The Volokh Conspiracy

Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.

The Carolina Journal has published a new review, by George Leef.  He concludes his favorable review by opining that “Rehabilitating Lochner is a sharp and iconoclastic work of scholarship.”

To read the review, go to this link, click on the February 2012 issue, and go to page 20.  Links to other reviews available online can be found here.

So holds Galbreath v. City of Oklahoma City (W.D. Okla. Jan. 27, 2012), holding that the plaintiff “faces a credible threat of future prosecution” and thus has standing to seek an injunction against the ordinance’s application to cross-dressing. The plaintiff had been arrested for disorderly conduct before — apparently with little basis, other than being a pretty obvious cross-dresser — and the charge was eventually dropped.

I should note that I’m skeptical of the claim that either a man or woman is likely to be “doing [one's] morning exercises” when wearing shoes with a 2.5 inch heel, though that surely doesn’t mean that the plaintiff was indeed guilty of disorderly conduct.

Greg Lastowka points to a very interesting new decision of the Supreme Court of the Netherlands on whether a theft of virtual goods in a virtual world game can be a subject of a real-world theft prosecution. Here’s the Google Translate version of the summary of the decision:

Virtual amulet and mask in the online game Runescape can be regarded as ‘good’ in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a ‘good’ protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of ‘data’ in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business ‘good’ as ‘data’ show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.

For the full decision as translated by Google, go here and scroll down a bit.

I posted a reader poll yesterday on the video of the U.S. Park Police officer tasing an OccupyDC protester, and the responses are fascinating. With about 2,000 votes, opinion is almost exactly evenly divided. 43% say the officer acted appropriately; 41% say the officer did not act appropriately; and 16% say that they need more information before deciding. The comment thread is equally divided, with over 300 comments so far.

Why is opinion so divided? My pet hypothesis is that most people recognize two competing narratives when it comes to police-citizen interaction. The first narrative is what you might call the equality narrative. The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. If an officer asks a person questions, for example, he doesn’t have to respond. Unless the officer orders him to stay put, he can walk away.

The second narrative is what I’ll call the inequality narrative. The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. If an officer decides to make an arrest, for example, the subject of the arrest can’t just decide he would rather not be arrested and try to resist the officer’s efforts.

The key to these two narratives is that they’re both true — at times. The equality narrative is often true. In some circumstances, the police have no more power than anyone else. The inequality narrative is also often true. In other circumstances, the police do have the power to use force to overcome the resistance of individuals who may not want to do what the police want.

The OccupyDC taser video is particularly interesting because it starts midway through the scene. The offense that triggered the officers’ approaching the suspect (tearing down the notices) is minor. The video therefore presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. As a result, different viewers fill in the uncertainty by just picking a narrative. In general, those who are more distrustful of the police pick the equality narrative. They interpret the officers’ conduct as bullying. In their view, grabbing the protester was an act of thuggery. Those who are less distrustful of the police generally pick the inequality narrative. They see the protester as practically asking for an elevated use of force by resisting the officers’ efforts to arrest him, and they see the officers as acting appropriately in response.

This is the conclusion of the U.S. Court of Appeals for the Sixth Circuit in an interesting case, United States v. Carroll, in which the United States sought to invoke its sovereign immunity in a suit in which it is the plaintiff.  To make matters more interesting, the U.S. was suing the bankruptcy trustees of the Eastern District of Michigan in their official capacities.  And were that not enough, the Sixth Circuit dismisses the case because the federal government lacks Article III standing to bring its claims against these parties.  I think I spy a Federal Courts exam question in here somewhere.

Actually, it’s not quite that simple, but close. David Kernell hacked then-Governor Sarah Palin’s Yahoo e-mail account, and was subsequently convicted under 18 U.S.C. § 1519, a provision of the Sarbanes-Oxley Act of 2002, for deleting information on his computer in order to impede the investigation into his accessing of Gov. Palin’s account. Today, the U.S. Court of Appeals for the Sixth Circuit affirmed Kernell’s conviction, rejecting his claim that Section 1519 is unconstitutionally vague.

I recently accidentally got switched over to Facebook Timeline. For a variety of reasons, I strongly dislike the new format and want to switch back. Unfortunately, various tech sites that I have checked out say that Facebook forbids this. However, I’m hoping that one or more of our tech-savvy readers might have a way to get around this problem. So I welcome your suggestions.

And if by any chance any Facebook employees read this blog, I would greatly appreciate your assistance too. It’s not wise for you to alienate your customer base by refusing to reverse accidental switches to a format that the vast majority of customers seem to be opposed to as much as I am.

