Many, myself included, have expressed amusement (or horror) about how splintered and long the 5th Circuit's decision is. Perhaps worth noting that at least some of that may reflect the fact that it's a facial challenge.

Thread below.
Some background: Most constitutional arguments are "as applied" challenges, in which a person will claim the government did something unconstitutional. But some challenges are "facial" challenges, in which the challenge is to the statute itself.
With "as applied" challenges, there's usually an ultimate ruling: Is the action constitutional or unconstitutional? But facial challenges can be more complicated, because the challenger may challenge several different parts of the statute, on different rationals.
If a statute has lots of parts, a litigant might challenge many separate of the parts, or combination of parts, on different rationales. Each challenge to each part or parts requires an analysis, and any given challenge may depend on the outcome of other challenges.
That can lead to splintered opinions, with different judges agreeing or disagreeing with different parts of the overall ruling. Of course, it's better to avoid that! But facial challenges can make that more likely than otherwise.

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More from @OrinKerr

9 Apr
This is is my dad, a Holocaust survivor, telling one story of lucky survival in the concentration camps.

The Germans held 516 boys at one camp. They sent 10 cattle cars, designated to fit 50 people each, to Auschwitz --to be killed.

They picked 16 boys to stay. My dad was one.
Posted in commemoration of Yom HaShoah, Holocaust Remembrance Day.

For a previous thread with some context, start here:
The interview above was recorded in 1997, and none of it has ever been shown outside my family before. At some point I'm going to make a full length edited video of it to post on Youtube (it was 5+ hours long, so it needs to be shortened). But, for now, this excerpt.
Read 4 tweets
8 Apr
When a father consented to a search of his "son's account" on their jointly used computer, investigators exceeded the scope of consent when they searched the recycle bin, which included files from multiple users. Child porn found there is suppressed.… #N Image
The forensic tool used to search the computer grouped the deleted files from all accounts in the same place, the recycle bin, without indicating from which account a particular file had originated. Acc to the court, using the tool to search that was beyond the scope of consent. Image
This case touches on a question that I cover in my computer crime law casebook and discuss in my class: How do you apply consent principles to computer searches when people consent in regular-user-speak but forensic analysts think in forensic-tool-speak?
Read 6 tweets
4 Apr
How does the 4th Amendment apply to the "U.S. Private Vaults" case, busting the Beverly Hills store where people could anonymously store guns and drugs (and anything else)?

A thread.…
First, the alleged facts. The store hosted safe deposit boxes at a strip mall. Their selling point was total privacy: You pay big $$$, and you can store anything there and no one will know. According to prosecutors, the business was trying to entice those engaged in crimes.
The store didn't want to know who its customers were. They just wanted the very large payments in exchange for privacy. I gather this is their website, and Youtube plug:

Read 10 tweets
3 Apr
In dicta, magistrate judge concludes that govt use of a cell site simulator is a search requiring a warrant because it might be used to locate a phone in a place where there's an REP. (DDC, 3/25/21) (Faruqui, M.J)

Quick thread.… #N
First, why it's dicta: The issue arose when the government applied for a warrant, so no one was trying to conduct surveillance without a warrant. (Also, I don't tend to think Article III allows a merits ruling like this now, as how the 4A applies is not yet a ripe dispute.)
On the merits, the court's conclusion that a search occurs if a search might occur -- if a tool might be used to conduct a search -- seems wrong in light of United States v. Karo, which limited but did not overturn Knotts.…
Read 9 tweets
2 Apr
There's a lot that can be said about the CA6's Meriwether opinion, most of it way outside my expertise. But just one small thought about the para below. If the prof thinks that taking attendance is deeply wrong, wouldn't that make refusal ideological?…
Calling roll sends a message, that the school is in charge: A student's presence in class is critical, the school says, whether the student wants to be there or not. Many profs disagree w/this message, though. They think students should be allowed to attend or not as they wish.
If a professor thinks it is critical to learning that the environment be open, and not compelled, the professor may think it important to send the message that attendance is *not* required. They may not want to call roll for an ideological reason.
Read 5 tweets
30 Mar
A bit about the federal law of enticement and so-called traveler cases, which may be of interest in light of the story below.…
Every state has age of consent laws, prohibiting sexual intercourse with a person under the age of consent. The age of consent varies by state, generally being 16, 17, or 18. See the chart here:…
Federal law makes certain interstate conduct done with intent to commit such crimes a federal crime. For example, 18 U.S.C. 2423 makes it a crime to transport a person under 18 in interstate commerce w/ intent to engage in an illegal sexual act.…
Read 12 tweets

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