If you read this @AndrewCMcCarthy essay, please forget about the Obamacare case, where the novel theory why it was unconstitutional was created at the time of its passage just to strike down that one law -- and was a theory McCarthy strongly endorsed. nationalreview.com/2018/11/obama-…
Here's McCarthy in 2012, writing that the Supreme Court's decision failing to strike down Obamacare "not only upheld a fraud perpetrated on the public -- it became a willing participant." pjmedia.com/andrewmccarthy…
More broadly, it's interesting to compare McCarthy's view that we must "let democracy happen" and respect a sitting Prez "won the election, & that choosing among competing policies is what elections are about," with his book detailing the many reasons Obama should be impeached.
The first and most obvious level is that Mueller is only a special counsel, while Whittaker is serving in the role as the supervising Attorney General. The point is that the Senate should have a role in approving the supervisor of the special counsel, not the special counsel.
And even if you accept Trump's absurd premise that there is sort of a historical amount of Senate-confirmed-ness that sticks with a person for life, a head-to-head comparison between Whittaker and Mueller doesn't look so good for Whittaker.
Interesting 4th Circuit op from Judge Harris on the scope of the Leon good faith exception: Relying on circuit precedent, holding that officer knowing facts not put in affidavit can establish good faith. I'm skeptical that is right, a thread on why. ca4.uscourts.gov/opinions/17452…
1st, I'm not questioning correctness of result in this opinion given circuit precedent. Rather, I'm questioning the circuit precedent. Leon is pretty clear it's an objective test: issue is how close the affidavit is to PC, not what officer knew or thought. From Leon:
The Leon court was pretty clear that what is in the mind of the officer is irrelevant.
It's a dangerous time when we're divided between those opposed to Trump no matter what he does next and those in favor of Trump no matter what he does next.
This being the Internet, some have decided to interpret this tweet as implicitly arguing that (a) these two positions are normatively similar and/or (b) the first position is somehow flawed. FWIW, I am not making either claim. I am just claiming what is actually in the tweet.
The basic idea, if it's not clear, is that people looking to act in purely self-interested ways may be tempered by reactions of others. The most dangerous times are when no one will react to those self-interested moves b/c they're already all locked in. That check is gone.
Oldest law book I own: Matthew Hale's Pleas of the Crown, 1682 edition.
"Pleas of the Crown" referred to series crimes in England -- charges brought by the King in the King's Courts, as opposed to more minor offenses brought in other courts.
The copyright on the book has expired -- terms may be long, but at least books from 1682 are outside the copyright term -- and Google books has a scanned copy of the 1682 edition here: books.google.com/books?id=9NxIA…
Interesting new CA9 case on the 4th Amendment from Judge Bybee, holding the 4A violated when an officer investigating civl fraud gained entry into a home w/ the ruse that he needed resident's help with a fictitious criminal investigation. A few thoughts. cdn.ca9.uscourts.gov/datastore/opin…
I have a slight concern about the doctrinal box the court used. Judge Bybee treats the issue as whether there was a search under Jardines, a curtilage case. But this was an actual entry into the home: I would think the issue is whether the consent was valid.
When an officer actually enters the home, of course there was a search: The issue is whether the consent was reasonable b/c it was within the scope of valid voluntary consent.
This is cool. As law nerds may know, @HeinOnline has a "Top 250" ranking of legal scholars based on citations. They just added a new listed metric: Avg citations per article. Just eyeballing it, there's a very interesting result: Pretty similar averages among scholars. (Thread).
If you look at the absolute numbers, such as journal citations, there are huge disparities. At the top #1 @CassSunstein has more than 26K journal citations. His colleague, @jciv, at #249, has just over 1K journal citations. But how much of that is high citations per article,
and how much of that is having lots of articles to cite? Looking at a few of the numbers on the list shows a surprisingly narrow range of average citations per article for those on the list: Somewhere around 40-90 average citations per article.
Big meme on the MAGA right this week. Interviewer asked HRC re stuff Booker said; HRC corrected her, saying it was Holder who said it, & then HRC sarcastically mocked interviewer for mixing them up. In MAGA circles, obv sarcasm treated as true; outrage that HRC not condemned.
One defense of this I am hearing is that it's okay to falsely condemn HRC based on an intentional misrepresentation of what she said because the left has misrepresented what conservatives have said before. IOW, we've been wronged, so there are no rules for us. Seems a bad take.
