Orin Kerr Profile picture
Law professor at Cal @BerkeleyLaw. Author: A Theory of Law, The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria, and more.
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Oct 6, 2018 9 tweets 2 min read
With Brett Kavanaugh's confirmation likely tomorrow, here a few thoughts on what this might mean for the next 5-10 years of Supreme Court action. (Thread.) Most obviously, this will unleash a lot of test cases. Kavanaugh's confirmation will mean that, for the first time in most of our lifetimes, there is a clear majority of conservative Justices. No mushy middles of Powell, O'Connor, Kennedy, but rather five solid conservatives.
Oct 4, 2018 6 tweets 4 min read
BIG NEWS: For two years, from 2015 to 2017, I served on a Judicial Conference committee to review the operation of the Criminal Justice Act. Today, our 341-pg report recommending reforms --aka the Cardone Report-- has finally been made public. It's here: cjastudy.fd.org/sites/default/… We agreed re most of our recommendations, incl. establishing a federal defender commission to administer & oversee the defense function. But I disagreed w/my colleagues on how to structure the commission. My separate statement, App. M, is here: papers.ssrn.com/sol3/papers.cf… It opens:
Oct 1, 2018 9 tweets 3 min read
Gundy v. US, on the constitutional limits of the role of the executive in criminal law, is a really fascinating case. Briefs here, and intro to reply brief below. scotusblog.com/case-files/cas… I should say that I find the whole category of crimes that punish violating regulations to be a constitutional oddity. A longstanding oddity, see US v. Grimaud, 220 U.S. 506 (1911), but an oddity nonetheless.
Sep 29, 2018 13 tweets 4 min read
I promised @ag_conservative that I would explain why I think an FBI investigation is a good idea that is our best chance of getting at the truth -- and therefore why I disagree with him. Here's a thread. To narrow this a bit, I'm going to address this to those on the right who agree with @AG_Conservative that an investigation can't be helpful. This a fast-moving story and I don't claim to have special insights, but here's why, from my perspective, that seems wrong.
Sep 23, 2018 4 tweets 2 min read
If there's a competition for the shortest SCOTUS opinion striking down a law as unconstitutional, I would think Levy v. Louisiana, 391 US 68 (1968) (Douglas, J.), is in the running. Total opinion length in US Reports: about 3.5 pages. Analysis: <2 pages. cdn.loc.gov/service/ll/usr… This footnote is part of the analysis section, BTW.
Sep 6, 2018 5 tweets 2 min read
Second judge on Trump's SCOTUS list in just the last two weeks to say the Supreme Court is misguided in how it interprets the 4A: Last week it was Willett on QI, this week it is Thapar on what is a search. opn.ca6.uscourts.gov/opinions.pdf/1… Oh, and I should add that I don't find Thapar's attempt to arrive at an originalist definiton of search persuasive. As I've noted elsewhere, the historical materials don't answer this question, too often, each person picks the test they want and labels it originalist.
Sep 5, 2018 8 tweets 2 min read
I don't get why this is a story. I feel terrible for the dad. But wasn't this just a stunt to try to surprise Kavanaugh with all the cameras rolling, all to get the media to cover the encounter to bring attention to the father's legislative issue? Not sure what I'm missing. Some people are responding that the nice normal thing would have been to shake Guttenberg's hand and express sympathy for his loss. If this had been a meet and greet, sure. But you have to factor in the time and place. The Senate Judiciary Committee is meeting in a massive /1
Sep 4, 2018 7 tweets 2 min read
Over at Slate, @mjs_DC has an essay claiming that Lisa Blatt has endorsed Kavanaugh for SCOTUS because it's a business decision: She's trying to make money for her firm, Arnold & Porter, by helping A&P's client's interests. I have a few thoughts. slate.com/news-and-polit… I find this article odd. It's argument is fundamentally about what is going through Lisa Blatt's head. But unless I'm missing something, Stern offers no direct evidence of what is going on in her head: No interviews w/her, people she has talked to, etc. /2
Sep 4, 2018 17 tweets 3 min read
Just downloaded "The Most Dangerous Branch," the new book by David Kaplan on the Supreme Court. I'm not familiar w/ Kaplan, and the book is filled with his own views of the best way to run SCOTUS that I'll ignore, but I'll tweet any interesting inside gossip re the Court here. You can get the book here, btw. amazon.com/Most-Dangerous…
Sep 3, 2018 14 tweets 3 min read
If you're upset that they issued a warrant to monitor Carter Page without holding a hearing, you might be interested in some other amazing details about how the system works. (Thread.) The police are allowed to pull over and detain any driver if the driver is violating any traffic law. Even something super-technical like driving 46 mph in a 45 zone, and even if everyone else is going 60.
