Short Circuit

We’re joined by the SCOTUS Ladies, two “Supreme Court super fans.” They are Anastasia Boden and Elizabeth Slattery and they’re here to talk about their new blogging project but also to share their wider knowledge of the Constitution, public interest litigation, and even the federal courts of appeals. They each pick a case from the Fifth Circuit by Judge Willett, who you’ll learn is a very self-proclaimed “middle-management circuit judge.” First it’s the big question everyone is asking: Has the Supreme Court impliedly overruled Humphrey’s Executor? Minds seem to differ among the judges. Plus we have a bit of a rumble about structure vs. substance. Then we Netflix and chill while a rogue prosecutor goes after the streaming service and won’t let go—until the court recognizes a loophole in Younger abstention.

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Consumer Research v. CPSC

Netflix v. Babin

Humphrey’s Executor v. U.S.

SCOTUS Ladies

The Ninth Circuit recently had some pretty harsh words for the FBI’s egregious behavior when the Bureau decided to crack open some vaults in Los Angeles. The FBI tried to forfeit all kinds of property held in these vaults from innocent owners. Rob Frommer of IJ tells us all about this IJ case and the Ninth Circuit’s indignation. Then it’s off to the Second Circuit for a different kind of police misconduct, but misconduct nevertheless. IJ’s Katrin Marquez details a police officer’s attempts to silence someone simply because he told the cop to turn his headlights on. The case demonstrates how hard it can be to enforce the First Amendment and how necessary the courts of appeals can be. There’s also some ‘80s nostalgia for those into live TV syndicated specials.

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Snitko v. U.S.

Rupp v. Buffalo

Oral argument in Snitko v. U.S.

When Geraldo Rivera Opened Al Capone’s Vault

Buffalo News story on Rupp case

New IJ report on Qualified Immunity

It’s the latest episode of Unpublished Opinions, a Short Circuit podcast (but not actually Short Circuit). This is the podcast where Institute for Justice attorneys talk about the legal world beyond the federal courts of appeals. Diana Simpson and Josh Windham drop in to dialogue and diatribe about quite a few subjects you may—or may not—have your own opinions about. These include legal fictions, stare decisis, the vintage of the incorporation doctrine, and the Supreme Court’s recent opinion in Acheson Hotels v. Laufer (that’s the Americans with Disabilities Act case about mootness and standing–or should it be standing and mootness?).

Acheson Hotels v. Laufer

Richard Dietz, Factories of Generic Constitutionalism

Mazzone & Tecimer, Interconstitutionalism

General Law and the Fourteenth Amendment

It’s a clerk reunion this week, at least for two former clerks of Judge Diarmuid O’Scannlain of the Ninth Circuit. We welcome back David Lat of Original Jurisdiction who is joined by Daniel Sullivan, a New York litigator at Holwell, Shuster & Goldberg. Both clerked for Judge O’Scannlain at one time, giving them keen insights into clerking on the Ninth and what it’s like to be a judge in a jurisdiction where your colleagues often take a different point of view. However, we start things off not out west but in the southeast where David details Florida Governor Ron DeSantis’ efforts to suspend an elected prosecutor, Andrew Warren, and Warren’s resulting First Amendment lawsuit. In an opinion chock-a-block with facts the Eleventh Circuit rebuffed the suspension. David also highlights a Judge Newsom concurrence (something we’re getting quite used to on Short Circuit) and some interesting state-law issues. Then Dan turns the gas stove on to cook up a story of preemption and evolving standards of statutory interpretation. The City of Berkeley did a very Berkeley thing by trying to prevent new gas ranges, but the Ninth Circuit said federal law preempted that decision even though several judges thought maybe the law in this area isn’t all that up-to-date. Including Senior Judge O’Scannlain. Also, there’s a recommendation for where to get chicken next time you’re in Chicago.

Work at the Institute for Justice!

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Warren v. DeSantis

California Restaurant Assoc v. Berkeley

Original Jurisdiction

A more poetic Short Circuit this week. Coinciding with his birthday, January 25th, and with the phenomenon that it is these days, we pay homage to Scotland’s greatest poet, Robert Burns. What does this 18th century minstrel of haggis, lassies, and auld lang syne have to do with judicial engagement and the circuit courts of appeals? Well, if nothing else free spirited inquiry and the good cheer we try and support on the show. You’ll first hear what Burns might have thought of qualified immunity. Then Brian Morris of IJ joins us for his own reading of some bits of real Burns poems and then whisks us off to the Fifth Circuit where Texas tried to force publishers to rate their books. This attempt at compelled speech receives a heavy dose of judicial engagement, maybe one that would bring a smile to Burn’s face. Then it’s up to the Seventh Circuit where a lawyer just didn’t understand when to go home after his client had settled the case. And after the lawyer had been kicked out of the case for misbehavior. We finally end with the most cited poem of Burns in American judicial opinions. It’s one some listeners will recognize. All-in-all, we hope this episode is one of our best-laid schemes.

