Unpublished Opinions

Institute for Justice · ij.org

What do Institute for Justice attorneys think about the law? Listen into their roundtable conversations where they give their unrehearsed and “unpublished” opinions on matters beyond the federal courts of appeals. From the latest Supreme Court cases to legal history to trial tactics, IJ attorneys have much to share and (politely, but spiritedly) disagree with each other about.

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Episodes 26

Unpublished Opinions 26 | The Batman Approach
27d ago · 1:01:54
John Wrench is joined by Kirby West and Josh Windham to discuss some of the major threats to liberty, including warrantless mass surveillance, the facial/as-applied distinction, and grade inflation. They begin with IJ’s recent victory—the Pennsylvania Supreme Court’s unanimous rejection of the so-called “open fields doctrine”—while puzzling over the difference between facial and as-applied relief. Mass surveillance remains a theme as they comment on growing opposition to automated licensed plate readers (ALPRs), which has stimulated everything from litigation to proposed legislation to a recen
Unpublished Opinions 25 | Pulling Up the Ladder
2mo ago · 42:47
With guest host Patrick Jaicomo, he and IJ’s Anya Bidwell and Diana Simpson conspire on how best to keep the competition out of their guild. Or, rather, they contemplate how their guild—the legal profession—unfairly keeps the competition out and what recent changes to accreditation policies in Texas and Florida tell us about the value of the bar exam, law school, the American Bar Association, and other related institutions. Then the crew turn to the value of liberalism in these heady days. Story on Texas dropping the ABA Story on Florida dropping the ABA
Unpublished Opinions 24 | What If It’s Not Peyote?
4mo ago · 44:09
John Wrench is joined by Sam Gedge and Kirby West for a session of hot takes, hard questions, and changed minds. The trio challenge received wisdom about notorious doctrines and cases, debate how much of public interest litigation is about permanent resolution versus holding the line, and provide positions they’ve revised over the course of their careers. Docket in St. Mary Catholic Parish v. Roy Employment Division v. Smith
Unpublished Opinions 23 | The Afroman Effect
5mo ago · 58:44
John Wrench is joined by Diana Simpson and Patrick Jaicomo for an episode that crosses between profound and provocative. The trio reacts to the Supreme Court’s late-breaking decision in Olivier v. City of Brandon, weighing in on what it says and doesn’t say about the Heck bar. Then the conversation takes a turn toward Adams County, Ohio, where Afroman (yes, that Afroman) has just won a defamation case brought by the sheriff’s deputies who raided his house, instilling the trio with a deep sense of civic pride. Finally, the group swings over to Judge VanDyke’s dissental in Olympic Spa v. Armstro
Unpublished Opinions 22 | The Lorax Doctrine
6mo ago · 1:06:29
John Wrench welcomes Josh Windham and Kirby Thomas West for a gameshow episode that proves Schiller’s insight that one becomes fully human through play. A series of games takes the trio through the highs and lows of legal practice, two truths and a lie about their legal careers, and some of the most famous quotes from Supreme Court opinions. The full Josh argument The Years of Lyndon Johnson The Eras Tour
Unpublished Opinions 21 | An Appeal to Heaven
8mo ago · 1:03:24
As the year’s shortest day draws near, John Wrench is joined by Patrick Jaicomo and Anya Bidwell to discuss taking the Founders’ legacies more seriously; what’s likely to change about constitutional law in the next couple of decades; the challenge of repairing complex constitutional problems in a case-by-case judicial process; and how reporters might do more justice to the Justices. Plain, Honest Men The Santa Clause Regime Change Ghost on the Throne Maigret
Unpublished Opinions 20 | And Fascism
9mo ago · 1:12:17
Your IJ roundtable is back with hot takes and tepid reflection. John Wrench, joined by Sam Gedge and Josh Windham, share tips on how to do law, do life, and do European-on-European colonialism. Subjects include what has shaped the way they think about the law, what they wish they knew earlier in their legal careers, the status of text, history, and tradition, and, naturally, the Dodecanese Islands. Anti-Slavery Political Writings (ed. C. Bradley Thompson) Death by Lightning The Heroes Originalism and the Illusions of Objectivity Born Equal: Remaking America’s Constitution 1840-1920 My Thoughts
Unpublished Opinions 19 | The Highest Court in the Land
10mo ago · 42:34
With the new Supreme Court term underway, John Wrench welcomes Anya Bidwell and Anthony Sanders for a SCOTUS-themed romp—including which justice is the ideal dinner guest and the past case you’d most like to argue—followed by an extremely competitive lightning round of wide-ranging SCOTUS trivia. Empirical SCOTUS on oral arguments Wilkie v. Robbins Youngstown Sheet & Tube v. Sawyer Zbig biography The Room Where It Happened The Meaning of Everything The Victorian Bar Life, Law & Liberty Between Two Fires
Unpublished Opinions 18 | Picking Favorites
