It’s been a while but we’re back with an episode of Unpublished Opinions. Herein IJ attorneys Anya Bidwell, Patrick Jaicomo, and your host talk about . . . Anya’s recent Supreme Court oral argument, how SCOTUS is surprisingly a friendlier place to argue than many other courts, the recent FTC rule about non-competes, why we still have a “Lawyers’ Edition” for SCOTUS cases, how perhaps lawyers can learn from magazine covers . . . and more!

Judge Posner liquidated damages case

Rob Johnson’s Tweet on FTC’s & non-competes

Anya’s SCOTUS argument

No Fly List case

We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars.

Register for the May 10 open fields conference!

Connell v. CIA

Lozano v. Collier

Audio Arguendo (Michel’s oral arguments podcast)

We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so.

Register for the May 10 open fields conference!

US v. Hay

Citizens United to Protect Our Neighborhoods v. Chestnut Ridge

Episode on 7th Cir pole camera case

Episode on 1st Cir pole camera case

End of The Usual Suspects (SPOILER ALERT!)

Two wild stories this week, one biblical and one of a more secular nature—but still wild. Jeff Redfern of IJ tells of a Texan judicial shootout in a fight between credit card companies and the Consumer Finance Protection Bureau. The companies got tired of waiting for the trial court to rule on an emergency motion so they appealed it—but around the same time the trial court transferred the case to a court in Washington, D.C. Was that wrong? Can anything be done about it? Opinions differ. Then Keith Neely of IJ takes us underwater to the Sixth Circuit for perhaps our first case involving baptism. An officer was ready to charge a driver with marijuana possession, but then offers to give her a lesser charge . . . if she lets him baptize her in a lake that night. Which, after she grabs some towels, goes forward. And in the ensuing lawsuit qualified immunity is denied because, well, this is pretty obviously unconstitutional. Right? Also, Keith gives a preview of IJ’s new show Beyond the Brief. Check it out!

Beyond the Brief

In re Fort Worth Chamber

White v. Hamilton County

Mark i:6-8

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.

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.

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.

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.

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!

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.

BMG Monroe v. Village of Monroe

U.S. v. Crater

Laser scene from Goldfinger

A special episode on artificial intelligence and the law, including how we find the law. Ed Walters, a pioneer in bringing AI to legal research, joins us to separate the artificial wheat from the chaff. He explains that a lot of the recent news about the failures of AI models have been due to using the wrong models for the wrong things, not the models themselves. He walks us through a near future when lawyers can use AI to not just find points of law but write memos or briefs. We’re also joined by IJ’s Paul Sherman, our resident AI aficionado, who recently wrote a letter to the Fifth Circuit about a proposed rule it has regarding AI use and brief writing. There’s a lot of promise out there but also a lot of danger in the government—including courts—overreacting. We also talk a bit about copyright issues and AI and what’s on the horizon. Are we approaching the Singularity? Ed thinks likely not, but there’s still worries we should be aware of.

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?

PJM Interconnection v. FERC

Anglemeyer v. Ammons

Politico piece Dan mentions

Sir Walter Scott’s Marmion