"Although if I happen to change my mind, and the New York Times doesn't cover it, I'm going to feel pretty insulted."

Says Orin Kerr:

Get ready...

Under Dudley & Stephens, a Cardozo opinion from 1999, Trump is totally going to be acquitted if he simply files a writ of coram nobis.

— Orin Kerr (@OrinKerr) March 30, 2023

"if... only."

if. fucking. only. https://t.co/6N7SFiKRln

— Monica Lewinsky (@MonicaLewinsky) March 27, 2019

The 9th Circuit just said "that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization."

If Orin Kerr is reading Facebook v. Vachani correctly.

The NYT's embarrassing attack on Clarence Thomas for writing in words that are "not his own."

The Times' Adam Liptak wrote, in paragraph 2, that "opinions contain language from briefs submitted to the court at unusually high rates." And then way down in paragraph 15:

Over the years, the average rate of nearly identical language between a party's brief and the majority opinion was 9.6 percent. Justice Thomas's rate was 11.3 percent. Justice Sonia Sotomayor's was 11 percent, and Justice Ruth Bader Ginsburg's 10.5 percent.

So, obviously, there is absolutely nothing special about Thomas's use of language that's also in the briefs.

And, I would add, the use of the same language isn't even a problem, because briefs and court opinions are always studded with quotes from old cases and the kind of stock word clusters that make up legal doctrine and shouldn't be paraphrased. I'm surprised the shared language is as low as 11%. I'd guess that any judge that does us readers the service of keeping it concise would have a higher percentage, because there'd be less filler and verbosity to dilute the necessary language.

My link goes to the blog post at Reason.com, which cites Orin Kerr's trenchant criticism....

The implication is that Justice Thomas is not doing his job. Not only does he not ask questions, he doesn’t even think for himself. For the New York Times audience, it's the kind of ideological catnip that is likely to make a lasting impression...

... and the wan response to Kerr from the New York Times Public Editor Margaret Sullivan:

I thought the article’s language was quite careful, and, from what I can tell, accurate. But the overall impression it left may well have overstated the case.

And I think those 2 sentences are careful — careful not to hurt Adam Liptak's reputation and careful not to get in the way of the game of inspiring contempt for Clarence Thomas.

Sullivan's short piece  is mostly — talk about using words not your own! — a reprinting of email  from Adam Liptak. I'll put these 4 paragraphs after the jump because they're too long and windy (like a not-concise judicial opinion). I read them with growing outrage at the Sullivan's weak acceptance with mild distancing. She couldn't even say that Liptak overstated Thomas's distinctiveness. It had to be "may well have overstated." Embarrassing!

"If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair..."

"... who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy."

Writes Orin Kerr.

"Does Experiential Learning Improve JD Employment Outcomes?"

A short paper by my Wisconsin colleague Jason Yackee:

The current "law school crisis" poses a number of serious challenges to the legal academy, and how law schools should respond is hotly debated. One common suggestion is that law schools should reform their curriculum to emphasize the development of practical skills through experiential learning, rather than emphasize what is described as the impractical, theory- and doctrine-heavy book learning of the traditional law school curriculum. Employers are said to be more likely to hire those with substantial skills training. This paper provides a simple empirical examination of that basic hypothesis. To summarize the paper's key finding: there is no statistical relationship between law school opportunities for skills training and JD employment outcomes. In contrast, employment outcomes do seem to be strongly related to law school prestige.

Orin Kerr discusses the paper here, saying: "I’ll be interested to see how other empirical legal studies scholars respond to the paper, and whether they think its conclusions hold up."

Paul Caron notes the paper here, where a reader observes that some schools cook the numbers by hiring many of their own students so they report them as employed, and Jason responds in the comments.

AND: Instapundit says: "It's Potemkin diplomas all the way down."

ALSO: Here's Elie Mystal at Above the Law:

"I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen..."

"... for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

ADDED: Orin Kerr has some sharp analysis:

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Read the rest at the link.

Justice Scalia writes a dissent — in a 4th Amendment case — joined by Justices Ginsburg, Sotomayor, and Kagan.

The case, Maryland v. King (PDF), just released, is about taking a cheek swab for DNA purposes, as a routine part of booking a person the police have arrested. The dissenting opinion begins:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

ADDED: Orin Kerr notes that "Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term:"

King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

"Did Recording the McConnell Meeting Violate State Law?"

Orin Kerr takes a look at the Kentucky eavesdropping statute and this relevant commentary:

A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.

Kerr comments:

This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone.

Obviously, you don't want to make a crime out of happening to hear a conversation on the other side of a door or wall. Perhaps there's something a little more wrong about stopping to listen, once you realize you can hear people talking. If you can hear through the wall when your neighbors talk, should you have an obligation not to pay attention or is it their responsibility to make sure you can't hear? Yet to record them seems to cross a moral line, I would think.

But what would you say about writing down quotes? Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting. And here's a specific example: Once we sat in a café at a table where we could not help overhearing a conversation. We recognized one participant as a famous professor and he was saying some extraordinarily foolish things. There's a certain word, that — if you knew how to pronounced it the way this professor did — you could say and crack me up in one second. I could have written down a lot of quotes that day and blogged them. Decency constrained me. But, surely, that could not be made into a crime in the United States.

ADDED: I'm musing about what we might consider morally wrong because it relates to what the statute might mean and also what the government may — if it chooses — criminalize.