11mo ago · 56:10
Constitution Day might have been September 17, but Diana, Patrick, and John are still celebrating. From the insight that rights come before—not from—the government, to the evergreen challenge of constraining power, the trio admire favorite features of the U.S. Constitution, propose amendments, and discuss the dangers of viewing rights through a partisan lens. Extreme Punishment Alien Earth Sputnik Judicial Time Discworld
Unpublished Opinions 17 | Stand By
1y ago · 59:06
Lots of hot takes on the Supreme Court, the Supreme Court, and even as varied a subject as the Supreme Court. With sub-categories: whether the words “privileges or immunities” in Section 1983 mean anything at all, Harvard Forwards and Conservative Warrens, and class actions. Plus, what we’re reading and why ChatGPT is very sorry for the wrongs it has inflicted upon cite checkers. Medina v. Planned Parenthood S.A. Section 1983: A Strict Liability Tort AI sanctions opinion The Gun, the Ship, and the Pen Chernow’s Mark Twain The Tainted Cup The Female Quixote
Unpublished Opinions 16 | Rings of a Hoary Oak Tree
1y ago · 51:57
A new edition of everyone’s favorite legal grimoire has dropped, and John Wrench convenes Sam Gedge and Diana Simpson to ask the hard questions: Is the Bluebook a sacred scroll, or an eldritch horror that feeds on the souls of each new generation of lawyers? The party ponders the secrets revealed by a Bluebook insider, including the mysterious process behind some controversial changes in the newest edition. See, e.g., Bluebook at Rule B5.3 (discussing new “citation modified” parenthetical) (cleaned up). From there, they turn from one arcane text to another: Dictionaries are often treated as sk
Unpublished Opinions 15 | The Oz Machine
1y ago · 1:15:26
Done with oral argument at SCOTUS in Martin v. United States, Patrick Jaicomo and Anya Bidwell rejoin the rotation to yell at clouds and, along with this month’s host, give their unpublished opinions about what it’s like to argue before the Supreme Court, the presumption of regularity, universal injunctions, the moment of threat doctrine, appointed amici arguing cases, too-long briefs, and much else! Case page in Martin v. US Oral argument in Martin Oral argument in universal injunctions case Barns v. Felix Medical Marijuana v. Horn Easha Anand on Short Circuit about Horn Red Rooms The Gatekee
Unpublished Opinions 14 | On the Garamond Question
1y ago · 1:10:00
Spring hath finally shaken off the winter of Arlington’s discontent, and host John Wrench gathers IJ barristers Sam Gedge and Josh Windham for a scene that proves that all the law’s a stage. The trio ponders why powerful constitutional lines often go unspoken while villainous doctrines persist for decades. Next, they debate whether strategically timed law review articles are really amici in academic costume (“The play’s the thing/Wherein I’ll catch a citation”), and Sam wields his editorial dagger against footnotes that skulk in the wings of legal briefs. The conversation turns to oral argumen
Unpublished Opinions 13 | You’re Yucking My Yum
1y ago · 1:05:24
A flurry of ideas about the state of the law, the universe, and, well, everything. Including, at least, the impeachment of judges, how lawyers educate each other through media, corpus linguistics and AI, removals and remands in our Brave New World of Royal Canin USA v. Wullschledger, and a good walk spoiled. Royal Canin USA v. Wullschledger Laurent Sacharoff, The Broken Fourth Amendment Oath The Princess Bride Luke Milligan, Open Fields and Right to be Secure Joshua Windham, The Open Fields Doctrine is Wrong Stephanie Barclay, Constitutional Rights as Protected Reasons Tinker, Tailor, Soldier,
Unpublished Opinions 12 | Raise You a Texas
1y ago · 1:05:03
John Wrench of IJ returns as your host for some courthouse conversations with his colleagues Diana Simpson and Josh Windham. They spill out their opinions on what can be weird about state court legal practice, the pros and cons of stare decisis, what you should know about public interest law before you try and practice it, and why maybe you shouldn’t eat as many Oreos. Cuddihy’s The Fourth Amendment Twin Peaks Siebert’s The Underground Railroad Bad Monkey Harvard Note on Legislative History Diana’s 9th Cir. brief Good Energy Valhalore: Wayfinder
Unpublished Opinions 11 | Bush v. Gore Energy
1y ago · 1:04:51
In our first episode of 2025 we “livecast” a Supreme Court opinion whose release happened to cross into our pre-scheduled recording slot—the ruling in the TikTok case. Our comments’ relevance and timeliness may vary. The crew starts off, though, with a dive into the courts and court technology. Issues such as electronic filing, how the public accesses documents, and how we all access opinions. We also review the recent oral argument at the Supreme Court on the Texas age-verification law and what’s up these days on free speech and tiers of scrutiny. Finally, there’s recommendations on what to w
Unpublished Opinions 10 | TikTok Law Review
1y ago · 43:34
