Short Circuit

An all Seventh Circuit, all Chicago episode. IJ attorney Andrew Ward drops in to tell a tale of online support for terrorists. Or at least FBI agents posing as terrorists. This recent case does not weigh in on, but raises the issue, of whether computer code is speech. Then we turn to the nitty gritty of unions, small employers, pension plans, and legalized cartels. Things are a bit topsy turvy in this area—and often sound pretty unfair. Your host gives a bit of a lay of the land as it’s been expressed by Judge Easterbrook of the Seventh Circuit over the years. Click here for transcript. IJ conference on the Open Fields Doctrine (May 10) Cato conference on the right to earn a living (April 18) U.S. v. Osadzinski Bulk Transport Corp. v. Teamsters No. 142 Pension Fund Central States v. Gerber Truck

The Short Circuit roadshow comes to UVA in Charlottesville, Virginia, where we finally focus on the Fourth Circuit. Fresh off her Supreme Court argument last week in Gonzales v. Trevino, Anya Bidwell turns back to the federal courts of appeals with some local guests. They are Professors Rachel Bayefsky and Lawrence Solum of UVA and Greg Cui of MacArthur Justice (and UVA). They discuss recent Fourth Circuit cases about cruel and unusual punishment in prison, a non-immune judge on a search, and the rational basis test turned up to 12 (that is, Rule 12(b)(6)) in a land use dispute. Click here for transcript. Jones v. Solomon Gibson v. Goldston SAS Associates 1 v. Chesapeake Video from Gibson case Legal Theory Blog Bayefsky on Judicial Institutionalism Bayefsky on Public-Law Litigation Solum on Legal Personhood for AI

Is qualified immunity a narrow doctrine focused on protecting the police when they make “split second decisions”? If you listen to its defenders you would get that impression. The reality is far, far different. And IJ now has the stats to back that up. In this special episode, we welcome on IJ’s Bob McNamara and data scientist Jason Tiezzi to discuss a new report Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises. It presents an analysis of over 7,000 federal appellate decisions over an eleven-year period and tells us a lot about how qualified immunity actually works in practice. We dig into many of its findings, such as that only 27% of appeals where qualified immunity was at issue involved excessive force. And that almost one in five qualified immunity appeals involved First Amendment claims. Listen in to hear the details, including about how this massive study was put together. And click below in the show notes to read the report itself. Click here for transcript. Unaccountable Unaccountable finds qualified immunity hobbles victims of government abuses like these and fails to accomplish the goals supporters claim it’s needed to achieve, strengthening the case for ending the doctrine. read report

A bit of a free speech derby this week, one opinion about free speech itself and another about how to just get to the First Amendment in the first place. We start in Florida with something that’s becoming a theme on the show: The Eleventh Circuit ruling that a law championed by the state’s governor and passed by the state legislature violates the First Amendment. The opinion concerns part of the “Stop WOKE Act” (acronym alert) and how the court pretty easily found that the law regulates speech, doesn’t pass scrutiny, and therefore is unconstitutional. But IJ’s Paul Avelar cautions that although the result may have seemed obvious it actually wasn’t that obvious because of some prior inconsistent cases. Then we hop over to California where IJ’s Christian Lansinger tells us of a horse that dare not speak its name. At least if it wants to race. But putting aside the right to give a horse a name that makes fun of someone else (in this case, the name is “Malpractice Meuser”), the Ninth Circuit focused on procedural hurdles (fences?) that stood in the way of the horse’s owner vindicating that right. It’s time to giddy up! Click here for transcript. Honeyfund.com v. Florida Jamgotchian v. Ferraro Short Circuit episode on horse racing and nondelegation Locke v. Shore (interior designer speech case)

Everyone says we need more housing, right? Not all local governments agree. Maybe they’re fine with more housing over there but not where developers actually want to build it. Justin Pearson of IJ joins us to tell a story of local shenanigans in his home town in New York state where a long saga to build some homes ended in a glorious flame-out of judicial abdication. There’s regulatory takings, zoning, ripeness, and even a religious liberty angle in this case from the Second Circuit. Then your host makes an offer that’s too good to be true. Because it isn’t. Crypto backed by gold might sound like an odd concept, and it was too odd for a scam artist to stay out of prison. But not before he bilked several million dollars from investors. However, that didn’t prevent him from arguing that the “history and tradition” of his Sixth Amendment right to force witnesses to testify meant he could rope in a few federal government employees. Did the denial of his request mean the court should throw out his conviction? Your host provides the answer from this First Circuit opinion. You’ll learn that even today just shouting “history and tradition” doesn’t get you very much. Click here for transcript. BMG Monroe v. Village of Monroe U.S. v. Crater Laser scene from Goldfinger

Exploring the use of AI in legal research, focusing on finding the right models for the right tasks, potential for lawyers to use AI in writing memos and briefs, concerns about government overreaction to AI use, copyright issues with AI, and the importance of being cautious about AI advancements.

An electric episode where we just might short the circuits. That’s because we dive into some capital “D” Drama at the Federal Energy Regulatory Commission. Amid fighting and commissioner turnover related to renewable energy prices and an election, FERC makes a consequential decision without first going to the full board. And later the Sixth Circuit catches that hand in the judicial cookie jar. Dan Knepper of IJ drops by to explain some of the complexities of energy policy and how to remedy its violation when everyone doesn’t dot their i’s. Then Bobbi Taylor of IJ leads us (along with 43 police officers) into a home where no drugs (or the suspect) are found but many family members are seriously injured. Qualified immunity? The Third Circuit prefers a jury. Also, you learn what Sir Walter Scott meant by a “palmer.” And does anyone use paper copies of the Federal Reporter anymore? Click here for transcript. PJM Interconnection v. FERC Anglemeyer v. Ammons Politico piece Dan mentions Sir Walter Scott’s Marmion

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. Click here for transcript. Consumer Research v. CPSC Netflix v. Babin Humphrey’s Executor v. U.S. SCOTUS Ladies

Rob Frommer and Katrin Marquez, attorneys at the Institute for Justice, dive into some pressing legal controversies. They discuss a shocking Ninth Circuit ruling against the FBI for seizing property held in vaults, revealing significant constitutional violations. Katrin highlights a troubling Second Circuit case where a police officer attempted to silence a citizen for exercising free speech. The conversation underscores the ongoing challenges of protecting individual liberties and the essential role of the courts in safeguarding rights.

Former clerks of Judge Diarmuid O’Scannlain, David Lat and Daniel Sullivan, discuss clerking on the Ninth Circuit and the challenges of differing points of view among colleagues. They also delve into interesting legal cases involving Florida Governor Ron DeSantis, a prosecutor's First Amendment lawsuit, federal law preemption of a gas stove ban in Berkeley, and tensions in the law highlighted by judge concurrence and descent.