AND: It seems to me that putting your ear against the wall/door is wrong in a way that pausing to listen when you hear talking through a wall/door is not. Here's a passage from David Rakoff's book "Half Empty":

Once during the day... I could hear Raul Rivas having sex in the office downstairs. I skittered around the apartment like a cockroach on a frying pan, trying not to make noise while desperately looking for a knothole in the crappy floorboards. Eventually I just lay down flat against the tile of the kitchen floor, listening. Lying flat against the tile of the kitchen floor listening to someone else have sex is essentially my early twenties in a nutshell.

Morally wrong, but how morally wrong?

"I want to hear about the least plausible constitutional arguments that have ever been made."

Writes Orin Kerr. He's looking for the "weirdest, strangest constitutional arguments," saying "I’m sure most of them will be arguments that trial courts readily rejected, or even never bothered to analyze it on the merits."

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted. It's harder to see them as weird when the authorities endorse them, and our whole concept of what is weird is affected by what we see respected figures accept. "I suspect that many of these claims will be made by pro se plaintiffs such as prisoners or tax protestors," says Kerr. Kooks will be kooks. Why assemble the ravings of madmen... unless the madmen are sitting on the courts?

Swartz "was deeply committed to civil disobedience and to the moral imperative of breaking unjust laws."

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

Why not eliminate faculty meetings — or most of them — and conduct business via email?

Lawprof  Jacqueline Lipton asks. The first comment nails the reason:

Isn't there some concern about having a paper trail?... I assume live faculty meetings can help maintain confidentiality better than sending emails on a controversial topic....

Even on noncontroversial topics, most lawprofs don't want the risk and pressure of putting it in writing. A few reckless graphomaniacs would dominate the discussion. Squelched passive aggressives may take revenge. 

At my law school [Orin Kerr comments] an "all faculty" e-mail exchange was recently forwarded to and published by Above the Law. That was suboptimal.

Of course, he just put that in writing, and whatever was up at Above the Law is still there to be searched for. Was it this? ("You mistake me for someone who is actually intimidated by you Dick...")

Someone on the conservative side of the Supreme Court "wants us to know that they’re pissed off, and they want us to know why."

Orin Kerr deduces.

But why were they so pissed that they immediately leaked? You'd think these characters would have more self-control. I'd like to suggest that it was controlled. These smart guys think fast. They made a cold calculation. There's an effect they seek — they had a political strategy — and it's simply most effective if it's put in motion at the point when everyone's involved in trying understand what happened. That's my speculation. The speculation that they are not hotheads. Which would require changing Kerr's first "know" — in the quote in my post title — to "think."

Here's what Kerr says:

If you leak to [journalist Jan] Crawford with the spin that Roberts’ decision was illegitimate, and then the mandate opponents pick up that theme and run with it, perhaps that view will gain some traction in the legal world and will help out another challenge in the future. Or perhaps there’s a smoking gun that explains what Roberts was thinking that hasn’t been made public yet. Or perhaps the health care cases just made people act strangely. It’s hard to know.

Are Justices "people"? They live in such a ridiculous environment that it's hard to know what counts as strange. It's a strange way of life.

(And yet we trust them! Presumably, we trust them because they're following some process we regard as legal, even though we don't really believe they do, and we're reduced to complaining about how they don't or positing theories that legitimate something else that we think they might do but that we can't articulate in a form that actual people — people people — can swallow.)

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

Is it possible to do good "back-end moderation" of comments on a high-traffic blog?

At Volokh Conspiracy, Orin Kerr goes on at some length on the subject but ends up saying, in a word: no.

My blog gets about the same amount of traffic as his. (A little more, actually, lately.) And with Meade's help, my blog now goes with "back-end moderation," as discussed here. It was hard to get around the realization that this is the best approach and that it can actually be done. It does involve paying a lot of attention, applying judgment, and remembering who's said what and what you've done about it in the past. This is a behind-the-scenes role, and maybe it's too Meade-specific for other bloggers to use. But it's working for me.

"Should Faking a Name on Facebook Be a Felony?"

Orin Kerr asks:

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

I was a victim of that crime back in 2007, and I got mocked for even objecting to the behavior, as though I was repressive and humorless. ("You know, I realize you're going on 70 or whatever, but seriously, you act like you're still in high school, being picked on.") I never said I wanted the government to prosecute the person who impersonated me on Facebook in violation of Facebook's Terms of Use. I just wanted Facebook to delete the imposter's account... which it did.

Anyway, there are a lot of complicated issues here. As Kerr observes, way too many things are swept into this vague law, and the effects have been limited because federal prosecutors tend not to charge misdemeanors. There is, however, some core behavior that ought to be prosecuted as a felony, and Congress ought to specify what it is and not simply trust prosecutors — incentivized by the new felony status of internet misbehavior — to select appropriate targets.

About that 4th amendment...

1. There's the new Supreme Court case, Kentucky v. King, described here by Orin Kerr, who thinks Justice Alito "did a pretty sharp job":

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy [sic] — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed...

2. There's what the Indiana Supreme Court said in Barnes v. State, and, again I'm relying on the wonder that is Orin Kerr:

In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. 

The court said there was no such right, noting "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

I'm not ready to take a position on either of these cases, but I wanted to put them up for discussion. I'm about to record a Bloggingheads episode, and we may talk about these, but, then again, maybe not.

"[I]t remains possible that Uthman was... kind of Forrest Gump in the war against al Qaeda."

Orin Kerr is "generally skeptical of movie and pop culture references in judicial opinions," but he likes that one.

"I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before."

Orin Kerr kicks comment ass.

(And also explains the Necessary and Proper Clause in connection with the new health care law case.)