John Wrench of IJ takes the reins and the show quickly descends into law review comedy hour with footnotes of puns dominating the discourse. If you have to drop a footnote, perhaps you shouldn’t make the pun in the first place? The panel then moves on to hear from Anya Bidell and . . . Justice Scalia? Yes! We play some of Nino’s greatest hits, or at least from the reading of his concurrence in NLRB v. Noel Canning (2014). Sam Gedge seems unmoved by the moving words about separation of powers and recess appointments but he is revved up about sua sponte decision making and whether it’s OK to quo
Unpublished Opinions 9 | We Should Get a Cape
1y ago · 1:01:20
Unpublished Opinions 9 | We Should Get a Cape It’s time for our panel to wig out. For some. Others are not exactly excited about judges (or advocates) wearing wigs. Before that, though, your chatty gaggle of IJ attorneys—namely, Patrick Jaicomo (not Jacobin), Josh Windham, and Anthony Sanders—weigh the benefits of social media in promoting public interest law. This includes Josh disclosing the amazing fact that he was banned from a service for impersonating himself. Later on the panel parses specialized courts and interest group capture of them. Plus reading and watching recommendations and ho
Unpublished Opinions 8 | I’m More of a Space Lawyer
1y ago · 1:03:40
It’s our first “breakout” episode where we have our own feed and webpage—plus our own logo. And that means its time to get into the legal weeds. Sam Gedge, John Wrench, and Anthony Sanders of the Institute for Justice muse about citation proprieties, pleading proprieties, causes of action, special masters at SCOTUS, riparian rights in space, dropping judges’ names, and withholding from that last Aubrey-Maturin book so you don’t commit a circumnavigation. Van Staphorts v. Maryland TransUnion v. Ramirez Short Circuit episode with Ed Walters The Terror The English and Their History African Founde
Unpublished Opinions 7 | Ignorant Bliss
2y ago · 1:00:38
Another episode of that podcast that’s not Short Circuit but features Institute for Justice attorneys talking about the law. Anya Bidwell rejoins the panel while she waits for the opinion in her Supreme Court case, Gonzalez v. Trevino. She says a few things about the Court’s recent ruling in NRA v. Vullo, a different First Amendment retaliation case. Multifactor tests are balanced as well. Then, Diana Simpson of IJ gives her thoughts on appeals in the middle of a case, and how often the rules concerning them are bent in favor of the government. The panel touches on ghostwritten briefs and whet
Unpublished Opinions 6 | Little Contract Tricks
2y ago · 1:09:42
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
Unpublished Opinions 5 | Legal Fictions
2y ago · 1:28:49
It’s the latest episode of Unpublished Opinions, a Short Circuit podcast (but not actually Short Circuit). This is the podcast where Institute for Justice attorneys talk about the legal world beyond the federal courts of appeals. Diana Simpson and Josh Windham drop in to dialogue and diatribe about quite a few subjects you may—or may not—have your own opinions about. These include legal fictions, stare decisis, the vintage of the incorporation doctrine, and the Supreme Court’s recent opinion in Acheson Hotels v. Laufer (that’s the Americans with Disabilities Act case about mootness and standin
Unpublished Opinions 4 | Juicy Stuff
2y ago · 1:04:25
Quite a bit to talk about today on Unpublished Opinions, the podcast where Institute for Justice attorneys muse on legal things other than the federal courts of appeals. Diana Simpson and Sam Gedge come on to give their takes on a whole list of topics: Supreme Court leaks, AI-writing briefs and plagiarism, sua sponte judges, footnotes, and not italicizing the “v” in a casename. It’s all there. It’s all Unpublished. Supreme Court Style Guide NTY piece relying on leaks Essay on substantive due process and Dobbs Short Circuit episode on sua sponte case Justice Kavanaugh and his footnote Short Cir
Unpublished Opinions 3 | Postpositive Adjectives
2y ago · 46:04
It’s another edition of the podcast where we talk about things other than the federal courts of appeals. Patrick Jaicomo and Sam Gedge clamber in to pick apart the recent trend of calling Attorney Generals and Solicitor Generals “generals.” It’s a pretty new phenomenon, it turns out. But is it wrong? We sort through the pros and cons. There’s also discussion of judicial robes and ex-officials clinging to their titles. Then we move to history. Sure, everyone loves history, and the Supreme Court is into it these days. But do we have too much of it floating around the constitutional law world? Ma
Unpublished Opinions 2 | Justice Holmes Love Letters
2y ago · 1:01:52
It’s the second episode of Unpublished Opinions, a Short Circuit podcast. This time we’re once again joined by Institute for Justice attorney Anya Bidwell, but also welcome along her colleague Josh Windham. We start things rolling and see where their legal minds go. And that begins with cameras in the courtroom, something that divides the panel quite sharply. Would the Supreme Court change if cameras were introduced? Would it change for the better? Then we shift to judges and their busy schedules. What’s up with judges not reading briefs before an argument? Is it really all that bad? How prepa

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Episodes 26