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 Very Ninth Circuit. First, Bob McNamara explains how the overbreadth doctrine invalidated a restriction on speech related to violating immigration law. Then, Joe Gay describes the many ways the court found an Oakland, California ordinance to be just fine constitutionally even though it forces people to pay a lot of money just to move back into their house. Nobody raps, but there are unintentional references to the Norwegian pop group a-ha. United States v. Hansen, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/10/17-10548.pdf Ballinger v. City of Oakland, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/01/19-16550.pdf Robert McNamara, https://ij.org/staff/robert-mcnamara/ Joe Gay, https://ij.org/staff/joe-gay/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit

Short Circuit 207 | West Coast Hits

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 government violates your rights. The report grades every state for its access to justice as an alternative to the federal judiciary. Unfortunately, with just a couple exceptions, it doesn't paint a pretty picture. Two IJ attorneys, Anya Bidwell and Patrick Jaicomo, and Professor Alex Reinert of Cardozo Law, join Short Circuit to discuss the report and Professor Reinert's related research. You'll learn that while going to state court isn't nearly as easy as some at the U.S. Supreme Court assume it to be, there are prospects for reform as well. 50 Shades of Government Immunity, https://ij.org/report/50-shades-of-government-immunity/ New Federalism and Civil Rights Enforcement, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1478&context=nulr Protecting Everyone's Constitutional Rights Act (IJ's model legislation), https://ij.org/legislation/protecting-everyones-constitutional-rights-act/ Alex Reinert, https://cardozo.yu.edu/directory/alexander-reinert Anya Bidwell, https://ij.org/staff/anya-bidwell/ Patrick Jaicomo, https://ij.org/staff/patrick-jaicomo/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 206 | 50 Shades of Government Immunity

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 depends on whether it did. New York litigator Alexandra Tseitlin joins Short Circuit to discuss an unusual immigration case she recently won in the Third Circuit. Also, ineffective assistance of counsel claims are difficult to win. But they're a bit easier when the lawyer is just obviously wrong about what the law means. Tori Clark of IJ walks us through a tragic story that got a bit better on appeal. And finally, we have a winner in our Most Beautiful Courtroom contest. We hope you don't mind speaking in the library. Jaffal v. ICE, https://www2.ca3.uscourts.gov/opinarch/203148p.pdf U.S. v. Freeman, https://www.ca4.uscourts.gov/opinions/194104A.P.pdf Alexandra Tseitlin, https://www.tseitlinlaw.com/alexandra-tseitlin/ Tori Clark, https://ij.org/staff/tori-clark/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 205 | Foreign Divorces

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, and how things went down with a development scheme in the Fifth Circuit. Also, Will Aronin brings his expertise he learned as a trial lawyer to examine some junk science that has now been put on trial. Plus he details why it would be nice for a criminal defendant to know if a witness testifying against him is known to "stretch the truth." Preston Hollow Capital, LLC v. Cottonwood Development Corp., https://www.ca5.uscourts.gov/opinions/pub/21/21-50389-CV0.pdf O'Donnell v. Yezzo, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0026n-06.pdf Judge Jon Newman article on "En Banc," https://static.reuters.com/resources/media/editorial/20200714/IN%20BANC%20PRACTICE%20IN%20THE%20SECOND%20CIRCUIT%20THE%20VIRTUES%20OF%20RESTRAINT.pdf Jeff Rowes, https://ij.org/staff/jrowes/ Will Aronin, https://ij.org/staff/will-aronin/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 204 | Contracts and Blood Spatters

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 Latin/Old French skills, the en banc Fifth Circuit said some things about the Dallas County jail that even your crack team of experts can't understand. But Sam Gedge does his best to explain what might be going on, and how the court needlessly addressed his favorite topic, Younger abstention. But before that Bob Belden tells a story of a renegade sheriff sticking unauthorized anti-Halloween signs in rehabilitated sex offenders' yards. RSVP for our live event on the Georgia Constitution on February 4, 2022, https://ij.org/event/center-for-judicial-engagement-forum-on-the-georgia-constitution/ McClendon v. Long, https://media.ca11.uscourts.gov/opinions/pub/files/202110092.pdf Daves v. Dallas County, https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf Rival "How to Pronounce 'En Banc'" Videos: https://www.youtube.com/watch?v=vQexSbL8iDQ, https://www.youtube.com/watch?v=fsnW2JDc0G8 Sam Gedge, https://ij.org/staff/sam-gedge/ Bob Belden, https://ij.org/staff/bob-belden/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 203 | I Have No Idea What's Going On

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 through a couple recent traffic stop cases. Wesley Hottot reports on the Eighth Circuit's blessing of a stop supposedly brought on by some pretty smelly weed (although not everyone is convinced of the story). Then, your host Anthony Sanders tells us of a new development in Oregon where its high court has rejected the "automobile exception" to the requirement to get a warrant before a search. Also, please keep your nominations for the most beautiful federal circuit courtroom rolling in. Our listeners have demonstrated there's some architecturally fierce, yet lovely, competition out there. United States v. Shumaker, https://ecf.ca8.uscourts.gov/opndir/21/12/203467P.pdf Oregon v. McCarthy, https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9463/rec/2 Post on Oregon v. McCarthy, https://ij.org/cje-post/state-con-law-case-of-the-week-oregon-stops/ IJ's Project on the Fourth Amendment, https://ij.org/issues/ijs-project-on-the-4th-amendment/ Wesley Hottot, https://ij.org/staff/whottot/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 202 | Rules for Traffic Stops

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 joins us to discuss a recent denial of qualified immunity in a police brutality case. IJ's Anya Bidwell joins in and reports on a couple other developments that demonstrate perhaps there's some "split second" thinking going on among those judges. Further, we ask our listeners to send in your nominations for the "most beautiful" U.S. Court of Appeals courtrooms. Got a favorite? Let us know! Either send us an email or find us on Twitter. Also, apply to be an IJ summer fellow! The deadline is January 14, 2022, https://ij.org/opportunities/students/ Timpa v. Dillard, https://cases.justia.com/federal/appellate-courts/ca5/20-10876/20-10876-2021-12-15.pdf?ts=1639614617 Villarreal v. City of Laredo, https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV0.pdf Harmon v. City of Arlington, http://www.ca5.uscourts.gov/opinions/pub/20/20-10830-CV0.pdf IJ's Gonzalez v. City of Castle Hills, https://new.ij.org/case/castle-hills-retaliation/ Easha Anand, https://www.macarthurjustice.org/team_member/easha-anand/ Anya Bidwell, https://ij.org/staff/anya-bidwell/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 201 | The Fifth Circuit: It's Complicated

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 podcast and the newsletter. We start things off at the very beginning with Short Circuit's editor and the podcast's original host John Ross. Then it's a blast-from-the-past with Clark Neily and Evan Bernick. We close things off with guest host Paul Sherman and Short Circuit Live host Anya Bidwell. You've heard how Spiderman and Batman came to be, but do you know what traumatic event led to Short Circuit? Ok, there's no radiation or mugging, but you will learn how reading way too many qualified immunity opinions can radicalize your worldview. Enjoy! Also, a quick update to the episode. None of us really remembered where the idea for the podcast actually came from, but further deep (and actual) research has revealed it was our sound engineer and producer Mark. Thank you! https://ij.org/staff/jross/ https://www.cato.org/people/clark-neily https://www.niu.edu/law/about/directory/bernick.shtml https://ij.org/staff/psherman/ https://ij.org/staff/anya-bidwell/ https://ij.org/staff/asanders/

Short Circuit 200 | Origins

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 prison. Alexa Gervasi of IJ explains how this was too much even for qualified immunity to defeat, at least in the Third Circuit. And IJ's Ryan Wilson explains why a case involving a Greek boat accident can go forward in Boston. No, the captain's name was not Odysseus. Dave Kennedy Fellowship, https://www.ij.org/opportunities/students Litigation Fellowship, https://www.ij.org/opportunities/employment-opportunities/ Dennis v. City of Philadelphia, https://www2.ca3.uscourts.gov/opinarch/192390p.pdf Curtis v. Galakatos, http://media.ca1.uscourts.gov/pdf.opinions/20-1846P-01A.pdf For 25 Years, Jimmy Dennis Was on Death Row. Then One Day, He Wasn’t., https://www.phillymag.com/news/2021/02/06/jimmy-dennis-musician-death-row/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Ryan Wilson, https://ij.org/staff/ryan-wilson/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 199 | The Right Not To Be Framed and It's Greek To Me

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 Trade. Learn all about this corner of the Article III judiciary, and how tariffs for once took a beating before it, from Eric Boehm, a reporter at Reason. Also, we return to a frequent subject on Short Circuit, the Pennsylvania Supreme Court, with IJ's Josh Windham. That court just made it a little easier to challenge restrictions on gun rights, although it really shouldn't have been that hard in the first place. Solar Energy Industries Assoc. v. U.S., https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf Firearm Owners Against Crime v. City of Harrisburg, https://casetext.com/case/firearm-owners-against-crime-v-city-of-harrisburg-1 A Judge Just Did What Biden Wouldn't: Dump Some Trump Tariffs, https://reason.com/2021/11/17/a-judge-just-did-what-biden-wouldnt-kill-some-trump-tariffs/ Eric Boehm, https://reason.com/people/eric-boehm/ Josh Windham, https://ij.org/staff/joshua-windham/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 198 | International Trade and Standing for Guns

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 asked whether a rule saying “no vehicles in the park” included bicycles, toy cars and airplanes. But now the D.C. Circuit has been asked, what about trailers? D.C. Circuit guru and IJ attorney Jeff Redfern explains what’s a vehicle and what isn’t according to that court’s recent opinion on fuel efficiency standards. Meanwhile out West, it’s hard to get on the ballot in Big Sky Country. IJ election expert Paul Sherman walks us through how the Ninth Circuit found Montana’s rather bizarre system of ballot access partly constitutional, but partly not. Our apologies, but there’s some math. Truck Trailer Manufacturers Assoc. v. EPA, https://www.cadc.uscourts.gov/internet/opinions.nsf/233083B9809082A28525878B0053FE5B/$file/16-1430-1922005.pdf Montana Green Party v. Jacobsen, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/08/20-35340.pdf HLA Hart, Positivism and the Separation of Law and Morals, http://www.horty.umiacs.io/courses/readings/hart-1958-positivism-separation.pdf Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, https://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-%20A%20Reply%20to%20Professor%20Hart.pdf HLA Hart Interview, https://www.youtube.com/watch?v=xgigb36aC7Y Richard Winger’s Ballot Access News, https://ballot-access.org/ Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/

Short Circuit 197 | No Vehicles in the Park Remix

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 extremely hard for federal courts to stop an unconstitutional state prosecution. This “Younger abstention” doctrine has been with us ever since. Professor Fred Smith of Emory Law joins us to discuss what Younger’s impact has been and how it has especially made it difficult to fight state court systems that have become de facto debtors’ prisons. Additionally, we hear from Sam Gedge of IJ who gives us some of the background on the case and perspective on litigating civil rights cases with it looming in the background. We close with an investigation on where the heck the term “Our Federalism” (which Younger relies upon without citation) came from. Hint: Its first name is Felix. Younger v. Harris, https://supreme.justia.com/cases/federal/us/401/37/ Fred Smith Jr., Abstention in the Time of Ferguson, https://harvardlawreview.org/wp-content/uploads/2018/06/2283-2358_Online.pdf Michael Collins, Whose Federalism?, https://core.ac.uk/download/pdf/217202953.pdf Fred Smith Jr., https://law.emory.edu/faculty/faculty-profiles/smith-fred-profile.html Sam Gedge, https://ij.org/staff/sam-gedge/ 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

Short Circuit 196 | 50 Years of "Our Federalism"

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 this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court’s bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you’ve already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to. Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf Miranda v. City of Casa Grande, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/19/20-16905.pdf Rob Johnson, https://ij.org/staff/rjohnson/ 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

Short Circuit 195 | Pride and Prejudice in Prison

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 the landowner’s mitigation efforts. At least that’s what Wesley Hottot reports the Sixth Circuit said last week. There’s also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He’s also a birdwatcher, which comes in handy in this tree case. Meanwhile, there’s some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There’s also some Commerce Clause talk and what’s a “substantial effect” on commerce these days. F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf Jingrong v. Chinese Anti-Cult World Alliance, Inc., https://www.ca2.uscourts.gov/decisions/isysquery/e636d947-d9e2-44a4-9967-bbad7fe70ba6/1/doc/18-2626_complete_opn.pdf The Sidewalks of New York, https://www.youtube.com/watch?v=wsx_uxISjM0 Kirtland’s Warbler, https://www.allaboutbirds.org/guide/Kirtlands_Warbler/id Hermit Thrush, https://www.allaboutbirds.org/guide/Hermit_Thrush/id Wesley Hottot, https://ij.org/staff/whottot/ Daniel Rankin, https://ij.org/staff/daniel-rankin/ 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

Short Circuit 194 | Arboreal Takings and the Sidewalks of New York

The Supreme Court decides a few dozen cases every year; federal appellate courts decide thousands. So if you love constitutional law, the circuit courts are where it’s at. Join us as we break down some of the week’s most intriguing appellate decisions with a unique brand of insight, wit, and passion for judicial engagement and the rule of law. http://ij.org/short-circuit

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Short Circuit

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