Showing posts from July, 2024

The Fourth Circuit Approves Warrantless Location Tracking Via Google Apps, Misunderstands How Location Tracking Works

On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Unable to identify the robber, police served Google with a geofence warrant—a warrant targeting all cellphone users in a certain area at a certain time. They obtained information on several cellphones in the area of the bank at the time of the robbery, including the phone of Okello Chatrie, who was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutionally overbroad. Last week, the Fourth Circuit held that the government didn't need to obtain a warrant at all, let alone a narrow one. Government agents could obtain anyone's historical location data from Google, as long as they did not obtain too much data—in Chatrie's case, around two hours' worth. The Fourth Circuit's opinion made two central points. The first involved the importance of surveillance duration and the very plausible idea

How Linked Are Various Forms of Oppression--and Does it Matter?

This week I have been attending and speaking at Vegan Summerfest , an annual conference that I attended regularly in the pre-pandemic days. The conference is marketed to the public mostly by touting the medical professionals who speak, but there are also numerous presentations on animal ethics and the environment. It's wonderful to be back among old friends and to make some new ones. I'm giving three talks. I gave one yesterday titled Effective Activism , in which I first discussed the effective altruism movement (including some cringing about the fact that Sam Bankman-Fried is a vegan) and then pivoted to activism. There are quite a few resources out there that provide advice about why and where to give away one's money. For example, Peter Singer--who has been advocating philanthropy directed at the world's neediest people for decades--offers tips about how to donate money effectively at his organization's website . The main focus of my talk was on the emerging bod

Can Omaha Determine Who Becomes President? (Guest Post by Professor James F. Blumstein)

Can Omaha Determine Who Becomes President? by James F. Blumstein, University Distinguished Professor, Vanderbilt Law School There has been much talk about the so-called battleground states in this year’s Presidential election.  But this year’s Presidential election may turn on a battleground district in Nebraska centered in Omaha. Under our system for electing the President, it is votes in the electoral college that control.  There are 538 votes in the electoral college  -- one for each Senator (100), one for each Representative (435), plus three for the District of Columbia.   Nearly all of the states allocate their entire electoral college vote to the statewide winner on a winner-takes-all basis; Maine and Nebraska do it differently, allocating some votes to the statewide winner but also allocating votes to the winner in each Congressional district. The Constitution allows each state legislature to establish the basis for selecting electors, so Maine and Nebraska are on firm constitu

Note to Biden’s Defenders: “Shut Up!!” is not an Argument (Part Two)

[Note: My new column on Verdict today, " Does the Biden Stay-or-Go Debate Matter If We Are Already a Dead Democracy Walking? " discusses the Biden nomination controversy from my more familiar all-is-(probably)-lost perspective.  The column below continues to discuss the controversy based on the assumption that the Republicans would be unable to carry out a coup.] In Part One of this column yesterday, I offered the first half of the observation that the current Biden-or-not-Biden argument among people who oppose Trump (which includes not only Democrats but everyone who has even a shred of decency) has been depressingly asymmetrical.  The Biden people have gone on the attack, whereas the people who think that Biden should step aside have been notably -- I might even say excruciatingly -- deferential to Biden because of everything that he has accomplished. I am in the next category over from the Biden-must-go caucus, which means that I can be persuaded that Biden is still the

Note to Biden’s Defenders: “Shut Up!!” is not an Argument (Part One)

I have read and listened to many people over the past 12 days who have said that the best path forward for Democrats now is for President Biden not to seek his party's nomination next month and that he should instead stand down.  Not one of them has argued that Biden is a bad president or that they wanted this to be where we are in July 2024.  Obviously, none have come close to saying that that they would be happy for Donald Trump to win the election. In addition, I cannot think of anyone among this group, from the editorial pages of both The New York Times and The Washington Post to various lifelong Democratic strategists and center-left commentators, who has accused Biden of acting in bad faith.  It has been an elegiac lament.  The current discussion is not about what we want but what we think should happen, now that we have good reason to worry that Biden is unfortunately not the candidate we hoped he was. Last week, on the Fourth of July, I wrote a column here on Dorf on La

The 2023-24 SCOTUS Term: It's About the Election, Stupid

In 1992, the political pundit James Carville, at the time working for Bill Clinton's presidential campaign, coined the famous line, "it's the economy, stupid." Obviously, he did not mean to ignore all other issues or that nothing else was important. But the most pressing priority for the campaign was the economy. In the early 20th century, the fictional character "Mr. Dooley," uttered the immortal line (spelling cleaned up for present purposes): "No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns." The 2023-2024 term confirms Mr. Dooley's charge that the justices follow the election returns. There is no debate that the Court's 2022 decision in Dobbs v. Jackson Womens' Health Organization that overturned  Roe v. Wade  hurt the GOP at the polls. As one pundit noted : The Supreme Court ruling overturning  Roe v. Wade  delivered Republicans one of their biggest policy victories in de

In Opinion on 704(b), the Majority and Dissent Reveal Ignorance About How Mental States are Commonly Inferred (Guest post by Professors Teneille Brown and Emily Murphy)

[Editor's Note: On June 21, this blog featured an essay on Diaz v. United States criticizing the result but also the dissent in one important respect. Below is another perspective on Diaz ,   courtesy of Professors Teneille Brown and Emily Murphy , who submitted an evidence professors' amicus brief in the case.] By now you’ve probably seen that the U.S. Supreme Court decided   Diaz v. United States   on June 21, 2024. The Court affirmed Ms. Diaz’s conviction 6-3, with Justice Thomas writing the majority opinion, Justice Jackson writing a separate concurrence, and Justice Gorsuch writing a dissent (joined by Justices Kagan and Sotomayor).  We thought it might be helpful to share how we distill the reasoning of the majority, concurring, and dissenting opinions. One way to do this is by imagining a future case where a woman is charged with killing her abusive husband. The defendant claims it was done in self-defense. Now, suppose, she wants to introduce the testimony of an exp

About that Non-Debate, and Facing Reality

Today is July 4, which in the United States is celebrated as Independence Day.  Because I have been loudly and repeatedly telling readers that I am no longer in the US, I should probably walk that talk and treat today as a Thursday and nothing more.  Thanksgiving will be on October 14, Labour Day is the same day as Labor Day, and Boxing Day is a thing.  (So is Nunavut Day .)  The point is that I have decided not to take today off, which is why I am writing this new column while so many of you are at the beach. Notwithstanding my expatriation , however, it is hardly surprising that what I want to write about today is US politics.  Because of the end-of-term release of Supreme Court cases (most of them outrageous), we here at Dorf on Law have not written explicitly about last Thursday night's CNN ratings-desperate event, which was mislabeled a "debate" and has turned the presidential election story upside down. Professor Dorf did end his column last Friday, which discus

Why Did Conservatives Change Their Tune on Chevron?

If you've followed the Roberts Court for a while, you probably weren't too surprised to hear that the Loper Bright v. Raimondo decision overruled Chevron v. NRDC .  (If administrative law isn't your thing, my earlier blog post includes a brief Chevron primer.)  Courts, Loper Bright tells us, should not defer to agencies' interpretations of the statutes they administer, not even if the statutes are ambiguous. Statutory interpretation is the province of courts, and the judiciary should not relinquish that role to agencies.   As I discuss in my previous post, Loper Bright is of a piece with other Roberts Court administrative-law decisions, so from one perspective it seems like the predictable product of a conservative Court. The New York Times ' commentary on Loper Bright noted that curbing the administrative state has been a long-time goal of the conservative legal movement.  Given that conservatives dominate today's Court, we shouldn't be surprised tha