Short Circuit

If you’re not a major party candidate it can be really hard to get on the ballot. So hard it’s sometimes unconstitutional. Paul Sherman explains how a Michigan candidate fought the elections bureaucracy in the Sixth Circuit and won (well, at least got on the ballot). Plus, can the City of New York sue to stop global warning? Actually, no. Andrew Ward walks us through a case from the Second Circuit on federal common law, this thing lawyers call Erie, and international relations. Register here for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/Short-Circuit-169-FINAL.pdf Graveline v. Johnson, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0072p-06.pdf City of New York v. Chevron Corp., https://www.ca2.uscourts.gov/decisions/isysquery/63c19c68-c35d-4c5f-9962-aee09bd4e76f/1/doc/18-2188_opn.pdf Ballot Access News, https://ballot-access.org/ Paul Sherman, https://ij.org/staff/psherman/ Andrew Ward, https://ij.org/staff/andrew-ward/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Can the police stop and frisk your person based on their “training and experience?” Not if that training and experience is simply that drug dealers like to shake hands, says the Fourth Circuit. Ari Bargil provides the details of a drug dealer that the police were a tad too impatient to lock-up. And can an assistant football coach for a public high school publicly pray at the 50 yard line right after a game? The answer is it depends. Not every penitent man will pass the Ninth Circuit’s analysis. Plus, there’s a circuit split update on bump stocks and the CDC. Register here for the April 20th online event on the 150th anniversary of Section 1983: https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/04/short-circuit-168-FINAL.pdf United States v. Drakeford, https://www.ca4.uscourts.gov/opinions/194912.P.pdf Kennedy v. Bremerton School Dist., https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf Gun Owners of America v. Garland, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0070p-06.pdf Tiger Lily, LLC v. HUD, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0074p-06.pdf Aril Bargil, https://ij.org/staff/ari-bargil/ Josh House, https://ij.org/staff/joshua-house/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story about a drone that flew above someone’s property, and thereby committed a “search” under the Fourth Amendment (well, the government in charge of the drone did). This very interesting case from the Michigan Court of Appeals allows us to talk about drones, reasonable expectations of privacy, and whether the air above your house is an “open field.” Click here for Transcript

The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textbook into one little case about a ranch in Louisiana. The plaintiff scored a hit, but not a very palpable one. Register for the April 20th event on the 150th anniversary of Section 1983, https://ij.org/event/outragelegislation/ Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-166.pdf Aposhian v. Wilkinson, https://www.ca10.uscourts.gov/opinions/19/19-4036.pdf Grace Ranch, LLC v. BP America Production Company, http://www.ca5.uscourts.gov/opinions/pub/20/20-30224-CV1.pdf Hamlet, Act. III, Sec. 1, ln. 51, https://www.gutenberg.org/files/27761/27761-h/27761-h.htm#tagIII_8 Josh Blackman, In Bump Stock Case, Tenth Circuit Dismisses Grant of Rehearing En Banc As Improvidently Granted, https://reason.com/volokh/2021/03/06/in-bump-stock-case-tenth-circuit-dismisses-grant-of-rehearing-en-banc-as-improvidently-granted/?utm_source=dlvr.it&utm_medium=twitter Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa Gervasi walks us through the latest challenge to mandatory bar association dues. The Ninth Circuit says a Supreme Court precedent is on pretty shaky grounds these days, but as it’s the Supremes’ job to sort its own cases out, the lower court’s hands are tied. That’s true for the free speech claim, but on freedom of association there’s more wriggle room. Transcript: https://ij.org/wp-content/uploads/2021/03/Short-Circuit-165.pdf Terkel v. Centers for Disease Control and Prevention, https://files.texaspolicy.com/uploads/2021/02/25160210/045-Opinion-and-Order.pdf?utm_source=hs_email&utm_medium=email&_hsenc=p2ANqtz-_yj38m8dsqQuMMefjgKOjTMn-r345C5gtARN0qLZ_Yb3dh8Eo_3Ifdh6baGpsGd07pTnKW Crowe v. Oregon State Bar, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/26/19-35463.pdf Michael Bindas, https://ij.org/staff/mbindas/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’s what the First Circuit says, at least. Adam Shelton breaks down this alarming ruling, which we’ll all want to keep in mind when leaving the country becomes a thing again. Transcript: https://ij.org/wp-content/uploads/2021/03/short-circuit-164.pdf Uniformed Fire Officers Association v. De Blasio, https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/doc/20-2789_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/81f5056a-e0f0-4128-9e1d-99a2c60ac224/1/hilite/ Alasaad v. Mayorkas, http://media.ca1.uscourts.gov/pdf.opinions/20-1077P-01A.pdf Tiffany Wright, https://www.orrick.com/en/People/2/6/8/Tiffany-Wright Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circuit, we look into all of these questions with our guest Ed Walters, founder and CEO of Fastcase, and an adjunct professor who teaches robot and artificial intelligence law at Georgetown Law School. Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-163_otter.ai_.pdf Copyrighting all the melodies to avoid accidental-infringement, https://www.ted.com/talks/damien_riehl_copyrighting_all_the_melodies_to_avoid_accidental_infringement I, Robot, http://ekladata.com/-Byix64G_NtE0xI4A6PA1–o1Hc/Asimov-Isaac-I-Robot.pdf Ed Walters: https://www.law.georgetown.edu/faculty/edward-j-walters/ Anthony Sanders: https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells the plaintiff he will “crush” her. Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-162_otter.ai_.pdf Williams v. Marinelli, https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/doc/18-1263_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/349211bb-2587-4c52-abe9-9be0f369fb1b/1/hilite/ Miller v. Sam Houston State University, https://www.ca5.uscourts.gov/opinions/pub/19/19-20752-CV0.pdf Anya Bidwell, https://ij.org/staff/anya-bidwell/ Bob McNamara, https://ij.org/staff/robert-mcnamara/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

A triad of important things in life are tweets, stateless vessels, and fonts. IJ attorneys Tatiana Pino and Patrick Jaicomo join your host Anthony Sanders to outline how a politician in the Eighth Circuit almost turned her Twitter account into a public forum, which would have prevented her from blocking anyone based on a viewpoint she disagrees with. Also, ever wanted to sail your own boat onto the high seas, free from any nation’s sovereign arm? Too bad. At least says the First Circuit to an unlucky mariner who happened to be transporting quite a lot of cocaine. Finally, Anthony takes us on a tour of the fonts of the federal circuits. Will others follow the Fifth Circuit’s lead and not pretend they issue opinions with typewriters anymore? Transcript: https://ij.org/wp-content/uploads/2021/02/Short-Circuit-161.pdf Campbell v. Reisch, https://ecf.ca8.uscourts.gov/opndir/21/01/192994P.pdf United States v. Aybar-Ulloa, http://media.ca1.uscourts.gov/pdf.opinions/15-2377P2-01A.pdf Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/ Tatiana Pino, https://ij.org/staff/tatiana-pino/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Even though ex-President Trump is off of Twitter, his tweets are still abundant in federal legal filings. IJ Senior Attorney Jeff Rowes explains the First Amendment defenses (spoiler: he thinks there aren’t many) Rudy Giuliani might have to the new lawsuit filed against him by a Canadian voting machine company. But if that’s not international enough for you, IJ attorney Kirby Thomas West shares the saga of a family that thought they were free from diplomatic immunity, but instead failed to obtain citizenship for a women who went on to fight for ISIS, and lost her passport in the process—a decision affirmed by Presidential Tweet. In the process your host Anthony Sanders explains how he never really thought about the “Reception Clause” before (which, unfortunately, has nothing to do with football). Transcript: https://ij.org/wp-content/uploads/2021/02/short-circuit-160.pdf Complaint in US Dominion, Inc. v. Giuliani, https://assets.documentcloud.org/documents/20463220/dominion-v-giuliani-complaint.pdf Muthana v. Pompeo, https://www.cadc.uscourts.gov/internet/opinions.nsf/97F4C9BA474983DE8525866200567816/$file/19-5362-1880558.pdf Anthony’s Twitter thread about US citizens born abroad, https://twitter.com/IJSanders/status/1127307781139308549 Jeff Rowes, https://ij.org/staff/jrowes/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org