Short Circuit

Short Circuit listeners may be familiar with occupational liberty cases brought by the Institute for Justice. But perhaps not with the kind of “through the looking glass” case we’re talking about this week, regarding a Chicago public school principal. Madison, Wisconsin attorney Joe Diedrich joins us to break apart the Seventh Circuit ruling. Then, IJ attorney Paul Sherman joins us to share his campaign finance expertise in a case that we don’t see much of anymore: a campaign finance case. It’s a Tenth Circuit opinion that updates the law a bit on campaign finance matters and also features a radio ad that Paul does his best to emulate.

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Biggs v. Chicago Board of Ed.

Wyoming Gun Owners v. Gray

Short Circuit episode on Devillier v. Texas

It’s a Short Circuit Special this week, all about that part of the Constitution that is supposed to keep away unreasonable searches and seizures—the Fourth Amendment. We’re joined by Professor Dan Epps of Washington University in St. Louis. Dan is the co-author, along with his Wash U colleague Danielle D’Onfro, of The Fourth Amendment and General Law, an article that the Yale Law Journal recently published. They make the argument there that when courts are trying to determine what’s a search or a seizure they should look to whether government officials have broken the law that the rest of us have to follow. And to figure out what that “law” is, courts should look to the general law of the United States, not the particular law of a particular state or city. And what is the “general law”? Well, listen to find out. Their piece is one of the latest arguments in an ongoing debate both at the Supreme Court and elsewhere about how the Court’s “reasonable expectation of privacy” test doesn’t work and how it should be replaced. We discuss some of the background of this debate, including some of Justice Scalia’s rulings late in his life that got it really going, other arguments for where the Court should go, and Dan and Danielle’s argument. Anyone interested in the Fourth Amendment and its intersection with property rights may find the conversation especially interesting, as well as anyone interested in the “general law,” the common law, and the conception of law as a spontaneous order and not just the command of a sovereign.

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The Fourth Amendment and General Law

The Positive Law Model of the Fourth Amendment

U.S. v. Jones (2012)

U.S. v. Carpenter (2018)

Blog post on Katz puns

A special Short Circuit Live in southern California with a special guest. We welcome Ken White, a/k/a Popehat to the show, along with IJ attorneys Patrick Jaicomo and Paul Avelar. Ken digs into Missouri v. Biden, the all-over-the-place litigation from the Fifth Circuit about pressure from the Biden Administration to have social media companies remove certain kinds of speech. Ken thinks the Fifth Circuit did a good job correcting some of the excesses of the district court ruling but ultimately agrees there seems to be something unconstitutional here. He also previews where this area of law might be going. We then turn to the Sixth Circuit where Patrick tells a tale of a judge who receives immunity for doing something that judges really aren’t supposed to do—jail someone without cause after they merely sat in his courtroom. And then Paul explains how you can’t copyright “the law,” and how that came up in a D.C. Circuit case involving private publishers of industry standards. Can a lawmaker co-opt J.K. Rowling’s copyrights by simply publishing her books in a statute book? Inquiring minds want to know.

PLEASE NOTE: This episode was recorded on October 1, 2023, before the Fifth Circuit issued an updated opinion in Missouri v. Biden. However, the only real change seems to have been that one agency, the Cybersecurity and Infrastructure Security Agency, was added back into the injunction.

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Missouri v. Biden (Sept 8 opinion)

Missouri v. Biden (Oct 3 opinion)

Orta v. Repp

American Soc for Testing & Materials v. Public.Resource.Org

We visit some friends of the Institute for Justice at the Supreme Court Litigation Clinic at Stanford Law School. The clinic allows law students to work, full time, alongside experienced Supreme Court litigators on a range of interesting cases. IJ’s Anya Bidwell recently traveled to Stanford and sat down with two clinic professors, Jeffrey Fisher and Easha Anand. They discuss the clinic and its model, cases pending at the Court this term, and arguments the clinic had at the Court last term. And, interspliced with the conversation, you’ll hear a few cuts from the actual arguments. Enjoy a fascinating look at how cases get to the Court, how they’re argued, and how the dynamics of the current Court are shaping those arguments.

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Dubin v. United States

Glacier Northwest v. Teamsters

O’Connor-Ratcliff v. Garnier

Chiaverini v. City of Napoleon

It’s the second episode of Unpublished Opinions, a Short Circuit podcast. This time we’re once again joined by Institute for Justice attorney Anya Bidwell, but also welcome along her colleague Josh Windham. We start things rolling and see where their legal minds go. And that begins with cameras in the courtroom, something that divides the panel quite sharply. Would the Supreme Court change if cameras were introduced? Would it change for the better? Then we shift to judges and their busy schedules. What’s up with judges not reading briefs before an argument? Is it really all that bad? How prepared must a judge be to be a “prepared judge”? After this we move along to legal writing and judges writing to be too “hip.” Josh has some thoughts on this, which the rest of the panel are . . . somewhat skeptical of. But we end on a compromise everyone can, hopefully, agree on.