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Book People v. Wong

Bailey v. Worthington Cylinder Corp.

Jackson Coca-Cola Bottling v. Chapman

Burns Supper Guide

To a Mouse, On Turning Her Up In Her Nest With the Plough

A Man’s a Man for a’ That

Green Grow the Rashes

Burns BBC Documentary

An “utterly bonkers” case this week. Jaba Tsitsuashvili, attorney at IJ and attorney for his client Erma Wilson, tells us about the Fifth Circuit’s recent ruling in her case. By day a prosecutor worked for the office that prosecuted her but then moonlighted with the judge in her case by night. That’s what we call in constitutional law “a problem.” But she only found out about this years later, long after she had served her time. Now that this double-dealing story has come to light can she go back and clean up her record? With a result the Fifth Circuit admits is unjust, but mandated by the Circuit’s precedent, it says she can’t. If she were still in prison, though, she could. Which is pretty nuts. But that’s not all this week. Keith Neely of IJ skates onto the podcast with a story of “Chanukah on Ice,” and why religious groups were prevented from advertising it and other religious messages on the sides of buses in Tampa, Florida. The Eleventh Circuit figures out what to do with this obviously unconstitutional policy while showcasing a double lutz of concurrences.

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Wilson v. Midland County

Young Israel of Tampa v. Hillsborough Area Regional Transit

Irons footnotes

If a defendant lies on the stand, and also hasn’t turned over records that would have helped answer the same question, is that discovery abuse? We dig into trial tactics with IJ’s Will Aronin in a civil rights case from the Fourth Circuit where a police officer defendant may not have been entirely truthful about how many times he had been sued. Then IJ’s Jeff Rowes gives the full Reno 911 about a man whose prescription drug mill was nabbed through a warrantless search of a massive government database. Does the Fourth Amendment protect your medical records? We learn how the Ninth Circuit recently grappled with—or, rather, didn’t grapple with—that issue.

Apply to work at IJ here!

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Morgan v. Tincher

U.S. v. Motley

Los Angeles v. Patel

Folsom Prison Blues

Friend of the Devil 

An old favorite on our first show of 2024, a search incident to arrest. Was it reasonable for the police to open a man’s backpack when he already lay handcuffed on the ground? Or should they have gotten a warrant first? IJ’s John Wrench analyzes this matter from the First Circuit where a case from the ‘70s about a bank robber suppresses a motion to suppress. Then IJ’s Betsy Sanz takes us out west to Los Angeles—but should it have been only as far as Nebraska? That’s the question the Ninth Circuit addresses where we encounter a lying congressman, the Vicinage Clause, and our friends at the FBI.

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U.S. v. Perez

U.S. v. Fortenberry

Riley v. California

Blog post on an Illinois case and vicinage

If you ask someone on the street what’s the deal with the standard in employment discrimination cases they’ll likely exclaim “McDonnell Douglas!” And they’d be right. Except, the Eleventh Circuit just reminded us that that’s not the whole story. And Judge Newsom adds in that it shouldn’t be the story at all. IJ’s Joe Gay explains the ins and out of this opinion that’s got the whole employment law world talking. Then your host tells a story from the Fifth Circuit as it heavily indicates it’s ready to change precedent for certain Voting Rights Act claims. Along the way it makes a claim about what “the law” is. But is it?

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Tynes v. Florida Dept of Juvenile Justice

Petteway v. Galveston County (panel decision)

Petteway v. Galveston County (en banc grant of stay)

Daniel 5:5-7

Motions to suppress evidence of illegal firearms possession seem to be all the rage these days, or at least on this episode. IJ’s Christie Hebert starts things off in the Tenth Circuit where an altercation between former high school classmates (one of whom is a cop) leads to the discovery of an M-16 in the back of a tow truck. Was that a Fourth Amendment violation or a permissible inventory search? The court thinks the former and suppresses the evidence. The same is true in the Eighth Circuit, where IJ’s Evan Lisull tells us the police can’t get a warrant to search someone’s home just because the guy who lives there is a shady character. Evan also explains what it’s like to live on a nine-acre lot in rural Iowa and how “city mice” might not understand.

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U.S. v. Ramos

U.S. v. Ralston

12 Days of Short Circuit Christmas