An interesting article, just out in the Yale Law Journal: Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950. [...]
Author Archive | Orin Kerr
The results so far are here, based on 1,853 votes. A few thoughts:
1) As you might expect from a right-of-center blog, the right-of-center Justices were more popular than the left-of-center Justices. At the same time, every Justice had his or her fans. For example, in a one-on-one matchup between the most favorite of the readership as a whole and the least favorite of the readership as whole, 31% of voters preferred the latter.
2) Among VC readers, the favorite Justice is Justice Scalia. The favorite left-of-center Justice is Justice Kagan.
3) The most unbalanced match-up was Scalia/Alito: Those who responded favored Justice Scalia 3 to 1.
4) Ideology no doubt played a role in the ranking (see #1), and I would guess that writing ability was also a factor. In my view, the best writers on the Court are Chief Justice Roberts, Justice Scalia, and Justice Kagan. As noted in #2, Justice Scalia was the favorite Justice and Justice Kagan was the most favorite left-of-center Justice; Chief Justice Roberts came in second overall.
5) I like the Condorcet voting software, and I’ll probably use it again for reader polls. [...]
Here’s a VC reader poll: Who are your favorite current Supreme Court Justices? Rank all nine at this link.
For entertainment value and to satisfy idle curiosity only, naturally. [...]
In Wednesday’s oral argument in Fernandez v. California, no party asked the Supreme Court to overturn Georgia v. Randolph. But the more I think about Fernandez, the more I think the issues in the case just point to the underlying problem with Randolph. In this post, I want to say a bit about why.
The core problem is that it’s very difficult to carve out exceptions from a general rule of third-party consent. Ordinarily, any person can consent to a police search of the space in which he lives, even if he shares that space with another person who may be a suspect and may not want the search to occur. All the Justices agree with that general rule. But once you take the leap and recognize the basic doctrine of third party consent, it becomes very hard to say that there is a set of circumstances in which that is not true.
It’s hard because of the nature of law enforcement. Police officers and police investigators work full time at solving crimes. Gathering evidence is their job, and that leads them to know the rules and use them to their advantage. So as soon as you recognize the usual default rule of third-party consent, you’re telling the police officers that they just need to wait until the usual default facts are present so they can then rely on the usual default rule of third-party consent. Even if some specific facts don’t allow consent, the officers can be patient. They can wait it out until the facts change. And they often can arrange the circumstances so that the facts will trigger the usual default rule.
This means that as soon as the Court declares a specific set of facts that are exempted from the usual rule [...]
1) In general, it’s a solid brief. It’s going to be extremely unpopular in the IANAL computer nerd world, obviously, but it’s mostly pretty solid on the law.
2) DOJ brings up some provocative facts not found in the Lavabit brief that are not going to help Lavabit before the Fourth Circuit judges. For example, during the negotiations over whether Levison was willing to comply with the pen/trap order, there was an agreement that Lavabit could change its SSL keys after the pen/trap order expired, billing that cost to DOJ, so that DOJ would then lack the ability to conduct any surveillance beyond that time. Also, when Levison eventually made a counteroffer to comply with the pen/trap order under its own conditions, one of the conditions was that Levison would not turn over any data until the pen/trap order expired, unless Levison decided otherwise at his personal discretion. And earlier, when DOJ came to serve the subpoena on Levison at his home, Levison escaped out the back door and drove away to avoid being served.
3) DOJ argues on page 13 that the lawfulness of the subpoena isn’t before the Fourth Circuit, as the contempt was for failure to comply with the pen register order and warrant, not the subpoena. That’s very helpful to Lavabit, as it eliminates the easiest and most straightforward argument for why Levison had to disclose the keys. That means that the burdensomeness arguments that I focused on last time aren’t actually in the case, as those arguments are subpoena-specific. The only issues in the case are whether the pen/trap and warrant are [...]
I was at the Supreme Court this morning for the oral argument in Fernandez v. California, the Fourth Amendment case on third-party consent that I blogged about last week. I have just a few minutes now and more time later, so I will offer a few quick thoughts here and hope to offer more detailed reactions later. [UPDATE: The transcript is here.]
1) Chief Justice Roberts, Justice Kennedy, and Justice Alito were very clearly on the government’s side. In describing this case, Justice Kennedy declared, “this is not Randolph,” and he described Fernandez’s position as asking for a “vast expansion of Randolph.” Justice Alito was not on the Court when Randolph was decided, but he suggested that Randolph was not only wrong but that it should be overturned.
2) Justice Scalia (who dissented in Randolph) also seemed to be on the government’s side. Although Justice Thomas did not speak at the argument, as is custom, his dissent in Randolph suggests that he is likely to agree. If so, that’s five votes for the government from the five conservative (or conservative-ish) Justices.
3) The one Justice who was clearly on the defense side was Justice Sotomayor. Justice Sotomayor stated that “the first obligation under the Fourth Amendment is to get a warrant,” and she wondered aloud why police officers can’t get that simple message. (Perhaps because that’s not what the Supreme Court has told the police, but I digress.)