Welcome to the blogging world, Bill Henderson and Andy Morriss and their new blog, The Legal Whiteboard.  It promises to fill an important missing link in the discussion of the future business models of the legal profession and legal education.  From the inaugural post by Bill Henderson:

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp.  Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work.  What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper.  Many legal services will become more standardized, productized and commoditized.  I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model.  But clients – including corporations, government and ordinary citizens—will love it.  Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

Many people assume that the new paradigm means lawyers working longer hours for lower wages.  That is one future business model.  But I think it utterly lacks imagination.  Lawyers are problem solvers.  To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem.  And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard.  (I am told it is quite a spectacle to behold.)  I am also someone who loves to collaborate.  With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

A current meme on drones and targeted killing is that although they might indeed reduce civilian harm and offer greater protection to one’s own force – more precision and discriminating use of force – they are nonetheless bad because they have another effect, viz., that they reduce the inhibition that political or military leaders have in the use of force.  So, for example, this past Sunday, the (justly-famed) Brookings expert on robotic war and author of the path-breaking Wired for War, Peter Singer, wrote in a New York Times op-ed that, on the one hand, he supported most of the drone strikes that the US had carried out.

He then went on, however, to express what could properly be called much anxiety about drones and targeted killing – anxiety rooted in a presumed relaxation in the disincentive to use force.  Given an unwillingness to finally come down as between support for drone strikes and anxiety about them, Singer finally rested his position on a process issue – the way in which they presumably undermine democracy and democratic decision-making.  However, the way in which drones undermine democracy, on this account, still finally rests upon this root anxiety about not having one’s own forces at risk as a burden upon political leaders.

Anxiety is not a policy.  It might be and, I think, in this case is an admirable sentiment, and a useful way of focusing on the basic question of the use of force.  But ultimately, having anxieties about the implications of one’s weaponry and one’s political leaders who make decisions about how to use it is not the same as actually making a decision about what to do.  When anxiety has to give way to actually deciding whether to use a weapon, or whether to develop a weapon system, someone has to decide: is the possibility that political or military leaders might decide to unjustly to overuse a weapon a reason to not use the most precise weapon available to commanders?  Or not to develop greater precision in the first place?

Because that is the issue in the vague and morally-responsible sounding invocation of anxiety over drones and targeted killing.  Most knowledgeable observers are in broad agreement that these technologies are more sparing both of civilians and one’s own forces, and indeed forces on the other side that one did not deem necessary to attack.  It is always possible that the availability of ever more precise weapons that have these humanitarian characteristics will persuade political or military leaders that they can thereby undertake more uses of force than they might otherwise (although, importantly, the intensity, duration, and damage from more frequent recourses to force might also be far less than conventional means).  But the refusal to use, or the refusal to develop, weapons of greater precision as a way of inoculating, as it were, political leadership from the temptation to use force more immediately comes at the price of holding the civilians and fighters who are on the losing end of this calculation as, in moral terms, hostages.  They are held hostage to the believe that political leaders cannot be trusted.

This is immoral.  It uses the civilian and soldiers whose lives might have been spared by more precise technologies as mere means – hostages – to other ends.  The immorality of this argument is masked by the sincerity of the anxiety – a vague anxiety that covers the true implications of the argument.  The anxiety is admirable – up to a point.  It is admirable to the extent that it forces a serious re-examination of this moral anxiety where it actually lives – which is to say, in the acts of political and military leaders.  It does not live, except illegitimately, in the refusal to use or develop more precision means as a way of pressuring those leaders.  The anxiety ultimately is about the unjust or immoral or wrong resort to force by political leadership, and that is the point that anxiety ought to push.

Ultimately rubber meets road; and anxiety, however morally sincere or admirable, has to give way to policy.  In the actual attack contemplated, do you use the most precise means possible or not?  Are you really prepared to urge the use of less precise means, or to urge that technologically available, more humanitarian means should not be developed?  And if you think the answer is that one should use, or only have available, less precise means, isn’t the real reason that you don’t think the attack is actually just or justified?  But if that is the reason, then have the moral courage to get beyond vaguely expressed anxieties and say so.

(I have given a fuller academic discussion for why I think the argument from the relaxed disincentive to use force a bad one, in a paper that will be appearing as a book chapter, downloadable here at SSRN.  And thanks to Glenn for the link.)

If you’re interested in developments in computer crime law, check out Cybercrime Review, a very useful blog on new cases and other developments in the field.

For those of you who might be in and around Philadelphia this coming Tuesday (Jan. 31), I’ll be debating with Justin Hughes of Cardozo Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA). More details about the event can be found here and here. It should be an interesting event; Justin and I have very, very different views about these bills — he was a consultant, I believe, to the House Committee that drew them up, and I think they’re the Devil’s handiwork — and I think there will be both heat and light shed on the issues (both of which are required of a good debate). Plus, I think this is an issue that cuts through a very interesting line through what might roughly be called the political “right” — between the property rights conservatives and the free-speech libertarians — so there are interesting meta-issues on display. We’re expecting a good crowd — there’s nothing like a day-long Wikipedia blackout to get folks interested in online copyright matters — and it should be a lively affair.

