noises that sound like someone is ripping down a roof, and several kilos of a mysterious white substance in the sink. But none of it ever happened because of the fruit-of-the-poisonous-tree doctrine. Finally, we end with a top-5 list from Scott. Primesource Building Products, Inc. v. U.S.

A qualified immunity and property rights pairing this week. But first we announce the winning answer from last episode’s “decretal language” competition. Then, Patrick Jaicomo explains why in the Fourth Circuit it can be unconstitutional for the police to prevent you from livestreaming an encounter, but you can’t sue them about it. Then Suranjan Sen walks us through a couple challenges to New York’s notorious rent control laws. The Second Circuit finds no taking there, whatever the realities of tenants who never move out. However, the question arises: Can these cases be heading somewhere higher? Also, courts, you’re not writing mystery novels. So stop opening your opinions like one. Register for Feb 18 Cleveland show, Comedy is not a Crime! Register for event with Joanna Schwartz on her book “Shielded”! Register for March 31 conference on Meyer v. Nebraska! Sharpe v. Winterville Police Dept. Community Housing Improvement Program v. City of New York 74 Pinehurst v. State of New York

Our newsletter begins announcements about federal en banc decisions with the phrase “And in en banc news.” And about a year ago we had an argument on the podcast on how to pronounce that fancy French-sounding phrase. Today we bring back the guests from that episode—Sam Gedge and Bob Belden—to settle the issue, once and for all. Along the way you’ll learn about how we have the Germans to thank for how we describe full sittings of the federal courts of appeals. You’ll also learn about two recent en banc cases, one from the Eleventh Circuit concerning how prisoners can sue in federal court, and one from the D.C. Circuit about how foreign students can stay in the country and get some work experience. There’s also a couple rabbit holes involving decretal language and whether a “dissental” is a thing. Register for Feb 17 panel at Case Western Reserve! Register for Feb 18 Cleveland show, Comedy is not a Crime! Register for Marc 31 conference on Meyer v. Nebraska! Buy Anthony’s book! Draft of article A

On this Groundhog Day special we’re sniffing out a couple eternally recurrent subjects: limits on government surveillance and limits on property rights. We’re joined by IJ’s Seth Young and also are very pleased to announce we once again have on Mike Chase, author of How to Become a Federal Criminal. Mike gives an overview of a case pending in the Fourth Circuit that could have major ramifications for everyone with a smart phone and a Google account—that is, everyone, period. After a bank robbery the police tried to track down a suspect using several layers of Google data. The court later found that the warrant in question violated the Fourth Amendment—yet excused it anyway. Mike explains the issues and also gives a preview of what’s coming in the world of federal crimes. Seth’s case is also from the Fourth Circuit, and it brings us to the happy days of March 2020 and what happened to a couple who simply wanted to access their own property. Was that a taking? The multifactored magic 8 ball says “no.” United