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Orin Kerr

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10 Nov, 12 tweets, 3 min read

@ProjectLincoln

I have given money to @ProjectLincoln, and supported their work, but this strikes me as a terrible idea.

https://twitter.com/theplumlinegs/status/1326189802367184897

It's a bad idea for two reasons, I think.

1) Going after lawyers for representing unpopular clients in unpopular legal claims has a really bad history, and tends to not go well. Our legal system needs lawyers to take on unpopular clients. Focus on the clients, not the lawyers.

@benjaminwittes

I'm reminded of when conservatives went after the law firms representing terrorist suspects at Gitmo. (I was one of the conservatives who signed a counter-letter, organized by @benjaminwittes objecting to going after the lawyers.)
brookings.edu/wp-content/upl…

2) Second, why go after Jones Day specifically, and not another law firm involved in the suits? Jones Day has 2,500 lawyers in 43 countries. I would guess that most employees at Jones Day despise Trump.

I would guess Jones Day is the target *because* of that, not despite that. Because the firm is deeply divided on Trump, an outside pressure campaign is more likely to get them to drop the client.

That doesn't mean that lawyers can never be subject to criticism, of course. But this sounds like an effort to get a law firm to drop a client, or to deter others from taking up that client, in order to make things more difficult for the client. That's a really dangerous path.

For those reasons, I think this is a terrible idea. /end

Some are arguing that it's okay to have a media campaign when the firm is bringing a suit, not defending it. I don't see why that should matter. Sometimes you defend your rights in defensive litigation, and sometimes you defend your rights by bringing suit.

Take an unpopular client who has been arrested, perhaps without cause. If the govt brings charges, the lawyer could file a motion to suppress (defensive). If no charges are filed, the lawyer could file a civil rights claim under 1983 (offensive).

I'm not sure why whether a media campaign against the law firm is problematic should depend on which side of the "v" the law firm represents in filing effectively identical claims.

To my followers surprised that I would make such a stupid argument, at least I told you this was coming.

Also appreciate how the replies divide nicely between those who think I’m a fool for previously donating to the Lincoln Project and those who think I’m a fool for criticizing them now. Glad to provide something for everyone!

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Orin Kerr

@OrinKerr

12 Nov

I'll be posting a new article draft in a week or two about government-ordered content preservation -- when the government tells your e-mail or messaging provider to save a copy of your entire account for the govt in case the govt comes back later with a warrant to disclose it. /1

This happens to hundreds of thousands of U.S. accounts every year. The government does it all the time, with no cause. I argue in the article that preservation is a seizure that requires at least reasonable suspicion, and in most cases, probable cause. /2

A key part of the article is the first-ever public explanation of how preservation requests work. How the govt and providers think of it; how requests are made and how providers respond; how it relates to ultimate production; and why it's all secret, hidden from the user. /3

Read 5 tweets

Orin Kerr

@OrinKerr

5 Nov

I'm not sure I agree with this new 5th Circuit case (per Duncan, J.) allowing the seizure of a trailer that was homemade and therefore lacked a VIN. Quick thread.
ca5.uscourts.gov/opinions/unpub…

The opinion case starts with the premise that Texas state law permits a trailer to be seized when the VIN has been removed. But here, the VIN hadn't been removed: it was a homemade trailer, which never was assigned a VIN.

That makes no difference, CA5 says, b/c Tex state law still requires that each trailer has a VIN -- the DMV assigns one if it didn't come with it. So the trailer could still be seized because it lacked a VIN.

Read 8 tweets

Orin Kerr

@OrinKerr

4 Nov

Whoever wins the election, it's worth noting that the difference between a clear victory and a coin flip in a Presidential election these days amounts to decisions of just a few percent -- a handful of people in a room of 100. As a nation, we're sharply divided either way.

I'm seeing a lot of people say, "I can't believe so many people support Trump, I wasn't expecting this to be so close." Understandable surprise given the polls, but note that so many people support Trump under any of these outcomes. We're sharply divided as a nation.

That's part of what I was trying to bring out with my "two completely different worlds" series of tweets. There's a real sense in which we have two completely different worlds -- two separate sets of facts, two separate languages.

Read 7 tweets

Orin Kerr

@OrinKerr

26 Oct

A question, with three hypotheticals, for those who favor Supreme Court court-packing (or, if you prefer, "court expansion").

The question: How much of your view is about expected results?

The three hypotheticals are below.

(And yes, they're hypos, not real -- I get that.)

In all these hypotheticals, assume the year is 2022. Biden is President, and both the Senate and the House are in Democratic hands. Amy Barrett is on the Court. We have now had one year of the Supreme Court with Justice Barrett.

Here goes:

(1) Imagine that, for some reason, the Court responded to discussion of court-packing with a "switch in time that saves nine." Roberts and Gorsuch flipped left. The Court switched political direction and became a force for progressive social change, w/out changes in personnel.

Read 11 tweets

Orin Kerr

@OrinKerr

19 Oct

Justice Gorsuch, joined by Justices Kagan and Sotomayor, sends a message: If the police go onto curtilage, the legality of that is governed by the implied license framework of FL v. Jardines.

Quick thread.

supremecourt.gov/opinions/20pdf…

The case below is a Vermont case in which officers walked up a suspect's driveway and peered into the garage through a garage window.

vermontjudiciary.org/sites/default/…

The Vermont Supreme Court ruled that the garage was in the curtilage of the home (that is, for 4A purposes, that the area around the garage counted as the home), but that it was okay to go on it because Vermont precedents recognize a right to inspect in semi-private areas.

Read 14 tweets

Orin Kerr

@OrinKerr

17 Oct

This is the absolute least important aspect of the Barrett nomination (don't say I didn't warn you), but for gunner law students, a 6-3 Court means an increasing disparity between the competitiveness of SCOTUS clerk hiring on the left and the right.

Thread below.

It's not exactly news that Supreme Court law clerk hiring fits certain ideological patterns. The courtesy practice is for applicants to apply to every Justice, but as a practical matter, Justices tend to hire law clerks that roughly share their views. greenbag.org/v13n1/v13n1_ne…

There are exceptions to this, of course. Scalia famously hired a "counter-clerk," at least many Terms. And some Justices hire from a wider range of views than others. But that's a general trend. repository.law.umich.edu/cgi/viewconten…

Read 8 tweets

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