It’s a free speech episode with two rulings for the First Amendment. Paul Sherman of IJ details a victory that the Institute for Justice litigated at the Seventh Circuit. IJ represents a “death doula,” someone who helps people deal with many things that come up when a loved on passes away. Indiana said that she needed a funeral director’s license to do that. But she obtained a preliminary injunction against that law as applied to her, and the court upheld the injunction on appeal. Then IJ’s Joe Gay tells a wild story about “sideshows,” where cars race around intersections late at night and people involved do various other, mostly illegal, things. One California county was fed up with the sideshows and passed a law making it illegal to simply watch them. A citizen journalist challenged the law and the Ninth Circuit ruled that, yes, the sideshows themselves are a problem, but the answer is not to prevent journalists from watching them.

Richwine v. Matuszak

Garcia v. County of Alameda

Upsolve v. James

Your right to remain silent just got a little stronger in the Pine Tree State. We welcome on Carol Garvan of the Maine ACLU to discuss a recent ruling from the state’s highest court. Under police questioning a suspect asked about an attorney being present and whether he had to answer questions, but did so a bit ambiguously. Was that enough to invoke his rights under the Maine Constitution? Carol argued the case as an amicus to explain the high level of protection those rights receive in the state compared to what the U.S. Supreme Court has said about similar language in the U.S. Constitution. And the court agreed with her and her colleagues. She explains to us how the court came to its conclusion and what this means for other Mainers. Then IJ’s Daniel Woislaw tells us of another police encounter, this time at a parked car with heavily tinted windows in the District of Columbia. Could the police force the driver and passengers to roll their windows down? The judges say yes but disagree about why. It’s another example of the “reasonable expectation of privacy” test twisting and turning at the side of the road.

State v. McLain

U.S. v. Williams

IJ’s new Maine Backyard Chickens case

Arbitration may not sound like the most exciting subject, but it recently made for an exciting story at the Second Circuit. Former Miami Dolphins coach Brian Flores sued several teams and the NFL itself. In response, the NFL said the case had to go to arbitration. Which was pretty convenient because the NFL’s arbitration clause gives the job of arbitration to the NFL’s commissioner. It’s kind of like suing your employer and your old boss serving as the judge. Mike Greenberg of IJ drops by to explain why this meant the arbitration clause wasn’t enforceable under federal law. Then Jeff Redfern tells us of a case out in the Ninth Circuit where some attorneys got into hot water. They sued to try and change Arizona voting procedures with some aggressive allegations and rhetoric. But was it so aggressive that they should be sanctioned for filing the complaint? IJ’s Jeff Redfern  explains what the Ninth Circuit said about the matter, both at the panel stage and when the attorneys tried to go en banc. Some dissenting judges said whatever line there is between aggressive and frivolous it wasn’t crossed in this particular case. The team looks at how these issues especially come up in public interest litigation where “today’s crazy theory becomes tomorrow’s settled law.”

Flores v. N.Y. Football Giants

Lake v. Gates (panel)

Lake v. Gates (en banc denial)

Short Circuit traveled to Chicago for a live recording on the eve of the Seventh Circuit’s biannual Judicial Conference. In front of a crowd of Seventh Circuit enthusiasts your host spoke with some experts about some of the court’s recent opinions and how the circuit works. That included Sarah Konsky of the University of Chicago, appellate specialist Chris Keleher, and IJ’s own John Wrench. “Collective” (not class) actions, prisoner appeals and summary judgment, and Fourth Amendment overnight-guests all make an appearance as does the life and times of Judge William Bauer.  

STOP PRESS: On the eve of this episode dropping IJ won one of its pending cases before the Seventh Circuit! Richwine v. Matuszac, concerning Indiana’s licensing of death doulas. So IJ’s score in the Seventh is now 3-2, not 2-2 as John then-accurately reported.

Richards v. Eli Lilly

Whitaker v. Dempsey

U.S. v. Walker

Oral argument with Judge Bauer & timesheets

The Constitution separates “the judicial power” from “executive power.” Well, that’s the theory at least. A mixing of these powers led to some massive fines against a family farm. But Robert Fellner of IJ is happy to report that the Third Circuit recently ruled that’s a problem. In a case that IJ itself litigated, the court ruled that Article III of the Constitution guaranteed an independent judge when the federal government took the farm to court. The ruling is an application of a recent Supreme Court case and bodes well for separation of powers in the future. Then IJ’s Ben Field tells a very different story about a Russian woman who tried to arrange for an oligarch’s girlfriend to fly to the U.S. on a private jet in order to give birth. The problem was the U.S. government had sanctioned the oligarch and the woman working for him tried to evade that. Things didn’t work out and she didn’t show up for her court hearings in the U.S. The question the Second Circuit then looked at was is she a “fugitive”? She doesn’t live in the U.S. but she did used to visit the country a lot. The answer depends on a bit of a messy test about “fugitive disentitlement.”

