The Volokh Conspiracy

A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).

So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

For the last 40 years, the hornbook law of what amounts to a Fourth Amendment search was that a search occurs when government conduct violates both a subjective expectation of privacy and an objective reasonable expectation of privacy. As of this morning’s decision in Jones, the new doctrine for what is a Fourth Amendment “search” appears to be as follows:

A search occurs either when

(a) A trespassory test is satisfied: (1) a “trespass” occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment (“persons, houses, papers, or effects”), and (3) it occurs with the intent “to find something or to obtain information”

or

(b) The Katz test is satisfied: the government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy

Today’s majority opinion in Jones announces the trespassory test and applies to to find that the installation of the device with intent to use it was a search. As a result, the Court doesn’t purport to reach the “reasonable expectation of privacy” question. The Court also did not reach when installing a GPS device is a reasonable search, holding that the issue was forfeited because it was not raised below.

UPDATE: At first blush, one question I’m not entirely certain of is what the test is for a trespass. Trespass law has changed over time, and it varies state to state. Civil trespass can be different from criminal trespass. Is the question whether the act would have constituted a trespass at common law, or whether it is a trespass today? Justice Alito’s opinion indicates that he thinks the test is a trespass at common law, but does the majority take a view on that?

I’m about to head off to teach an 11am class about the reasonable expectation of privacy test, using the case of United States v. Jones as a hypothetical, which means I have some quick reading to do.

I’m not sure what to make of this, but the ending is good.

Thanks to How Appealing for the link.

Thanks very much to Randy for his post arguing that his “no commandeering of the people” theory could be the argument that addresses my different concerns and create a sound way to strike down the mandate. Like all of Randy’s work, it is engaging, interesting, and important. But of the different arguments Randy offers to invalidate the mandate, I find the “no commandeering of the people” argument the least persuasive. Here’s a run-down of why.

First, the “commandeering of the people” claim reads like a emanations-and-penumbras argument, in which we look to various bits and pieces of the constitution to try to assemble them into a brand-new principle to get to where we want to go. Maybe I’m too sensitive to constitutional claims that rely on implicit principles of the Third Amendment. But that kind of legal reasoning gives my Burkean instincts the heebie-jeebies. In my experience, the point of emanations-and-penumbras arguments is to present something new as if it were something old (but just not quite previously recognized). I get the move, but here it seems pretty clear that the argument is new. As Randy concedes, the existing doctrine is about commandeering the states, not about commandeering the people.

Even if this is to be recognized as a new constitutional principle, it’s not clear how it works. First, it’s not clear to me how saying you have to pay an extra fee if you don’t buy health insurance “commandeers” anything. True, it’s an incentive to do something. But it’s a relatively modest one, and strikes me as far short of the coercive take-over implied by the concept of commandeering. And If we say that this sort of modest incentive amounts to commandeering, then isn’t most of what the government does commandeering? For example, does the home mortgage deduction commandeer you to buy a house? And more obviously, doesn’t the draft commandeer you to join the military?

Randy introduces several limitations on the theory that lead him to conclude that the mandate is the first case of the relevant kind of commandeering, and therefore is the only legislation that needs to be invalidated. But his limitations strike me as rather arbitrary. First, Randy limits his proposal to “economic” commandeering. That presumably would deal with the draft cases. But if the Constitution is to be read to prohibit commandeering, isn’t economic commandeering the least offensive kind? A draft forcibly making someone go off to fight a war (and risk death in combat) seems exponentially more offensive than making someone pay a few hundred bucks through a lower tax refund if their income is above a certain amount. And isn’t the limitation to “economic” commandeering an odd fit with the tax power? Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.

Finally, there’s my Weschlerian neutral principles reaction. One of Randy’s selling points for the no-commandeering argument is that it could be adopted in a way that only strikes down the mandate. He writes: “In short, if a majority of justices have the will to invalidate the individual insurance mandate, they surely have the way.” Although potentially appealing to the Burkean instinct, from a Wechslerian perspective that’s a bug rather than feature. A novel argument that manages to only strike down the one law we don’t like is not based on an appeal to lasting principle. Instead it appeals to expedience; it gets us where we want to go. From a Weschlerian neutral principles perspective, I’d be much more drawn to a principle that has all sorts of results that we don’t like. The more we don’t like the results, the more we have an indication that we are adopting the principle because of its constitutional truth and not because we don’t like the Affordable Care Act.