Short Circuit episode on “cool judges” with Raffi Melkonian

Article on Judicial Opinions by Nina Varsava

For the 7th year in a row Short Circuit travels to the University of North Carolina School of Law to preview the upcoming Supreme Court 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 also joined by IJ attorney, and UNC alum, Josh Windham. 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 argument on, plus two cert petitions that the Court may take up. You’ll learn about Second Amendment mechanics, Fourth Amendment fun, and standing quandaries.

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U.S. v. Rahimi

Acheson Hotels v. Laufer

Verdun v. City of San Diego

Jackson v. Ohio

We celebrate, and dig into, two victories for property rights this week—both in IJ cases! First, IJ’s Wesley Hottot discusses the Sixth Circuit’s opinion in his clients’ challenge to Detroit’s vehicle seizure program. Wayne County, Michigan will seize cars on flimsy grounds and then wait months until the owner can even try and get the car back—unless you fork over some ransom money, in which case it doesn’t matter what the evidence is. The court found this a clear constitutional violation and ruled that owners should be able to contest these seizures within two weeks. Then, in a tale that will shock our bibliophile listeners, IJ’s Bob McNamara tells us of what the D.C. Circuit thought of the Library of Congress’s program of forcibly taking books as part of its copyright program, even when the taking of the books had nothing to do with copyright. For years small publishers have been threatened with fines if they don’t turn over books, without any compensation, and even though the books are copyrighted anyway. Many of these books are then literally thrown away. Sound like a taking? The court agrees. There’s also some grumbling about moving books between apartments.

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Ingram v. Wayne County

Valancourt Books v. Garland

Culley v. Marshall (pending SCOTUS case)

Baby Ninth book page (with events)

Two old favorites this week: The nondelegation doctrine and the phrase “come back with a warrant.” And both from the culturally varied Sixth Circuit. First, Justin Pearson of IJ explains the wide delegation of power that Congress gave OSHA and how the courts have hand-waived away any constitutional problems with that. That’s no different in the recent Sixth Circuit case, although there is an interesting dissent. Then, Brian Morris takes us down the Ohio River to a couple Kentucky cops who won’t take no—or “get a warrant”—for an answer. It’s a defeat for qualified immunity and a lesson on what the police will do even when the body cameras are on.

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Allstates Refractory Contractors v. Su

Reed v. Campbell County

Navarette v. California

Map from “American Nations”

The members of the Nashville City Council are apparently big fans of sidewalks to nowhere. In order for property owners to get a permit they have to commit to building a sidewalk along their lot line, even if there’s no sidewalk anywhere else on the street. Or, they can just hand over a chunk of cash. The Sixth Circuit said earlier this year that there’s a big constitutional problem with that. Minnesota attorney Ryan Wilson stops in to tell us about that story. But first we hear from another Minnesota attorney (sense a theme here?) David Asp about everyone’s favorite topic: ERISA preemption. No, seriously, it’s a big deal that has a big impact on our health care system. Dave walks us through a recent opinion from the Tenth Circuit that marks a split and could be on its way to the Supreme Court. Also, you’ll learn a bit about how law students clean up after themselves (not well it turns out).

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Pharmaceutical Care Management Assoc v. Mulready

Knight v. Nashville

Where the Sidewalk Ends

Apply to be a Senior Fellow at IJ!

We wade into a hotly contested subject this week: standing law under Article III of the U.S. Constitution. The cases by which we address that subject are about more mundane issues—abortion drugs and transgender transitioning in public schools—so we mostly ignore them. First, IJ’s Andrew Ward takes us to the rough-and-tumble Fifth Circuit where a group of doctors are challenging the FDA’s approval of a drug, resulting in a somewhat eyebrow-raising opinion (in more ways than one, but we focus on standing) where the bounds of a cognizable injury seem more expanded than normal. Then IJ’s Kirby Thomas West brings us to the Fourth Circuit where a group of parents challenge a school district’s gender transition policy. That leads to a result civil rights lawyers are more used to—a court excusing itself on standing grounds. What does this portent for the future of standing law? We have no idea, but we speculate about original meaning.

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Alliance for Hippocratic Medicine v. FDA

John and Jane Parents v. Montgomery County Board of Education

Clapper v. Amnesty International

R.E.M. – Stand