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Orin Kerr @OrinKerr
, 3 tweets, 2 min read Read on Twitter
ECPA nerds might want to know that a pending 4th Circuit case considers whether to agree with Judge Kozinski's 2004 Theofel opinion. Still matters a lot in civil cases; watch for deepening split. Hatley v. Watts, 18-1306. orinkerrblog.files.wordpress.com/2018/06/2018_w…
An amicus brief by @EFF and @CenDemTech et al, (wrongly) defending Theofel, is here. orinkerrblog.files.wordpress.com/2018/06/hately…
The district court's opinion is here. courtlistener.com/recap/gov.usco…
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4th Circuit: Suspect in custody doesn't have to wait until Miranda rights are read for his assertion of the right to remain silent to have full effect (requiring officers to stop the interrogation, or in this case never to start it). ca4.uscourts.gov/opinions/17423…
As I understand the court's opinion, you can assert your Miranda right as soon as you are in custody, but you don't have to wait until you are given warnings or questioned. (This is a question that students often ask about, so good to have a case to cite to them.)
Also interesting that the 4th Circuit has a five-factor test for when an officer's post-invocation conduct sufficiently honors the assertion of the right. (For those who don't know, "five factor test" mostly means "no test at all"). CA4 right to cabin that inquiry more here.
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I saw the WWI documentary "They Shall Not Grow Old" today. Really enjoyed it. It tells the story of the typical British soldier on the western front in a remarkable way that really brings it to life. (Short thread.)
It's the visual restoration of the footage that draws you in. And indeed, it's remarkable. Brings the people to life. But it's really in aid of the telling of the story, not the focus.
The narrative consists of recordings of veterans of WWI, recorded in the 50s and 60s, telling the story of their wartime experience. They are heard, never seen, while the original footage is shown. There is no narrator, and no onscreen text to introduce themes or battles.
Read 7 tweets
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Here's an interesting example of how courts don't pay enough attention to 4th Amendment cross-enforcement issues: The 3rd Circuit's recent opinion in US v. Osorio, decided 12/20/18. Thread below . . . . www2.ca3.uscourts.gov/opinarch/17313…
Relevant issue in the case: Could municipal officers in Pennsylvania make an arrest on a federal probation warrant? Court says yes, b/c "municipal officers are authorized to execute federal arrest warrants," citing a CA2 and a CA5 case.
But if you look at the two cases, they're precedents saying that *state law* governed whether state officers could execute federal warrants -- based on a reading of US v DiRe and US v. Marsh. In the two states at issue , NY and Florida, state law okay'ed executing fed warrants.
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I've gotten a few questions about the "split decision" narrative, and whether it should change if Ds pull out wins in FL-Sen and AZ-Sen (good chance in both!). This gets to one of my biggest pet peeves about elections analysis and sports analysis. 1/
(This is a pet peeve of @NateSilver538 as well). So I'll start with a sports story: The 2014-15 Kentucky Basketball team (sorry @mghancock). It roared undefeated through the regular season and was pronounced a juggernaut for the postseason. 2/
The thing was, if you looked underneath the hood, things didn't look as impressive. They beat Columbia by 10 points. They beat Ole Miss by 3 in overtime. TAMU by 6 in double overtime. Vanderbilt by 8. FL by 7. LSU by 2. GA by 8. 3/
Read 10 tweets
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Having watched the @Andrew_Adonis interview on LBC I downloaded the government's referendum leaflet - first 2 pages attached. There is of course no indication that the UK might leave the single market altogether, just not access it as an EU member. Please read rest of thread.
I'm struggling to reconcile the warnings in the government own referendum leaflet with Theresa May's current Brexit proposals. They are poles apart, TM's being far more radical than even the leaflet envisaged and, by implication, more damaging for the British economy.
Mrs May's must improve our lives but, based on the government's own leaflet, her Brexit proposals appear to reject that notion. No wonder people want a vote on the final deal. I would like MPs on both sides of the house to demand she guarantees improved living standards.
Read 27 tweets
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I've had some productive private conversations re Kavanaugh w/ conservative friends over the last couple days. We don't agree about everything by any means, but at times of intense partisan division, it's valuable to try to figure out what others are thinking. Thoughts below...
First, there's a lot of anger at SJC Dems at how they played this timing-wise. We obviously don't know for sure how things got leaked, and Dr. Ford wasn't willing to come forward publicly until late. But I'm perfectly willing to believe committee Dems didn't act in good faith.
It's quite plausible to me that this was kept in reserve and was only leaked when it became clear that confirmation was going to happen otherwise. I don't know that that is true, but it's believable.
Read 45 tweets
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Here's a thread about why observations don't always compose and what this means for observability. TL;DR: observations don't preserve all of the interesting relationships between components that we care about, so composing observations ≠ observing composites.
Let's start with a simple thought experiment: You have a 3-node system and you want to observe connectivity, i.e., is node ●️ connected to node ○️, etc. We have two different systems: S where ●️ is connected to ○️ and T where ○️ is connected to ✸.
(Quick aside: one way of looking at functions is that they are observations, so a function even : Int → Bool is an observation of an integer in terms of a boolaen: is it even?) Phi Accrual is an observation of a process in terms of a probability: the likelihood that it is down.)
Read 26 tweets
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Yes. Dr Peterson thinks he's proving "hierarchies are over 300 million years old!" & thus some kind of universal law.

If he or his audience knew biology, they'd know that chordata (our phylum) and arthropoda (lobsters' phylum) diverged over a billion years ago.
That's kind of like positing that humans in Europe and humans in China are related, and humans in China speak Chinese, therefore humans in Europe also speak Chinese.

Anyone see any problems w taking life lessons from a dude who can't get basic shit like that straight?
If he wanted to score some points by using nature analogies to prove that humans Must Behave A Certain Way, there are several thousand species on the planet with more in common with us than lobsters.
Read 23 tweets
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In Canada, the equivalent to the Howey Test for determining whether something is a security is the Pacific Coast Coin case.
Howey was selling ownership in orange groves, with a share of profits from future orange juice as the return.

Pacific Coast Coin was selling bags of silver coins, including an option to buy on margin, saying that silver would outperform stocks / be a hedge against inflation.
The Pacific Coast Coin is quite readable. Here’s a link scc-csc.lexum.com/scc-csc/scc-cs… - from 1977, ruled by the Ontario Securities Exchange (OSC).
Read 12 tweets

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