Anyway, my apologies again for the long post. Randy’s ideas are rich and interesting as always, and even at this length i know I’m only scratching the surface.

Commenter Brandon, a frequent critic of my posts on the individual mandate, offers the following question tonight in a comment thread:

Orin,
The frustrating thing about your posts (especially on obamacare) is that you rarely, IF EVER, come out and just state your f**cking opinion. All we have from you are tidbits of hints and innuendo (see Sandefur’s piece quoted by Barnett). Not to mention your generally convenient use of “law professor hypotheticals,” which get you nowhere in the real world of private practice (which I’ve been a part of now for more than 4 years). So perhaps you’d like to offer your views, just this once, on how you think the obamacare litigation should turn out. Specifically, DO YOU THINK THE SUPREME COURT SHOULD STRIKE DOWN THE INDIVIDUAL MANDATE AS EXCEEDING CONGRESSIONAL POWER UNDER ARTICLE I?????? I would love, FOR ONCE, to read a well-thought-out post by you on the merits of either side. And this time, please, state DEFINITIVELY, how you think this case should be decided. Thnx.- Brandon

I wasn’t planning to blog on this. But because Brandon asks so nicely, I thought I would respond.

Now that the mandate case has reached the Supreme Court, the case triggers conflicting instincts for me. On one hand, as I’ve said before, I’m a federalism guy. I think limits on federal power play a critical role in our federal system, and I think Supreme Court doctrine has erroneously permitted the federal government to become too big and play too intrusive a role in American society. The Commerce Clause was never intended to give the federal government a general police power. It was meant to just allow the federal government to regulate interstate commerce. That part of me would cheer if the Supreme Court struck down the mandate.

On the other hand, I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.

That explains why I have posted a lot of “law professor hypotheticals” about the implications of the mandate challenge. The more I see the theory driving the challenge as workable and principled, the more I favor it. I can’t gauge how much the challenge triggers my Burkean objections without understanding exactly what it is and how it might work.

Now add another consideration. I also value the Supreme Court deciding cases independently of politics as much and often as possible. This is a sort of Wechslerian neutral principles idea that the Justices shouldn’t be political actors in robes. Horribly out of fashion in the faculty lounge, to be sure. But the neutral principles part of me is pretty dubious about the mandate challenge because the challenge seems so transparently political. The Affordable Care Act is President Obama’s signature legislative achievement. Everyone who opposes the constitutionality of the mandate just so happens to also oppose the mandate politically. And the most commonly-asserted constitutional argument against the mandate wasn’t even thought up until around just before the mandate was passed, only to be readily embraced by the same folks that tried to stop the legislation in Congress but failed.

The obvious political valence of the mandate challenge gives me a lot of pause, and it adds a significant complication in my view of what the Court should do. On one hand, it’s obvious that any decision striking down the President’s signature legislation would have enormous political ripple effects. Given that the theory behind the challenge was largely made up to stop the mandate, and it’s hard to imagine more than 5 votes to strike down the mandate, that would make the Supreme Court a political player in ways that dwarf recent examples. The narrative of the decision as deeply political would resonate with a lot of people. But my concerns go beyond that. Because I don’t like it when the Court’s decisions have an obvious political valence, I start to care about the vote count and the political resonance of the opinions. All other things being equal, I’d greatly prefer a vote line-up that didn’t break along the obvious 5-4 political lines, and that is written in ways that echo partisan concerns. A 5-4 conservative/liberal split written in ways that echo the political framing of the challenge (and for some might be) the Justices reflecting their politics. I would prefer a line-up with cross-party voting, and opinions with more lasting and long-term legal gravitas; something that tells us that there is more than just politics afoot here.

Where do these and other sometimes-competing concerns lead? In my case, they lead me to conclude that I can’t know what I would prefer the Supreme Court to do unless I know what the options are. I’m less concerned with whether the Court strikes down or upholds the mandate than how it does so. If I can dream about a perfect world, I would like to see a 9-0 decision that identifies a widely-shared neutral principle deeply rooted in precedent that also limits the scope of the federal government in a significant way, But that’s a pipe dream. To borrow from Donald Rumsfeld, you go into Court with the Justices and the precedents you have, not the Justices and the precedents you might want.

