Short Circuit

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 editin...

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...

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 not...

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 performa...

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...

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, t...

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...

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 governme...

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. Th...

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...

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...

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...

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 add...

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...

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...

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 th...

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 i...

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 meet...

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 a...

IJ’s Anya Bidwell guest hosts this special episode to ask what states and local governments can do to better protect their citizens’ rights, particularly when it comes to achieving justice in the courts. Professor Joanna Schwartz of UCLA and Kasia Symborski Wolfkot of the Brennan Center join Anya to dig into how a variety of laws and practices outside of Washington, D.C affect our rights. They discuss state legislative reform of causes of action and qualified immunity, the changing nature of state supreme courts, the limited involvement the Department of Justice has with local police departments, and othe...

We start with a case that ticks a lot of Short Circuit boxes: eliminating governmental immunities, state constitutions, preliminary injunctions, conniving public officials, mootness, and en banc news. So what happened there? Nothing. At least for now. Beyond the Brief’s (and IJ’s) Keith Neely details a long journey a group is having to take to get a state constitutional amendment on Ohio’s ballot. Ohio’s Attorney General has had a lot of problems with their paperwork. So many problems that, as Keith explains, “at some point you run out of stupid.” The case concerns the First Amendment bu...

Notable—and quotable—Chicago lawyer Patrick Eckler joins us for a crash-course in Seventh Circuit paranoia (if you’re paranoid about jurisdictional questions at oral argument—which you really should be). A co-host of the Podium and Panel Podcast, Patrick gives a primer on how federal appellate judges look at things The Chicago Way and then explains how a recent oral argument went off the rails quite quickly. The resulting opinion about the Federal Arbitration Act and how it relates to Amtrak was pretty short, mostly because the lawyers seem to have forgotten they work for a railroad. Then Christie...

We go online for some First Amendment content this week. First, IJ’s Jeff Redfern explains how the Eleventh Circuit concluded that CNN might be liable for defamation after one of its commentators said Project Veritas had been suspended from Twitter for “misinformation” when it had, in fact, very truthfully doxxed someone. That seems to pass the high bar of “actual malice” under the First Amendment’s free speech protections. Then Tahmineh Dehbozorgi of IJ brings us up to the Third Circuit where Section 230 immunity runs into a TikTok algorithm. Breaking with other circuits, the court says TikTok loses this one bec...

A couple friends drop by this week who have overstayed their welcome: Rooker and Feldman. Together they make up the Rooker-Feldman doctrine, a weed that has grown to crowd out justiciable federal claims in the federal courts. But the good news is that they aren’t the only friends on this week. We also have Wisconsin appellate attorney Joseph Diedrich who shares the story of his massive Seventh Circuit case which went en banc and Rooker-Feldman and now might go to the Supreme Court. Joe details the ins and outs of how a doctrine that is supposed to simply pr...

Can the U.S. government use civil forfeiture in a U.S. court to take property in another country? One of IJ’s directors of our National Initiative to End Forfeiture Abuse, Dan Alban, reports on a rare forfeiture loss for the federal government when it tried to forfeit money in a bank account in the principality of Liechtenstein. The Ninth Circuit thought that was a bridge too far, although the various judges disagreed with each other on why. Then IJ’s Matt Liles updates us on the latest on Second Amendment challenges to the District of Columbia’s gun la...

Did you know that you can be arrested for walking on the wrong side of the road? Neither did a Missouri police officer. Until he needed an excuse to put someone in handcuffs. Marie Miller of IJ details her recent victory at the Supreme Court—in a relatively terse, 20-word opinion—on behalf of her road-walking client after he lost at the Eighth Circuit, and how the First-Amendment-retaliation victory depended on an IJ case from last term, Gonzalez v. Trevino. Then IJ’s Anya Bidwell—who had something to do with that last-term victory—outlines a trilogy of recent opinions i...

Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned porti...

With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Ci...

When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in sta...

For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re joined by IJ attorney Ben Field. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear...

“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” The...

“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in th...

Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pi...

A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few year...

An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “ra...

Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It...

One reason we have a Fourth Amendment is to be free from general warrants, permission slips for the government to search, well, everything. Is that what newfangled “geofence warrants” are? The Fifth Circuit thinks so, which is why it found one to be unconstitutional. Your host brings you the tale of a postal heist where the bandits were only found through a search of Google accounts—592 million of them. But was it a “search” in the first place? We hack into this high-tech matter. But first IJ’s Kirby Thomas West provides an example of special rules for government attorneys. T...

Anyone who has ever grown enraged after seeing their comment deleted from a Facebook page will find solace in this week’s episode. We examine a free speech tussle between the National Institutes of Health and the animal rights folks at PETA. IJ’s Michael Soyfer brings us this First Amendment case from the D.C. Circuit which said that blocking certain hashtags isn’t necessarily right even when the posters say mean things. But before that we look at interstate commerce and truckers. The Fifth Circuit isn’t happy about its interstate commerce caselaw, but it’s not the Wickar...

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, fe...

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 h...