Author Archive | Orin Kerr
Paul Caron has the scoop:
The AAUP Chapter at Cleveland-Marshall College of Law has filed an unfair labor practice charge with the State of Ohio alleging that the law school retaliated against certain faculty in the award of merit raises in 2013 and 2014 because of their union activities. Faculty were placed in four merit raise bands — $5,000, $3,000, $666, and $0 — based on scholarship and scholarly influence (40%), teaching as measured by student evaluations (40%), and service (20%). The complaint alleges that eight AAUP organizers received raises of $0 or $666, despite “exemplary scholarship and teaching scores.” The complaint charges that the $666 raise in effect calls “AAUP’s organizers and AAUP Satan.”
The University has denied the allegation that the $666 dollar amount was intended to call anyone Satan, describing the dollar amount as “the result of mathematical division, not anti-union animus.”
The annual Federalist Society Lawyers Convention will be in Washington, DC, on November 14th through November 16th. This year’s group of speakers includes five VC bloggers: Jonathan Adler, Randy Barnett, John Elwood, Nick Rosenkranz, and Eugene Volokh. [...]
Readers who are following the Weev case, aka United States v. Auernheimer, the Third Circuit appeal I am litigating pro bono, might be interested to know that we filed our reply brief today. You can read the reply brief here.
The forthcoming Supreme Court issue of the Harvard Law Review will feature an essay by NYU Law professor Erin Murphy on the Supreme Court’s recent Fourth Amendment case on DNA searches, Maryland v. King. Professor Murphy’s essay, License, Registration, Cheek Swab: DNA Testing and the Divided Court, argues that King is likely to have an unexpectedly large impact on the future of Fourth Amendment law.
In Murphy’s view, King is significant less for what it said than for what it didn’t say. Presented with the major implications of DNA analysis in the parties’ briefs and the amicus briefs, the Court didn’t address them. Instead, Justice Kennedy issued a majority opinion that seemed unconcerned with those implications. In Murphy’s view, “[t]he failure of the decision to offer express guidance on these matters is thus a silence that speaks at least as loudly as words, especially since the Court not only resisted declaring such safeguards as essential, but also planted seeds suggesting the contrary.” While the majority opinion is vague on certain major points and could be construed narrowly or broadly, unfortunately there is reason to suggest that the Court is likely to construe it broadly in future cases. As a result, she contends, basic bulwarks of Fourth Amendment protection such as warrants and individualized suspicion are potentially threatened.
I always enjoy Professor Murphy’s work, and she may be right. In my view, though, it’s difficult to know. From a legal realist standpoint, a future Supreme Court will construe King pretty much however it wants. It may be that five Justices on the current Court would be willing to read King broadly in future cases. But with no votes to spare from this 5-4 decision, we don’t know how far the Court could go without losing that fifth vote (Breyer, [...]
Today the Third Circuit handed down United States v. Katzin, an important cases on three related issues of Fourth Amendment law: first, whether the installation of a GPS device requires a warrant; second, the scope of the Davis good-faith exception to the exclusionary rule; and third, who has standing to suppress the evidence from the physical search of a car following a GPS search.
The divided court ruled in the defendants’ favor on all three issues. First, installation of a GPS device requires a warrant; second, the Davis good-faith exception applies only when there was directly on-point binding appellate precedent allowing the government’s acts; and third, every passenger in the car at the time it is stopped has standing to challenge the fruits of the subsequent physical search. There’s a lot in the Katzin case, so I thought I would blog on the three issues and offer my perspective on them.
I. The Facts
The police were tracking a string of burglaries at Rite-Aid pharmacies across several states, and they came to have very strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van. The police found the van one day, so they called the local U.S. Attorney’s Office. The prosecutors at the office advised them that they could put the GPS device on without a warrant. (This was December 2010, before the Supreme Court’s GPS decision in Jones.) The police attached the GPS device on the car when it was parked on a public road. The device allowed the police to monitor the location of the car in real-time remotely. The GPS device quickly paid off: Just several days after placing the GPS device on the car, the GPS showed the car parked for a few hours right next to a Rite-Aid [...]
(1) Liptak suggests that the readership of law reviews has dropped and will continue to drop. I don’t see this. Sure, the circulation of printed versions of law journals has plummeted. But who reads paper issues of law reviews anymore? These days people read law review articles on SSRN, or Westlaw, or on .pdfs from law review websites. I would guess that the readership of law reviews is vastly greater today, now that you can get most scholarship online for free, than it was on the old days when you had to go to a law library to find an article.
(2) Liptak suggests that law reviews have less influence today than they did in the 1970s and 1980s, citing a study that about 50% of Supreme Court decisions in the 1970s and 1980s cited law review articles while only 37% of decisions since 2000 do so. But that difference is likely explained by the growing rift between the ideology of Supreme Court Justices and legal academics, not anything about the law reviews. Back in the 1970s, the Justices and the legal academics were more or less in sync. Justice Marshall could cite Larry Tribe for support, and it was all copacetic. That is no longer true. Today’s conservative Justices view legal academics as hopelessly out-of-touch with the Court. The mainstream of the academics and the mainstream of the Justices don’t share much space in common, at least compared to an earlier generation. The Justices are less likely to cite articles because of the content their authors provide, not because of student editors.
(3) It’s unfortunate [...]
Understanding of the law and confidence in one’s conclusions about it are inversely related. [...]
Here’s an interesting Fourth Amendment question decided by the 8th Circuit last year in United States v. Cowan, 674 F.3d 947 (8th Cir. 2012): If the police have a suspect’s car keys, and the key fob has an electronic button that sets off the car’s alarm when pressed, can the police press the button to set off the alarm and therefore identify which car belongs to the suspect? In Cowan, the officers had seized the suspect’s keys, and they suspected that the suspect’s car was nearby and might contain drugs. To identify which car belonged to the suspect, they walked around the streets near his home pressing the “alarm” button until a specific car’s alarm siren was triggered. They then brought in a drug-sniffing dog to sniff that car, the dog alerted, and a search of the car revealed crack cocaine inside.
The Eighth Circuit held that pressing the alarm button on the key fob did not violate a reasonable expectation of privacy because it did not reveal any private information — an approach to the REP test I have called the “private facts” model:
Cowan did not have a reasonable expectation of privacy in the identity of his car. The Supreme Court has noted “the diminished expectation of privacy in an automobile,” Knotts, 460 U.S. at 281, and that “[a] car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U.S. 583, 590 (1974).3 If Cowan’s car were in Chicago or otherwise not present, the fob would have disclosed nothing. If the keys and car belonged to someone else and Cowan had no possessory interest in the vehicle, Cowan had no expectation of privacy in the vehicle. If the
Today Lavabit filed a brief before the Fourth Circuit challenging a civil contempt order for its refusal to turn over its encryption key that the government wants to enable the government to conduct surveillance of Edward Snowden. I think Lavabit faces a very uphill battle, and in this post I’ll explain why.
First, a bit of context. The government obtained several different court orders requiring Lavabit to disclose the key. First, they obtained a pen register order; next, they issued a subpoena for the key; and third, they obtained a search warrant for the key. Lavabit refused to comply with any of them, and the court imposed a fine of $5,000 a day until Lavabit agreed to hand over the key in digital form. (In a bit of a middle finger to the government and the court, Lavabit did turn over a paper copy of the key — which was 11 pages long in 4-point type — but refused to turn over an electronic copy. Understandably, the court didn’t consider that compliance.) Lavabit then shut down its service and handed over the key. In this appeal, Lavabit is appealing the lawfulness of the judge’s orders requiring it to hand over its key by arguing that none of the court orders were valid.
In order to to win on appeal, Lavabit needs to show that all three methods are improper. I don’t think they can do this. I’ll take each argument in turn.
1) The Subpoena Argument
Lavabit’s weakest argument is its claim that the government couldn’t just subpoena the key from Lavabit. Surprisingly, the brief spends less than two pages on this issue at the end of the brief. I think it’s the argument that Lavabit should be the most worried about, however. Here’s the problem. The government can subpoena [...]
Albert Yoon has an interesting new article, Editorial Bias in Legal Academia, on the selection of law review articles authored by professors who teach at the journal’s own school. For those familiar with law reviews, the paper just tells you what you already know. But it’s still pretty interesting, especially for current law review editors. From the abstract:
In academia, journals serve as a proxy for quality, where prestigious journals are presumed to publish articles of higher quality than their less prestigious counterparts. Concerns over editorial bias in selecting articles, however, challenge this claim. This article develops a framework for evaluating this bias in legal academia, examining over 25,000 articles from nearly 200 general interest law reviews. Examining published articles in law reviews—the dominant venue for scholarship—and subsequent citations to these articles, we find that, with few exceptions, law reviews publish more articles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently than publications of outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality.
Thanks to Paul Caron for the link. [...]
According to to 28 U.S.C. § 2, today is the first day of “a term of court” at Zip Code 20543. Happy First Monday, everyone. To read up on the cases currently on the Supreme Court’s docket, go here. [...]
I’ve enjoyed Ilya’s posts on his new book, which I look forward to reading, and I hoped he wouldn’t mind two questions about his argument. My first question is about political parties, and my second question is how he deals with majority preference for bigger government.
1) My first question considers whether political parties overcome the significance of political ignorance. As Ilya points out, a lot of people are ignorant about how the government works. But in a two party system, it’s not clear that this knowledge is necessary or even particularly useful. For any particular voter, much of the decision about which candidate to vote for boils down to which party to vote for. Each party has a set of views that the party and its candidates tend to coalesce around, and voters can vote for the candidate of the party that shares his or her values. For example, in the area of economics and regulation, there are two broad perspectives. Some people think that markets usually work pretty well, or at least better than regulation; other people think that regulation usually works pretty well, or at least better than markets. For a voter who cares about economics and regulation, a preference on the markets vs regulation question will often direct that voter to a party that will help further that preference. So my first question for Ilya is whether the existence of political parties (which I think we can take as fixed for purposes of the argument) changes the extent to which political ignorance matters.
2) My second question is what to do if people decide that they really like big government. In Ilya’s argument, voters decide who to vote for by monitoring the government to see if they approve of its impact. He argues that government [...]
A notable quote from an interesting profile of Justice Ruth Bader Ginsburg by Robert Barnes in the Washington Post:
Ginsburg understands politics but does not feel she faces a deadline to leave so that Obama, whom she admires, can choose her successor.
“I think it’s going to be another Democratic president” after Obama, Ginsburg said. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”
Thanks to Josh Blackman for the link. [...]
Last week, the GW Law chapter of the Federalist Society hosted a debate, Should You Be Angry about the NSA Surveillance Disclosures — And if so, At Whom?, featuring Benjamin Wittes of Brookings and Steve Vladeck of AU. I played a mixed role as partial moderator and partial participant. The event was audiotaped and has now been released as a Lawfare podcast. [...]