The realistic options therefore are much more confined. When I imagine the realistic options, I can imagine both a hypothetical majority opinion striking down the mandate that I would prefer to a hypothetical dissent upholding it and a hypothetical majority opinion upholding it that I would prefer to a hypothetical dissent striking it down. It depends on how the opinions are written, what they would say, and whether they would identify clear lasting principles outside of the short-term political environment of the present. For example, is a hypothetical decision upholding the mandate a 5-4 Breyer opinion that dismisses federalism, or is it a 8-1 Roberts opinion that recognizes the great value of federalism but concludes reluctantly in a Sutton-esque way that the lack of a principle and the weight of stare decisis dooms the challenge? Is a hypothetical decision striking down the mandate one that is easily circumvented by a future Congress and is easily construed as a one-time-only way to stop legislation most Republicans oppose, or is a deeper principle adopted?

Anyway, sorry for the long post, which I’m sure will leave a lot of readers unsatisfied and which still leaves a lot out. That’s part of the reason I wasn’t planning on posting about this. Hopefully at least some readers will find it interesting.

Forget Newt’s problems; the real GOP scandal is Grover’s.

Pardon the parochial posting, but I wanted to congratulate two recent graduates of GW Law (where I teach) for accepting offers to clerk for Justices at the United States Supreme Court starting this coming summer. Mark Taticchi ’10 will be clerking for Justice Kennedy, and Ryan Watson ’07 will be clerking for Justice Alito. In the last six years, since the beginning of the Roberts Court, GW Law grads have obtained clerkships from each of the five Republican-appointed Justices.

You’re no doubt familiar with this Term’s Supreme Court case involving a constitutional challenge to an “unprecedented” recent federal law. According to the challengers, the new statute exceeds Congress’s Article I power. Although Congress had long regulated the relevant kind of activity for economic reasons, for the first time it tried something new. Specifically, It tried to force people who were outside the zone of that activity to come back into it and face regulation (and potential penalties) under federal law.

According to the challengers, this unprecedented step simply goes to far and exceeds Congress’s limited powers. Once people are in the zone of freedom outside the scope of federal power, they argued, Congress cannot take the unprecedented step of forcing them back into being regulated by federal law.

Initially, this argument struck many as unlikely to succeed. But prompted in part by the advocacy of a prominent law professor, it became seen by some as serious and mainstream. To be sure, there were precedents that pointed the other way. Indeed, the law professor had himself argued a prior case that raised some similar issues a few years ago, and in that case the Supreme Court had rejected the challenge. But the challengers had a way of reading that earlier precedent (and others) in a way that they felt supported their claim and opened the door this time. When the Supreme Court agreed to hear the case, the challenge seemed to have a real chance.

That’s the case, anyway. I’m sure you’re all familiar with it. Now let me make a prediction. This coming summer, looking back on the current Supreme Court Term, analysts will report that the Supreme Court rejected the challenge and upheld the law as within Congress’s power. According to the Court’s decision, Article I “empowers Congress to determine the . . . regimes that, overall, in that body’s judgment, will serve the ends” of Article I’s grants of power. Nothing in the text of Article I suggests the distinction that the challengers attempted to draw, the Court will note. And the challenge therefore was doomed under the rational basis test: Congress could have rationally concluded that it was helpful to regulate the unprecedented space that was previously beyond Congressional regulation to avoid a market distortion that would otherwise result. The majority opinion will conclude:

[This statute] lies well within the ken of the political branches. It is our obligation, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not.

Two Justices will dissent, one of which is Justice Alito.

How can I be so confident in my prediction? Because the Supreme Court handed down its decision on Wednesday, in Golan v. Holder.

I sometimes blog on the process of moderating blog comments. I realize it’s a bit “inside baseball,” as most readers don’t comment or run blogs that allow them. But I see Internet comment threads as a new and relatively important kind of online discussion, and I’m very interested in the conditions in which comment threads tend to be useful or just noise. In my view, having a really good comment thread is a terrific asset to a blog: It allows the post to be the beginning of a conversation, with the rest of the conversation carried on it the thread. The interesting and new question is, what are the conditions of helpful comment threads? What kind of comment policies and software leads to the best, most interesting comment threads, and which don’t?

In my experience, there are two basic conditions of strong comment threads. Here’s the first condition: Comments need to be relatively open and accessible to those using a pseudonym. If you make it too hard to comment, or you require real names, most will stay away. They won’t want to engage, for a range of personal and professional reasons.

And here’s the second condition: There needs to be some way to moderate threads to delete inappropriate comments or ban commenters who are out of line. For every one Internet commenter who is consistently thoughtful and interesting, there are X Internet commenters who are either inclined to be or can be coaxed into becoming abrasive and obnoxious. Consider the well-known “Greater Internet fuckwad theory” from the site Penny Arcade:

There’s a lot to that, with an important caveat: When the site is a popular blog with hundreds of commenters, some of the commenters will be “normal people” and some won’t. In any collection of that many people who can post at any time, there will be some stylistic quirks: There are the commenters who always bring up their pet topic, no matter the subject of the post; the commenters who see themselves as needing to wage constant battle with perceived ideological foes; the commenters who see criticism of their views as inherently objectionabe, etc. When any one can comment, everyone gets invited, and the quirky types join in with the rest.

This diversity of audience, combined with the Greater Internet Fuckwad Theory, means that unmoderated threads have a tendency to devolve into virtual food fights. That’s especially true if the topic is controversial and relies heavily on ideological priors, like current debates here at the VC on gay marriage or the individual mandate. Threads that devolve into food fights are entertaining for the subset of commenters who get a kick out of written sparring. But they come at a major cost: They tend to discourage readers and contributors interested in more thoughtful contributions. When the thread turns to muck, the readership drops dramatically: Few people want to wade through the accusations and hostility to find the few morsels of insight. So to maintain the quality of comments, there needs to be some sort of monitoring of threads.

These two conditions combine to produce what you might call the Effort Rule of commenting: Having consistently strong comment threads requires a significant effort moderating threads. Vibrant dialogue requires a relatively open door on the front end, and keeping it from devolving into a digital food fight requires significant attention to editing on the back end. But back-end moderation is always unpleasant, for two reasons. The first is that it’s work. It requires careful judgment as to where the line us, based on the editor’s necessarily limited exposure to the full range of comments. In a blog with thousands of comments a day, no blogger can be fully informed as to the full history (sometimes going back several years) as to exactly which commenter said what to whom. Judgments have to be made, but they necessarily have to be made based on exposure to a subset of the evidence.

Second, the combination of no front-end filter and back-end moderation invariably leads to accusations of bias and claims of censorship. Commenters are most hostile when the subject is deeply controversial, which means that posts on those subjects will trigger the most need for comment moderation. But these are precisely the contexts in which people with strong views tend to interpret the facts to be whatever reaffirms their priors. A great example is the forthcoming paper by Dan Kahan et. al., “‘They Saw a Protest’: Cognitive Illiberalism and the Speech-Conduct Distinction”, which I blogged about here: When shown a video of a protest, people evaluated whether the protest was violent based on whether they supported the cause being protested.

The same basic reasoning applies to interpreting editorial decisions on a blog. The more passionate a commenter feels about the subject, the more likely they are to interpret editing or (in extreme cases) a ban on commenters as incredibly obvious evidence of bias against them based on their viewpoints. The “Joys of Anonimus” thread from a few days ago, now at 450+ comments and counting, has a lot of examples. Anonimus’s violations of the comment policy are flagrant, and he candidly admits he ignores the comment policy and says whatever he wants, but several commenters who agree with Anonimus on the issues are deeply persuaded that the real reason he has been banned is that I disagree with the merits and I’m trying to “silence” him.

Where do these points take us? First, to the conclusion that really good Internet comment threads are rare. Good comment threads require someone with the patience to do the editing work and deal with the inevitable bias accusations, efforts to circumvent bans, etc. On a group blog, each commenter need not do that kind of work; some bloggers can free ride on the efforts of others. But there needs to be at least some amount of work put into an unpleasant task to maintain or even raise the quality of threads. That’s relatively hard to find, and that means that good comment threads will be rare.

Second, I suspect the future of Internet comment threads is a bifurcation into two sorts of threads on high-traffic sites: open and unmoderated threads, where anyone can say anything and few people read the threads; and sites with more moderation on the front end, such as requiring registration through a Facebook account. Neither of those are ideal, for the reasons stated above, but they are more stable forms of comment threads because they don’t require the same amount of work from the editor.

UPDATE: My apologies that comments were off initially; I had forgotten that the software seems to do this automatically when a post has been in draft form for more than a day or two. Comments are now open. As always, civil and relevant comments only.

The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6-2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.

A week or two ago, I banned commenter “Anonimus,” who had become kind of famous in VC threads for his steady stream of insults to other commenters. It won’t surprise regular readers of comment threads that Anonimus hasn’t been deterred by his banning: After making the usual complaints that he was the victim of censorship, Anonimus kept commenting and insulting other commenters as before. And when I kept deleting his contributions, he eventually just switched to a new name, “Dissentus,” albeit with all the recognizable style (and IP address) used by Anonimus.

Anyway, please don’t respond to Anonimus, Dissentus, or whatever name he’ll use next. I’ll eventually get around to deleting his comments, and I’ll delete any that respond to him, too. Thanks.

UPDATE: Having called him out by “name,” it seems unsporting not to let Anonimus comment on this thread (which he has done about a dozen times already despite the ban, appropriately enough!). So I’ll let him comment in this thread, and readers who are interested in why Anonimus does what he does are invited to ask him directly and offer their thoughts.

The National Law Journal reports on a recent panel at the AALS conference on the need for changes in legal education. Readers will recall that Judge Cabranes also spoke at the same conference on the same topic, and he urged a return to traditional doctrinal classes and a reduction in “law and” classes. The National Law Journal article adds several more recommendations, such as adding a year of executive-education classes, recommended by the Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership.

Perhaps I am too cynical, but a common theme of these recommendations seems to be that students should be more directed towards the practice needs of the recommender’s speciality area. Transactional lawyers tend to suggest more transactional training, judges suggest more doctrine, etc. I suppose that’s understandable: Like the blind men with an elephant, we assume that the corner of the legal world we experience reflects the legal market as a whole. Still, that trend makes me a bit skeptical that curricular reform is the answer to current problems in legal education. This aside about employment prospects for graduates of existing programs with new “innovative” curricula seems worth noting:

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

“There’s no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven’t affected hiring patterns,” Henderson said.

Maybe that’s because employers haven’t realized the value of curricular innovations. But it might also be because curricular innovations have less of an impact on the skills and knowledge base of law school graduates than their proponents realize.

During the Obama Administration, at least.

I’ve often blogged about the scope of the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the federal “unauthorized access” statute. This graph of the number of annual judicial citations to the statute from 2002 to 2011, from Westlaw’s ALLFEDS database, helps explain why I think it’s an important issue:

Click on the graph to see the data more easily. Not all these citations are from opinions applying the law in a substantive way, of course, but my guess is that the proportion of citations that are from such opinions has been relatively constant.

UPDATE: While I’m at it, here’s a chart during the same time period of how often the phrase “Fourth Amendment” appeared in the same sentence as “computer.”

Note that some of these trends likely reflect Westlaw having access to a greater proportion of opinions over time. If the allfeds and allcases databases are expanding in size generally, some of the trends in the cases from the charts above will reflect the larger databases rather than an increase in the rate at which these specific words are appearing. I tried a few terms like “Fourth Amendment,” “Equal Protection,” and “First Amendment” as controls, and found that they each were mentioned individually about twice as often in 2011 than in 2002 in both the allfeds and allcases databases. So part of the effect above is likely that the data base of cases in 2011 is about twice as large as it was in 2002.

The Ninth Circuit panel: Pregerson, Paez, and a district judge sitting by designation. The decision: granting habeas relief despite AEDPA. Disposition at the Supreme Court: Cert denied. Publicly-known votes to grant cert: Scalia and Alito. From Scalia’s dissent from denial of certiorari, in Cash v. Maxwell:

It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit. See, e.g., Cavazos v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstating California conviction for assault on a child resulting indeath); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam) (reinstating California conviction for sexual attack ona 72-year-old woman); Premo v. Moore, 562 U. S. ___ (2011) (reinstating Oregon conviction for murder of a kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111 (2009) (reinstating California first-degree murder conviction); Rice v. Collins, 546 U. S. 333 (2006) (reinstating California conviction for cocaine possession); Kane v. Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstating California conviction for carjacking and other offenses); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam)(reinstating California conviction for assault with a deadly weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per curiam) (reinstating capital sentence for California prisoner convicted of first-degree murder, attempted murder,and armed robbery). Today we have shrunk, letting stand a judgment that once again deprives California courts of that control over the State’s administration of criminal justice which federal law assures. We should grant the petition for certiorari and summarily reverse the Ninth Circuit’s latest unsupportable §2254 judgment.

Just a reminder for serious VC readers: If you want, you can buy Volokh Conspiracy t-shirts and other stuff. Because nothing says “I’m a libertarian law nerd who loves guns, free speech, and debating the scope of the Commerce Clause” quite like carrying a Volokh Conspiracy tote bag. We probably should have a way for regular commenters to have their commenter pseudonyms printed on the back, but we don’t.

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In a recent speech, Second Circuit Judge Jose Cabranes argued that law schools should get “back to basics” with more bread-and-butter courses and fewer “law and” courses, in addition to other changes:

To get back on track, law schools should shift their curricula back to core courses and away from the interdisciplinary classes that have grown in popularity, he said . . .

Cabranes lamented the move by law schools toward specialized, often interdisciplinary courses that can displace “black-letter” law courses — criminal and civil procedure, evidence and federal courts. He related a story about a friend’s child who enrolled in a law school clinic focusing on housing court — but who had never taken a property law course.

Core law courses should come before clinics and interdisciplinary work, even if the latter are more popular with students and faculty, he said.

I’d love to see an empirical study on how much, if at all, the differences in what courses students take impact their skill sets and influence careers as lawyers. These days, most courses after the first year are elective, and students can take a wide range of classes. Students can decide to take all basic doctrinal classes or all “law and” classes. They can take a lot of clinic credits (at most schools, at least) or none. Or they can take a mix of classes here and there, blending different kinds of classes. The diverse choices of different students would seem to allow examination of whether such choices make any difference — or at least if the students who opted for one set of courses ended up with different careers than ones who opted for a different set. I’d be very interested to know if there’s any difference; my first guess is that there is little or none.

Hat tip: Brian Leiter

The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it presents insurance as the “traditional” way to pay for health care. The argument section then leads with the Necessary and Proper clause. The word “Sutton” appears 14 times, and the word “Kavanaugh” appears 5 times. Just as a matter of litigation strategy, I agree that’s the best way to present it.

It will be interesting to see if Clement et. al. come up with anything new in their merits brief. If I were briefing it for the challengers, I would de-emphasize the formalistic activity/inactivity distinction and instead just focus on the overall extent of government power. That is, instead of focusing on any one aspect, I would focus on all of them together, and argue that the statute taken as a whole just goes too far in a federal system.

UPDATE: Commenter Jon Shields points out this interesting passage from the brief:

Respondents nonetheless attempt to subdivide the uninsured into cost-shifters (who they say can be regulated) and non-cost-shifters (who they say cannot be), contending that “many healthy individuals make a rational choice to self-insure and are fully capable of paying for the care they receive,” and that uninsured individuals are able to properly consider their “actuarial risk in self-financing (their) healthcare”…

The circumstances of this case well illustrate the flaws in respondents’ premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance: she said she did “not believe that the cost of health insurance coverage (was) a wise or acceptable use of (her) financial resources,” j.a. 141, apparently believing that she could pay her medical bills out of pocket. That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers. Those liabilities are uncompensated care that will ultimately be paid for by other market participants. As Congress found, Brown’s experience is hardly atypical. 42 u.s.c.a. 18091(a)(2)(g) (“62 percent of all personal bankruptcies are caused in part by medical expenses.”).

Ouch.

I blogged about the case a few days ago, and news of the cert grant is here. The QP:

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

And so the most interesting Supreme Court Term in years becomes even more interesting.

A decade ago, I spent a lot of time debunking misunderstandings of the USA Patriot Act. Unfortunately, the press coverage of the Patriot Act began in the (mostly) pre-blog era, and the media coverage of it was laughably bad. The problem was that most reporters had no idea what was in the Act, but they had a feeling that whatever was it in, it must be dramatic. So they reported the Patriot Act as a dramatic change without providing any details, leading a lot of people to think that every seemingly-sinister act by the government must be part of the Patriot Act. Fortunately, a decade later, the hysteria has mostly died down, but this post at Popehat suggests it’s not quite gone:

Yesterday I was looking at our traffic on Woopra and noticed a huge surge of searches for Ashton Lundeby. Who, you may ask? You know, Ashton Lundeby, the kid who was arrested for interstate telephone threats and became the subject of an internet propaganda campaign suggesting that he was being detained without charges under the PATRIOT ACT, possibly in a FEMA dungeon someplace. They Greys may or may not have been involved.

In fact, Lundeby was not detained secretly under the PATRIOT Act; that was propaganda sourced to his mother. Rather, he was arrested and charged as a juvenile under pre-9/11 statutes, indicted and prosecuted as an adult once the relevant U.S. Attorney’s Office secured a court order allowing them to do so under preexisting law governing federal juvenile defendants, and later entered a guilty plea and was sentenced to 22 months time served. His mother later admitted she had made the PATRIOT ACT stuff up.

So why are people Googling him again?

Well, probably because another set of folks whose political agenda is served by the OMG BLACK HELICOPTERS routine — this time various folks who identify with the Occupy movement — have been pushing, uncritically and without even minimal due diligence, the bogus Lundeby-as-PATRIOT-ACT-victim story, two years after it was conclusively refuted, and even though the most minimal search reveals many sources showing it isn’t true.

It’s not hard to see why the Patriot Act was so poorly understood in 2001. People were freaked out by 9/11, and that led to two emotional reactions: Some people deeply wanted really dramatic anti-terrorism legislation, and other people deeply feared that the response to 9/11 would be really dramatic anti-terrorism legislation. The Patriot Act was actually pretty modest, once you understood it. But the narrative of Patriot-Act-as-Huge-Change fit nicely with the narrative a lot of people were very inclined to hear. It didn’t help that it was very technical legislation passed in a pre-blog era: The nerds who followed the field closely knew perfectly well that the media coverage was terrible, but there was no obvious way to get the press to realize their errors.

In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King’s officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:

Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers. Neither of these is a constitutional claim and so they don’t raise issues of constitutional originalism.

Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that’s not of constitutional concern. As to state law claims, I would think federal courts couldn’t impose requirements like qualified immunity (whether Congress could is a different question). But states aren’t obligated to allow such claims at all, so they have latitude to impose such limitations themselves. The only place in this field that I know of where federal courts are creating non-statutory federal immunities is in Bivens claims (like Anderson). But they are doing it as a matter of common law, not constitutional law.

I really like this argument, although it has a fascinating implication: It suggests that existing immunity doctrines for state law tort suits against government officials may be unconstitutional, as they impermissibly fall below the floor of the original Fourth Amendment. By way of context, it is common for state tort law to have created a form of qualified immunity that applies when state officials are sued in state court for conduct undertaken as part of their official duties. Further, federal officers are protected from state tort causes of action for conduct in the course of their official duties by the Westfall Act. If Professor Ramsey is right, however, an originalist might conclude that these doctrines are unconstitutional. The state tort law causes of action must be preserved without immunity doctrines because they are the lineal descendants of the common law causes of action for tort in which common law search and seizure questions could be raised by the officers as an affirmative defense.

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?

Consider the views of Justice Scalia. Scalia has suggested that we should abolish the exclusionary rule, and for years he has tried to move Fourth Amendment law into more of what he sees as an originalist mold. But when it comes to civil damages, Justice Scalia has scoffed at the idea of reinstating the kind of civil liability that existed at common law for search and seizure violations.

The big issue is qualified immunity for Fourth Amendment violations, an idea that was largely introduced in 1967 in a decision by Chief Justice Earl Warren, Pierson v. Ray. Qualified immunity cuts back dramatically on the scope of civil damages for Fourth Amendment violations. And yet the major decision that established the law of qualified immunity against police officers conducting searches and seizures was Anderson v. Creighton, written by — you guessed it — Justice Scalia.

In Creighton, Justice Scalia rejected the idea that the damages that should be available for Fourth Amendment violations should be the damages that were available at common law, before the 1960s-era introduction of qualified immunity for officers. The Creightons argued that qualified immunity should not apply to their Fourth Amendment claim against the officers who searched their home because no such doctrine would have applied at common law, citing Entick v. Carrington. Justice Scalia disagreed:

[W]e have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow [v. Fitzgerald,457 U.S. 800 (1982)], where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.”

The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. . . .

The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U.S. at 468 U. S. 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law.

That’s a good legal argument, based on common rationales such as precedent, the need for a sensible rule as a matter of judge-made policy, and the need to find an administrable rule. But isn’t it a pretty strange argument for an originalist to make?

I don’t mean to pick on Justice Scalia. My question is really about originalism and remedies for constitutional violations more generally. To what extent does an originalist interpretation require adopting the original remedies available at common law for search and seizure violations? And if the right answer is that it does, at least to some extent, does that mean that the Court should constitutionalize the common law civil remedies scheme? And specifically, should an originalist believe that recently-invented doctrine of qualified immunity against police officers for unreasonable searches and seizures falls below the floor of the constitutionally-required scheme of civil damages?

I’ve blogged here before about the legendary law professor Herbert Wechsler. Thanks to Adam White, I’ve recently learned that there’s a long interview with Wechsler recorded in 1989 that is now on YouTube . Part 1 is below (2 hours), and part 2 is here (36 minutes). The interview is mostly focused on Wechsler’s work with the American Law Institute, which is only one part of his fascinating career, but it’s at least an interesting glimpse.

Kevin Walsh flags a very unusual Fourth Amendment case out of the Fourth Circuit that reaches a rather surprising holding: The police violate the Fourth Amendment, justifying suppression of the evidence, when the police use a knife to remove drugs tied around a suspect’s private parts during a search incident to arrest. The case is United States v. Edwards.

First, the facts. For fans of The Wire – cue the music – the case occurred in Baltimore in the Northern District. The police obtained a search warrant for a known drug dealer, Joseph Edwards, who was quite familiar to the officers. Edwards had earlier illegally brandished a weapon in front of two women. The police knew the neighborhoods where Edwards hung out, so they went there at night and saw him and placed him under arrest based on the authority of the warrant. Before putting Edwards in the police van to be transported to the station, the officers decided to check his crotch for guns or drugs. One of the officers testified that this was a common practice: ” You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

Four male officers surrounded Edwards. One officer loosened Edwards’s belt and stretched his pants and underwear out about six inches away from his body, and the officers directed a flashlight to see if anything unusual was there. As it turned out, there was indeed something unusual: Edwards had a clear plastic sandwich bag containing 43 smaller baggies of crack all wrapped around his penis. One of the officers put on gloves, took a knife he had with him, and cut the sandwich bag off. Edwards was unharmed, and the discovery of the crack led to crack possession charges.

In today’s opinion, a divided Fourth Circuit rules that the crack must be suppressed. Using the knife to remove the baggie was constitutionally unreasonable because Edwards could have gotten hurt, the court rules, even thought he wasn’t:

We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety. The district court found that the entire search took place at “approximately 11:30 [at night], in a dark area.” While the officers used a flashlight when searching inside Edwards’ underwear, they did not continue to use the flash- light when Bailey removed the baggie containing the susected drugs with his knife.

The government contends that because Bailey knew that Edwards was being arrested for a handgun violation, the search inside Edwards’ underwear was reasonable to ensure that the police had not missed finding a weapon during the earlier pat-down search. . . . .[A]ssuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

We do not suggest that after discovering contraband concealed under a suspect’s clothing, officers are required to permit the suspect to remove the contraband. . . . [I]n the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

I’m not persuaded. The officers had arrested Edwards pursuant to a valid warrant, and they were conducting a search incident to arrest. Under United States v. Robinson, that allows a full search of the person, which I would think would include checking out whether a suspect has hidden drugs or a gun on their body. The court uses the Bell v. Wolfish framework to determine whether the search of Edwards was reasonable, but that seems like the wrong doctrinal box: While Bell is the framework for searches for drugs and guns on the person once arrestees arrive at the jail, here the controversial step was using the knife to remove the drugs. Using the knife wasn’t a search at all: It was a means used to seize drugs that had been found in plain view during a search incident to arrest. It could be litigated as an excessive force civil claim, but I don’t think it implicates the constitutionality of the search that preceded it or triggers Bell.

Even if you accept that Bell‘s framework applies, I’m not aware of a precedent that supports such micromanaging of the details of a search. The court’s opinion announces that the police can use “blunt scissors” to remove a baggie of crack from around an arrestee’s penis, but the United States Constitution prohibits using a “knife” to do it — apparently because the latter poses unnecessary risks while the former does not. While most of us can recognize and appreciate the Court’s concerns, I don’t think that a suspect’s decision to tie a bag of crack around his johnson triggers such heightened scrutiny of the means of removal when the cops arrest him on a warrant and search him incident to arrest. That’s all the more true because Edwards wasn’t actually injured when the officers removed the bag.