4) I think Justice Breyer was also a likely vote for the government, as he was having a hard time articulating a rule without strange implications that would give the defense a victory. Justice Breyer also wins the award for the most outdated hypothetical, involving a person who comes to a suspect’s house and gets him [...]
In shaping the field of securities law, Mr. Loss was known for efforts to apply common sense to statutes that were somewhat opaque. “He was the great codifier,” Mr. Seligman said yesterday. “He could see the field as a whole. He gave it shape and direction.”
In 1993, he told a reporter that he was proudest of his role as a treatise writer. “There are people at this faculty who scorn treatise writing and liken legal treatises to battleships — prime, prestigious stuff in their time, but not really worth their keep in the contemporary world,” he said. “They prefer to write about the sex lives of caterpillars. But what they don’t realize is that these books have shaped the law. They have made a field of law that didn’t exist before.”
One of Mr. Loss’s favorite anecdotes, Mr. Seligman said, dealt with a time in the 1960′s when he became overwhelmed and depressed by how hard he found it to keep up with new developments in securities law. He consulted a colleague, an eminent professor at Harvard, who said it was his own fault: he had given up his 13th Amendment rights when he chose to write a treatise on a broad field of law. The 13th Amendment barred slavery.
I have a very small role in a prominent treatise, and it’s true that such work isn’t considered valuable from a scholarly perspective any more. I tend to think of treatise work as more about service than scholarship: It’s a way to help explain the law to others, more like blogging than writing law review articles. Fortunately I haven’t experienced any 13th Amendment problems, but then I only cover a [...]
UC Hastings professor Rory Little has written a response to my post on Fernandez v. California, the third-party consent case that the Supreme Court will be hearing next week. Professor Little asked if I would be interested in posting it, and I am happy to do so. I’ve included a few thoughts in reply at the end, as well.
Here is Professor Little’s response:
Recently Professor Orin Kerr posted his view that Fernandez v. California , set for argument next Wednesday, is an “easy case” that should come out in the government’s favor. He may be right. But my own preview suggests that the case raises more difficult questions than may first appear.
Background: Recent Fourth Amendment Doctrinal Shifts
There is no doubt that the past 12 years have witnessed gradual yet significant shifts in Fourth Amendment doctrine, even after the Court shifted doctrine 50 years ago in Katz [ 389 U.S. 347 link] to focus search and seizure analysis on privacy rather than property and bring non-trespassory “wiretapping” into the Fourth Amendment.
In 2001, Justice Scalia wrote for the Court in Kyllo [533 U.S. 27 link] that a Fourth Amendment “search” can be effected by aiming a “thermal heat imager” at a residence and detecting unusual amounts of heat emanating from the walls. Although there were no obvious privacy concerns from public street observations, as well as no physical trespass, the Court expansively explained that “the question we confront today is what limits there are upon th[e] power of technology to shrink the realm of guaranteed privacy.” The Kyllo Court thus ruled that a governmental search for “intimate details” of the home can trigger the Fourth Amendment.
Warrantless dog sniffs, aerial surveillance of fenced backyards, trespass on “open fields” (which need be neither “open” nor
A lot of folks in the blogosphere have been writing about this story on Eckert v. City of Deming, a Fourth Amendment civil case involving a routine traffic stop that turned into the government forcing a suspect to undergo invasive medical procedures looking for drugs. I thought I would run through some of the allegations as well as the major legal issues they raise. Unfortunately, the case is too complicated to give a full and complete picture of all the legal issues in the time I have. But I hope to at least hit some major points.
The facts alleged in the case are complicated and filled with many allegations, but here’s the gist of it. Officers pulled over Eckert for a traffic violation, and the officers came to believe that Eckert was a narcotics smuggler. A drug-sniffing dog was brought to the car, and it alerted to the front seat where Eckert had been sitting. The officers came to believe that Eckert had drugs stored up his rectum, and they brought Eckert to the police station. The officers then applied for and obtained a search warrant to search his body for the drugs, including but not limited to his rectal area.
The officers brought Eckert to the local emergency room to have a doctor execute the warrant, but the first doctor refused. The officers located a medical center in a nearby county and brought him to the ER there, and the ER doctor agreed to execute the warrant. The ER doctor ordered an X-ray, which produced nothing, and then conducted a digital rectal exam over Eckert’s objection. The doctor felt something soft but wasn’t sure what it was, and he then passed off the case to another doctor. At this point it was a little after 10pm. The [...]
On November 13th, the Supreme Court will hear oral argument in a Fourth Amendment case, Fernandez v. California, on the scope of the third-party consent doctrine. Fernandez isn’t the most important case on the Court’s docket. The Question Presented is narrow and the practical stakes are pretty small. But the case raises some interesting conceptual questions about constitutional criminal procedure doctrine, and I wanted to explain those issues in this post.
I. The Matlock and Randolph Precedents
The basic issue raised in Fernandez is when can the police get a person’s consent to search a home for evidence of a co-tenant’s crimes. The facts of the case fall between the facts of two major precedents that neither party challenges. To understand Fernandez, then, we need to start with those two cases.
First, in United States v. Matlock (1974), the Court articulated the general rule that any person who has “common authority” over the home can consent to a search of the home. In Matlock, the police arrested the defendant in his front yard put hi in a squad car. They then asked the woman he lived with to consent to a search of the home, and she agreed. The Court ruled that the police could rely on her consent because she had “common authority” over the home. In a critical footnote, the Court explained that common authority meant “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” When you chose to live with someone and [...]
In his post below, Eugene K. responds to Geoffrey Stone’s latest reason why the conservative Justices are terrible, horrible, no good, very bad Justices. According to Stone, the conservatives are intellectually weak political hacks, with the evidence being the party affiliation of the President who nominated the circuit court judges that their clerks worked before before clerking on the Supremes this Term. Conservative Justices hired clerks who had worked for GOP-nominated circuit judges 90% of the time, while liberal Justices hired clerks who had worked for Dem-appointed circuit judges only 56% of the time. Thus the liberal Justices are open-minded and the conservatives are small-minded and ideologically driven.
Eugene K. points out some of the problems with Stone’s argument, but in my view he leaves out the most important flaw: Stone fails to consider supply and demand. As most readers know, liberal students heavily outnumber conservative students at the law schools that tend to generate the pool of circuit clerks. At the same time, the federal judiciary is roughly evenly divided between GOP and Dem appointed circuit judges. This creates an imbalance in law clerk hiring. Clerks often want to work for bosses with similar views, and the judges often feel the same way. But judges also want the best clerks. With the supply of conservative clerks relatively low, GOP-appointed circuit judges regularly hire liberal clerks, while Dem-appointed circuit judges only rarely hire conservative clerks. I think this explains the numbers Stone identifies. Justices who want to choose liberal clerks can choose clerks who worked for Democratic appointed circuit judges or Republican appointed circuit judges. On the other hand, Justices who want to choose conservative clerks will choose almost entirely from former clerks of GOP appointed circuit judges.
It’s unfortunately true that some conservative Justices tend to only hire [...]
Today’s iteration of a longstanding Supreme Court tradition is Stanton v. Sims (per curiam), a qualified immunity decision summarily reversing Judge Reinhardt’s decision in Sims v. Stanton, 706 F.3d 954 (9th Cir. 2013) (Reinhardt, J., joined by Silverman and Wardlaw), a slightly earlier version of which you can find here. For those interested, here is the qualified immunity analysis in the 9th Circuit’s decision:
In a claim for civil damages under § 1983, to avoid the bar of qualified immunity, the plaintiff must show that the officer violated a constitutional right and that the right was “clearly established” at the time of the occurrence. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The determination whether a right was clearly established “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The individual circumstances of the case do not, however, provide a basis for qualified immunity if “the unlawfulness was apparent in light of preexisting law.” Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.1998) (internal citation omitted). “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The Supreme Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. Therefore, the “salient question” is “whether the state of the law” in 2008 gave Stanton “fair warning” that his warrantless entry was unconstitutional. Id.
Contrary to the district court’s findings, a reasonable
Back in March, I decided to try Twitter again. It seems to have stuck this time. I’ve tweeted about 550 times, around twice a day. Some of my tweets are only links to blog posts, so it’s stuff you’re getting by reading the VC. But I’ve found that Twitter is also useful to link to new cases, law review articles, and speeches that don’t merit a full blog post. I also often tweet news about presentations that I will be giving or include links to news stories. If you’re interested in that kind of thing, you can find it here.
And I’m only one of many VC bloggers on Twitter. Here are the feeds I could find, with apologies to any I may have missed:
- @crescat (Will Baude)
- @profnqr (Nick Rosenkranz)
- @jadler1969 (Jonathan Adler)
There is also a @VolokhC account, although it’s just an automatic feed of all VC posts.
UPDATE: I have added Randy, Jonathan, and Dave K., all of whom I looked for but missed earlier. [...]
I recently mentioned how much I like the Lawfare blog. That post led to an invitation to write for Lawfare, and I’ve decided to post there on occasion on national security law issues. My tentative plan is to link to those posts from here when I do. In that spirit, here are my first two Lawfare posts:
The Justice Department recently changed its policy on notice to criminal defendants about the use of evidence derived from surveillance under Section 702 of FISA. Press reports have treated the change as momentous, with the New York Times and the Associated Press predicting that the new policy will likely lead to a Supreme Court case on whether Section 702 violates the Fourth Amendment. I have a different view. My sense is that the notice is less significant than many believe, and that a future Supreme Court decision on the validity of Section 702 isn’t particularly likely in the short term—and maybe even in the long term. Here’s why.
2. “Should U.S. Law Protect the Privacy of Foreigners Abroad?” From the intro:
United States privacy law traditionally has only protected the privacy of those in the United States and U.S. citizens abroad. Over at Just Security, David Cole argues that this should change. Privacy is a human right, Cole argues, and U.S. law should protect the privacy of foreigners all around the world. David offers three pragmatic reasons for his approach, but I don’t find his arguments persuasive.