Amicus Opportunity: I have learned that a criminal defendant will be filing a Ninth Circuit brief next week making the 4th Amendment argument re the unconstitutionality of long-term use of 2703(f) letters that I developed in this 2016 blog post. (Thread.) orinkerrblog.files.wordpress.com/2018/10/the-fo…
The issue is an important one: What are the legal limits on the government's ability to tell e-mail providers to run off a copy of all the e-mails in a suspect's account and hold them until they get legal process? In this case, the provider held the e-mail for over 9 months.
I have no connection to the case, but I have been told of it, and I can pass on contact information to anyone interested in writing an amicus brief in the case.
I don't like the broad good faith exception, either, but this 2-page Carpenter ruling from Judge Lynn Hughes seems just lawless: You can't just decide to rely on Supreme Court dissents and ignore the majority holdings. Well, you can, but it's wrong. orinkerrblog.files.wordpress.com/2018/10/beverl…
The terrible act the government did, that Judge Hughes finds so damning, is to get a search warrant the day Carpenter was handed down for records obtained then-lawfully in 2015. But they didn't need a warrant at all; odd to criticize them harshly for doing more than law required.
If you're wondering about where this is coming from, this 2011 opinion from Judge Hughes that is cited as authority by Judge Hughes -- but that was reversed by the 5th Circuit on appeal in 2013-- may be worth a read. (Less than a page, so a fast read.) wsj.com/public/resourc…
6th Circuit: When govt gets a warrant to search a cellphone in govt custody, and warrant says search must be executed in X days, the warrant is executed for law's purposes when phone sent to forensic lab for analysis. A brief thread on this. opn.ca6.uscourts.gov/opinions.pdf/1…
The problem here is that computer searches ordinarily happen in two stages: 1st, the officers go to place where computers are, take them away (the physical search stage); 2nd, a computer forensic guy images device and searches image for evidence (the electronic search stage).
The 2009 Rule 41 Amendment on computer searches recognized this dynamic -- fueled in part, I have some reason to think, by a 2005 law review article of mine -- by clarifying that the date of execution in the warrant referred to the 1st physical search stage, not the 2nd stage.
Odd case: Man is being prosecuted for refusal to open his front door when the police outside demanded it. But I think govt has to have authority to make you do X before refusal can be a crime. See also "Sandra Bland and the Lawful Order Problem" washingtonpost.com/news/volokh-co…
See also Birchfield v. North Dakota which dealt in part with the issue of whether you can be criminally punished for refusal to consent. supremecourt.gov/opinions/15pdf…
An important part in the case is that the state had the legal authority to conduct the search itself: It was a reasonable search under the Fourth Amendment. But that doesn't imply authority to make a person inside help the police execute the search.
The Heritage clerkship program raises 3 distinct issues: 1. Whether it's wrong for pre-clerks to get training that reflects an ideology; 2. Whether its wrong to participate in a program w/non-public contents; & 3. Whether it's problematic that Heritage takes positions on issues.
Of the 3 issues, I have seen the most concern with #1, but I find that the least objectionable. If students want to take con law from a professor who pushes a very specific ideology --and there are many-- we don't see that as problematic. The debate should be re 2 & 3, I think.
Oh, I accidentally left out (4), the apparent requirement that training not be used "for any purpose contrary to the mission or interest of The Heritage Foundation." That's just bizarre. If you're a judge, you don't want your employees having signed that.
How young is too young to be a federal circuit judge? Let me offer a slightly contrary take: My concern w/youth on court of appeals is not lack of experience, but a fear that those named to bench when young can't imagine themselves as non-judges. law.com/nationallawjou…
A lawyer named to the bench at 50 probably sees himself as a lawyer who happened to become a judge. A lawyer named to the bench at 35 is more likely to sees himself as 100% a judge, with a judge-focused view of the world. That's my concern, at least.
It's different if you're talking about district judge nominees, given the diverse trial work they see and many discretionary calls they have to make. But any law nerd can be an appellate judge.
I thought this was a fascinating podcast episode: @benjaminwittes interviews his friend Mike Doran, who thinks the Mueller investigation is an absolute outrage, to try to get down to the basis of their differences. A few thoughts (thread). lawfareblog.com/lawfare-podcas…
Some of the differences between the two boiled down to how to deal with uncertainty in an ongoing case. It seemed that Doran consistently sees foul play in the unknown. He seems pretty convinced of it. It leads him to very different conclusions than Wittes.
