Short Circuit

It’s Short Circuit Live from Antonin Scalia Law School at George Mason University with a D.C. Circuit special! We review opinions from a court that “many people are saying” is the second-most-important in the land.  With a full state of very special guests: GMU’s own Todd Zywicki, Casey Norman of the New Civil Liberties Alliance, and IJ’s own Bob Belden. Professor Zywicki discusses a pair of recent D.C. Circuit rulings on attempted firings at the FTC and the Federal Reverse that revolve around the fate of Humphrey’s Executor. Then, Casey shares a saga of the reporter’s privilege under the First Amendment and how it can conflict with the Privacy Act. Finally, Bob asks who wants to be a millionaire? (If you do, turns out a good path is narcing on a Wall Street firm for underpayment of taxes while filing the correct IRS form.)

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Slaughter v. Trump (D.C. Circuit denial of stay)

Cook v. Trump (D.C. Circuit denial of stay)

Trump v. Slaughter (SCOTUS grant of stay)

Chen v. FBI

In re: Sealed Case

Short Circuit 214 (D.C. Circuit special)

“Religion” and “fact checks” don’t normally go together. But an employer did so when some employees tried to obtain a religious accommodation from a COVID vaccine requirement. Matt Liles of IJ explains that the employer didn’t exactly “fact check” religion itself, but tried to point out that other religious leaders were OK with the vaccine and so should the employees. This all ends up in federal court under Title VII where the Sixth Circuit has to fix some errors in the district court and straighten out how Title VII works. The court also hints that the way to deal with religious accommodations isn’t to use “fact checks.” Then IJ’s Christian Lansinger brings us to the Eight Circuit where 3M—famous for Scotch tape and Post-its—was fighting with the IRS over how much money it owed via its Brazilian subsidiary. The fight revolved around an IRS regulation and how much deference to give the agency in interpreting a Congressional statute. That all changed last year at the Supreme Court with the overturning of the Chevron doctrine. How does the IRS do in this brave new world? Not well, it turns out.

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Bilyeu v. UT-Battelle

3M v. Commissioner

Loper Bright Enters. V. Raimondo

IJ’s IRS and tax preparers case

Dropping on First Monday, the Supreme Court’s first day of the October 2025 term, it’s our annual Supreme Court preview, recorded live at the University of North Carolina. Re-joining us after a very long hiatus is Sheldon Gilbert, the original host of the very first preview and very first Short Circuit Live, way back when he was the Director of the Center for Judicial Engagement. That is, back when he was a Younger Sheldon. These days he has the fancy-pants job of CEO and President of the Federalist Society. But he’s returned for old times’ sake and also to follow what seems to be the occupation of his calling—a game show host. Sheldon welcomes Justin Pearson of IJ and Interim Dean Andy Hessick of UNC Law for a bit of SCOTUS trivia and a review of some of the term’s biggest cases. Get ready for substance v. procedure, the Heck bar, civil forfeiture, and unconstitutional conditions. Plus, things you never knew—or never even fathomed you never knew—about Erie Railroad v. Tompkins. This is the way we Leeroy Jenkins at Short Circuit.

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Berk v. Choy

Oliver v. City of Brandon

Jouppi v. Alaska

La Anyane v. Georgia

The Ballad of Harry Tompkins

The Very First Short Circuit Live (with Younger Sheldon and Younger Justin)

Leeroy Jenkins!

Two opinions that dig into history, one on voting rights the other on gun rights, and both from the Fourth Circuit. First, Dan Nelson of IJ tells us of a challenge to a North Carolina law that criminalizes voting by felons, even when the voter legitimately thinks they are eligible to vote. The statute was passed back during Reconstruction for racist reasons and hasn’t materially changed since. Does that still matter all these many years later? It turns out it does, and the court ruled it unconstitutional. IJ’s Dylan Moore then tells us a tale of a man who bought a gun in Arizona and brought it to Maryland. Unfortunately, he was under a felony indictment back home. That fact plus traveling with the gun violated federal law. But does that law violate his Second Amendment rights? The court doesn’t think so but it has to do a few historical twists and turns before arriving at that cross-country destination.

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N.C. A. Philip Randolph Institute v. Board of Elections

U.S. v. Jackson

Bruen

It’s a Short Circuit Live from YIMBYTown! We travel to the Yes-In-My-Back-Yard conference, held this year in New Haven, Connecticut. Our guests discuss recent cases and controversies related to efforts to build more homes and also, unfortunately, do the opposite. First up is David Schleicher, aka “Professor YIMBY,” of Yale Law School. David updates everyone on a case we’ve talked about before, a lawsuit in Montana to try and throw out the state’s “miracle” housing reforms passed a couple years ago. The case is now before the state supreme court after a rocky initial ride. David focuses on the issue of private covenants and how that might affect reforms elsewhere in the future. Then Andrew Fine of Open New York tells the sad tale of a long battle to build low-income housing on a lot—the “Elizabeth Street Garden”—in the middle of New York City. Led by Hollywood celebrities, the effort to prevent the project for “environmental” reasons dragged on for over a decade. Although that act of NIMBYism ultimately lost at the state’s highest court, continuing attempts to stop the project took so long that the city recently just pulled the plug. We end on a cheerier note, though, with Ari Bargil of IJ. He relates the news of a win in trial court in Georgia for our client’s efforts to build “tiny homes.” Does this presage other victories elsewhere? The panel think that through.

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New York Court of Appeals ruling in Elizabeth Street Garden case

MAID v. Montana update

Georgia Tiny Homes case

David’s piece on NIMBY judges

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.

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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.

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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.”

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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.

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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.”

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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