Short Circuit

With the recent major tariff rulings we had to pull in a major tariff expert, Scott Lincicome of the Cato Institute. Scott digs into the “shocking decision,” as even he puts it, from the Court of International Trade declaring many of the recent “emergency” tariffs unlawful. He takes a look at what’s behind the opinion and what’s next as the case goes on appeal to the Federal Circuit and perhaps also to the Supreme Court. The law the tariffs are justified under might not even allow for tariffs, but ruling that way means the courts will have to not give the substantial deference to the President in these kinds of matters that they often have given in the past. Both the Major Questions Doctrine and the Nondelegation Doctrine loom and there’s some gaps that need to be filled. Then IJ’s Jeff Rowes describes a victory for free speech in the D.C. Circuit where the Attorney General of Texas tried to use a consumer fraud statute designed to remedy things like “defective air conditioners” against a journalism organization. Even though the court upheld a preliminary injunction, Jeff argues that the very fact the law was used in this way in the first place, in conjunction with the rich and powerful, is an ominous First Amendment warning. Plus, we dig into some “where are they now, updating cases from recent episodes. This includes one where IJ is trying to have applied to the states one of the last bits of the Bill of Rights that the Supreme Court has missed: The Seventh Amendment’s right to a civil jury trial.

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Call for Papers for our conference on Declarations of Rights from 1776!

VOS Selections v. U.S.

Media Matters v. Paxton

Scott’s conversation with Rick Woldenberg from the DC tariff case

Scott & Clark Packard’s study on tariff powers from last year

IJ’s Seventh Amendment incorporation cert petition

Corn Law Rhymes & Other Poems (1833)

The Taxed Cake

Fans of truckers should enjoy this episode, although they may grow angry hearing about a truck stop that never was to be. Tahmineh Dehbozorgi of IJ tells us of a property owner in Georgia who wanted to turn his land by a highway into a truck stop. But the county was dead set against him, leading to a decades-long zoning battle. A gas station would be OK, but not if it looks more like a place where truckers can fuel their rigs and get a little rest. In the end, when the controversy finally reaches the Eleventh Circuit the rational-basis test squashes any chance the truck stop has because . . . well because it’s a rational-basis case. Then Suranjan Sen takes us to the Sixth Circuit where an eight-year-old wore a hat with a gun on it that also says “Come and Take It.” The student was asked to take it off ostensibly because of a recent shooting in a nearby school. Did that violate the First Amendment? The court claims it did not but the matter seems a close case under the relevant caselaw. The crew looks at the relevance of the Tinker case from the Vietnam War era and also where the “come and take it” phrase comes from. Did you know it’s a Battle of Thermopylae thing?

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Corey v. Rockdale County

C.S. v. McCrumb

Tinker v. Des Moines Sch. Dist.

Angry Cheerleader Case

Roll On (Eighteen Wheeler)

Sometimes a short ride goes a long way. Casey Mattox of Stand Together comes on to tell us how a dirt biker in Nevada may end up making some constitutional history. Agents of the Bureau of Land Management gave the dirt biker a citation for riding without a license-plate light. His public defender argued the underlying law was unconstitutional because Congress hadn’t given the Bureau an “intelligible principle” to guide the underlying traffic regulation and thus violated the nondelegation doctrine. That argument won at the district court but then the Ninth Circuit recently overturned it on appeal. But there may be more life in the case to come. Then Arif Panju of IJ details the latest challenge to a university speech code. A judge twisted some arms to get the school to change its policy and then declared the case moot. The Fifth Circuit, however, said the game’s not over yet because there’s no guarantee the old code won’t come back.

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US v. Pheasant

Speech First v. McCall

Uzuegbunam v. Preczewski

FBI v. Fikre

2019 blog post on voluntary cessation

Zen & the Art of Motorcycle Maintenance

Two federal appellate opinions involving a murder and whether justice was served. First, IJ’s Dan Alban reports on a Sixth Circuit case where a man alleges he was wrongfully accused and spent seven years in jail waiting for trials on various false charges, including not just murder but others too—including sodomy—and where the trials never happened. All of this, the man claims, was because of a conspiracy directed toward getting him to testify—and lie—in another case. It’s a crazy story that the court doesn’t want to hear because it concluded the man’s civil rights lawsuit was filed too late. Then we hear from An Altik of IJ about the latest in the very long running saga of a man, Rodney Reed, trying to prove his innocence while on death row. Reed was successful at the Supreme Court last year in his attempt to have a claim for DNA testing to be heard. But now that the Fifth Circuit has considered the claim it has denied relief. The court declared that the underlying rule used in Texas courts is constitutional under the Due Process Clause.