As a 4th Am nerd, I was puzzled by Doran's efforts to base his views on 4A concepts. If I hear him correctly, he thought it outrageous to open an investigation w/o a public statement of probable cause, and also to rely on plain view evidence -- going where the evidence takes you.
I wonder if there is any correlation between (a) the ideological diversity of a particular law faculty & (b) the degree to which that faculty's scholarship in the area of public law identifies & engages seriously with counter-arguments. Probably can't measure this, but I wonder.
Some have asked why this might be, and here's the thinking (which is a possible theory, not a conclusion). Within public law, ideology often reflects some kind of value disagreement. The more intellectual diversity on a faculty, the more value disagreement likely to have. /1
My question, to which I don't know the answer, is whether the experience of regularly encountering more value disagreement on one's faculty can impact the range of values to which public law scholarship on that faculty might tend to address. /2
In a reply, @ErrataRob brings up (perhaps inadvertently) a really interesting question that deserves its own thread, that I need to think more about: What's the connection b/w burden to show foregone conclusion and to get punishment for contempt? A thread....
Here's the issue. The burden of proof for a foregone conclusion comes up when the subject is ordered to act and pleads the 5th. Court then rules on whether the order can be enforced. But there's a second step to this: The contempt burden.
That is, what if the court says that the order is enforceable but the subject of the order then says, "okay, well, maybe I once knew the password, but I forgot." The government moves to hold subject in contempt, which has its own burden of proof depending on the punishment.
Criminal law question: Can Banksy be charged with destruction of property (aka criminal mischief) for setting off the remote that shreds his painting after the auction sale?theguardian.com/artanddesign/2…
A few questions to consider: (1) When property is a form of art, when is an act of transformation of that property -- even an unexpected and unknown one -- part of the art versus a destruction of it?
(2) Does it matter if a close examination of the property would reveal the shredding ability and remote control? (3) Does it matter, in terms of criminal law, how the shredding of the work changes its value?
This is probably obvious, but one byproduct of the 100% party-polarized Senate on SCOTUS confirmations is that it removes incentives on both sides to nominate moderates. Merrick Garland may be the last moderate SCOTUS nominee we see for a long time -- of either party.
And this also creates an incentive for the ambitious lawyers and lower court judges quietly seeking promotion to be more ideological, too: Like a politician in a safe district, they're going to worry more about being primaried than losing the general.
(And to be clear, I'm being descriptive here, not normative: Just flagging what the ambitious types will have an incentive to do, not what I want them to do.)
Someone should write an app/program/script making it super easy to get the URL for the .pdf of the official US Reports version of Supreme Court opinions so bloggers and other online writers can link to them instead of to versions hosted by Justia.com, Cornell, etc.
This would be really easy to do given how LOC posts its files. Take Katz v. US, at 389 U.S. 347. Here's the URL, with the citation right there.
Finding open containers of booze in a car permits a search of the car's glovebox for more open containers under the automobile exception, court rules. (Cops found drugs in the glove box, not an open container.) I'm skeptical, and here's a thread on why. isc.idaho.gov/opinions/45252…
On one hand, it's true that having an open container of alcohol in a car is a misdemeanor under state law, and this defendant had two open containers in the open inside area of the car. But there are four parts of the court's approach that give me some pause.
First, I had thought that the issue under the auto exception is PC to find *more* evidence/contraband, not just the first item. Was there really PC there would be more open containers elsewhere in car? (Note that under the statute, not a crime to have open container in trunk.)
Let me link to this paper just one more time -- not to say "both sides do it," or to take a side, but to reflect on how that poll result shows a divergence on belief about *the facts.* scholarship.law.cornell.edu/cgi/viewconten…
With Brett Kavanaugh's confirmation likely tomorrow, here a few thoughts on what this might mean for the next 5-10 years of Supreme Court action. (Thread.)
Most obviously, this will unleash a lot of test cases. Kavanaugh's confirmation will mean that, for the first time in most of our lifetimes, there is a clear majority of conservative Justices. No mushy middles of Powell, O'Connor, Kennedy, but rather five solid conservatives.
Expect a lot of people with conservative causes to push their cases to SCOTUS to see what the new Court will do. These ideological windows may stay open only for a few years; think 1962-68, when there was a strong liberal majority and a whole lot happened..