Aug 29, 2018 17 tweets 5 min read
DOJ released a report on computer crime recently, and I'm puzzled by a big question it raises: Does the CFAA only apply to Internet-connected computers? Here's a thread on why. The report is here: justice.gov/ag/page/file/1… The report suggests that electronic voting machines usually are not, in DOJ's view, "protected computers" under the CFAA -- that hacking a voting machine isn't a CFAA crime. Here's the report language. /2
Aug 28, 2018 8 tweets 2 min read
CA2 has posted the oral argument audio in US v. Hasbajrami, an important case argued yesterday on the 4th Am and Sec 702 surveillance. You can download the 78-minute, 63.4 MB audio file at this link: ca2.uscourts.gov/decisions/isys… "The word 'target' doesn't have a lot of Fourth Amendment history." -- Judge Lynch, who is (as expected) very active in the argument.
Aug 27, 2018 5 tweets 2 min read
There has been a lot of attention in the law prof world recently to citation rankings, mostly b/c of @BrianLeiter's posting the latest Sisk numbers. I have two very small thoughts about what these numbers mean/don't mean. /1 1st, I think of citation rankings as mostly useful to learn of people in your field whose work may be worth checking out. It's not a ranking of quality, but just of mentions. Esp if you're new to the field, can help at the margins to see what ideas are being discussed. /2
Aug 25, 2018 7 tweets 2 min read
This interesting thread from @lsolum brings to mind an idea for a great symposium: have Originalist scholars discuss whether they like or dislike the Constitution as a policy matter. /1 Given that a common criticism of Originalism is that it tends to reflect the author’s preferences, you could evaluate that by having Originalists explain their preferences and show how far the Constiution is from it. /2
Aug 25, 2018 5 tweets 2 min read
The CA2 hears oral argument Monday in a big 4th Amendment case on Sec 702 surveillance, US v. Hasbajrami. I hope the CA2 won't follow the very weird analysis of the CA9 in US v. Mohamud, for reasons I explained here. lawfareblog.com/surprisingly-w… I wrote at length my views on how courts should approach many of these questions in this article, "The Fourth Amendment and the Global Internet," stanfordlawreview.org/wp-content/upl…
Aug 24, 2018 4 tweets 2 min read
Given that @AndrewCMcCarthy argued that Bill Clinton "plainly" committed high crimes & misdemeanors, and that Obama committed new high crimes & misdemeanors at a pace of "one per week," it's interesting to see his view of whether Trump has committed any. nationalreview.com/2018/08/what-t… McCarthy's views of Clinton & Obama's high crimes and misdemeanors is here. nationalreview.com/2013/12/impeac…
Aug 23, 2018 11 tweets 4 min read
Major Wiretap Act decision: CA1 rules that the contemporaneous requirement for interception is not met by being "functionally" contemporaneous --- taking lots of screenshots of another's computer screen can't violate Wiretap Act. Some thoughts. /1 media.ca1.uscourts.gov/pdf.opinions/1… In the case, an employer set up surveillance on an employee's work computer when they suspected misconduct. The surveillance program, , the screen-capture software System Surveillance Pro (SSP), took a screenshot of the computer when certain keywords typed on it. /2
Aug 22, 2018 4 tweets 2 min read
Here's an interesting question: Are law enforcement officers who work for native american tribes regulated by the Fourth Amendment? Are they state actors for constitutional purposes? My understanding from a few cases is that the answer is technically no, but in practice yes. /1` Here's an overview of the law from the Supreme Court of South Dakota. scholar.google.com/scholar_case?c…
Aug 21, 2018 4 tweets 1 min read
A nice response, as it works almost perfectly regardless of which side you're on. (All except for the word "nationalist," it gets in the way.) UPDATE: Some readers seem to be reading my tweet as implying a series of unstated arguments that they find profoundly wrong, so let me be clear that this tweet is not intended to imply any unstated arguments. /1
Aug 20, 2018 11 tweets 2 min read
A lot of 1Ls are very worried about being seen as "gunners." Here are a few thoughts about what it means to be a gunner, and whether it is good or bad. (Thread) /1 There's no perfect definition of what a "gunner" is, but it's usually used as law-school speak for someone with open and unbridled ambition who loves to talk about his views, his career plans, and the like. /2
Aug 20, 2018 4 tweets 2 min read
Seems worth noting that longstanding precedent in the 4th Circuit recognizes that list of juror names ordinarily should be public in a criminal trial. See In Re Baltimore Sun Co, 841 F.2d 74 (4th Cir. 1988). It's not a bright-line rule, see fn 5, but it's not like the media organizations are trying to establish a new norm in the Manafort case. From the 4th Circuit case: