The Volokh Conspiracy

In a post below, Ilya writes:

The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else.

Just as an aside, I wonder, how common is the traditional form of the Socratic Method in law schools? My sense is that the “traditional law school reliance on the Socratic Method” has always been a bit of a myth, fueled in part by the movie The Paper Chase, and that law professors have long used a wide range of different approaches in class. See, e.g., O. Kerr, The Decline of the Socratic Method at Harvard, 78 Neb. L. Rev. 113 (1999). Further, my sense is that in the two decades or so, the “pure” form of the Socratic Method has become rare: The majority of professors today use a combination of lecture, questioning students, powerpoints, group discussion, and the like. 

There are exceptions, of course. The Socratic Method remains widely used at some law schools (the University of Chicago comes to mind). And most professors use some aspects of the Socratic Method, such as calling on students and asking them questions about the reasoning of the cases they have read. But my sense is that what we think of as the traditional Socratic Method was never quite as dominant as is often supposed, and that practices in law schools today vary quite widely. That’s my sense, at least.

One of the many interesting issues raised by the decision to try Khalid Sheikh Mohammed and other terrorist suspects in New York is whether transferring them to New York gives them any additional rights that they could assert to try to stop the prosecution against them. On Wednesday, the seven GOP Senators on the Judiciary Committee (including my former boss, Senator Cornyn) sent a letter asking the Administration if the transfer could somehow change the detainees’ immigration status. And others may be wondering if the transfer could create constitutional rights, such as Fourth Amendment, Fifth Amendment, or Due Process rights. The question is, does the transfer from one place to another itself create any rights?

The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). As for whether they picked up any other rights in the transfer, it seems kind of hard to answer because we still don’t know what rights they had while at Gitmo. With habeas jurisdiction established, courts were just beginning to get to the question of what rights the detainees actually had; without knowing that, it’s not clear how much the transfer could add. 

More broadly, I tend to think that the rights question won’t matter so much in the end. The Obama Administration presumably agreed to transfer these guys because they were sure they would be convicted either way. I take that to be the gist of Obama’s response to the idea that it is offensive for KSM to get lots of rights in a criminal trial: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” 

I recently discovered the “Night Lights” Classic Jazz Radio Program, an hour-long weekly jazz program produced by Indiana University’s public radio station. It’s marvelous, and there are five years’ worth of archives available on the web that you can listen to at any time.

Each program focuses on a particular artist, particular period, and/or particular style, combining some context and discussion with a selection of some of the best recordings. I just finished listening to the January 2007 broadcast on the excellent but obscure tenor saxophonist J.R. Monterose, as well as the August 2009 broadcast on the Claude Thornhill Band. Both were excellent. If you’re interested in learning more about jazz, or you want to hear more about a particular jazz musician or style, the program is well worth checking out.

I am pleased to announce that the Justice Department will be moving to dismiss its appeal in the Lori Drew case. The motion apparently will be filed today or tomorrow, and it will bring the Drew case to a close. 

I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, not ones asking for my response. But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.

(Oh, and I should be clear that I think McDonald will win on the Due Process argument, perhaps by 7 or 8 votes; I just don’t think more than one Justice is on board for the P or I stuff, especially given that it’s not necessary to even reach the issue to decide this case.)

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause.  The obvious question is, how many Justices will agree?   My guess: only one.  In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote.  Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia  probably won’t agree with the Gura brief in light of stare decisis.  In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years.  If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect.  That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges  (more on that below).  I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito.  Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter.  But I don’t think they’re revolutionaries, and the brief calls for a revolution.

To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause.  At various points in the brief, the brief lists the following new rights that the Fourteenth Amendment should be read to protect beyond what it already protects under the Due Process and Equal Protection clauses:

a) “a broad array of pre-existent natural rights believed secured by all free governments.” (p.10)

b) “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

c) “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state . . . [and] the elective franchise” (p.17) (quoting Corfield, 6 F. Cas. at 551.)

d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)

e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)

f) “The right to contract” (p.25) (quoting Rogers).

g) “The natural, fundamental rights, believed to fall under Article IV, Section 2, and the rights codified in the first eight amendments.” (p.26)

Are Chief Justice Roberts and Justice Alito (and Justice Scalia, for that matter) going to want to give the federal judiciary a new power to strike down legislation because it is inconsistent with “natural rights,” including “the right to obtain happiness and safety,” with some of those natural rights undefinable “in their entire extent and precise nature”? I just can’t see that. From their perspective, the Ninth Circuit already makes up lots of stuff as it is. Do you really wanna give them this loosey-goosey undefinable natural rights stuff and let them run free with it? I don’t think so.

I think Roberts and Alito are particularly unlikely to agree with the Privileges or Immunities argument in light of basic judicial restraint principles. The Due Process argument here is pretty straightforward: Heller itself has enough language to make the case that the 2nd Amendment is incorporated under Due Process. It would be a huge break from any traditional concept of judicial minimalism to decide the case by overturning Slaughterhouse.

4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.

5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help. 

Today the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief.   You can read it here.  It’s a truly remarkable brief.  It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause.  It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause.   It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

The basic dynamic of Ninth Circuit “liberal lion” Stephen Reinhardt overturning a death sentence in a habeas case  – and then the U.S. Supreme Court reversing Reinhardt — happens so often that it normally would not merit comment.   But here’s a slight twist: Today the  Supreme Court reversed Reinhardt for the third time in the same case, that of Fernando Belmontes, Jr.

As I understand the history, Judge Reinhardt first authored an opinion overturning Belmontes’ death sentence in Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003).  The Supreme Court granted, vacated, and remanded in light of Brown v. Payton, 544 U.S. 133 (2005).   To be fair, that one wasn’t really a direct reversal of Reinhardt: He wasn’t on the Ninth Circuit decision reversed in Brown, so the first reversal was only to account for the Supreme Court’s clarification of the law in Brown.  On remand, Judge Reinhardt wrote a second opinion overturning Belmontes’ death sentence in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).  The Supreme Court took that case and reversed in  Ayers v. Belmontes, 549 U.S. 7 (2006).   Judge Reinhardt then wrote a third opinion overturning Belmontes’ death sentence in Belmontes v. Ayers, 529 .23d 834 (9th Cir. 2008), which the Supreme Court reversed 9–0 in a per curiam decision today in Wong v. Belmontes.

