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Orin Kerr Profile picture
Orin Kerr
@OrinKerr
Professor, Stanford Law School. Senior Fellow, Hoover Institution. Latest book: https://t.co/NScgWkDNEI
19 subscribers
Dec 16 • 8 tweets • 4 min read
NOTEWORTHY: Pennsylvania Supreme Court rules that there are no 4th Amendment rights in your Google search terms. When you search on Google, you tell them your search terms; the government can get those queries without a warrant. The third-party doctrine applies. Image You know that you're being tracked, the Court says, and your decision to use the Internet (or at least search engines) anyway makes your actions voluntary. Image
Dec 1 • 7 tweets • 2 min read
This isn't my area, so maybe this is wrong, but it does seem to me that the unitary executive theory of control over prosecutions and the executive pardon power are something of an odd combination.

Quick thread. As I understand the history, at common law, prosecutions ordinarily were brought by private parties. A private victim would prosecute the criminal, sort of like a tort action except with the possibility of being hung if the defendant is convicted.
Sep 14 • 13 tweets • 6 min read
Debates about when originalism first became a theory of constitutional interpretation are interesting to me in part because, in Fourth Amendment law, originalism has pretty much *always* been considered a critical method—if not the main method—of interpretation. Take the first main Supreme Court case on Fourth Amendment law, Boyd v. United States (1886). It's all about how to apply the principles of the 18th century cases, like Entick v. Carrington (1765), that inspired the 4A's enactment. tile.loc.gov/storage-servic…Image
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May 29 • 13 tweets • 5 min read
Several notable 4th Amendment rulings in this 5th Circuit opinion today. Most importantly: People have a reasonable expectation of privacy in stored online contents—here, the contents of a Dropbox account. (Per Oldham, J., w/Richman & Ramirez)

🧵

#N storage.courtlistener.com/pdf/2025/05/28…Image
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Image Plaintiffs, Heidi Group, is a pro-life group that briefly had a contract with the Texas state government. A former employee named Morgan went to state investigators and said she had access to Heidi Group's documents b/c she was still given access to their Dropbox account.
Apr 22 • 6 tweets • 2 min read
The lawyers representing Harvard are (in addition to being excellent lawyers) notable for their conservative connections.

Quick thread. Image First off, the conservative/GOP bona fides of Bill Burck and Robert Hur have been covered elsewhere.
telegraph.co.uk/us/news/2025/0…
Mar 26 • 15 tweets • 5 min read
DC Circuit denies the motion for an emergency stay in the Boasberg case 2-1, with a brief order and 92 pages of concurrences (one by Henderson, one by Millett) and a dissent (Walker).

I'm going to scan through the opinions and select out key parts. 🧵

media.cadc.uscourts.gov/orders/docs/20…Image I'm going to stick mostly with the merits issues.

1st up Henderson: The idea that the President's call is unreviewable is wrong. Image
Feb 25 • 5 tweets • 2 min read
Magistrate judge in the 5th Circuit, asked to sign off on warrants for routine "tower dumps," declines to do, writing an opinion concluding that all tower dumps are likewise unconstitutional in light of the 5th Circuit's recent geofencing opinion. 🧵
#N storage.courtlistener.com/recap/gov.usco…Image
Image Other courts have broadly ruled that tower dumps are not searches at all. I think this is wrong, as it's based on the erroneous mosaic theory. I explain why that's wrong in my new book. So I don't have a problem with the search holding, holding that a search will occur.
Feb 13 • 4 tweets • 2 min read
The Acting US Attorney of the SDNY resigned today, and she sent this letter yesterday to the Attorney General explaining why she refused to drop the charges against NYC's mayor. Read the whole thing, but the last two pages are in the screenshots. static01.nyt.com/newsgraphics/d…Image
Image The Deputy AG replies— among other things, putting all the AUSAs who were "principally responsible" for the Adams prosecution on administrative leave and referring them to OPR. nytimes.com/interactive/20…Image
Jan 14 • 4 tweets • 2 min read
Sorry if this is nitpicky, but headline writers, it's maybe worth noting: Smith's report argues that the evidence would have been *legally sufficient* to convict. It does not claim, as your headlines say, that a jury *would have convicted.* Smith is a lawyer, not a soothsayer. Image
Image et tu, WSJ? Sheesh. Image
Oct 17, 2024 • 6 tweets • 2 min read
A favorite in my collection: an original copy of William Lloyd Garrison's abolitionist newspaper, "The Liberator," from December 14, 1849. (Quick thread) Image "The Liberator" was an abolitionist newspaper published on a weekly basis from 1831 to 1865. You can read about it here. en.wikipedia.org/wiki/The_Liber…
Sep 29, 2024 • 8 tweets • 2 min read
Classic @IJ case, and I'm a big fan of the result from a policy perspective. Constitutionally, though, this seems off to me (with the usual apologies for thinking that the Constitution does not enact my personal policy preferences).
#N ca5.uscourts.gov/opinions/pub/2…

