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Orin Kerr

@OrinKerr

Mar 1

Petitioner's brief filed in Vega v. Tekoh, a very important Miranda case.

(I don't see how Vega's argument isn't that Dickerson should be overturned: How can you have a constitutional rule, but violating the rule doesn't violate the constitution?)
supremecourt.gov/DocketPDF/21/2…

Maybe I'm just small minded, but I don't see how something can violate the constitution (admission of an unwarned statement requires suppression) but not be a violation of the constitution (thus creating a cause of action under a statute for constitutional violations).

To Vega, Dickerson decided nothing: When SCOTUS ruled Miranda was "a constitutional rule," that didn't mean there's any constitutional problem at all with violating the constitutional rule. p29: "As to the constitutional nature of the Miranda rule, Dickerson broke no new ground."

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Orin Kerr

@OrinKerr

Feb 28

Northwestern Law Dean John Wigmore pens a verse to celebrate the successful lateral recruitment of Roscoe Pound from Nebraska (1907).

From Kimball & Coquillette, The Intellectual Sword.

Decanal poetry is an understudied area of legal academia.

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Orin Kerr

@OrinKerr

Feb 22

Two years ago, I had a post at Volokh on the scholarly trajectories of PhD vs. non-PhD hiring of law profs: I asked, will the entry-level market's valuation of PhDs prove justified? It occurs to me we now have data slightly relevant to that. (Thread.)
reason.com/volokh/2019/06…

It would take a lot of study of a lot of people to get a good sense of the answer. And of course there are lots of ways to try to measure that, all of which have their flaws. But there's one chart that is of possible interest: Fred Shapiro's list of most cited younger scholars.

The younger scholars were ones hired at the entry-level in an age of both PhD and non-PhD hiring. So one small way to get a small insight into the trajectory question is to ask, how many on the list have PhDs and how many don't? lawreview.uchicago.edu/sites/lawrevie…

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Orin Kerr

@OrinKerr

Feb 11

@samuelmoyn

Interesting moment in this Linda Greenhouse interview, after she criticizes SCOTUS for being political and making up the law, when @samuelmoyn asks her, isn't that true of the left's views, too? Is it all just politics? And she agrees. (Q @ 41:45 mark)
podcasts.apple.com/us/podcast/dig…

Here's the exchange:

Moyn: Earlier in the convo with David, you said that the problem with the 'major questions' doctrine is that it's made up. I just want to ask, isn't that true of constitutional law in general? And it gets to a deep issue.... /1

Moyn: ... Because many of us sort of say, when the Court does what I like politically, it's doing Law. And when conservatives win, they're doing Politics. That's one way of interpreting case after case. Maybe you put in a little balance by saying, for many years..... /2

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Orin Kerr

@OrinKerr

Feb 10

Interesting opinion by MJ Faruqui on why he found probable cause in a case involving bitcoin transactions, although at times it seems to presuppose a power I don't think judges have: To do a 4A analysis to the investigation and ignore fruits. (Thread.)
dcd.uscourts.gov/sites/dcd/file…

If I'm reading that part of the discussion correctly, it seems to me that MJ Faruqui is reading the facts that form the basis for probable cause as if there were an implicit motion to suppress as to those facts and the fruits they yielded.

I don't think judges have that power when they review warrant applications. As I see it, the task at that stage is just to see if the facts as alleged amount to probable cause, the warrant is particular, there is venue, etc.

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Orin Kerr

@OrinKerr

Feb 10

Not sure how I missed the CA9 oral argument in hiQ Labs on the CFAA back in October, but interesting, for those following the case, that LinkedIn focused at oral arg on the IP address block question, arguing it is a code-based technological barrier. /1

I can understand why they focused on that, given the narrow ruling in Van Buren. But FWIW I don't see how blocking an IP address can count as a closed gate, for reasons below. /2
columbialawreview.org/wp-content/upl…

Either way, interesting to hear how Van Buren has focused the terms of the debate, at least based on the oral argument. And glad to hear the judges engaged so much with the case. (The opinion in hiQ isn't out yet.) /3

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