Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition: I wouldn’t be surprised if this filing offers us a preview of […]
Author Archive | Orin Kerr
U.S. Government Getting Password Information? (And Why the Story Raises More Questions Than Answers)
Over at CNET, Declan McCullagh has an article claiming that “the U.S. government” is requesting passwords from service providers in online investigations, at least “according to two industry sources familiar with these orders.” I have a hard time understanding what is going on, or if there’s actually a “there” there from a legal perspective. Here’s […]
Supreme Court Clerks, Ten Years Later
A decade ago last week, I left the Volokh Conspiracy and took a leave of absence from teaching to be a law clerk for Justice Kennedy. Over at Excess of Democracy, lawprof Derek Muller looks at what that year of law clerks is up to 10 years later. (Yeah, I’m not sure why anyone other […]
The Effect of Sequestration on the Federal Public Defender System
The Huffington Post has an important story on the impact of sequestration on funding for federal public defenders. An excerpt: The public defender system hasn’t just been stripped bare by sequestration, its bones have been chiseled away as well. There has been a 9 percent reduction in the roughly $1 billion budget for federal public […]
When Scholarship Influences Courts
Over at Prawfs, my co-author Eve Brensike Primus answered a Q&A on the influence of legal scholarship among judges: [Question by Jack Chin]: What advice do you have for scholars who want their work to be influential in the courts? If you want to be influential, you have to address important legal subjects that courts […]
The New Republic on Large Law Firms and the Current Legal Market
In The New Republic, Noam Scheiber has a long article on recent internal dynamics inside Mayer Brown, the very prominent law firm. I’ve never worked at a big firm beyond the fantasy experience of being a summer associate back in the 1990s, so I can’t speak directly about whether the story is representative of other […]
Shifts in Law Professors’ Views of The Constitution
Kyle Graham offers an interesting post on that subject at NonCuratLex.
Ways of Making Appointments to Specialized Courts — A Bleg For Past Examples
The statute that creates the Foreign Intelligence Surveillance Court has been criticized recently for allowing the Chief Justice to make all of the appointments to the FISC without any oversight. Here’s the relevant text: The Chief Justice of the United States shall publicly designate 11 district court judges from at least seven of the United […]
Second Circuit Vacates District Court Injunction on Indefinite Detention
I blogged here about Judge Forrest’s opinion for the district court in Hedges v. Obama, and at the time I called the district court opinion “quite puzzling.” Today’s Second Circuit opinion vacating Judge Forrest’s injunction is here. From the Second Circuit’s conclusion: In sum, Hedges and O’Brien do not have Article III standing to challenge […]
Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases
In his recent Wall Street Journal op-ed, my co-blogger Randy Barnett argues that massive-scale collection of communications metadata by the NSA violates the Fourth Amendment because it is an unreasonable seizure. Randy’s colleague Laura K. Donohue recently argued in the Washington Post that such collection violates the Fourth Amendment as an unreasonable search. Jennifer Granick […]
DOJ Seeks En Banc Review in Searching Cell Phone Incident-to-Arrest Case
Today DOJ filed a petition for rehearing en banc in United States v. Wurie, the First Circuit case holding that a warrant is required to search a cell phone incident to arrest. (HT: Michael Scarcella) My earlier coverage of Wurie is here. I wouldn’t be surprised if this filing offers us a preview of a […]
What Happens Next If the U.S. Actually Catches Edward Snowden?
Over at LawFare, David Pozen has a very interesting post on that question.
FISC Orders Executive Branch to Conduct Classification Review of Secret 2008 Opinion
The Washington Post has the story here, and the FISC’s order is here. From the Post story: The secret surveillance court that approved the U.S. government’s broad collection of millions of Americans’ e-mail and telephone records called Monday for the Obama administration to declassify and release as much as it can of one of the […]
Massachusetts Supreme Judicial Court Hints That It Might Rethink Plain View Exception For Computer Searches
As regular readers know, I’m very interested in the scope of the plain view exception for computer searches. Given that interest, I thought I would point out a passage from today’s decision of the Massachusetts Supreme Judicial Court in Preventive Medicine Associates v. Commonwealth hinting that the Court might be open to curtailing the plain […]
So Much For the Narrative of Edward Snowden as Whistle-Blower
Reuters reports on an interview that Glenn Greenwald recently gave about about Edward Snowden to La Nación, a newspaper based in Argentina: “Snowden has enough information to cause more damage to the US government in a minute alone than anyone else has ever had in the history of the United States,” Glenn Greenwald, the Guardian […]