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Orin Kerr

@OrinKerr

May 17

When law professors are counsel to academic amicus briefs, should the counsel identification include their title and university affiliation? (That is, should the brief cover and signature line list counsel as “Professor X, Y Law School”)

Here are examples, one a prof who does this, and one who doesn't (1st example being a party brief, not an amicus, but same idea).

My view is that you generally shouldn't do this, as the university is not involved in the representation. If you're a professor acting as a lawyer, but you're not acting as a university representative (such as with a clinic) in your representation, it's just you.

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Orin Kerr

@OrinKerr

May 11

@BerkeleyLaw

Dean Chemerinsky on what he tells students who plan protests against controversial speakers at @BerkeleyLaw: "I'll support you engaging in any protest [against the speaker] you want, so long as it's not disruptive. If you engage in disruption, then you will be punished." (14:30)

https://twitter.com/BerkeleyLaw/status/1524101870381268993

Chemerinsky: "I have a very strong position that all ideas and views should be able to be expressed within the university. And if you don't like the ones that are being expressed, bring in your own speakers and express your view. But you can't silence others." (14:45)

Prof. Glaude pushes back, saying that we also need to factor in that some of the speech is being pushed by antidemocratic forces. And Chemerinsky pushes back against the push back. An interesting dialogue, I think.

Read 10 tweets

Orin Kerr

@OrinKerr

May 9

When hotel staff called 911 reporting unconscious man in hotel room, 3 hrs after checkout, & police came to scene and saw drugs, evidence is suppressed: The man retained 4A rights in the room, & officer's staying after medics came exceeded exigent circ. supremecourt.ohio.gov/rod/docs/pdf/6… #N

Dissent: The man no longer had an REP in the room. (I think the dissent is likely right on this.)

The hotel checkout cases are pretty interesting, I think. Last I looked into this, most courts say that there's a grace period, following typical social norms of hotel usage, so your REP doesn't expire immediately at checkout time. But some cases say checkout time controls.

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Orin Kerr

@OrinKerr

May 6

It's sometimes said that because the Fourth Amendment does not mention the exclusionary rule, and that remedy did not exist at common law, that it is a weird judge-made rule that doesn't fit in with the Fourth Amendment.

I disagree, for a few reasons. (Thread.)

First, while the 4th Amendment does not mention the exclusionary rule, it mentions no other remedies, either. The language is all about what must not happen, not what remedy applies if it does.

Granted, the principles identified as the 4th Amendment usual had been famously identified in the context of civil claims, like Entick v. Carrington, where the warrant was asserted as a defense to liability. But that doesn't seem so important, for a few reasons:

Read 10 tweets

Orin Kerr

@OrinKerr

May 4

There's a lot of speculation that if the Court is going to overturn Roe/Casey in Dobbs, other precedents, such as those involving gay marriage or even contraception, are next. I doubt that, for a few reasons.

First, within the conservative legal movement, Roe is thought to stand pretty much alone. Within that worldview, there's nothing like it: Nothing that went so far outside precedent, or text, or history. (Of course, you can disagree, but this is about their view, not yours.)

Second, public opinion on abortion remains deeply divided (it hasn't shifted much in 50 years, from what I understand), and the issue has remained extremely important to those on both of the policy question.
news.gallup.com/poll/1576/abor…

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Orin Kerr

@OrinKerr

May 3

Some are asking, is it a crime to leak a draft Supreme Court opinion? A few thoughts.

(Thread.)

First, without more, I don't think there is such a crime. There are criminal laws against leaking classified information, of course. But draft opinions are not classified. Classified = natsec stuff designated by executive; this is the judiciary. law.cornell.edu/uscode/text/18…

There are criminal laws that cover the disclosure of sensitive medical records. But this isn't a medical record. law.cornell.edu/uscode/text/38…

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