If there's a competition for the shortest SCOTUS opinion striking down a law as unconstitutional, I would think Levy v. Louisiana, 391 US 68 (1968) (Douglas, J.), is in the running. Total opinion length in US Reports: about 3.5 pages. Analysis: <2 pages. cdn.loc.gov/service/ll/usr…
This footnote is part of the analysis section, BTW.
For context, here is former Douglas law clerk Stephen Duke describing how Justice Douglas wrote his opinions.
Trump just said that Neil Gorsuch graduated first in his class at Harvard Law School. Although Justice Gorsuch is super smart, he wasn't first: He graduated from HLS cum laude at a time when the cutoff for magna cum laude was around the top 15% of the class.
Second judge on Trump's SCOTUS list in just the last two weeks to say the Supreme Court is misguided in how it interprets the 4A: Last week it was Willett on QI, this week it is Thapar on what is a search. opn.ca6.uscourts.gov/opinions.pdf/1…
Oh, and I should add that I don't find Thapar's attempt to arrive at an originalist definiton of search persuasive. As I've noted elsewhere, the historical materials don't answer this question, too often, each person picks the test they want and labels it originalist.
I don't think this right, either. From a textualist perspective, Miller and Greenwood are about the word "their" in the 4th Am: *whose* "papers and effects" are the bank records given to bank and trash left at curb. They're not about whether a search was "reasonable."
I don't get why this is a story. I feel terrible for the dad. But wasn't this just a stunt to try to surprise Kavanaugh with all the cameras rolling, all to get the media to cover the encounter to bring attention to the father's legislative issue? Not sure what I'm missing.
Some people are responding that the nice normal thing would have been to shake Guttenberg's hand and express sympathy for his loss. If this had been a meet and greet, sure. But you have to factor in the time and place. The Senate Judiciary Committee is meeting in a massive /1
enormous room, with the nominee up front surrounded by people the WH has picked, all supporters.. The nominee is immediately surrounded by dozens of cameramen who are crouched down about 2 feet away. The public, meanwhile, is in the back. /2
Over at Slate, @mjs_DC has an essay claiming that Lisa Blatt has endorsed Kavanaugh for SCOTUS because it's a business decision: She's trying to make money for her firm, Arnold & Porter, by helping A&P's client's interests. I have a few thoughts. slate.com/news-and-polit…
I find this article odd. It's argument is fundamentally about what is going through Lisa Blatt's head. But unless I'm missing something, Stern offers no direct evidence of what is going on in her head: No interviews w/her, people she has talked to, etc. /2
Instead, the argument seems to be that it would be selfishly rational (but really slimy) if this is what was going through Blatt's head. Blatt represents big companies, and if she wants a 5th vote for her corporate interests, she would want Kavanaugh. See excerpt below. /3
Just downloaded "The Most Dangerous Branch," the new book by David Kaplan on the Supreme Court. I'm not familiar w/ Kaplan, and the book is filled with his own views of the best way to run SCOTUS that I'll ignore, but I'll tweet any interesting inside gossip re the Court here.
The other part of this is persuading your followers that it's the other side that is profoundly corrupt. Your side was the victim of corruption for too long, you tell them, and now your side will "fight back" by doing it back to them even worse than they did to you.
Your corruption then becomes a positive: In a corrupt world, in which either they break the rules to hurt you or you break the rules to hurt them, breaking the rules yourself shows your strength. #trumpsworld
If you're upset that they issued a warrant to monitor Carter Page without holding a hearing, you might be interested in some other amazing details about how the system works. (Thread.)
The police are allowed to pull over and detain any driver if the driver is violating any traffic law. Even something super-technical like driving 46 mph in a 45 zone, and even if everyone else is going 60.
It doesn't matter if the officer is lacking in good faith. If a cop who hates Trump sees a car with a #MAGA bumper sticker driving 46 in a 45mph zone, the law is that the cop can pull over that driver b/c of that bumper sticker -- as long as the driver was actually speeding.
DOJ released a report on computer crime recently, and I'm puzzled by a big question it raises: Does the CFAA only apply to Internet-connected computers? Here's a thread on why. The report is here: justice.gov/ag/page/file/1…
The report suggests that electronic voting machines usually are not, in DOJ's view, "protected computers" under the CFAA -- that hacking a voting machine isn't a CFAA crime. Here's the report language. /2
According to DOJ, the CFAA "only prohibits hacking computers that are connected to the Internet," unless other criteria are met (like fed government computers, presumably). But where is DOJ getting the idea that the CFAA usually only applies to net-connected machines? /3
CA2 has posted the oral argument audio in US v. Hasbajrami, an important case argued yesterday on the 4th Am and Sec 702 surveillance. You can download the 78-minute, 63.4 MB audio file at this link: ca2.uscourts.gov/decisions/isys…
"The word 'target' doesn't have a lot of Fourth Amendment history." -- Judge Lynch, who is (as expected) very active in the argument.
Lynch is pressing defense counsel on the idea that, traditionally, if the govt is monitoring someone lawfully and another person enters the monitored convo, isn't the monitoring still legal? Inserting of the new person doesn't change things.
There has been a lot of attention in the law prof world recently to citation rankings, mostly b/c of @BrianLeiter's posting the latest Sisk numbers. I have two very small thoughts about what these numbers mean/don't mean. /1
1st, I think of citation rankings as mostly useful to learn of people in your field whose work may be worth checking out. It's not a ranking of quality, but just of mentions. Esp if you're new to the field, can help at the margins to see what ideas are being discussed. /2
2nd, it would be interesting, and maybe helpful, if the Sisk #s came with an additional # of how many of the scholar's papers are in the database. On the whole, more papers = more papers to cite = more citations. Depending on what you see rankings as for, citations/paper # /3
Given that a common criticism of Originalism is that it tends to reflect the author’s preferences, you could evaluate that by having Originalists explain their preferences and show how far the Constiution is from it. /2
The reader could then assess how much the scholar's constitutional views differ from their policy preferences as a whole. It wold not only be interesting to assess that scholar's work, but the group's work as a whole. How much correlation is there across the board? /3
The CA2 hears oral argument Monday in a big 4th Amendment case on Sec 702 surveillance, US v. Hasbajrami. I hope the CA2 won't follow the very weird analysis of the CA9 in US v. Mohamud, for reasons I explained here. lawfareblog.com/surprisingly-w…
Given that @AndrewCMcCarthy argued that Bill Clinton "plainly" committed high crimes & misdemeanors, and that Obama committed new high crimes & misdemeanors at a pace of "one per week," it's interesting to see his view of whether Trump has committed any. nationalreview.com/2018/08/what-t…
It's particularly interesting that McCarthy's list of Obama's high crimes and misdemeanors included "us[ing] the federal bureaucracy to usurp Congress’s legislative powers and to punish political enemies." Phew that Trump hasn't done this, I guess.
Major Wiretap Act decision: CA1 rules that the contemporaneous requirement for interception is not met by being "functionally" contemporaneous --- taking lots of screenshots of another's computer screen can't violate Wiretap Act. Some thoughts. /1 media.ca1.uscourts.gov/pdf.opinions/1…
In the case, an employer set up surveillance on an employee's work computer when they suspected misconduct. The surveillance program, , the screen-capture software System Surveillance Pro (SSP), took a screenshot of the computer when certain keywords typed on it. /2
SSP caught the employee viewing child porn at work. Employee was fired and prosecuted, and now brought a civil suit alleging among other things a wiretap act violation for covertly installing the monitoring software. CA1 holds screenshots based on keywords not an intercept. /3
Here's an interesting question: Are law enforcement officers who work for native american tribes regulated by the Fourth Amendment? Are they state actors for constitutional purposes? My understanding from a few cases is that the answer is technically no, but in practice yes. /1`
The Feds doing traffic stops on the way to Burning Man raises interesting questions of whether the feds have the enforcement power to do that consistently with the Fourth Amendment. /1 rgj.com/story/life/art…
UPDATE: Some readers seem to be reading my tweet as implying a series of unstated arguments that they find profoundly wrong, so let me be clear that this tweet is not intended to imply any unstated arguments. /1
In particular, some seem to think that by noting that there are two sides with structurally similar views, I must also be claiming that both are equally justified and there is a moral equivalence between them. Read my twitter feed; I don't think that. /2
When a defendant in custody asserts her right to counsel that government ignores, and officer then asks defendant for her password to unlock phone & she tells him, the password is suppressed under Miranda but the contents of the phone are admissible. courtlistener.com/recap/gov.usco…
A lot of 1Ls are very worried about being seen as "gunners." Here are a few thoughts about what it means to be a gunner, and whether it is good or bad. (Thread) /1
There's no perfect definition of what a "gunner" is, but it's usually used as law-school speak for someone with open and unbridled ambition who loves to talk about his views, his career plans, and the like. /2
You hear a lot about "gunners" because there's a sense in which law school is a zero sum game. You're typically graded on a curve, and the best jobs and prestigious positions are necessarily limited. A gunner is open about his ambitions to "win" those competitions vs. others. /3
Seems worth noting that longstanding precedent in the 4th Circuit recognizes that list of juror names ordinarily should be public in a criminal trial. See In Re Baltimore Sun Co, 841 F.2d 74 (4th Cir. 1988).
It's not a bright-line rule, see fn 5, but it's not like the media organizations are trying to establish a new norm in the Manafort case. From the 4th Circuit case:
To be clear, I'm not saying I disagree with Judge Ellis's decision to make an exception to the usual rule in this very unusual case. But seems worth noting this is the usual rule in the 4th Circuit. cbsnews.com/news/judge-in-…
Law students: If you're a symposium editor for a student-edited law review, here are some ideas for how to put together a successful symposium issue. (Thread) 1/
Avoid a general topic that has been written about tons already. ("Privacy in the Digital Age"; "The Meaning of Due Process"; etc.) It may be an important topic, but if there's tons written on it, authors are less likely to have something new & may recycle old ideas. Boring. 2/
One strategy is to pick a specific topic related to big issue that fewer are writing on. For ex, in '04, the @GWLawReview did a symposium on statutory privacy laws, Authors had to write on statutes, not the Const. It became the law review's most cited issue, I've been told. 3/
New computer 4A case: CA5 holds govt opening up a file after provider scanned hash and found match with hash of known image of child porn was not a "search" under private search reconstruction doctrine. US v. Reddick, per Judge Ho (for some reason not yet on CA5 website).