Short Circuit – Details, episodes & analysis

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 years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy. Gonzalez v. Trevino case page Villarreal v. City of Laredo en banc Right on Crime Over Ruled by Justice Gorsuch Texas Observer

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 “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia. Ramirez v. Killian Wolfe v. Reading Blue Mountain Bound By Oath episode on Pennsylvania and coal IJ’s Georgia railroad eminent domain case From a Railway Carriage

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 “consul general” does these days. SEC v. Jarkesy US v. Woods Anthony’s piece “America is not British” British Constitution episode

The Institute for Justice has asked the Supreme Court to take a case challenging Kentucky’s Certificate of Need law (aka a “CON law”—very much a double entendre). Two attorneys in the case, Andrew Ward and Bob Belden, discuss how their clients simply want to provide home health care to their own immigrant community, why the law that prevents that violates the Constitution, and how the Sixth Circuit disagreed. There’s a lot of discussion about how the rational basis test turns out to not be so rational. Then the panel moves on to a property rights case, also in the Sixth Circuit, challenging “equity theft.” You’ll learn a few things about law versus equity and why theft by the government is still theft. Click here for transcript. RSVP for Short Circuit Live in NYC on 10/26 here! Tiwari v. Friedlander (Sixth Circuit) Tiwari v. Friedlander (cert petition) Hall v. Meisner Short Circuit 175

The Supreme Court has said that once the police find a reason to pull you over, they can pull you over—even if that’s not at all why they actually want to pull you over. Patrick Jaicomo joins us to discuss a tragic story from the Fifth Circuit where the court denied qualified immunity to an officer, but also questioned why the police should be allowed to conduct pretextual stops in the first place. We also police tactics that seem designed to turn the temperature up, not down. Then it’s off to the First Circuit where Anna Goodman tells us about standing and the Americans with Disabilities Act. Be sure to keep your standing from your merits while listening. Also, we close with a little bit about “cleaned up.” RSVP for Short Circuit Live in NYC on 10/26 here! Click here for transcript. Crane v. City of Arlington Laufer v. Acheson Hotels, LLC Novak v. City of Parma cert petition The Onion’s amicus brief in Novak “Cleaning Up Quotations” by Jack Metzler

Enjoy some intra-Ivy League ribbing with two Yale grads talking law and clerkships from deep inside New York’s oldest university. Short Circuit welcomes David Lat of Original Jurisdiction (f/k/a Article III Groupie) and Michael Yaeger of Carlton Fields and Empirical Justice. After some throat clearing about their alma mater being in the news quite a bit lately—and how for that reason maybe it’s a good thing David and Michael already got their clerkships in—we discuss their experiences working on the Ninth and Third Circuits. We then dive into some cases: David outlines a speech-and-licensing decision where IJ filed an amicus brief, Michael guides us through the weeds of a sentencing case applying the First Step Act, and your host lays out a sovereign immunity opinion involving state court staff where (unlike a certain recent case involving Texas courts) the government doesn’t win (plus—for interested listener(s)—there’s even some Younger abstention!). It’s the first half of a New York Short Circuit Live double header this month. As for the second, on October 26th, you’re invited! Click to RSVP below. RSVP for Short Circuit Live in NYC on 10/26 here! Click here for transcript. Tingley v. Ferguson U.S. v. Chen Courthouse News Service v. Gilmer IJ’s Diet Speech Cert Petition

What’s new in OT22? Quite a bit, it turns out. This is our sixth annual Short Circuit Live Supreme Court Preview from the University of North Carolina School of Law. Once again, the student Federalist Society chapter graciously asked us to visit and preview the upcoming term of the United States Supreme Court, with some lighthearted trivia, a deep dive into a couple cases already being heard by the Court, and a couple more that it might. As in past years, it’s Justin Pearson of IJ vs. Professor Andrew Hessick of UNC. One note for you listeners is that there’s questions from the crowd at the end (which were great!) but you can’t hear them on the podcast. However, don’t worry as our panelists helpfully repeat them for you. By the way, one of those questions comes from a mystery guest . . . National Pork Producers Council v. Ross Moore v. Harper Kokesch v. Florida Dept. of Health Moses v. United States Book by the Mystery Guest (that you should read!)

If a doctor says a prisoner needs to take his medication, and you’re a prison guard, you should give the prisoner his medication. A number of prison officials in Utah seem to have failed to do this for someone in detox, leading to his death. Does that violate the Eighth Amendment’s prohibition on cruel and unusual punishments? Yes, said the Tenth Circuit, and the right is clearly established too, defeating qualified immunity. Tori Clark brings us this sobering case where, at least this time, the drunken logic of qualified immunity didn’t rear its ugly head. Also, we discuss what happens when you don’t pay your taxes and then sue about them. Turns out you can’t do that. You also might have your passport taken away. Which raises the question of whether you have a right to do that thing the passport is for—international travel. We pontificate about a Fifth Circuit case concerning taxes and a passport where there’s also a couple elephants in the room. Click here for transcript. Paugh v. Uintah County Franklin v. U.S. Register for Short Circuit Live in New York!

It’s the first Big Sky Short Circuit! Recorded in front of students at the University of Montana School of Law, we examine three cases from the Montana Supreme Court (or heading quickly toward it) from three eminent Montana attorneys. There’s cases on government immunity, racial balance on juries, and voting rights, intersecting with state law and the Montana Constitution. We also explore practicing in Big Sky Country and reforms the state supreme court might want to consider. The podcast was recorded in conjunction with a symposium of the Montana Law Review’s celebration of the 50th anniversary of the adoption of the Montana Constitution. Whether you’re interested in Montana itself, or just in state law principles and how state constitutions interact with the rest of our legal system, we hope you’ll enjoy this broad exploration of those topics. Click here for transcript. L.B. v. United States State v. Wellknown Montana Youth Action v. Jacobsen

When you sue the government for violating your rights do you first need the government’s permission? Unfortunately, the answer is usually “yes.” We look at a pair of recent cases that go in different directions on the issue, and this leads us to some pretty “deep thoughts” about where law comes from and what roles courts and legislatures have in finding remedies to address constitutional violations. The words “common law” come up much more than is generally common for the podcast. First Anya Bidwell explains how the Tenth Circuit denied a prisoner a chance to sue a prison guard based on a recent Supreme Court decision that effectively closed the door on new remedies when federal officials violate the Constitution. Then, in contrast, Ben Field details a case from the Michigan Supreme Court where the majority recognized a remedy for violations of the state constitution. In addition, the dissent says some interesting things about legal history that we explore. It’s often repeated that if there is a right there is a remedy too. We try to find out how true that actually is. Click here for transcript. Join us for Short Circuit Live in NYC on Oct 26! Silva v. U.S. Bauserman v. Unemployment Insurance Agency 50 Shades of Government Immunity