This Tuesday I’ll be participating in a very cool symposium on Originalism and the Jury hosted by the Ohio State Law Journal. We’ll discuss the Sixth and Seventh Amendment jury trial rights, their original meanings, and to what extent courts should or are likely to match the modern jury trial right to what existed at the time of the framing.   The symposium is notable for the unusually diverse perspectives of the speakers: It features judges, professors, and practitioners in roughly equal numbers.   Justice Scalia will deliver the keynote address.

I’m pleased to announce that the Second Edition of my Computer Crime Law casebook has just been published. A few quick points about it, for those who are interested in such things:

1. About 20% of the main cases are new, reflecting the dramatic caselaw development in the field since the 1st edition came out in 2006. Regular readers of the VC will be familiar with a bunch of the new cases, as I’ve blogged about several of them. The most recent case in the book is the Lori Drew case, handed down on August 28th (and edited down to about 5 pages instead of 32).

2. Despite the many new cases and notes, the book is just about the same length as before. The 1st edition was 665 pages plus the statutory materials in the appendix; the 2nd edition is 684 pages plus the statutory materials in the appendix. I didn’t want the book to become bloated, as can happen to successive editions, so I tried both to add in what was needed and to take out what was no longer as useful or relevant as before.

3. I’m finishing up a Teacher’s Manual for the book, and I will also soon have a free online Supplement available for the Spring 2010 semester to include the several important caselaw developments just in the last 2 or 3 months.

Congratulations to Judge Andre Davis, who was confirmed by the United States Senate today for a seat on the U.S. Court of Appeals for the Fourth Circuit. As the NYT Caucus blog points out, Judge Davis is filling a seat vacated by the judge for whom he clerked, Judge Francis Murnaghan Jr., who died in 2000. Davis was first nominated for the seat in 2000 at the tail end of the Clinton years, but he was not confirmed. The seat remained open for both terms of George W. Bush: Bush nominated Claude Allen for the seat and then Rod Rosenstein, but neither were confirmed (the former fortunately so, the latter unfortunately so). President Obama nominated Davis for the seat back in April.

I was a freshman in college, watching this Peter Jennings broadcast with my roommates in 75 Holder Hall with a sense of complete astonishment that the world could shift so suddenly– all the while trying to adjust the rabbit ears of our early 1970s TV to try to get better reception.

The Supreme Court held argument this afternoon in an important case on the scope of patentable subject matter, Bilski, et. al. v. Kappos. The Justices were very skeptical of business method patents during the argument; read a summary here or the transcript here. I personally agree with the Federal Circuit’s standard, so I was glad to learn of the Justices’ skepticism. For more of my own thoughts on these issues, see here.

Yesterday I participated for the first time in the Legal Talk Network’s Lawyer 2 Lawyer podcast. The topic: The Fourth Amendment and E-mail. It’s about 30 minutes long, and it covers some of the recent developments in the law of e-mail privacy.

I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.

Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself. 

But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.

In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:

KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.

Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:

In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.

But the Ninth Circuit’s rules provide for an en banc from the en banc – a super banc? – of all of the judges. As Judge Kozinski explained in 2003 testimony:

In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.

Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.

A lot of people have e-mailed me asking for my thoughts about a disturbing video that Radley Balko posted recently. The video shows a criminal court hearing in which a deputy assigned to court security walks over to the defense attorney’s papers on the counsel table and starts to look at the papers. Eventually he reaches down and pulls out a document from the stack of papers, passes it off to another deputy, and then the other deputy walks away with it. (The real action starts around the 1:30 mark.) As I understand things, it’s not clear from the video what the officer was looking for, what he thought he found, or why he took the paper. 

My own thought is that it’s outrageous: If I were the judge, I would be steaming mad unless the deputy had a pretty damn good reason for doing what he did. The most obvious remedy is to hold a hearing on what happened in to determine if the deputy should be held in contempt of court. Indeed, the first part of a hearing was held this week, with the remainder to come next week. (H/t: Scott Greenfield)

Based on the media coverage of the first part of the hearing, it looks like the officer’s efforts to explain himself were a dud, but that the hearings are getting stuck on the question of attorney-client privilege. That is, the defendant in the case doesn’t want to waive his privilege, which means that the document’s identity and significance is a secret. And that in turn means that the deputies apparently can’t give the reason why they took the document, if they actually have any reason to give, which we don’t really know.

So my overall assessment is that this looks like a mess: It’s hard to see how the deputy could have had a valid reason for looking through the files and taking the document. On the other hand, right now the privilege issue is getting in the way of getting to the bottom of it.

In an interesting post on the goals of legal scholarship, Marc DeGirolami writes:

[It] doesn’t particularly matter to me who is or is not interested in my ideas. It probably is true that I hope vaguely that someone, somewhere, now or in the future, will be interested in them. If no one ever thought them at all interesting, I would likely find that regrettable. But I do not write with the purpose to address a particular audience. Even when something I write addresses a particular scholar’s claims, I do not take that scholar, or his epigones, to be my audience. In fact, I usually give no thought at all to whom I am writing “for.”

When I write, I don’t really care who cares, or why they care, or whether someone will care in the future for reasons I cannot guess. I am not writing with the practical aim of influence in mind, or with an ulterior motive, or with the hope that I will make it easier, or harder, for pastry chefs to frost cakes with greater velocity or skill. This is different, I think, than saying that one ought not care if one’s ideas are put to deeply harmful use, or that one ought to be utterly indifferent to the consequences of one’s ideas. Rather, it is to say that one should not have as one’s conscious writing object the excitement of anyone’s cares.

I look at this differently. I think that inherent in legal writing is writing for an audience. Legal writing is a type of argument, and arguments are made with audiences in mind. Of course, that doesn’t mean you know exactly who the audience is, or that you write with a specific reform in mind. And it doesn’t mean that you express an idea you don’t actually believe in just to please or influence the audience. But I think it does mean that a sense of the audience is inherent in the enterprise.

Imagine yourself as an author sitting down to start a new law review article. At the most basic level, you need to choose a language. You need to pick a level of complication in your language. You need to know how much to explain concepts, and how much to take things for granted. You need to have a sense of what claims readers will find obvious, what claims readers will find arguable, and what claims readers will find simply batty. You need to have a sense of how the reader is likely reacting to your argument as the reader delves into it, so you can take the reader on a clear path through the argument. 

All of these steps require at least a vague sense of who the readers are. It requires the author to have a sense of how likely readers will experience reading the article so the author can try to help them understand the claim and persuade them that it is true. The sense of readers can be very general, of course. Perhaps it is just “law school hiring committees,” or “other lat-crit professors,” or “the kind of people who read law review articles about insurance contracts.” And perhaps, for some writers, the audience is really just themselves. They want to read over their work when it’s done and feel that the article genuinely reflects their own experience with the argument. But I think that’s an audience, too, albeit a small one. 

Anyway, these are big issues, and no doubt others have expressed these views far better than I have. But I did want to briefly post about the issue — written, of course, with the readership of the Volokh Conspiracy in mind.

I think there are four obvious lessons to draw from tonight’s election returns:

1. For Conservative Republicans: The America people reject Barack Obama and obviously want true conservative leadership. The Governorships of two states have switched to the “R” category, showing a grassroots conservative movement that is alive and well. 

2. For Moderate Republicans: The American people obviously want old-fashioned economic conservatives who are moderate on social issues. McDonnell in Virginia and Christie in New Jersey won by downplaying social issues; Hoffman in New York-23 lost because he was too extreme.

3. For Moderate Democrats: The party out of power usually does well in off-year elections like this, and this year was no exception. But obviously there is no sign of any substantial shift in public opinion from the election of 2008.

4. For Liberal Democrats: NY-23 was the race to watch this year, given that right-wing extremists like Palin and Beck threw all their support behind Hoffman. But the district voters rejected the right-wing candidate, sending a Democrat to Congress for the first time in one hundred years. Obviously this shows that the American people reject right-wing extremism.

Obviously.

In his post below, Eugene asks whether a bystander who cheers on a criminal can be criminally liable as an accomplice. His answer:

Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).

This having been said, convictions based on solely encouragement-by-cheering, without any more tangible help, are apparently rare. Unless I’m mistaken, this theory was tried as to some bystanders in the infamous New Bedford barroom rape case, but they were acquitted. ”

I have a somewhat different take. I don’t know of any cases on this, but my sense has been that the answer is probably “no.” The reason is that an “aider and abbettor” must aid and abet, not merely abet. A bystander who merely cheers on a criminal is not actually aiding the criminal, at least absent unusual circumstances. That is, he is not engaging in an act or omission that assists the crime. So I have tended to think that the bystander has not satisfied the act requirement of accomplice liability and therefore isn’t liable. 

It’s true that some courts say that “encouraging” the crime can satisfy the act requirement of accomplice liability. But when I’ve looked for cases that purport apply this, I encountered cases in which the encourager was actually helping the crime. It wasn’t just encouragement in the sense of an innocent bystander saying, “Run, OJ, run!,” but stuff more like co-conspirators giving the bad guy a pep talk to override his doubts and make sure he would go ahead with the crime. So my tentative sense of it is that the encouragement has to actually help the crime occur or the bad guys to escape. Of course, I realize the lines are hazy here, but I tend to think the bystander ordinarily can’t be liable under this standard.

Ben Sheffner has the story, with legal analysis, over at Copyrights & Campaigns.

The Conglomerate is hosting an interesting blog symposium about Jones v. Harris, a Supreme Court case argued today. The Question Presented:

Whether a shareholder’s claim that the fund’s investment adviser breached its fiduciary duty by charging an excessive fee – more than twice the fee it charged to funds with which it was not affiliated – is cognizable under § 36(b) [of the Investment Company Act of 1940], even if the shareholder does not show that the adviser misled the fund’s directors who approved the fee. 

Head to the Glom and start scrolling if you’re interested in learning more.

No, it’s not The Onion. Story here.

I learned recently that my law school classmate Michael Weston was one of the DEA agents killed last week in Afghanistan in the helicopter crash following a drug raid that killed all ten on board. Here’s a story about him from his hometown paper. 

I wanted to say a few words about Mike. He was a really brilliant guy, and about as unconventional as you see at a place like Harvard Law School. He had been a computer science major at Stanford, but when he got to law school he quickly decided the law was a waste of time. So he decided to join the Marines. And no, he didn’t want to be a military lawyer, or even an officer: He enlisted in the Marines in their general enlistment so he could start from the bottom. Over the summer, when his Harvard Law classmates were earning big bucks as summer associates, Mike was in basic training at Parris Island. He even made a point to leave his final exams an hour or so early to go for a run — he wanted to make sure he was in shape for basic. So he was off to the Marines after law school, and I never saw Mike again.

Every death is a tragedy, and there are lots of tragic aspects to Mike’s death. I want to single out just one of them. Mike’s best friend in law school was our classmate Helge Boes. In February 2003, Helge himself died in Afghanistan while serving in the CIA. (I blogged about Helge’s death here back at the time.) When Harvard Law School looked for someone to write a memorial for Helge, they asked Mike. Mike was serving in Kuwait at the time. Mike had lost touch with Helge, but he wrote a touching eulogy for him, A Born Soldier, later published in the law school alumni magazine. Here’s the conclusion, which now the fates have applying equally to its author:

When I return from this war, I will visit his grave, to say farewell and to apologize for letting such a priceless friendship slip away, and to try to make my peace with his death. There is nothing I can do for him now, here in the desert of northern Kuwait. But I ask you to honor him, in whatever way seems appropriate. He was the best of us.

As was Mike. May he rest in peace.

I’m not going to open comments, but I did want to flag the memorial service that will be held for him in case any of Mike’s friends are reading. According to the comments in this post, it will be this Friday at 1pm at the Quantico Marine Base. The event is open to the public (although the press is not permitted): Just provide an ID and say you are there for the Weston service.

UPDATE: Much to my surprise, I found a documentary online that includes a 3-minute segment about Mike. He talks about his experience in law school, his decision to join the marines, and his experience serving in Iraq. You can watch that segment here starting at the 3-minute mark:

ANOTHER UPDATE: A memorial page has been set up here.

Some readers may be familiar with the origins of airport security screening. I wasn’t, however, and the history is pretty interesting.  In the 1960s, airplane hijacking became surprisingly common:

The first skyjacking of a United States airliner occurred in May, 1961 with Cuba as the destination. Thus, a reverse flow of refugees from non-Communist to Communist countries began. The movement was slow at first; seven United States air hijackings occurred in the first seven years. However, in 1968, skyjacking suddenly became a major problem for United States aircraft. In that year alone, eighteen United States airplanes were air hijacked as well as twelve foreign airplanes. In 1969, the number of attempted air hijackings involving United States aircraft for the year had risen to forty, of which thirty-three were  successful. Of the forty-six attempts on airplanes from other nations, thirty-seven were successful.

Since 1969, the number of air hijackings each year has declined. In 1970, fifty-six successful air hijackings and twenty-eight unsuccessful attempts took place world wide, with eighteen successful air hijackings and eight unsuccessful attempts involving United States planes. In 1971, the Federal Aviation Administration (FAA) reported twenty-seven attempted skyjackings on United States planes with twelve successful, and thirty-two attempts on foreign planes with eleven successful. Between January 1 and September 1, 1972, twenty-nine attempted air hijackings were made on United States aircraft of which eight were successful, and twenty-one attempts on foreign planes with eleven successes.

Patrick W. McGinley & Stephen P. Downs, Airport Searches and Seizures-A Reasonable Approach, 41 Fordham L. Rev. 293, 294–297 (1972).

Government-mandated security screening was tried fairly late in response to these hijackings; it wasn’t mandated until 1972. As recounted in United States v. Davis, 483 F.2d 893 (9th Cir. 1973):

On February 1, 1972, the FAA issued a rule requiring air carriers to adopt and put into use within 72 hours a screening system “acceptable” to the FAA “to prevent or deter the carriage aboard its aircraft of sabotage devices or weapons in carry-on baggage or on or about the persons of passengers.” This system was to require the screening of all airline passengers “by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search.”

In July 1972, the President “ordered” the screening of all passengers and inspection of all carry-on baggage on all “shuttle-type” flights. On August 1, 1972, the FAA issued a directive that no airline “shall permit any person” meeting the profile to board a plane unless his carry-on baggage had been searched and he had been cleared through a metal detector or had submitted to a “consent search” prior to boarding. On December 5, 1972, the FAA ordered that searches of all carry-on items and magnetometer screening of all passengers be instituted by January 5, 1973.

The number of annual attempted hijackings dropped to single digits soon after, and then to zero or close to it.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In explaining the choice of community standards instead of national standards, the Court wrote:

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.

Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

In the last decade, some have wondered whether this concept still makes sense with materials distributed and obtained over the Internet. The basic idea is that the experience of an Internet user does not depend on the local community, so it no longer makes sense to apply a local community standard to obscenity.

The question of how the Internet impacts national versus community standards came up indirectly at the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case on the constitutionality of the Child Online Protection Act (COPA). In Ashcroft, a bunch of people who wanted to post content on the Web argued that COPA violated the First Amendment rights of adults barring the posting of “material that is harmful to minors.” The statutory definition of “material that is harmful to minors” harnessed the “contemporary community standards” standards from obscenity law, and the Third Circuit had ruled that the community standards could not apply to the Internet because “Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.” The Supreme Court reversed in a splintered opinion, with various Justices chiming in on on how much of a problem they thought it was to use community standards in light of the First Amendment challenge to COPA.

So where does that leave Internet obscenity law: Do we still have community standards, or do we have new national standards?

The Ninth Circuit’s answer in yesterday’s decision, United States v. Kilbride: National standards. In an opinion by Judge Betty Fletcher, joined by Judges Hug and Hawkins, the Ninth Circuit concluded that if you looked at each of the concurring and dissenting opinions in Ashcroft v. ACLU, there were five votes for a new approach to Internet obscenity law that embraced national standards, not community standards:

The divergent reasoning of the justices in and out of the majority in Ashcroft leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .

Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.

At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.

Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.

As a matter of law, I don’t find this particularly persuasive. In Marks v. United States,430 U.S. 188 (1977), the Court identified the rule for identifying the holding of a fragmented court:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

But here the Ninth Circuit is counting the number of Justices who had “concerns.” Concerns are not positions. You can’t count the number of Justices who had a particular thought and then say that the thought is somehow binding on the lower courts.

Rather, I would think this case should have been answered by the Supreme Court’s directive that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson /American Express, Inc., 490 U.S. 477, 484 (1989). My sense is that the case which directly controls here is Miller v. California, and I read Miller’s statement of the “basic approach” to obscenity as being a holding, not just one of many possible ways to define obscenity. In light of that, I think courts are bound to the Miller community standard until the Supreme Court says otherwise, whether that standard makes sense for Internet obscenity or not. See United States v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005) (relying on the traditional Miller test on the ground that “if the Supreme Court wishes to treat all Internet obscenity cases as sui generis for purposes of federal obscenity law analysis, it has not yet said so, “tacitly” or otherwise.”).

Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.

Marty Lederman has this new post up at Balkinization on why he thinks the new hate crimes legislation is constitutional. (Okay, so technically it’s an OLC opinion signed by Marty Lederman that Jack Balkin posted over at Balkinization, rather than just a blog post. Same idea, anyway.)

I blogged yesterday about a new opinion on e-mail and the Fourth Amendment. I received a few requests for a copy of the opinion, so I formatted a version of it and have posted it here.

In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it. Sorry about that: The fault is entirely mine.

The case is In re United States, — F.Supp.2d —-, 2009 WL 3416240 (D.Or. 2009), by District Judge Mosman. The issue in the case is whether the government must notify a person when the government obtains a search warrant to access the contents of the person’s e-mail account. Judge Mosman concludes that Rule 41 and 18 U.S.C. 2703(a) require the notice to be served on the ISP, not the account holder, as a statutory matter. He then rules that there is no constitutional requirement of notice to the account holder because the Fourth Amendment does not apply to the e-mails under the third-party doctrine. [CORRECTION: SEE BOTTOM OF POST] Here’s the relevant analysis:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all. The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties. [Citation to work of bald academic deleted.]

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request.” Google Privacy Policy, http:// www.google.com/privacypolicy.html (last visited May 13, 2009). The court understands that other ISPs have similar privacy policies. See, e.g., Microsoft Online Privacy Statement, http://privacy.microsoft.com/en-us/fullnotice.mspx (last visited May 13, 2009) (stating that personal information may be shared to “comply with the law or respond to lawful requests or legal process”); AOL Network Privacy Policy, http://about.aol.com/aolnetwork/aol_pp (last visited May 13, 2009) (“The contents of your online communications, as well as other information about you as an AOL Network user, may be accessed and disclosed in response to legal process (for example, a court order, search warrant or subpoena); [and] in other circumstances in which AOL believes the AOL Network is being used in the commission of a crime....”). Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

As I have blogged before, I disagree: I think e-mails are protected under the Fourth Amendment despite the third-party doctrine for reasons explained in my forthcoming Stanford Law Review article Applying the Fourth Amendment to the Internet: A General Approach (click on the link and then press the download button to download a draft of the article). Still, I thought the decision was worth noting given the importance of the issue and the still-unsettled state of the caselaw.

CORRECTION: In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it. 

I suspect the debate over whether judges are like baseball umpires is as old as baseball itself, but here’s an early example I came across on Westlaw:

A well-known English judge, watching village children drawing up rules for their cricket team for the year, said they were showing him how the common law of England was made. I venture to think that this view is not quite correct. The common law was no set of rules purposely drawn up for the governance of the community but rather a set of customs which evolved into form in the course of years. Now and then, indeed, the sovereign power intervened to modify the old rule or prescribe others; but in most cases where the judge was called on to give a decision he was not like the umpire at cricket or baseball, sent to his body of formal and fixed rules to find out what should govern and to decide according to the rule prescribed; he was rather like the friendly arbitrator deciding according to what he considered the requirements of decent neighborhood, that is “the customs of the country”-Sittlichkeit, if you will. Every time he made a decision, he made the custom more definite. He did not, indeed, affect to lay down any new rule or to govern himself by any but the existing sense of the community-that is, what was just and right in the particular case, bearing in mind the customs which were followed and which fixed rights and duties, more or less indefinitely indeed, but nevertheless fixed them. But every time, he used his own sense of what was just and right in the particular case.

William Renwick Riddell, Common Law and Common Sense, 27 Yale L. J. 993, 995–996 (1918) (emphasis added).

Today the Tenth Circuit handed down a very interesting Fourth Amendment decision, United States v. Johnson, on whether an individual can have a reasonable expectation of privacy in a storage unit rented with a stolen identity. 

As I understand the facts of the case, the defendant Johnson asked his girlfriend to rent a storage unit using a fake name where he could store his guns. Johnson and his girlfriend had possession of the driver’s license of a woman named Haroldsen — the license had been stolen in a burglary, perhaps, although not necessarily, by Johnson — and Johnson asked his girlfriend to use Haroldsen’s license to rent the storage unit. (Presumably the idea was that this would make it difficult to connect the stored items with Johnson.) Johnson’s girlfriend went to the storage business posed as Haroldsen, and she paid cash to rent the unit. The police ended up searching the storage unit without a warrant and they found Johnson’s guns. Johnson admitted that he had stored his guns there, leading to charges that Johnson was a felon in possession of the guns. 

The question in the case was whether Johnson had Fourth Amendment rights in the storage unit given that the unit had been obtained using Haroldsen’s stolen identity. In an opinion by Judge Ebel, the Tenth Circuit ruled that Johnson did not have Fourth Amendment rights in the unit because Johnson had directed his girlfriend “to enter into the rental agreement using Haroldsen’s stolen identity.” The opinion begins with a rather enjoyable discussion of the nature of the reasonable expectation of privacy test, and it then focuses on the fact that Johnson obtained the rental unit by via unlawful identity theft. The court concludes that this fraud in the obtaining of the unit diminishes the reasonableness of an expectation of privacy in the unit much like occurs with the contents of stolen property, and thus Johnson had no Fourth Amendment rights in the contents of the unit.

This was a really hard case, I think, and the court was right to recognize that there are no clearly correct answers here. Johnson is a subset of a specific kind of Fourth Amendment problem that has long befuddled the lower courts, especially as there is virtually no guidance on the issue from the Supreme Court. The question is, what kind of relationship does a person need over rented or borrowed physical property to establish Fourth Amendment in their contents? Specifically, when the owner of the property rents out the property subject to some limitation that is breached, does that breach eliminate the Fourth Amendment protection in the property?

This issue arises all the time with rental cars, and there is currently a circuit split on it and a pending cert petition that I’ve been following (as well as a recent petition that I helped with that was recently denied). In the car rental cases, A goes to the rental company and rents a car. The contract says that A is the only authorized driver of the car. A nonetheless lets B drive the car, and B is driving the car when the cops stop him and search the car without a warrant or probable cause. The question, then, is whether B has Fourth Amendment rights in the car. Some circuits say no, as he is an unauthorized driver who is driving in violation of the rental agreement. Other circuits say yes, as the legitimate renter gave him permission to drive the car. 

The rental car question is hard under existing Fourth Amendment law because the Supreme Court has never answered how breach of rental agreements or other fraud in the obtaining or use of rented property eliminates Fourth Amendment rights. I see today’s decision in Johnson as a close cousin that raises the same basic principle. The Supreme Court will have to deal with these questions eventually, as they come up all the time. But right now the lower courts don’t have clear principles to guide them. 

The Legal Intelligencer reports on a survey of law firm partner compensation among men and women, and I was struck by this line:

Some good news out of the survey was that the gap in compensation between male and female partners shrunk in 2009. But the report also pointed out that the smaller gap is likely an overall effect of reduced compensation at the equity level generally. Between 2008 and 2009, the median pay fell for all positions regardless of gender and was sharpest for equity partners. Pay for the equity partner category in 2009 fell below 87 percent of the median compensation in 2008.

I suppose it would be even better news if everyone were fired, thus entirely eliminating the gap in compensation between male and female lawyers. 

The New York Times Deals blog reports on a fascinating new computer search and seizure decision, and one that I think was very likely wrongly decided:

  Federal prosecutors hit another setback on Monday in their criminal fraud case against two former Bear Stearns hedge fund managers, Ralph Cioffi and Matthew Tannin, after the trial judge in Brooklyn prevented jurors from seeing an e-mail in which Mr. Tannin writes, “We could blow up.”
  The e-mail, which was sent from Mr. Tannin’s personal Gmail account, was written in November 2006, months before the two hedge funds that he and Mr. Cioffi oversaw collapsed amid the subprime mortgage crisis. “I became very worried very quickly,” Mr. Tannin wrote in his e-mail. “Credit is only deteriorating. I was worried that this would all end badly and that I would have to look for work.”
  Federal prosecutors in the Eastern District of New York had planned to use the e-mail to show Mr. Tannin was privately expressing doubt about the funds’ performance, but was telling his investors another story.

The opinion, United States v. Cioffi, holds that the warrant was unconstitutionally overbroad and that neither the good faith exception nor inevitable discovery exception applied so that the evidence should be suppressed. My own view is that the overbreadth holding is likely right but that the good faith analysis is wrong, and that as a result the decision to suppress the evidence was incorrect.

