In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that it violated the Fourth Amendment to direct an infrared thermal imaging device at a home without a warrant to determine the home’s temperature. This post asks whether that result is still good law. I realize that probably sounds a bit nutty […]
Author Archive | Orin Kerr
Seeking Updates on United States v. Payton
Back in August, I wrote a long post about the Ninth Circuit’s very dubious computer search and seizure decision in United States v. Payton, 573 F.3d 859 (9th Cir. 2009). I speculated about the possibility the opinion might be revised or overturned en banc, but I wrote that post a week before the en banc […]
A 1788 Dublin Edition of Pleas of the Crown — And A Possible Supreme Court Connection
I recently purchased a copy of Volume I of the early criminal law treatise, William Hawkins, A Treatise of Pleas of the Crown; or, a system of the principal matters relating to that subject, digested under proper heads. At common law, non-misdemeanor English crimes were the causes of action brought in the King’s court — […]
Have a Happy New Year
I just wanted to wish my co-bloggers, our commenters, and the silent readers of the Volokh Conspiracy a very happy New Year. Thanks for making the VC a fun and interesting place to hang out for yet another year.
Tamanaha, “Beyond the Formalist-Realist Divide”
I recently finished Brian Tamanaha’s new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging. I thought it was excellent: well-written, provocative, and engaging. If you’re interested in jurisprudence, this book is a must-read. The gist of the argument is that the common story about the legal realists and the legal formalists is […]
Respondent’s Brief in McDonald v. City of Chicago
The brief is available here. (H/t) An excerpt: Overruling Slaughter-House and its progeny, and overturning the settled law governing the application of the first eight amendments to the States, should require an overwhelming justification. Petitioners’ position was rejected by the post-Civil War Justices, who were in the best position to understand the meaning of the […]
Thoughts on Bryan v. McPherson, the New Ninth Circuit Taser Case
Earlier today I mentioned Bryan v. McPherson, the Ninth Circuit’s new case on police use of tasers. My earlier post was a partially tongue-in-cheek point about the possibility of Supreme Court review based on the panel and result alone, before I had even read the case. But now that I’ve read the case, I can […]
More on the INTERPOL Executive Order
The INTERPOL story I blogged about yesterday hit the MSM today. You can read the New York Times’ coverage of the story here and ABC News coverage here.
Taser Case Going to the Supreme Court?
When a Ninth Circuit panel of Judges Reinhardt, Pregerson, and Wardlaw rules against the police, Supreme Court review is always a possibility.
Executive Order 12425 and the Legal Status of INTERPOL
I’ve received a lot of e-mails in the last week about an Executive Order that President Obama signed recently concerning the legal status of INTERPOL, an international law enforcement group. The order states the following: By the authority vested in me as President by the Constitution and the laws of the United States of America, […]
Threat Assessment, Ideology, and Airport Security — A Response to Ilya
I appreciate Ilya’s post below on the political economy of airport security, although it differs in some ways from my experience following surveillance law and national security law since I started at the Justice Department in 1998. I thought I would offer a quick explanation of my own take on these issues drawn from that […]
The Politics of Legislation on Airport Security
Over at Politico, Glenn Thrush takes a look at how the Christmas terror attack may change the course of pending legislation on the use of body image scans at airports. Meanwhile, over at Skating On Stilts, former DHS official Stewart Baker discusses the politics of the same issue over the last few years. UPDATE: Stewart’s […]
Why is the Second Half of the Supreme Court Term More Interesting Than the First Half?
Michael Doyle has an essay on the second half of the Supreme Court term noting that most of the really fascinating cases are still ahead. I’ve noticed the backloading before. It seems that in most Terms, the more interesting and important cases are more often argued near the end of the Term. In contrast, the […]
DC Bar Sending Out Porn Spam?
I thought it might be when I checked my e-mail inbox and found a message from the D.C. Bar with the subject line, “January 26, 2010: Common Pitfalls for Young Ass…” I clicked on the link, though, and it turns out the subject line had just been cut off. The e-mail was actually announcing a […]
Did Released Gitmo Detainees Plan the Christmas Terror Attack?
ABC News reports: “Two of the four leaders allegedly behind the al Qaeda plot to blow up a Northwest Airlines passenger jet over Detroit were released by the U.S. from the Guantanamo prison in November, 2007, according to American officials and Department of Defense documents. Al Qaeda claimed responsibility for the Northwest bombing in a […]