In the latest New Yorker, Hendrik Hertzberg endorses 18-year term limits for Supreme Court justices, relying on a paper that Steve Calabresi and I published in 2006.

Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have retired or died since then, the average tenure has been twenty-six years. This isn’t just an artifact of longer life spans. As the Court’s importance has grown—Marbury v. Madison made it the only one of the three federal command posts that is functionally sovereign, and the polarized gridlock of the elected branches has only made it more powerful—and as it has become more “political,” aging Justices have tended to hang on well into senescence, especially when the sitting President is of a different ideological persuasion. Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with. (Another incentive: while younger is not always wiser, it does make for a shorter paper trail.) The prospect that a Justice will be handing down decisions for close to half a century [more accurately: a quarter-century or a third of a century--JL] turns confirmation fights into political Armageddons. The randomness of openings abets the now-or-never mentality. Richard Nixon named four Justices during his five years in the White House; Jimmy Carter, during his four years, named zero.

Under our proposal, slots would open in the summer of odd years, thus guaranteeing two appointments in a president’s four-year term.

David Segal drew a lot of attention in the law school world — both positive and negative — with his recent series on law schools in the New York Times. Bloomberg Law interviewed Segal about the series here:

Hat tip: Lat via FB.

In United States v. Jones, Justice Scalia wrote a majority opinion holding that when the police trespass onto property enumerated in the text of the Fourth Amendment with the purpose of obtaining information, they commit a search. In Bond v. United States, however, Justice Scalia dissented — more specifically, he joined Justice Breyer’s dissent — when the Court held that it is a Fourth Amendment search for the police to grab a suspect’s duffel bag and squeeze it with intent to see what it contains inside. According to Justices Breyer and Scalia, this was not a Fourth Amendment search.

Does anyone have ideas for how to reconcile Scalia’s votes in Bond and Jones? One answer is that in Jones, Justice Scalia is engaging in equilibrium-adjustment — he’s trying to maintain Fourth Amendment protection in light of technological change, so he favors broader Fourth Amendment protection to counter new powers by the Government. Equilibrium-adjustment isn’t necessary in Bond, which just involved the old-fashioned facts of grabbing a bag. But are there other ways to reconcile those two votes? Is manipulating a bag not a common law trespass? Does a bag not count as “effects”? Does Justice Scalia see Bond as only asking about the Katz test, not whether the conduct is a search generally?

UPDATE: Some commenters contend that Bond obviously only involved the Katz test, not the broader question of what was a Fourth Amendment search. But here’s the Question Presented in Bond:

Whether a search occurs when a law enforcement officer manipulates a bus passenger’s personal carry-on luggage to determine its contents.

It’s true that the briefing in Bond talks a lot about the Katz test; until Monday, no one was aware that the Katz test was only one among two or more tests for what counts as a search. But a lot of the briefing in Bond talks generally about whether a search occurred, not just about a reasonable expectation of privacy.

That’s by Christopher Gore, Massachusetts Governor, speaking in 1809, and reminding us that there is nothing new under the sun:

Already, we have but too much reason to deplore the violence and animosity of party spirit. It has gone far to destroy social intercourse, and all the endearing charities of life, between ancient friends and neighbours, and to substitute political opinions for virtue, intelligence, and patriotism. Already the wise and good of all parties, entertain apprehensions, lest the interests of the people and the duties of government, might be forgotten in the solicitude for party power, and the hatred of political opponents.

Fill in your own, for fun and education! Entertainment for the whole family. Ages 4 and up.

A commenter on the thread about the 1901 case in which the court rejected (on statutory grounds) a prosecution for expelling someone from church based on how he voted writes:

It goes almost without saying that religious freedom was not at issue in this case because the First Amendment would not be incorporated against the states until Gitlow v. New York, 268 U.S. 652 (1925), a quarter of a century later.

Actually, that’s not so (even besides the detail of exactly when the Free Exercise Clause was incorporated against the states). Throughout American history, each state has had its own Constitution and, almost always, its own Bill of Rights; before incorporation, the chief protection against state government action was precisely those Bills of Rights. The 1776 North Carolina Constitution, for instance, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience” and that “all persons shall be at liberty to exercise their own mode of worship: Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”

As a result, courts before incorporation could and did consider whether state government action violated its state religious freedom provisions, state free speech provisions, and so on. So if the litigants could well have raised a religious freedom argument in this case; if they had, and if the court had concluded that statute did indeed purport to limit church expulsion decisions, the court would have had to consider the constitutional objection.