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Reed v. Goertz

Brown v. Louisville-Jefferson County

Background on Rodney Reed case

The Murder on the Links

Constitutional rights protect everyone, even people we might not be terribly fond of. This week we discuss two defendants who perhaps don’t deserve a lot of sympathy but nevertheless had their rights vindicated in a way that protects those rights more broadly. First, an IJ alumna, Anna Goodman Lucardi, rejoins Short Circuit to update us on goings on in the Fifth Circuit where the court applied last year’s SCOTUS case about jury trial rights, SEC v. Jarkesy, to a similar situation involving the FCC and fines. The court found that the FCC’s system violated both the Seventh Amendment and Article III of the Constitution. This even though the well-known defendant, AT&T, is a “common carrier.” Then Jessica Bigbie of IJ reports on a Tenth Circuit matter where a warrant led to police finding some not-legal images on someone’s phone. But the warrant itself had some not-constitutional language under the Fourth Amendment. Language allowing the authorities to basically search everything for anything. Jessica applies her background as a public defender and assesses why this “unicorn” of a case came out the way it did. We then end the show with some “where are they now” on cases from Short Circuits past.

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AT&T v. FCC

U.S. v. Santiago

SEC v. Jarkesy

Lawson’s The Rise & Rise of the Admin State

The Mouse’s Tale

All kinds of constitutional goodies this week, from sovereign immunity to the First Amendment right to dance. But we begin with our annual Kentucky Derby preview from IJ’s Kentucky boy, Brian Morris. After that Brian keeps things local with a case from the Derby’s home circuit, the Sixth, which features another old favorite of the podcast, Ex parte Young. That precedent helps a pipeline company with some litigation against the governor of Michigan concerning an easement under the Straits of Mackinac (a name we proudly pronounce correctly). Then Evan Lisull, IJ’s legal writing guru, fresh from editing a round of recent briefing, gives some tips for writing at the Supreme Court. He also shares with us an Eleventh Circuit case concerning Jacksonville, Florida’s efforts to stymy the dancing opportunities of 18-20 year olds. The facts are very “Florida Man” (well, “Florida Young Women” technically) and although we give a brief and clinical description of the activities that Jacksonville is trying to ban, parents may want to hit pause if they have younger children listening. The larger issue we spend far more time addressing is whether content-based restrictions on speech related to zoning and unwanted “secondary effects” receive strict scrutiny or not. As a bonus, there’s even a fan-favorite: a Judge Newsom concurrence. We close with some reflections on a favorite of Evan’s during Derby week, Hunter S. Thompson’s 1970 essay on the circus surrounding the run for the roses.

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Enbridge Energy v. Whitmer

Wacko’s Too v. Jacksonville

Ex parte Young

The Kentucky Derby Is Decadent & Depraved

Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the passage of Colorado’s reforms and gives us his perspective from the civil rights litigation side. Then he describes a Tenth Circuit case he litigated about a woman who was brutally injured by a police officer. The court said her rights were indeed violated, but not in a way that overcame qualified immunity. Finally, we hear from Professor Laurent Sacharoff of Denver Law. He tells us of a recent Tenth Circuit case where a couple of officers got their dog to run into a house without first contacting the resident but after telling the dog to bite the first person it sees. Sig, the dog, then did what it was told and bit the resident—who was asleep in bed—and was allowed to hold on for a minute before the police commanded it to stop. The court found that this was so obviously wrong that it not only violated the Constitution but that the plaintiff overcame qualified immunity. The panel discusses why QI was defeated in one case and not the other and how this makes for unpredictability in legal practice.

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SB 20-217

Surat v. Klamser

Luethje v. Kyle

Tenth Circuit courtrooms

An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just about no one rents these things anymore, the statute still applies to rentals of movies online. Both the Sixth Circuit and the Seventh Circuit recently ruled on the scope of the law and came to opposite conclusions. Along the way, Jacob provides a dramatic reading of the original article about Bork’s video rentals. And stay tuned to the end for a segment of “Where Are They Now?”

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Villarreal v. City of Laredo

Gardner v. Me-TV National Limited Partnership

Salazar v. Paramount Global

Short Circuit episode with JT Morris

1987 article on Judge Bork’s video rentals

Short Circuit episode on Papa Johns’ website

Nietzsche’s Eternal Recurrence

Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode.

Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and, as many listeners will know, the Dean of what some still call #AppellateTwitter. Eugene begins the episode with a recent en banc ruling from the Ninth Circuit which upheld California’s ban on gun magazines with more than 10 rounds. He analyzes the majority’s reasoning but what the audience really enjoyed was his—and Raffi and Anya’s—thoughts about the video dissent by Judge Van Dyke, wherein the judge displayed a number of firearms and how they work. Then we move to Raffi for a few litigation tips from Lord of the Rings. We don’t do a lot of arbitration cases on Short Circuit but, wow, if you’re ever going to hear about one it’s got to be this. Four different arbitrators all heard one dispute, gave mutually inconsistent awards, and even sanctioned one and other. How does this story end? The Fifth Circuit hopes with one last arbitration to rule them all. If it doesn’t go to the Supreme Court first.

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Duncan v. Bonta

Sullivan v. Feldman

Judge Van Dyke’s video dissent 

Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard.

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Daniel Nelson and Patrick Jaicomo’s Section 1983 article

Thaler v. Perlmutter

Iron Bar Holdings v. Cape

John Connor’s speech