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Image If the State thinks that you can't practice veterinary medicine effectively without inspecting the animal in person, that may be a dumb judgment. But at least to me—admittedly a non-expert in this area—it doesn't sound intuitively like it's primarily a regulation of speech.
Aug 14, 2024 • 5 tweets • 2 min read
I now have Gorsuch's book. On Aaron Swartz, he gives a remarkably one-sided view of the facts. Swartz "connected his computer to MIT's network," the book says, and "he began downloading articles from JSTOR." /1 The book then quotes his attorney as saying that what Swartz downloaded "wasn't worth anything! It was a bunch, of like, the 1942 edition of the Journal of Botany!" /2
Aug 13, 2024 • 5 tweets • 2 min read
BREAKING: 5th Circuit, splitting with 4th Circuit, rules that geofencing is a search and warrants to search for geofence records are inherently unconstitutional. It may be that *all* Internet warrants are unconstitutional by this reasoning. Lordy.
#N ca5.uscourts.gov/opinions/pub/2…
Image I think that's an incredible result. As I read the opinion, it's too invasive to allow geofencing without a warrant, but it's too invasive to get a warrant for it, so no geofencing is ever allowed. This is bananas.
Jul 27, 2024 • 5 tweets • 2 min read
I'm not one to defend Trump, but I disagree w/the many claiming that Trump said there would be no more elections if he wins. I hear him more as just saying he'll do such a fantastic job he'll save the country so the stakes of future elections will be a lot lower. Responses to this tweet are sad. As my followers know, I despise Trump, and I criticize him almost every day and have since 2015. He is an authoritarian, and he flirts with fascism; I urge you to vote against him and save America.

But that doesn't change this clip! Trump says horrible stuff every day; we don't need to pretend that every word out of his mouth is equally horrible. Don't lose the plotline, folks.
Jul 21, 2024 • 7 tweets • 2 min read
This viral video, and the comments to it, brings up a common misunderstanding. No, the police don't have to tell you why they're detaining or arresting you. And no, they don't have to read you Miranda rights if they arrest you. They just need probable cause. That's it.

🧵 Ok, the receipts. First, whether the police have to tell you why you're being arrested came up in a 2005 Supreme Court decision, Devenpeck v. Alford. Here's Justice Scalia writing for the 8-0 court, concluding, nope, no such requirement.
tile.loc.gov/storage-servic…
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May 18, 2024 • 9 tweets • 2 min read
This is a really wild result—a finding that, in a simulated case, federal judges don't follow the law but that law students do—but I wonder if there is an explanation the authors don't identify. 🧵
journals.sagepub.com/doi/epub/10.11…
Image In the hypothetical case, you are a judge on the International Criminal Court for the Former Yugoslavia (ICTY), and you are deciding a defendant’s appeal of his conviction for war crimes by the ICTY’s trial chamber. Image
May 14, 2024 • 8 tweets • 2 min read
It's relatively easy for law schools to create a culture that values teaching, as professors interact w/students every day & get teaching evaluations. But a common question for law professors, & especially associate deans: How can you create a culture that values scholarship? 🧵 No easy answers, but I suspect the biggest thing is by example; showing that it's valued. A few (among many) possible examples:

(1) By the Dean and Associate Dean attending the faculty workshop. Leadership being involved in the scholarly process sends a big signal of values.
May 12, 2024 • 9 tweets • 2 min read
I not a grand constitutional theorist, and I don't really believe in grand constitutional theory, but @espinsegall asks an interesting question on his latest podcast: If you're a non-originalist, what is the best argument for originalism?

🧵 It seems to me that the best argument runs something like this. If the Constitution were easy to amend—such that our fundamental law reflected current clear majority views of public opinion—most people would be originalists.
Apr 19, 2024 • 6 tweets • 2 min read
Among the new demands issued by student "Berkeley Law for Palestine" group after Chemerinsky/Fisk dinner: Correct Erwin Chemerinsky's understanding of the First Amendment. Image Some UC Assistant General Counsel goes to library, gets First Amendment book for an expert's view... Image
Dec 13, 2023 • 4 tweets • 2 min read
NOTABLE: Google announces dramatic changes to its "location history" function that should nullify all geofence warrants going forward—and I wouldn't be surprised if that is the point. Code is law, as they say.
(h/t ) blog.google/products/maps/…
fourthamendment.com
Image As I read this, Google will no longer keep geolocation data even for the subset of users that turn on location history. The data will only be stored locally. Geofence warrants are used when the govt has no suspects, to get some leads, so this will likely defeat the technique.
Aug 16, 2023 • 16 tweets • 6 min read
I'm reading the newly-released transcript of Twitter's proceedings before Judge Howell on Twitter's compliance with the warrant for Trump's account. Here are thoughts as I go.
dcd.uscourts.gov/sites/dcd/file… First, this should be good. The lawyers are experienced lawyers from WilmerHale, and Judge Howell knows more about the Stored Communications Act than any other district judge. This is no one's first rodeo.