Whether the challengers of the statute would have succeeded under this counterfactual is a different question. But while nearly all free speech, free press, and religious freedom challenges were generally rejected by early courts, I suspect that this was largely because the restraints were usually well-established and endorsed by tradition, which counted a lot to early courts (and still counts a lot to courts today). A restraint on churches’ ability to break off relations with their members would have been so unusual that I think it might well have been held unconstitutional under the North Carolina Constitution. But of course the court avoid this by concluding that there was indeed no such highly unusual restraint.

Tom Goldstein weighs in with some excellent points about United States v. Jones over at SCOTUSblog.

I’m delighted to report that Prof. Brian Kalt will be guest-blogging this week about his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. From the book summary:

The United States Constitution’s provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president’s attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

I much look forward to Prof. Kalt’s visit.

For those interested, I’ll be giving a variety of talks in the coming weeks, including the following:

• I’ll be speaking to the University of Michigan Law School Federalist Society chapter on ”The Individual Mandate Litigation and the Future of Federalism,” Jan. 25 at 12:00pm, 120 Hutchins Hall.
• I’ll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law’s  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
• I’ll be debating Professor Neil Wise on EPA regulation of greenhouse gases under the Clean Air Act to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
• I’ll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

[Post updated]

I’ve recently seen a couple of cases in which someone seems to be promoting lawyers’ Web sites using spam blog comments. Here’s a sample of the most recent incident (with the name of the lawyer blanked out, because he assured me that he told his SEO company to stop doing this):

Aattorney
electricalexamanswers@gmail.com
27.0.111.218
Submitted on 2012/01/14 at 2:41pm
Hi Todd Zywicki,
Mr __ __ like like as attorney cleveland tn.
He is also a law blogger.After he visited your site.He explained some great news from your site.
thanks….

Aattorney
__.__123@gmail.com
27.0.111.218
Submitted on 2012/01/12 at 8:31am
Thank you for your great article.
attorney cleveland tn
cleveland tn attorneys
attorneys in cleveland tn
us attorney cleveland
lawyers in cleveland tn

The first comment included one link to a page on the lawyer’s blog; the second included five such links. When this sort of thing happened (on two occasions, involving two different lawyers), I got in touch with the lawyers, who reported that (1) they had hired some company to get their sites better placed in search engine results, and (2) now that they had learned what the company had done, they were telling the companies to stop doing it (or stopped working with the companies altogether) — understandable, since this sort of thing is a good way to get unfavorable attention online rather than favorable attention.

In any case, I think this might be a helpful alert to lawyers who are hiring someone to try to promote their sites: It’s possible that the promotion might consist of behavior that is par for the course for purported penis enlargement products, but not really in keeping with the sort of reputation that lawyers generally seek to cultivate.

Although the big news today is the Supreme Court opinion in Jones, we also have the Fourth Circuit dismissing the Padilla appeal in a Bivens claim.  Lawfare’s Steve Vladeck explains and comments:

Jack [Goldsmith] just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

Vladeck, we should add, is not persuaded by the Fourth Circuit’s analysis:

[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward.

In its opinion below in what became United States v. Jones, the D.C. Circuit introduced a new “mosaic” theory of the Fourth Amendment. Under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search. Although that argument didn’t get much play in the Supreme Court briefs or at argument, it surfaced this morning in the Jones opinions. And perhaps the most fascinating aspect of the Jones opinions is that there appears to be a majority ready to embrace the mosaic theory, at least in some form.

Let’s start with Justice Alito’s concurring opinion for himself, Ginsburg, Breyer, and Kagan. Alito’s concurring opinion is mostly devoted to criticizing Scalia’s new trespass theory. But near the end of his concurrence, Alito then turns to how he would decide Jones:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques

It sounds like Alito is using what I have elsewhere called the “probabilistic” approach to the reasonable expectation of privacy test, where an expectation of privacy is reasonable based on what a reasonable person would expect, and then he is allowing for at least some sort of mosaic aggregation. Thus, echoing the D.C. Circuit, Alito appears to be looking at whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected.

In his majority opinion, Justice Scalia concludes that the mosaic theory need not be addressed, but that it is a “novelty” that raises “thorny problems” if embraced. Responding to Alito, Scalia writes:

There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

That brings us to Justice Sotomayor, whose concurring opinion was sort of with Scalia, sort of with Alito, and then hints at being even more pro-privacy than either one. Sotomayor calls the Scalia rationale for the case “an irreducible constitutional minimum,” but she then goes on to look favorably on Alito’s opinion:

As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13. . . .

Sotomayor then goes on to discuss the nature of GPS surveillance specifically, and then writes:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

Fascinating. What’s particularly interesting to me is that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?

Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes. As always, stay tuned.