Episodes
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If you like the drama of local politics youâll love this story, told by IJâs Christian Lansinger, from the Sixth Circuit. A colorful and controversial elected official was accused of not living in the city she represented, leading to an effort to remove her. In response she did prove she âlivedâ thereâalthough âbarelyââand then separately sued for First Amendment retaliation. Part of her claim related back to some comments she made about going together âlike cocaine and wafflesâ before a Confederate flag. She loses her retaliation lawsuit (quite unsurprisingly) but how the court got there could affect other, more sympathetic, retaliation cases in the future. Plus, Christian updates us on the latest on the plaintiffâs situation. Then An Altik of IJ tells us of another Sixth Circuit ruling, this one involving Ohioâs requirement that kids have permission from their parents to use social media. The three judges on the panel canât agree on much of anything but in the end the law is upheld. The various opinions discuss standing, overbreadth doctrine, content-based restrictions on speech, and vagueness. Plus the (limited?) evidence about social media and its harms to minors.
Amacher v. Tullahoma
NetChoice v. Yost
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Happy Americaâs 250th! To celebrate, weâre doing things the IJ Way, tying in the events of 1776 to something that emerged a few years later and that we at IJ work with every day today: judicial review. Therefore, although weâre jumping on the bandwagon and doing an âAmerica at 250â episode like everyone else, this one focuses on something most people arenât talking about for the anniversaryâand certainly werenât discussing in 1776.
But one thing Americans were discussing that year, in addition to how best to fight the British and declare independence, was writing constitutions. That was a new thing at the time, a new way of forming a government. It also lay the seeds for judges declaring laws âunconstitutional,â something that didnât happen in the Old Country. IJ just held a conference on this subject and as part of that held a mock argument/moot court on a constitutional challenge under Pennsylvaniaâs constitution from 1776. The question was, is this new thing called âjudicial reviewâ actually a thing? Sam Gedge of IJ was part of that âcaseâ and joins us to reflect on what he learned digging into the first principles of judicial review and what Americans in the years just after 1776 may have been thinking as they tried to figure out their new constitutional reality. Then your host shares the outline of a draft article on how American courts have used the shadow of the British parliamentary system when justifying judicial review. They did it a lot for the first century or so of the countryâs history but since then not so much. Why is this? And does it have something to do with America becoming âTop Nationâ as the sun slowly set on the British Empire? Fans of the â85 Bears may enjoy an analogy. As might Dan Moreno.
Video of the Mock Argument on Pennsylvaniaâs 1776 Constitution
Other video from the same conference
Vanhorneâs Lessee v. Dorrance
Draft article âParliamentâs American Shadowâ
1066 and all that
The Super Bowl Shuffle, aka The British Empire
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Missing episodes?
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If someone sues you for money you get to defend yourself in court. Right? Not really if you sign a confession of judgment, a contract where you waive defenses to a later collection action. A county in Iowa had a policy of making prisoners sign confessions of judgment when they were released if they owed money to the jail. That seems like it might have due process problems. Does it? Well, we donât know yet but the Eighth Circuit recently ruled that the released prisoners have standing to move forward in their case. Michael Soyfer of IJ takes us through this dispute where IJ and a number of other groups filed an amicus brief. Then, McCarley Maddock of IJ reports on a bizarre set of facts in Madison, Wisconsin where a man mayâor may notâhave fired shots after an argument with his wife. The police then come to his house, with a Bearcat, and begin a standoff where he, it seems, was fast asleep inside. Things go bad for the man after that, resulting in an arrest and later a federal lawsuit. That then fails because of qualified immunity, according to the Seventh Circuit.
Roberts v. Thompson
Jackson v. Madison
Bound By Oath
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After an arrest, is the decision on whether a defendant can get out on bond while their prosecution proceeds a âcritical stageâ? In the Eighth Circuit itâs hard to know because the court threw out a case asking that question due to a lack of standing. IJâs Jimmy Odell, a former public defender, details this challenge to an Arkansas courtâs practice of not appointing public defenders until after the bond decision has been made. It raises highly important Sixth Amendment questions but also illustrates how constitutional issues sometimes are hard to squarely put before a judge. Then your host discusses a recent Fourth Circuit case where the right to a jury trial under the Seventh Amendment intersected with a West Virginia âpublic nuisanceâ lawsuit on the opioid crisis. You wouldnât expect a lawsuit against a massive pharmaceutical-distribution company to rely on almost a thousand years of history yet the ancient distinction between the common law and equity is at the heart of the matter. Plus, itâs time for the Sixth Circuit in our #12Months12Circuits series.
Farella v. Benton County Dist. Ct.
In re Express Scripts
Bound By Oath podcast
Episode on the Sixth Circuit
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A wild, and tragic, story from the Fifth Circuit with a bit of good (yet confusing) news at the end. IJâs Diana Simpson tells us of a woman who feared her ex-boyfriend was going to harm her, so she called his probation officer. The officer assured the woman that theyâd arrest him but then didnât bother to do so. That resulted in a brutal assault. Does she have a claim against the federal government under those facts? Turns out she does, which we learn after bobbing and weaving around the various exceptions to the Federal Tort Claims Act. Then, Tate Cooper of IJ brings us a sighting of âzombie precedentââor is it âmoth-eaten precedentâ?âfrom the Fourth Circuit where a college student who wanted to study to be a preacher couldnât get a scholarship. The court looks at three recent big religious liberty cases at the Supreme Court, including two IJ cases, and concludes that despite them an older precedent still controls.
Morris v. U.S.
Hall v. Fleming
Bound By Oath episode on the FTCA
Locke v. Davey
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We welcome back a treasured many-times guest, the first time since heâs left IJ. Brian Morris served in our merry band of libertarian litigators for many years before recently moving to Chicago. He rejoins us to detail a recent Fourth Circuit decision that his now-colleagues litigated about making right a pair of wrongful convictions where two brothers spent almost 20 years behind bars. The case involves hearsay and how the testimony of a long-dead witness can be used in a later civil rights lawsuit. But before all that Brian does what heâs done on Short Circuit many times before: Pick the winners at the racetrack. And thatâs not all the drama for one show. IJâs Anya Bidwell tells us the latest bad news about suing federal officials, where someone who claimed the IRS unconstitutionally audited them was left out in the cold by the D.C. Circuit. Boris Pasternak readers may feel a connection.
McPherson v. Patton
Ray v. Priver
Link for Chicago FTCA conference
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In the wild days of June 2020 you may remember how a group of protestors took over a few city blocks in Seattle, and how the police simply abandoned the area for a few weeks. That meant some businesses in that area suffered property damage and a massive loss of revenue. Now, years later, the businessesâ claims for damages were just ruled on at the Ninth Circuit. How did they do? Not well. As IJâs Robert Fellner explains, there is no duty for the police to protect you from the crimes of others. We explore whether that really describes what happened in the CHOP zone. And before that, Daniel Nelson of IJ details a Fourth Circuit ruling about a Native American tribeâs attempt to recover the remains of two boys who died over a century ago. The boys were forcibly taken from their families and put in a âreeducationâ school in Pennsylvania that then led to their deaths. Today, their remains are on U.S. Army property. What responsibility does the federal government have to the tribe to return the remains under the Native American Graves Protection and Repatriation Act? The majority says in this case the tribe wins but the larger issue remains quite complicated.
Winnebago Tribe of Nebraska v. US Army
3PAK, LLC v. Seattle
DeShaney v. Winnebago Cnty.
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In our #12Months12Circuits series itâs time to drink an entire Fifth. Now, regular listeners will be very familiar with the Fifth Circuitâs waters and may hesitate from such an undertaking. But true fans of the federal courts of appeals should be pleased, as we take an even closer look than we have before at the ins-and-outs of the federal circuit for Louisiana, Mississippi, and Texas. To help us we welcome on Jessica Underwood, a former Fifth Circuit clerk and now an attorney in Austin, Texas. She reports on a recent Fifth Circuit case on the False Claims Act, explains what the FCA does, and how it accounts for billions of dollars in litigation. In addition to discussing the courtâs analysis of what makes for a proper FCA claim, Jessica digs into a concurrence that argues the FCA might be unconstitutional. Then, IJâs Christie Hebert tells us of another recent Fifth Circuit opinion, this one about a guy who made a living transmitting public data about criminal defendants to potential defense attorneys. That worked well until the court started making some of the information private. Did he have a claim? No, it turns out. But the discussion gets into how the First Amendment might applyâsometimesâto information in the hands of the government.
Click here for transcript.
Montcrief v. Peripheral Vascular Assocs.
Martin v. Burgess
IJâs Private Enforcement case in Colorado
Episode with Tom Metzloff on the split of the Fifth
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You may remember Roy Mooreâs 2017 campaign in Alabama for the U.S. Senate in which a controversy arose as to his behavior at the Gadsden Mall several decades before. And, further, that there were allegations that he was banned from the mall because of his friendliness with teenage girls. Include one who at one point was âSantaâs little helper.â After losing that race, Moore brought a defamation suit against the purveyors of a political ad that mentioned these mall/teenage girl allegations in a certain, perhaps misleading, order. And he won. Except, the Eleventh Circuit has now reviewed the matter and ruled that under the First Amendmentâs protective standard for speech concerning public figures, Moore actually lost. Suranjan Sen of IJ details the wacky story and the mysteries of âactual maliceâ and defamation by implication. Then, IJâs Prashanta Augustine details an en banc denial in the Fifth Circuit where the judges decided not to take up a challenge to the federal ban on machine guns. Even though the full court dodges the issue some judges indicate they think there would be meritorious Second Amendment challenges to the law in the future. And one even suggests there could be a Commerce Clause challenge as well.
Moore v. Cecil
U.S. v. Wilson (en banc denial)
U.S. v. Wilson (3 judge panel)
2003 Ninth Circuit machine guns opinion
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Live from the University of Michigan we bring you the latest in administrative law with some of the top scholars and practitioners in the field. Itâs Short Circuitâs first time at the home of the Wolverines and the first time we focus the law of administrationâand all the constitutional angles that go along with it. We hear from Professors Nicholas Bagley and Christopher Walker of Michigan Law and from Zachary Larsen, a Michigan attorney who specializes in administrative law. The cases include rulings from the Second, Sixth, and D.C. Circuits over immigration, occupational licensing, and labor relations. Plus, we actually answer the question âwhat is administrative law, anyway?â
Mullin v. Doe
Paul v. FAA
Brown-Forman v. NLRB
Chenery II
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John Wrench of IJ details the Fifth Circuitâs ruling that the federal ban on home distilling is unconstitutional. At least as the case was argued, which included the taxing power and the Necessary and Proper Clause, but not the Commerce Clause. Then, IJâs Joe Gay discusses a Fourth Circuit case where the parents of a West Virginia student who attended a virtual school challenged the programâs vaccine mandate. The case raises interesting religious liberty and rational basis issues. And stay until the end for some âwhere are they nowâ updates.
But before you listen: MEGA UPDATE! Between the recording of this episode (April 20, 2026) and its release (May 1) the Sixth Circuit dropped its opinion on the same issue as the Fifth Circuit. In contrast to the Fifth, the Sixth concluded Congressâs taxing power does allow it to ban home distilling. (On this episode we speculate about what the Sixth Circuit was going to do. Feel free to laugh at our predictions.) The circuits are split! Or, one might even say, shorted.
McNutt v. US DOJ
Perry v. Marteney
Ream v. US DOJ (6th Cir. ruling)
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Short Circuit traveled to the University of Pennsylvania in Philadelphia where the student Federalist Society chapter graciously hosted us and allowed us to present a live recording before their fellow law students. On the panel we were joined by professors Matthew Wiener and Mitchell Berman and Philadelphia lawyer Michael McGinley. On the podcast we give an overview of the Third Circuit as part of our #12Months12Circuits series and then dig into three recent Third Circuit cases. These include a reverse discrimination matter with an interesting state-law twist, a search of a suspectâs text messages that turns into the question of whether a constitutional rule is merely âprophylactic,â and an AI-assisted brief that divided the court on what sanctions to impose.
Massey v. Bergenfield
U.S. v. Curry
McCarthy v. DEA
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Getting a jury is one of the most venerated constitutional rights Americans have. But if youâre before the Securities and Exchange Commission thereâs been no veneration. Until now, as a recent Supreme Court case Jarkesy v. SEC has knocked the SEC back on its heels. So youâd think that other people before the SEC would be able to get their jury trials too. Unfortunately, though, to enforce that right you need to properly raise itâat least raise it in a way thatâs good enough for the court you happen to be before. Which was not true at the Sixth Circuit, as IJâs Will Aronin informs us. The court told a defendant that he didnât argue the SEC was unconstitutionally denying him a jury early enough in the process. This seems weird because at that point Jarkesy hadnât come out yet. Too bad so sad says the court, although it goes on to also say the defendant nevertheless raised some really good points. Then Andrew Ward of IJ discusses a qualified immunity case about a tragic shooting where a police officer seems to have far too easily used deadly force. The Tenth Circuit says thereâs no qualified immunity for the officer on a Fourth Amendment claim even though thereâs no case exactly like the one before it.
Smith v. SEC
Manning v. Tulsa
Jarkesy v. SEC
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The Institute for Justice is once again taking a close look at civil forfeiture. One of IJâs leaders in our civil forfeiture work, Dan Alban, joins us to outline our new report Policing for Profit 4. Some listeners may be familiar with previous editions but, as Dan explains, in this one thereâs a lot of new information and analysis, especially how civil forfeiture works procedurally and how those procedures fail the Supreme Courtâs mandate that they be âtimely.â Dan also discusses a recent Sixth Circuit case involving Bitcoin and civil forfeiture and how innocent owners of crypto are sometimes caught up in the forfeiture process. Then Marie Miller of IJ discusses a recent Seventh Circuit case about another government abuse near and dear to our hearts: qualified immunity. Some officers raided a rural Wisconsin property where they tackled a suspect and then âaccidentallyâ (thatâs disputed) hit him in the head with the butt of an M16. The court says with the facts being in dispute to a jury the case should go.
Policing for Profit 4
U.S. v. 0.40401694 Bitcoin
Steinhoff v. Malovrh
Culley v. Marshall
Indiana parcel forfeiture case
BBO episode Pierson to Pearson
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When the police ask you for an I.D., when do you have to hand it over? That depends on a lot of facts and a lot of law, including whether a state has a statute allowing an officer to make you hand the I.D. over. Mike Greenberg of IJ reports on a ruling from the Alabama Supreme Court where a cop demanded a man watering flowers tell him who he was. The man said he was âPastor Jenningsâ and lived across the street. That wasnât good enough for the cop and after some escalation Paster Jennings (who really did live across the street) was arrested. After a long march through the Eleventh Circuit the matter was certified to state court on the scope of the underlying statute. Along with that statute come Fourth Amendment issues. And whether the Erie doctrine is hogwash. Then IJâs Betsy Sanz discusses a recent Sixth Circuit appeal involving a man serially suing his city. His claims, and their frivolity, are one matter but the more interesting part of the story is his lawyersâ use of AI in writing the briefs. The court is not happy with this, nor with the lawyersâ response to its attempt to investigate two dozen fake citations.
Register for âThe Other Declarations of 1776â conference on April 10!
Jennings v. Smith
Whiting v. Athens (merits)
Whiting v. Athens (AI sanctions)
Hiibel v. Sixth Judicial Dist. Court
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With a bakerâs dozen of circuits itâs hard to pick a favorite. Or is it? We sit down with three lawyers and scholars to ask what their favorite circuit is and why. Ben Field of IJ gives us his choice and we also bring on professors Tom Metzloff of Duke and Dawn Chutkow of Cornell. Youâll hear their impressions on how the courts work, what makes them special, and some behind-the-scenes stories (and even a conspiracy theory). But before all that we have Ben dig into a recent Ninth Circuit case concerning a Seattle ordinance that mandates policies and disclosures for app-based delivery companies. Are those policies âspeechâ and if so what does the First Amendment have to say about sending them to drivers? Plus, at the very beginning we give a shocking update to our #12Months12Circuits segment on the Fourth Circuit from last week. It seems thereâs some trouble in the paradise of western North Carolinaâor more properly put, a lack of trouble. At oral argument. And despite the statute that everyone will now be talking about: 28 U.S.C. § 48(a).
Uber v. Seattle
28 U.S.C. § 48
Zauderer v. Office of Disc. Counsel
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Evan Lisull of IJ tells us of a guy on probation who seems to have been pretty clever with his living arrangements. The police often donât need a warrant to search the residence of a person on probation. In this case from the Fourth Circuit, the guy owned two properties, one of which he seemed to have lived at and the other of which he allowed his girlfriend to live in. But the girlfriend didnât just hang out there, she had a lease with him. That lease, it turned out, was key to the court ruling the government should have got a warrant before it searched her apartment and seized thousands of dollars in cash. Itâs a rare loss in a civil forfeiture case for the government. Then we go to the Eleventh Circuit where IJâs John Korevec explains the ins-and-outs of the Federal Tort Claims Act. We explore new wrinkles on how to sue the federal government and the exceptions to the exceptions to the exceptions when doing so. Finally, we finish with a review of the Fourth Circuit as part of our #12Months12Circuits series.
Register for âThe Other Declarations of 1776â conference on April 10!
U.S. v. Perez
Doe v. U.S.
Bound By Oath episode on the FTCA
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We welcome on Sam MacRoberts of the Kansas Justice Institute for an inspection of the Fourth Amendment. Sam is the General Counsel and Litigation Director of KJI where he does things like sue the government. So heâs a perfect fit for Short Circuit. Sam tells us of a case he recently litigated about how his stateâs inspection laws went to the dogs. Specifically, clients of his who ran a very small dog training business at their home and had to deal with abrupt, last-minute inspections where the state said it did not need to get a warrant. But Sam thought the Fourth Amendment seems to indicate it did. So the case went to the Tenth Circuit, which ruled Sam was right. The opinion digs into a judge-created exception to the warrant requirement concerning âclosely regulatedâ businesses. Whatâs a “closely regulated business”? Sam tries to help us answer. As does Daniel Woislaw of IJ, who discusses our second case, a recent one from the Sixth Circuit, about what happens when the closely regulated exception is used in a criminal investigation. An employee of a bar in Michigan drank on the job and later was arrested for a DUI. The police investigated the bar itself and tried conducting a search as a part of the criminal investigation under the cover of a regulatory inspection. The court said you canât use the easy search when youâre actually trying to do the hard one. Both cases and both guests give us a hard look into this frustratingly complicated area of constitutional law. Plus, at the end, we play a little âwhere are they nowâ and learn whatâs happened to some cases of Short Circuits past.
Johnson v. Smith
Generis Entertainment v. Donley
Kansas Justice Institute
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[Note: This episode was down for a couple days but has been reposted. It originally dropped on March 6, 2026.] If youâve ever wondered if a sniff is a search, IJâs Rob Frommer has you covered on this weekâs episode. Well, he has you covered in explaining how the law is all over the place on the subject. Rob tells the story of a couple who were sleeping in their car in a Mississippi parking lot when a cop saw they had an empty bottle of Fireball whisky in the back. This quickly led to a K-9 dog sniff and a full search of the car which then led to a civil rights lawsuit. After that, Jaba Tsitsuashvili of IJ brings us another Fourth Amendment story, this one involving the ICE detentions and habeas petitions rolling across the country. A federal district judge in West Virginia had enough of the federal governmentâs unconstitutional tactics and wrote a fiery opinion lambasting ongoing violations of both the Constitution and immigration law. It was in the context of a specific detainee who was pulled over for having a plastic cover on his license plate. Jaba takes us through the opinion and the wider world of contemporary ICE tactics.
Register for âThe Other Declarations of 1776â conference on April 10!
Wogan v. Rose
Urquilla-Ramos v. Trump
Florida v. Harris
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Litigation is a risky business. Borrowing tens of millions of dollars to win a lawsuit is even more risky. And it turns out makes settling a case especially difficult. Patrick Eckler, Chicago attorney and co-host of the Podium and Panel Podcast, rejoins us to detail a wild Seventh Circuit story about an antitrust chicken (and pork and beef) lawsuit that got a bit spicy. Anyone who has tried to settle a case will want to give a listenâand then to do exactly not what happened. Patrick also explains what litigation financing is and why itâs something to handle with extreme caution. Then IJâs Bert Gall takes us down the aisles of your local Trader Joeâs. A store had an employee it wasnât happy with. Turns out that she wasnât happy with them either and went to the National Labor Relations Board. She won a couple rounds of unfair labor practice litigation and then the matter went to the Fifth Circuit. The panelâs majority sided with her by deferring to the NLRBâs legal and factual findings but the dissent had a lot of problems with how that went, including in light of the fall of Chevron deference. Fans of labor law, administrative law, and spicy tortilla chips (but not Two-Buck Chuck) might find joy in this pop down to the shops.
Register for âThe Other Declarations of 1776â conference on April 10!
Carina Ventures v. Pilgrimâs Pride
Trader Joeâs v. NLRB
Podium and Panel Podcast
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