Short Circuit Podcast

We discuss a couple legal immunities, one listeners will be familiar with and one that’s pretty unknown. The second is being addressed by our special guest, Aliza Shatzman. She is the co-founder of The Legal Accountability Project, a new nonprofit whose mission is to ensure that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Aliza had a harrowing experience as a law clerk and found that the laws that apply to other government employees often don’t extend to those in the judicial branch. She also presents a recent case from the Fourth Circuit about a judicial branch employee who brought a number of claims to try and get around sovereign immunity—and actually succeeded on a few of them. Then Kirby Thomas West of IJ discusses a Fifth Circuit case with terrible facts, but a good outcome on the qualified immunity front.

Recording in front of a live audience at the 2022 Institute for Justice’s Law Student Conference, we look at some of the best, and some of the worst, from the Fourth Circuit. First, Justin Pearson explains why a restriction on “political” advertising on the side of buses was unconstitutional even though it recognized the side of a bus is not a “public forum.” Then, Michael Bindas gives us his best sommelier (or is it wino?) impersonation and discusses a tipsy opinion allowing North Carolina to prevent out-of-state retailers from shipping wine to the state’s consumers. It’s pretty much not what the Supreme Court has said about the dormant Commerce Clause and alcohol.

A couple headline-grabbing, government-thumping constitutional-heavyweight cases coming at you this week. First, Rob Johnson explains how he filed a brief on the importance of the right to a jury trial when he checked the news to find the Fifth Circuit had just said the same thing in a different case. He details why this is a big deal (and a good deal) and not the end-of-humanity some people have been shouting about. Then, Dan Alban tells us of how the Eleventh Circuit just found almost all of Florida’s “social media law” unconstitutional, and why this isn’t really that surprising. Except for the fact that the Fifth Circuit has cryptically upheld Texas’s similar law. Also, it’s towel day.

When is a case over? As you'll learn, that depends on a lot of weird stuff. IJ attorney Will Aronin walks us through the Ninth Circuit's recent decision on everybody's favorite bedtime reading, Rule 68 and offers of judgment. Seriously, it's an untapped resource of the federal courts with some counterintuitive traps for lawyers who don't read the rules. Then Jeff Redfern of IJ tells us about the latest chapter in mask lawsuits, this time from the Eighth Circuit. The court says part of the case (all of the case?) is moot, but with the pandemic it's hard to know with any finality. There's an invocation of Sisyphus that might not surprise you.

Short Circuit is proud to present to you Professor Marin Levy of Duke University School of Law. She is a top scholar on the federal judiciary, including its history, how it has evolved, and how it actually works. Plus, she’s educated the world about the federal (and state!) courts through the magic of Twitter threads. We talk to her about what’s so interesting about the federal courts (with some “short” remarks about the “circuit” courts) and how she got started Tweeting them. After that Kirby Thomas West of IJ tells us about a Second Circuit case where the government didn’t do enough to pass the First Amendment (at least for now) even though the plaintiff wasn’t the most sympathetic. And we go back to Marin to detail a Ninth Circuit case with an even less sympathetic party, but where the court overlooked the importance of some pretty intriguing issues, such as whether there’s a Fourth Amendment violation if the government comes in and copies all of your stuff.

A couple issues near-and-dear to many of your hearts this week: Money and Facebook. First, if you win a case against the government are you a "prevailing party" deserving of an attorneys fees award? North Carolina officials argued you're not if you do so well that the law you're challenging actually disappears. Luckily the Fourth Circuit shot that argument down. Alexa Gervasi explains. But meanwhile the Sixth Circuit shot down quite a lot of the First and Fourth Amendments when a police department took great vengeance upon a man with the audacity to . . . create a parody Facebook page. As Ari Bargil tells us, it's a case demonstrating why everyone hates lawyers.

t's a First Amendment fiesta at Short Circuit this week! Tori Clark explains how in the Eighth Circuit it's hard to sue the government to protect your right to free speech when the law is privately enforced. And we're not talking about Texas here, but people not acting so nice in Minnesota. Further down the trail, things went a little berserk in Oregon, and a pro se legislator won himself another day in court in the Ninth Circuit. Sam Gedge has hunted through the briefs.

Suing the United States government is really hard. So hard that someone's family might not get to even if the government is at fault for that person dying in a flood. Adam Shelton explains why that luckily might not be true in this case, but all too often is. Then Diana Simpson walks us through a procedural pretzel of property rights preventing people from putting up homes. She also discusses some old cases you might not know about, but really should.

We focus in on two Latin words this week: habeas and mandamus. Both usually mean “you lose.” But things somehow turned out differently in the Fourth Circuit and Fifth Circuit. Hear the story of a man trapped in prison for a small drug sale for almost a decade who fights his way through the state and federal courts and wins himself a new trial. IJ’s Bob Belden tells that tale. And then there’s a story about guns, the Internet, speech, the differences between Texas and New Jersey, and transfer orders. Alexa Gervasi gets us up to speed on that saga. She also previews a new IJ case about a prosecutor working for a judge he practiced before. It’s as bad as it sounds.

Short Circuit Live returns with an all-star all-D.C. Circuit panel! IJ attorney Anya Bidwell hosts a discussion with three Supreme Court lawyers (and former D.C. Circuit clerks), Lisa Blatt, Kelsi Brown Corkran, and Paul Clement. They reminisce about their days clerking for D.C. Circuit judges and analyze three recent circuit opinions on liability under terrorism laws, executive privilege, and no-fly lists.

Some property owners sued an arm of the State of Louisiana for damages and won a $10 million judgment. Wow, that’s real money! Except, because […]

Michigan lawyer and YouTube legal sensation Steve Lehto joins us this week. We talk a bit about his career as a broadcaster, consumer protection lawyer, […]

Like owls? We’ve got owls. Two of them. But they don’t like each other. Ben Field explains how the Ninth Circuit adjudicated with this Parliament […]

As news followers over the last few years will know, grand jury records are super secret. But sometimes judges allow the word to get out, […]

Wanna get mad? This week we’ve got you covered. Two cases where the government plays by different rules from the rest of us. First Jaba […]

Following in the footsteps of last week’s Super Bowl halftime show, we’re keeping it West Coast today. Two cases from the Ninth Circuit that are […]

The Institute for Justice just issued a new report, 50 Shades of Government Immunity, about what happens when you go to state–not federal–court after the […]

Divorce can be hard on the kids. Especially when the divorce was 40 years ago, the government doesn’t believe it happened, and your U.S. citizenship […]

Sometimes when the government does bad things to you it violates the Constitution. And sometimes it just violates the contract. Jeff Rowes explains the difference, […]

Is it “on bonk” or “n bank”? IJ lawyers disagree on how to pronounce a full court of appeals considering a case. But whatever your […]

Ever wondered when the police can pull you over and what they can do once you stop? Then this episode brings news you can use […]

It’s a new year but little is new with qualified immunity in the Fifth Circuit. Or is it? Easha Anand of the MacArthur Justice Center […]

It’s our 200th episode! We’re taking this second century as an excuse to explore where Short Circuit came from and what it’s done, both the […]

In what may be the most obvious of examples of obvious constitutional violations, we discuss the right to not have the police put you in […]

Where do you go to challenge an illegal tax? Well, if that tax is a tariff your destination is the United States Court of International […]

Fans of the Hart-Fuller debate are gonna love this one. As will normal people who have no idea what that means. Legal philosopher HLA Hart […]

In addition to some other civil rights anniversaries, 2021 marks 50 years since the Supreme Court decided Younger v. Harris. There, the Court made it […]

What’s too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into […]

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of […]

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil […]