Author Archive | Orin Kerr

Judge Leon Enjoins NSA Telephony Metadata Program in Larry Klayman Lawsuit

And now for something completely different: In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll comment on the persuasiveness of its analysis (or lack thereof, in this case — Judge Leon’s opinion has several major flaws, in my view).

According to Judge Leon, the United States Supreme Court’s decision in Smith v. Maryland is no longer good law because “present day circumstances” are so unlike the facts of Smith v. Maryland that the Supreme Court’s legal reasoning “simply does not apply.” That is, Ludge Leon compares the facts of the one case, Smith, with the facts of the NSA program as a programmatic whole, and he finds that the facts of the entire NSA program are so different from the facts of Smith that the Supreme Court’s legal reasoning need not be followed.

Judge Leon relies on several factors to conclude that the Supreme Court’s reasoning in Smith is no longer valid:

1) In Smith v. Maryland, the surveillance occurred over just a few days and the data was not stored for long, whereas the NSA conducts long-term surveillance and could keep doing so “forever!” (emphasis in original).

2) In Smith, the government requested the phone company to install the surveillance tool, whereas in the case of the NSA, there is a cozy, long-term relationship.

3) Datamining of information obtained is better today than it was when Smith was decided.

4) Most importantly, people use phones today a lot more than they did in 1979, when Smith was decided. Back when Smith was decided, only about [...]

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The Reasoning of the Utah Opinion Partially Striking Down and Rewriting the State’s Bigamy Law

In his post below, Eugene notes the new decision in Brown v. Buhman, involving Utah’s bigamy law. In the case, a group that considers polygamy a core part of its religious practice challenged a Utah law that states: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.”

I’ve read over the opinion, and it is quite unusual. For example, I don’t recall another legal opinion that relies extensively on Edward Said’s theory of “orientalism” to interpret the U.S. Constitution (see pages 10-23). More broadly, the judge’s reasoning is surprisingly hard to tease out. There are pages and pages of discussion that end with the court saying that all of the previous discussion is irrelevant because something else is relevant, followed by pages of pages on that second issue, leading to no obvious point. It’s definitely different.

But you don’t pay us the big bucks to skip over the legal goods, so here’s the reasoning of the court’s opinion, at least as far as I can tell. First, the court concludes that the phrase “or cohabits with another person” in the statute is unconstitutional under the Free Exercise clause because it is not “operationally neutral” towards religion. It is a phrase in the statute that has been used to target religious minorities that are polygamists, the judge reasons. The phrase therefore must be excised from the statute because the phrase cannot survive strict scrutiny. The phrase also violates Due Process under Lawrence because it violates the principle of “consensual sexual privacy,” and that it is also void for vagueness. (I don’t know where the judge gets the idea that individual words or [...]

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How Hackers Snooped on Government Officials at the 2011 G20 Summit Meeting

According to this story, dozens of computers of diplomats from countries including the Czech Republic, Portugal, Bulgaria, Hungary and Latvia had their computers infected with a virus designed to extract information when they were at the G20 summit in Paris in February 2011. The virus, believed to originate from China, came as an attachment to an e-mail that had a simple message: click on the attachment to see naked pictures of Carla Bruni. According to a government source who spoke to the reporter,”almost everybody who received the email took the bait.” [...]

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Third Circuit Votes to Rehear Katzin En Banc on the Scope of the Davis Good Faith Exception [UPDATE: Second Circuit Weighs In, Too]

I’ve blogged before about United States v. Katzin, the Third Circuit decision imposing a warrant requirement for installing a GPS device on a car and limiting the scope of the Davis good faith exception. In my earlier post, I explained why the Third Circuit’s good faith analysis was not likely to be the last word on the issue:

I’m no fan of the Davis good-faith exception — as regular readers know, I think it was wrongly decided — so on one hand, I appreciate the fact that the court construed the case narrowly. Limiting the case to “binding” appellate precedent seems correct, as the Supreme Court clearly relied on that limitation to justify its holding. With that said, as much as I oppose the introduction of a free-floating culpability requirement on the exclusionary rule, if courts are to recognize such a requirement, it probably should mean something: The court here seems to add the requirement (which it didn’t have to do) but then construes to mean almost nothing. The police here didn’t apply a “self-derived” rule, as the court says; they applied the rule that was reflected in the caselaw and found in the treatises. If there’s a culpability requirement to be applied, then it seems like a relatively tough fit with the facts here. Anyway, much of good-faith exception material is likely to lead to relatively deep splits in the next two to three years, so all of this is probably just percolation that will end up leading to future Supreme Court decisions.

On December 4th, DOJ petitioned the Third Circuit to rehear en banc just the good-faith exception part of the decision, and earlier today the Third Circuit granted the petition and scheduled the case for an en banc argument in May. As I understand the [...]

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What Happened to the Cell Phone Search Petitions?

I mentioned a while ago that the two cert petitions on cell phone searches incident-to-arrest were calendared for December 6. They have been delayed, however, as the Court asked for the lower court record in Riley, the smart phone case. We don’t know what the Justices expect to get from the record, but it’s at least possible that some of them want to know exactly what the lower court record says about what searches were conducted. As I mentioned in my initial post on Riley, the facts are somewhat murky:

The exact scope of the search in Riley isn’t entirely clear, but it seems to have been a more wide-ranging search than in Wurie. According to the lower court opinion, the officer first “looked at Riley’s cell phone, [and] he noticed all of the entries starting with the letter K were preceded by the letter C, which gang members use to signify ‘Crip Killer.’” It sounds like this was a text search through the phone, although it’s not entirely clear. Second, the officer later “looked through the phone and found some video clips” and “some photographs.” This sounds like a more extensive search through the contents of the phone.

That lack of clarity has been common in cell-phone search cases so far, I’ve noticed. Because the early cases broadly allowed warrantless cell phone searches incident to arrest, and the split is fairly recent, litigants and trial judges haven’t focused much on the factual details of what search occurred. It’s at least possible that this lack of detail might end up delaying Supreme Court intervention. But again, this is just uninformed speculation, worth exactly what you’re paying for it.

Incidentally, I wanted to note a question that I think is not implicated by the division of authority on [...]

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Voluntariness and the Law/Fact Distinction

This is a follow-up to this morning’s post on United States v. Robertson, the Fourth Circuit’s decision yesterday on the voluntariness of a consent search under the Fourth Amendment. In the comment threads, a lot of thoughtful comments raised the issue of whether voluntariness is really just a question of fact reviewed for clear error. As I noted in the original post, there were two layers of facts: The facts of what happened, and then the “fact” of whether the consent was voluntary. But as some commenters noted, it’s a little weird to think of voluntariness as just a fact. Whether consent is voluntary is a conclusion based on a legal sense of what voluntariness means. It must have at least some legal elements in it. So that raised the question, is voluntariness really just reviewed for clear error as a fact, or is it a mixed judgment of law and fact, with the “what happened” part reviewed for clear error and the “so does that amount to consent” part reviewed de novo?

In the Fourth Circuit, I found, the answer is actually somewhat mixed. If you follow what most of the cases say, it looks like the standard is just clear error all around. That is, when Fourth Circuit opinions discuss the voluntariness standard, they usually just say it is a factual issue and say clear error applies. See, e.g., United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996) (“The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous.”); United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (per curiam) (“In reviewing a district court’s determination on consent, an appellate court must uphold the [...]

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Our Own Jonathan Adler Featured in the Cleveland Plain Dealer

The story, “If Obamacare is overturned, a Case Western law professor gets the credit”, begins:

If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law’s critics say is a major flaw.

Jonathan Adler, 44, says he didn’t even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.

And to think, we knew him when he was only Juan non-Volokh. Thanks to Howard Bashman for the link. [...]

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United States v. Robertson and the Voluntariness of Consent to a Fourth Amendment Search

Yesterday the Fourth Circuit handed down an interesting Fourth Amendment decision in United States v. Robertson, involving a consent search at a bus shelter. It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct.

As I understand the facts, several officers converged on the bus shelter (which I assume something like this) to try to figure out if any of the people at the shelter knew of a foot chase involving a gun that had just been reported in the area. Robertson was one of the men sitting at the bus shelter, and he was approached by Officer Welch. Welch asked Robinson, “Do you have anything illegal on you?”, but Robertson remained silent. Welch then waved Robertson toward him and said, “Do you mind if I search you?” Robertson stood up, walked two yards towards Officer Welch, turned around, and raised his hands above his head. Welch interpreted that as consent, and conducted a search. The search recovered a firearm, and that led to charges for illegal firearms possession.

At trial, Robertson argued that the search was invalid because consent was involuntary. The voluntariness of consent is a question of fact based on a totality of the circumstances that is reviewed for clear error. The district court ruled that the Robertson had voluntarily consented. In today’s decision, the Fourth Circuit ruled that this factual determination was clearly erroneous. From the majority opinion by Judge Gregory, joined by Judge Duncan, with internal citations omitted:

This case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Here, Mr. Robertson’s behavior was the latter. The area around the bus shelter was dominated by police officers. There were three patrol cars and


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My Instincts Were Wrong — At Least I Now Think They Were — On Maynard

Thanks to Will’s excellent post below, I now think I was wrong before in my earlier approach to Maynard. My sense now is that the correct approach is to say that the Supreme Court didn’t reach the Maynard question of whether GPS tracking is a search under Katz. As a result, there is still a circuit split on the issue that Jones left unresolved. This means that Maynard is binding appellate precedent in the DC Circuit, and the cases on the other side of the split are binding in those other circuits. If the mosaic theory is litigated in circuits that had held pre-Jones that GPS tracking was not a search, district courts and circuit panels must defer to the pre-Jones circuit decisions still in place. And courts that are considering whether to adopt a mosaic approach where there is no binding precedent should see themselves as wading into a pre-existing circuit split, not venturing out into entirely new territory.

What makes the application of the principle particularly strange is that the Supreme Court bifurcated the doctrine in Jones to create a new doctrinal path, the trespass/physical intrusion theory of searches. That bifurcation allowed the Court to answer the question that was at issue in the case (“Is this a search?”) while formally leaving in place the circuit court precedents that had divided on that (because, post-bifurcation, the earlier circuit court precedents only answer “is this a search under Katz?”). So it’s a weird, counterintuitive result. But I now think it’s the correct one. Thanks to Will for the very helpful discussion. [...]

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Relying on Maynard After Jones

Reading EFF’s amicus brief recently filed in United States v. Vargas reminds me of a question that has come up in Fourth Amendment circles after the Supreme Court’s 2012 GPS decision, United States v. Jones: Is the DC Circuit’s mosaic analysis in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2012), aff’d sub nom. United States v. Jones, 132 S. Ct. 945 (2012), still good law? Some argue that the Maynard analysis is still good law for two reasons: First, the Supreme Court affirmed the result in Maynard, and second, the Supreme Court didn’t expressly reject the Maynard theory but instead reached the same outcome on other grounds, implicitly leaving the DC Circuit’s reasoning intact as a precedent. I assume the EFF implicitly accepts that view, as the brief relies on the DC Circuit’s analysis as legal authority.

My instinct is to disagree. When the Supreme Court grants cert on a question and hands down an opinion with a different analysis, I think the Supreme Court’s analysis governs. I don’t think it makes any difference whether the formal disposition of the Court is to affirm, vacate, or reverse. And I’m not sure why it should matter whether the Supreme Court directly rejected the lower court’s reasoning: As long as the Court answered how the law should apply to the facts, I would think that the Supreme Court’s answer now governs. Of course, one can try to use the concurring opinions in Jones to fashion a mosaic argument — a perilous path, in my view, but at least possible. But such an argument would rely on the concurring opinions at the Supreme Court, not the DC Circuit’s opinion. With that said, a quick Westlaw search didn’t yield anything definitive on this, so I figured I [...]

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Sixth Circuit Hands Down En Banc Decision in United States v. Blewett

Readers may recall that I blogged about the outlandish Sixth Circuit panel decision on the retroactivity of the Fair Sentencing Act here, and I pointed out that the circuit vacated the panel decision to go en banc here. The en banc court handed down its opinions today, with Judge Sutton writing the majority opinion disagreeing with the panel decision. The overall vote was 10-7. Passions tend to run high in this area, which I believe explains the divided vote. But I think the majority is clearly right as a legal matter (which is the matter that matters, at least to me). [...]

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URL Shortening in Legal Briefs, and Now Legal Opinions

Most readers will be familiar with URL shortening services — redirection services that give users a short web address that points to a longer one. I’ve come across URL shortening in legal briefs more and more, and I have used such links in briefs myself. The shortening avoids an unsightly excessively-long URL when you are linking to content on the web, and it’s also easier for the reader who might hand-type the URL into a browser. In the opening brief in United States v. Auernheimer, for example, I linked to instead of to the ugly

In the last two years, federal court decisions have started to use URL shortening links, too. Judge Kozinski uses them extensively in today’s dissent in Minority Television Project v. FCC, a case on the First Amendment implications on banning certain kinds of ads on public TV. An excerpt:

Third, advertisements are speech. Viewers often see commercials as no more than annoying interruptions, but the Supreme Court has recognized that advertisements often carry important, sometimes vital, information. See, e.g.,Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyer advertising); Virginia State Bd. of Pharmacy. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (prescription drug prices); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (beer labels). Advertisements can be for annoying, useless or decadent products, but they can also encourage people to get breast exams,; join the peace corps,; get a smoke alarm,; prevent forest fires,; vote,, etc., etc. Excluding advertising from public broadcasting deprives viewers of the opportunity to obtain such important information.

A quick Westlaw search finds 9 judicial opinions before today’s decision that use Google’s URL shortener, Several of them use the service for maps, such as this excerpt from [...]

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The Rule of Lenity Versus Chevron Deference

In his concurring opinion today in Carter v. Welles-Bowen Realty, Judge Sutton addresses a very interesting legal question: If an administrative agency is charged with administering a statute with criminal sanctions, and the agency adopts a broad reading of the statute that ordinarily would be entitled to Chevron deference absent the criminal sanctions, does the rule of lenity that applies to the interpretation of criminal statutes change what interpretation the court must give to the statute?

Great issue. Off the top of my head, I think Judge Sutton’s answer is right. Congress does not delegate the meaning of criminal statutes to the executive branch. If an agency has promulgated an interpretation of the elements of a crime, the rule of lenity trumps Chevron; the agency doesn’t have interpretive authority over the crime, and Chevron is inapplicable. Granted, some Westlaw-surfing reveals an apparently contrary decision dealing with sentencing, Yi v. Federal Bureau of Prisons, 412 F.3d 526, 353 (4th Cir. 2005), but I think Yi is mistaken. Note that the agency’s view would still be controlling when Congress adds a general criminal prohibition that violating an agency regulation is a crime. See, e.g., 16 U.S.C. § 3. In that case, the agency is enacting its own regulation within its zone of delegation, though, not interpreting a statute.

Thanks Howard Bashman for the link. [...]

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The Lon Fuller Website

I was googling around yesterday and stumbled across a website that I think is a pretty cool idea:, a website created by the estate of the law professor and legal theorist Lon Fuller. Fuller died in 1978, but his estate set up the website to have a short biography of Fuller (with some personal pictures) and a list of his major works. Unfortunately, the links to Fuller’s scholarship are still a work in progress — the site hosts only two of the articles, even though others can be found online. And when I tried to submit a message to the site, it didn’t go through. But implementation aside, the basic idea of setting up and maintaining a website to feature a late professor’s scholarly works seems like a fitting way to honor that professor.

I gather that SSRN postings are maintained after death, as well — see, for example, the SSRN pages of the late Bill Stuntz and Larry Ribstein. So SSRN homepages can serve at least part of that function, too. But I also like the idea of the personal website with links that can be maintained over the long run, given that you never know what will happen to SSRN. [...]

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