Sun Valley Orchards v. U.S. Dept. of Labor

U.S. v. Bardakova

The Rise and Rise of the Administrative State

Episode with Scott Lincicome on tariffs

It’s Sixth Circuit week on Short Circuit with a couple Sixth Circuit lawyers who clerked on the Sixth Circuit and practice law in Michigan. (Which is where? That’s right, in the Sixth Circuit.) David Porter and Sean Dutton spin yarns about some recent Sixth Circuit opinions, including with a bit of an inside look on what the circuit’s judges think about dissenting from not going en banc. First we look at how “homely” a home needs to be to be a home. What even is a “home” for it to receive the protection of the Fourth Amendment, requiring a warrant and probable cause before government agents can search it? David discusses a recent case from the Sixth Circuit that opened the door on that question. Some warrantless inspectors barreled through the woods to then walk around a set of “mini-cabins.” Did that violate the Fourth Amendment, and if it did was it so clearly established that the inspectors can’t get qualified immunity? The court says yes and yes. We review how it got there and what it means going forward. Then Sean details a case about what rights someone has when they’re in prison and might have a path out of there. If the prison requires you to go through a program related to a sentence that the prisoner has already served, for another crime, in order to get parole, does that have due process implications? It comes down to what a “liberty interest” is. Sean also examines the writing style of the opinion, and we hold a colloquy about where legal opinions are well written and where they get a bit too glib. Finally, we have some fun with some sniping in a recent Sixth Circuit denial of en banc where the epic question is asked of when should a judge write—or not write—a dissental.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

Mockeridge v. Harvey

McClendon v. Washington

Mitchell v. City of Benton Harbor

Walden

Did you know the feds can send a subpoena to social media companies to find out stuff about your accounts and also order the same companies not to tell you? Turns out it happens all the time. But the law says that a court has to make an individualized assessment of each request. Some federal agents convinced a district court to just let them do all the paperwork and give a blanket gag order for a bunch of requests. Betsy Sanz of IJ joins us to explain why the DC Circuit said that’s just not good enough, although they avoided the Fourth Amendment issue. Then IJ’s Andrew Ward takes us to a meth deal gone bad and a “crazy high” speed chase. When the police arrest the driver, though, he’s pretty friendly—and probably high on marijuana. And he’s even acquitted of dealing meth—but not of being a drug user who owns a rifle he’s barely used that’s back at home in his closet. Is that a Second Amendment violation? It turns on a lot of history and tradition that kind of doesn’t make a lot of sense.

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

U.S. v. Perez

In re: Sealed Case

Short Circuit 325

Beyond the Brief episode “Cash Me if You Can”

On the heels of the trade deadline, Rob Johnson of IJ reports on some baseball news. But it doesn’t concern the latest in Major League Baseball. Instead, it’s about the business of baseball and how broad is the “business of baseball” exemption from the antitrust laws. There’s a baseball league in Puerto Rico that gave some pretty rough justice to an owner, who then took the league to court. Does the history and tradition of “baseball’s” exemption from antitrust laws apply to this league, or only to the American and National leagues back on the Mainland? Rob brings us the First Circuit’s answer and does so with the objective dispassion of a football fan. Then your host takes us out west for an unsolvable problem involving wild horses crisscrossing public and private lands in Wyoming. Are those horses actually “wild”? Doesn’t really matter to Congress, which mandates pretty impossible things that force the Tenth Circuit to send the government back through the administrative process. Then we close with some hot gossip: There’s no joy in Mudville.

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

Short Circuit in YIMBYTown! (11am on Sept. 15)

Cangrejeros de Santurce Baseball Club v. Liga de Beisbol

American Wild Horse Campaign v. Raby

Flood v. Kuhn

Federal Baseball Club v. National League

Short Circuit 370 (on Wyoming crisscross property)

Casey at the Bat readings at Librovox.org

Steve Lehto of Lehto’s Law rejoins Short Circuit—and for the first time on a YouTube episode—to spread the common sense he delivers daily on his own show. Steve shares a recent opinion from the Kansas Supreme Court about license plate covers. The police and lower courts had interpreted the law to make it a crime if a license plate cover blocked not just the actual license number but the name of the state. This basically turned a huge percentage of car owners into unknowing criminals. And gave the police a lot of discretion. But the court put a stop to that practice by saying it’s simply not how to read the statute. Further, Steve isn’t the only crossover guest on this episode. We also welcome Keith Neely of Beyond the Brief, another IJ podcast. Keith details an opinion from the Fourth Circuit upholding the federal ban on selling handguns to 18, 19, and 20 year olds. Is that OK under the Second Amendment? As with many constitutional issues these days, it depends on how you read the history.

Click here for transcript.

McCoy v. BATF

Kansas v, Beck

Bruen

Blog post on New Jersey license plate case

Lehto’s Law

Beyond the Brief

Mork Meets the Fonz and Lavern

We look into the gray area between a multi-level-marketing venture, like Amway, and a “pyramid scheme.” Appellate attorney Kyle Singhal joins us to discuss a matter of his from the Sixth Circuit where the court examined whether prosecutors in a mail-fraud case got over their skis by repeatedly calling what the defendants did a pyramid scheme. “Pyramid schemes” are bad, obvs., but they’re not actually a federal crime. So was it OK to use that term when speaking to the jury? Kyle explains what the court said in affirming the convictions. Then, Marie Miller of IJ gives us an update on a case she discussed last year in the Eighth Circuit. A police officer arrested a Missouri man for walking on the wrong side of the road. The court had said his First Amendment retaliation case was no good because there was probable cause for the (uncommonly silly) crime. But then the Supreme Court said give that another try. And the Eighth Circuit did and now has ruled the other way, allowing the case to go forward. Marie explains how the court changed its mind (a change in judges might have helped too).

Click here for transcript.

Come to Short Circuit Live in Chicago on August 17!

US v. Maike

Murphy v. Schmitt (2025)

Murphy v. Schmitt (2023)

Short Circuit 349 (episode on Murphy GVR)