Short Circuit

Institute for Justice
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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

  1. قبل ٤ أيام

    Short Circuit 426 | Vaccinated Home Distilling

    John Wrench of IJ details the Fifth Circuit’s 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, IJ’s Joe Gay discusses a Fourth Circuit case where the parents of a West Virginia student who attended a virtual school challenged the program’s vaccine mandate. The case raises interesting religious liberty and rational basis issues. And stay until the end for some “where are they now” 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 Congress’s 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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  2. ٢٤ أبريل

    Short Circuit 425 | Live from Penn Law!

    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 suspect’s text messages that turns into the question of whether a constitutional rule is merely “prophylactic,” 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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  3. ١٧ أبريل

    Short Circuit 424 | Juries for Securities

    Getting a jury is one of the most venerated constitutional rights Americans have. But if you’re before the Securities and Exchange Commission there’s been no veneration. Until now, as a recent Supreme Court case Jarkesy v. SEC has knocked the SEC back on its heels. So you’d 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 it—at least raise it in a way that’s good enough for the court you happen to be before. Which was not true at the Sixth Circuit, as IJ’s Will Aronin informs us. The court told a defendant that he didn’t argue the SEC was unconstitutionally denying him a jury early enough in the process. This seems weird because at that point Jarkesy hadn’t 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 there’s no qualified immunity for the officer on a Fourth Amendment claim even though there’s no case exactly like the one before it. Smith v. SEC Manning v. Tulsa Jarkesy v. SEC

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    Short Circuit 423 | Civil Forfeiture Flowcharts

    The Institute for Justice is once again taking a close look at civil forfeiture. One of IJ’s 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 there’s a lot of new information and analysis, especially how civil forfeiture works procedurally and how those procedures fail the Supreme Court’s mandate that they be “timely.” 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 “accidentally” (that’s 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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    Short Circuit 422 | My Name is Pastor Jennings

    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 “Pastor Jennings” and lived across the street. That wasn’t 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 IJ’s 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 lawyers’ use of AI in writing the briefs. The court is not happy with this, nor with the lawyers’ response to its attempt to investigate two dozen fake citations. Register for “The Other Declarations of 1776” 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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  6. ٢٧ مارس

    Short Circuit 421 | What’s Your Favorite Circuit?

    With a baker’s dozen of circuits it’s 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. You’ll 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 “speech” 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 there’s some trouble in the paradise of western North Carolina—or 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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  7. ٢٠ مارس

    Short Circuit 420 | A Lease for the Girlfriend

    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 don’t 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 didn’t 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. It’s a rare loss in a civil forfeiture case for the government. Then we go to the Eleventh Circuit where IJ’s 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 “The Other Declarations of 1776” conference on April 10! U.S. v. Perez Doe v. U.S. Bound By Oath episode on the FTCA

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  8. ١٣ مارس

    Short Circuit 419 | Inspecting Your Business

    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 he’s a perfect fit for Short Circuit. Sam tells us of a case he recently litigated about how his state’s 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 “closely regulated” businesses. What’s 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 can’t use the easy search when you’re 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 “where are they now” and learn what’s happened to some cases of Short Circuits past. Johnson v. Smith Generis Entertainment v. Donley Kansas Justice Institute

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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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    Institute for Justice
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    Short Circuit

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