First, the facts. The government suspected that a personal G-Mail account contained evidence of a massive fraud scheme. The affidavit fully explained the reasons for that belief in the affidavit, and asked for permission to get the warrants that related to the fraud offense. The actual warrant itself was phrased in broader language, however: It gave the agents permission to obtain “all e-mail” in the G-Mail account “up through August 12, 2007,” a date that the suspect hired an attorney (the limitation being imposed to avoid potentially obtaining attorney-client communications). The agents sent the warrant to Google, and Google responded with a CD-ROM containing the e-mails. The government then looked through the e-mails and quickly found an incriminating e-mail the suspect had sent to himself in which he seems to have detailed his own fraud activities as sort of a diary entry.

Judge Block held that the e-mail could not be admitted under the Fourth Amendment. The government conceded that the e-mails were protected by the Fourth Amendment, and applying that standard the warrant violated the particularity requirement by asking for “all e-mails” in the time window rather than just the e-mails involving fraud. While the affidavit did limit the case to e-mails looking for fraud, and the agents only looked for fraud (and certainly the e-mail in question was such a fraud e-mail), the warrant itself was not particular enough because the warrant itself did not contain the limitation and it was not fully and adequately incorporated into the affidavit. Further, the good faith exception did not apply because the agents should have known that the warrant was insufficient.

I have mixed views of the court’s opinion, but I think the ultimate decision to suppress is incorrect. I think the basic holding that the Fourth Amendment requires agents to give some guidance as to which e-mails it wants rather than to seize the entire account is probably correct. The caselaw is very sparse here, but courts have required the government to be more specific in the case of seizing a computer hard drive. When the government gets a warrant to search for and seize digital evidence at home, the government can’t get a warrant for “all computers,” but rather must ask for “all computers that contain child pornography” or “all records of a conspiracy to commit wire fraud stored in a computer.” See, e.g., United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (McConnell, J.). E-mail accounts today are big enough that the same rule should probably apply to individual e-mail accounts that applies to individual computers: There must be some guidance, even if only very general guidance, as to what the agents are to look for when they have the CD-ROM and start to look through it. A date restriction helps but probably isn’t enough, assuming that there are lots of e-mails before that date. So, assuming that the affidavit wasn’t sufficiently incorporated — a question I’ll leave to the side because the standards among the circuits tends to vary, and it’s a very technical issue — I think the basic Fourth Amendment holding was likely right.

On the other hand, I think the good faith exception should apply, and Judge Block was therefore wrong to suppress the evidence. The question is whether the constitutional error was so clear that a reasonable agent would realize the warrant violated the Fourth Amendment. I don’t think that standard is satisfied for two primary reasons:

First, no district court in the Circuit or the Second Circuit itself has ever held that e-mail is protected by the Fourth Amendment, and the federal Stored Communications Act, 18 U.S.C. 2703(b), takes the position that no warrant is required to obtain e-mails, such as the ones here, that are older than 180 days. As regular readers may know, I argue in a forthcoming article that such e-mail should be protected by a warrant requirement. And it so happens in this case that the government conceded in this case that e-mail is protected by a warrant requirement (presumably because they obatined a warrant — no need to fight that battle in this case). But I don’t think a reasonable police officer would necessarily know that a valid warrant was required and that the relevant federal statute governing e-mail is unconstitutional. 

Indeed, there is a remarkable irony in the court’s ruling. If the government had just subpoenaed all the e-mails and not obtained a warrant, as 18 U.S.C. 2703(b) permits, the good faith exception would have applied because the agents could have reasonably claimed good faith reliance on the statute. See, e.g., United States v. Ferguson, 508 F. Supp. 2d 7 (D.D.C. 2007) (accepting such an argument). The agents apparently decided to be more cautious and to get a warrant anyway, even though the federal statute does not require it. But Judge Block ends up punishing the government for providing more process rather than relying on the statute: He ruled that the agents can’t rely on the good faith exception because they obtained a warrant but didn’t meet the far more strict particularity requirements of warrants. That’s an odd result.

The second reason I think the good faith exception applies is that the court’s ruling is directly contrary to the most relevant precedent, United States v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996), the only other decision that comes to mind on the particularity for e-mail accounts. Lamb was an early child pornography case involving a single warrant to obtain the entire contents of 78 AOL e-mail accounts. District Judge Munson held that the one warrant for the entire contents of 78 accounts was constitutional, even though the warrant asked for all e-mail and did not specify only e-mails that involved child pornography crimes:

[The warrant] seeks “all stored files in original format in individual files” and any printouts of the same. There was probable cause to believe that some of those files were image files containing the forbidden depictions. Although the language does not limit investigators to seizing image files only or image files of child pornography only, the actual content of a computer file usually cannot be determined until it is opened with the appropriate application software on a computer. The agents who were tasked to obtain account records related to seventy-eight individuals were not obligated to identify the contents of computer files on AOL’s premises. Because there was probable cause to believe that stored files in the accounts of the suspects contained evidence of the crime, viz. the depictions of child pornography themselves, the warrant properly authorized the search and seizure of these particular items.

Id. at 458–59. In a footnote, Judge Munson added: “it is unreasonable to require the executing officers to identify which files actually contain child pornography and which do not in AOL’s Virginia headquarters. That task may be more properly performed by a government computer technician at an FBI lab or office.” Id. at 458 n.10. 

I tend to think Lamb is wrongly decided, or at least outdated given the incredible storage capacity of today’s G-Mail accounts as compared to 1996 America Online accounts. But it’s the only precedent I know of on particularity for e-mail accounts, and it said that a single warrant for the contents of 78 accounts with no date restrictions at all complies with the Constitution. Given Lamb, I think an officer in 2009 could reasonably believe that the warrant in this case was constitutional and that the good faith exception applies.

It’s National Pro Bono Week. I’m presently involved in two pro bono cases: United States v. Drew and McCane v. United States. It might be interesting for our readers who are lawyers to say what pro bono matters they are involved in right now; I hope they will consider telling us in the comment thread.

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests. 

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide. 

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments 

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.” 

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures are reasonable. For example, in United States v. Green, a 2002 case, the Fifth Circuit upheld a roadblock inside a military base in part on the ground that the purpose of the roadblock was “to protect the military post,” not to detect criminal activity. According to Delahunty, this shows how the search for terrorist suspects triggers a very different set of Fourth Amendment rules.

Delahunty finds particular support in United States v. Verdugo Urquidez, a case held that the Fourth Amendment did not apply to the search of a home in Mexico belonging to a Mexican suspect with no voluntary associations with the United States. A part of the Verdugo opinion reasoned that applying the Fourth Amendment to military activities outside the United States would substantially interfere with the ability of the political branches to respond to foreign siruations properly. Delahunty reasons that the same reasoning should apply to military searches and seizures inside the United States: The governmental interest isn’t any less just because a threat occurs inside the United States. 

