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Orin Kerr Profile picture
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26 Dec, 4 tweets, 2 min read
Another important essay by @Peter_Wehner. theatlantic.com/ideas/archive/…
For those who don't have a subscription to the Atlantic -- and you should, 1/2 off for students and profs, btw -- here's the opening.
And the part that Peter focuses on is here.
Beyond the religious reference, note how Jr. justifies doing the thing he claims to oppose: I'd love to not have to do the bad thing I promise I oppose, but alas I have to do that bad thing as much as I can (because I am a victim of them doing it to me, etc.).

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More from @OrinKerr

Orin Kerr Profile picture
23 Dec
On his latest podcast, Akhil Amar raises an interesting point about the contingency of the current Supreme Court. I'll elaborate on Akhil's point below, as I think it has some relevance for debates on court-packing.

Thread.
Amar notes that when McConnell decided not to bring up Garland for a vote, that was a major gamble. Garland was a surprising pick in some ways, as he was so centrist. And throughout 2016, Hillary was favored to win the election: it seemed unlikely Trump (Trump!?!?) would win. Image
In 2016, confirming Garland meant a centrist Supreme Court with a slightly left of center bent, as Garland would be the swing vote. But if they block Garland, good chance President Hillary picks a younger and more liberal person than the very-centrist Garland for the Scalia seat.
Read 9 tweets
Orin Kerr Profile picture
14 Dec
Entick v. Carrington (1765), was a major inspiration for the 4A. There are two versions of the opinion, from Howell's State Trials and from the Eng. Rep. It's hard to find them online, so I have post them:

Howell's:
drive.google.com/file/d/1aXTbmt…

Eng Rep:
drive.google.com/file/d/1OV1_v3…
The formal citations for the two versions vary, but are often given like this:

Entick v. Carrington, 19 How. St. Tr. 1029 (1765).

and

Entick v. Carrington, 95 Eng. Rep. 807 (K.B.1765).

The U.S. Supreme Court cites both versions, generally interchangeably.
Ooh, and I should have remembered, as I have flagged this before, @cburset's super interesting article on a *third* version.
Read 4 tweets
Orin Kerr Profile picture
14 Dec
"Outside the world inhabited by the professional and managerial classes in a handful of major metropolitan areas, many, if not most, Americans are leading their lives as if COVID is over, and they have been for a long while." theatlantic.com/ideas/archive/…
How the author reconciles his view that masks, etc. are just bogus posturing with the fact of 800,000 American deaths so far (and counting) is not explained, but the essay is a good reminder of where a lot of people are coming from.
And obviously, the argument has to be not just that you personally think masks etc don’t work, but that the people who wear them don’t believe they work either. It’s all just symbolism *to them,* the argument goes, and they’re actually not trying to save lives.
Read 5 tweets
Orin Kerr Profile picture
13 Dec
Over at Prawfs, Paul Horwitz conducts the very first ever empirical study of the rise of novelty claims in law review articles -- finding a roughly 10x increase over 20 years. (Too bad the post is already placed, though.)
prawfsblawg.blogs.com/prawfsblawg/20…

Paul comments:
My advice: If you feel it's accurate, feel free to make a direct novelty claim ("this is the first article to...") in the draft you submit to journals. But change it to avoid that formulation by the final. With novelty claims, as in other writing, best to show, don't tell.
Put another way, direct novelty claims have become so common and so formulaic that they come off as a bit amateurish. You'll sound more sophisticated if you don't make that direct claim.
Read 5 tweets
Orin Kerr Profile picture
9 Dec
Super-interesting opinion from Mag. J. Harvey in the DDC: Can a judge deny a warrant application because the judge thinks the warrant will be executed in an unreasonable way? And if so, how can the judge know that ex ante?

Thread.

Op here: drive.google.com/file/d/1pVvonQ…
In the case, the government has seized 26 cell phones (or has data extractions from their phones) from people in illegal gun cases. The govt wants to search them all for evidence of a common gun trafficking source.
Judge Harvey concludes that there was probable cause that evidence will be found on each phone, and the evidence to be searched is described with particularity as to each phone. (See Slip op. p3)
Read 20 tweets
Orin Kerr Profile picture
6 Dec
1st Circuit panel overturns 1989 circuit precedent that had held a protective sweep requires evidence that the officers were actually motivated by public safety. Intervening SCT caselaw makes clear 4A is objective, not subjective.

Thread.

media.ca1.uscourts.gov/pdf.opinions/2… #N Image
Although 3-judge panels normally can't overturn 3-judge panel precedents, CA1 caselaw allows it when intervening relevant but not controlling authority suggests the old panel would have come out differently. Image
On the merits, I disagree with the panel's view that modern 4A rules are generally objective w/r/t police conduct. As I explained in this recent article, there are a lot of subjective rules, many of them very recent. texaslawreview.org/wp-content/upl… Image
Read 4 tweets

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