Delahunty asks what would happen if the government received a tip that a terrorist group had concealed a weapon of mass destruction in an apartment building. Securing the whole building and detaining its residents to look for the WMD would violate the Fourth Amendment under Ybarra v. Illinois, but the alternative would risk hundreds of thousands of lives. Delahunty also points to Murray v. United Kingdom, an opinion by the European Court of Human Rights that interpreted Article 8 of the European Convention of Human Rights. Murray allow the detention of an entire family in the course of identifying a terrorist suspect, and noted that responding to a terrorist threat is different from responding to a traditional criminal threat. 

II. A Reply to Professor Delahunty

Before responding on the merits, let me point out that the OLC opinion is highly puzzling because it has no facts. Fourth Amendment law is notoriously fact specific, but the OLC opinion speaks only in grand generalities. In particular, the opinion concludes that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists.” But what does that mean? What is the use of the military “against” terrorists? Is a use “against” terrorists if it has the general purpose of undermining terrorism, or is a use against terrorist only if it is actually a search or seizure of an actual terrorist and his property? And what is a “use” of the military? Is surveillance a “use”? Is traditional law enforcement a “use”? It’s hard to know what the OLC opinion is actually trying to say without answers to these questions.

On the merits, the most obvious problem is that the alleged choice between two “paradigms” — the law enforcement paradigm and the war paradaigm — has no support in any Fourth Amendment precedent or text. Indeed, Delahnuty does not rely on any actual Fourth Amendment cases or language to make the case for this fundamental choice. Rather, he looks to constitutional cases and text elsewhere in the Constitution, and then offers the theory that the Bill of Rights as a whole must face this choice. For example, Delahunty relies on the text of the Third Amendment, which distinguishes rights to quarter troops “in times of peace” versus “in times of war.” If the text of one section of the Bill of Rights has a particular feature, Delahunty suggests, it presumably carries over to other sections.

This is an interesting normative theory, but it is not found in existing Fourth Amendment law. There is no time of peace/time of war distinction in Fourth Amendment law. Indeed, the most significant expansions of the scope of the Fourth Amendment occurred in a time of war — the Vietnam war, which was raging at the time of the Warren Court criminal procedure revolution. And this revolution carried over to the national security setting in United States v. United States District Court, the leading case on applying the Fourth Amendment in the national security setting (a case that Delahunty somewhat curiously does not cite). In that case, the Justice Department argued that it did not need a warrant to conduct wiretapping for national security purposes when countering a domestic threat. The Supreme Court disagreed:

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government’s position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.

This is all quite far from the imagined choice between a “war paradigm” and a “law enforcement paradigm.” Perhaps there should be such a distinction. But the OLC opinion is supposed to be a statement of existing law, not a creative work of normative constitutional theory, and I think the opinion is wrong in seeing a “war paradigm” in existing law.

I was also not persuaded by Delahunty’s discussion of United States v. Verdugo Urquidez. The quoted passage from that case concerned military activities outside the United States. The Court explained that “the result of accepting [the defendant’s] claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries” (emphasis added). Indeed, almost every sentence in the paragraph mentions the limitation to extraterritorial searches and seizures. Given that, it is quite a major leap to extend the principle to searches and seizures inside the United States. And the very next sentence suggests one of several possible reasons for the limitation: “The United States frequently employs armed forces outside this country — over 200 times in our history — for the protection of American citizens or national security.” In contrast, such uses inside the country are rare. Of course, that’s not to say that this is the only or even the most persuasive reason to distinguish military searches inside the U.S. and military searches abroad, or that the two cases must be treated differently. My point is only that it’s a major step to say that a hypothetical discussed in the case of the latter justifies the same rule in the case of the former. 

The OLC opinion is also odd in how it overlooks the exigent circumstances exception. The memo suggests that the Fourth Amendment must not apply to military operations inside the U.S. (or at least apply very differently) because the contrary would lead to outrageous results — such as not letting the government secure an entire building if an WMD is believed to be hidden inside it. But surely this would fall easily under the exigent circumstances exception to the warrant requirement, which allows reasonable searches and seizures without a warrant in emergency situations. It’s hard to think of a greater emergency than a nuke killing a few hundred thousand people, and the existing exigent circumstances doctrine would easily allow this regardless of whether the military or the police were doing it. 

I was even more puzzled by the discussion of how the European Court of Human Rights interpreted Article 8 of the European Convention of Human Rights. Maybe I am just being provincial, but I can’t see how that is remotely relevant to the Fourth Amendment in the United States Constitution.

III. Points of Agreement 

I should hasten to point out that I don’t think the Fourth Amendment requires warrants on the battlefield. And this brings me to where I think Delahunty is clearly right: the Fourth Amendment standard for military conduct inside the United States surely is quite different than it would in the traditional law enforcement setting. Between the special needs doctrine, the exigent circumstances exception, and Verdugo-Urquidez, you would have a very different set of rules. 

But it’s hard to say much more than that without being presented with some facts, hypothetical or real: As I said earlier, the Fourth Amendment is so fact-specific that grand generalities don’t get you very far. So the opinion is clearly right in its most modest claims, that Fourth Amendment doctrine is sensitive to national security concerns and that the warrant requirement relaxes in light of national security needs. But I think much of the opinion is weak, and its broader claims that the Fourth Amendment does not apply at all to the use of the military in the war on terror is wrong. 

Here’s an interesting (and to my mind troubling) recent example of how few limits the Fourth Amendment presently imposes on officer questioning during traffic stops, at least as presently construed by lower courts. 

In United States v. Chaney, decided by the First Circuit last week, an officer pulled over a car because it had a headlight out. The officer asked the driver for ID, and then he asked the passenger for ID (for officer safety reasons, according to the officer). When the passenger said he didn’t have ID, the officer ended up spending about five minutes querying the passenger about his identity and whereabouts. As I read the opinion, the officer did not have reasonable suspicion for the first two minutes of the questioning, but then developed reasonable suspicion to thin the passenger was involved in some sort of criminal activity based on the evasiveness of his answers. The officer went back to his squad car and spent another five minutes trying to get a positive ID on the passenger. When he couldn’t get a positive ID on the passenger, he asked the driver to get out of the car and asked the driver more questions about the identity of the passenger. After a few more minutes, the officer shined a flashlight on the passenger and saw a bulge in his jacket. That eventually led to the discovery of a gun in the passenger’s jacket and charges against the passenger, Chaney, for being a felon in possession of a gun.

Held by the First Circuit: This was all constitutionally permitted. First, the Supreme Court has said that the police can ask questions unrelated to the purpose of a stop so long as the questioning does not “measurably” extend the duration of stop. In this case, the officer did actually extend the stop for a few minutes to ask the passenger questions, but the First Circuit concludes that this was “de minimus and did not unreasonably extend the duration of the traffic stop,” in part because the officer asked the questions for officer safety reasons. And once the passenger gave strange answers, that created reasonable suspicion for the officer to detain the car for more time to investigate if the passenger was involved in criminal activity. Thus the delayed stop was okay, and the officer did not violate the Fourth Amendment in delaying the group long enough to shine the flashlight and then have cause to frisk the passenger for the gun.

There are lots of cases on the books that are consistent with this decision, but it still makes me uncomfortable. In particular, the Supreme Court has said that questioning unrelated to the stop is okay if it does not measurably extend the stop. Several courts have held that very brief questioning of the driver is a de minimis extension that is permitted. But here the questioning measurably extended the stop by a bit longer, about two minutes before there was any reasonable suspicion, which is enough time to ask a lot of questions. The First Circuit concluded that this still was just a de minimis extension of the stop, but it seems to me that two minutes gives the police a tremendous amount of power: It means that the traffic stop that is so easily permitted by the Fourth Amendment gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety, in a situation in which those in the car are not free to leave. In other words, the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspicion. But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?

The tricky part about this problem is how to devise a contrary rule. You could say that the police can’t ask the unrelated questions at all during a traffic stop absent some suspicion, although the Supreme Court has rejected that rule. You could say that the police can’t ask unrelated questions that extend the length of the stop at all, although that gets into difficult questions of exactly how you measure the length of a question or the proper length of a stop. You could say that the officer can ask the driver brief questions unrelated to stop but can’t pose the same questions to a passenger, although it’s not clear why that line would be justified. That leaves you with the rule suggested in Chaney and applied by some other circuits, that a “brief” extension of the stop is okay to ask those unrelated questions, which gets into how brief is brief enough. There aren’t a lot of easy answers here, but I worry that cases like Chaney just go too far.

UPDATE: I fiddled with the post a bit to improve accuracy.

I wonder if I’m the only one who sees today’s Supreme Court opinion in a death penalty case, Corcoran v. Levenhagen, as somewhat similar to the Court’s order two months ago in In re Troy Davis. As in Davis case, today’s opinion in Corcoran is essentially an order telling a district court to take a fresh look at some issues in a capital case without actually reaching a decision or a holding about anything.

Chief Justice Roberts published a dissent from denial of certiorari today in a Fourth Amendment case, Virginia v. Harris, that is interesting in part because it resembles his dissent from denial of certiorari last year in Pennsylvania v. Dunlap (a.k.a. the “tough as a three­ dollar steak” opinion). 

In both Harris and Dunlap, a state Supreme Court imposed a Fourth Amendment rule that a single source of suspicion did not allow the police to take an important investigative step. In Dunlap, the Pennsylvania Supreme Court had ruled that the officer who saw a “single isolated transaction” that he strongly believed was a drug buy did not have probable cause to make an arrest based on it. In Harris, the Virginia Supreme Court ruled that an officer who received a report of a drunk driver did not have reasonable suspicion to stop the car based on it. In both cases, Chief Justice Roberts, joined by one other Justice, wrote an opinion saying that the Court should have taken the case. 

It’s too early to say whether these dissents suggest that Chief Justice Roberts is particularly interested in Fourth Amendment cases, or whether they mean something else. But I found the similarity between Harris and Dunlap pretty interesting.

Last week, Justice Kennedy gave the keynote address at the George Washington Law Review symposium on judicial review. A story about the address in the Daily Colonial contains this nugget:

Kennedy was a particularly notable choice for the event’s speaker because of his influential central position on the court. Kennedy’s opinion is often the swing vote when the court is split.
“I never read a brief I couldn’t go down the middle on,” said Kennedy.

I attended the address, and I believe Justice Kennedy’s actual statement was “I never read a brief I couldn’t put down in the middle.” That is, he wasn’t celebrating his ability to reach compromise. Rather, he was suggesting that legal briefs tend to take too long to make their point, and as a result they can be somewhat tedious to read.

Justice Stevens has been known to classify himself as a “judicial conservative,” which has puzzled many court followers. Justice Stevens is often described as the leader of the Court’s liberal wing: He consistently tries to advance politically liberal outcomes, generally defending liberal precedents and often working to overturn conservative ones. Given that, why does he see himself as a “judicial conservative”? Back in early 2007, I offered a possible explanation:

I wonder . . . whether Stevens’ self-perception is just a reflection of the what the phrase “judicial conservative” used to mean. Oversimplifying things a lot, in the 1960s and 1970s judicial liberals were the folks who favored the courts bringing about dramatic changes to the foundations of American law. In contrast, judicial conservatives were the folks who favored resisting those changes. The Justices who embraced some dramatic changes but rejected others were the moderate conservatives. I don’t know whether Justice Stevens has this history in mind when he labels himself a “moderate conservative.” As far as I know, he was not asked to define what he meant by the label. But if he has this somewat outdated framework in mind, then it doesn’t seem particularly inaccurate to me.

A recent interview of Justice Stevens by Joan Biskupic adds some evidence to this hypothesis. Biskupic reports:

Stevens says he regards himself as a conservative of sorts — even today, when nearly every justice is to the ideological right of him. “You can be a conservative by deciding cases narrowly and paying attention to (precedent),” he says, then adds, “If you look at political outcomes” to label a justice, “it’s a very different thing.”

This is only a brief comment, and we don’t know the precise context of it. But taking it as face value, it seems to suggest that a Justice could consistently vote to try to make the law more aligned with the views of political liberals, but as long as he did so mostly in relatively small steps and by “paying attention” to precedent, that Justice would still be a “judicial conservative” in the sense used by Justice Stevens. I don’t think that’s a particularly inaccurate label given how such terms were used in the 1960s and 1970s, even if it is no longer how the terms are normally used.

The federal deficit for 2009 is about $1.42 trillion, amounting to about 10% of the United States economy or a little under $5,000 for each person in the United States. Wow.