Category Archives: Current Affairs

Jan 24
5:56 PM

GPS installation/tracking: USD Moot Court competition & US Supreme Court

In November 2011, the University of San Diego Moot Court Board hosted the 23rd Annual Criminal Procedure National Tournament. This year’s problem was written by USD Moot Court Executive Board member Matthew Stephens. One of the two issues argued in the competition was whether warrantless installation and use of a GPS tracking device on a suspect's vehicle to monitor its movements on public streets violates the Fourth Amendment.
Earlier this week, the United States Supreme Court answered with a unanimous "yes" in United States v Jones, 565 U. S. __ (2012), but the justices differed widely on their reasoning.

The majority opinion, authored by Justice Scalia (joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor), presents the case as a fairly straightforward search and seizure case of the physical trespass variety. The Fourth Amendment guarantees persons the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…" Jones' vehicle is his "effect." Law enforcement  physically intruded upon Jones' vehicle in the process of installing and receiving data from the GPS tracking device.  In true Originalist fashion, Scalia reasons that the framers would have recognized such physical intrusion as a search and, therefore, it constitutes a search.

Scalia summarily dispenses with more recent cases that have addressed GPS and other surveillance technology under a "reasonable expectation of privacy" analysis introduced in under Katz v. United States, 389 U.S. 347 (1967). He reasons that this case requires no "reasonable expectation of privacy" analysis because the Fourth Amendment protects against, at a minimum, physical trespass. The "reasonable expectation of privacy analysis" is only required for actions that do not involve a physical trespass.  In Scalia's words, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." Jones, slip op. 8.

In compartmentalizing physical trespass searches separately those involving no physical trespass, the court avoids answering the bigger questions about the Fourth Amendment (and other privacy law) implications of current and future technologies.

Justice Sotomayor joined Justice Scalia's opinion (winning him the majority) but also filed her own concurring opinion. Justice Sotomayor endorses Justice Scalia's framing of physical trespass searches: "the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs." Jones, slip op. Sotomayor concurrence, 2. But Justice Sotomayor goes on to express concern over searches that do not involve physical trespass, even when the party seeking to protect a privacy interest has willingly provided the contested information to a third party.

Justice Alito's concurring opinion (joined by Justices Ginsburg, Breyer, and Kagan) rejects Justice Scalia's analysis of physical trespass searches, asserting that the "reasonable expectation of privacy" analysis set out in Katz provides the exclusive test for all Fourth Amendment cases. In particular, Justice Alito points to Oliver v. United States, 466 U. S. 170 (1984), in which a police trespass onto a suspect's "open field" was found not to constitute a search within the meaning of the Fourth Amendment: "[I]n determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited’" (citations omitted). Jones, slip op., Alito concurrence, 6.

There's no shortage of commentary in the blawgosphere – here are just a few posts:

Washington Post: Robert Barnes, Supreme Court Warrants Needed in GPS Tracking

Slate: Dahlia Lithwick,  US v Jones Supreme Court Justices Alito and Scalia brawl over technology and privacy

SCOTUS Blog: Tom Goldstein, Reactions to Jones v. United States: The government fared much better than everyone realizes
SCOTUS Blog: Lyle Denniston, Opinion Recap Tight Limit on Police GPS Use

NY Times: Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights

Volokh Conspiracy Blog: Orin Kerr, What Jones Does Not Hold

Concurring Opinions Blog: Derek Bambauer, Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

Concurring Opinions Blog: Priscilla Smith, United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5

Concurring Opinions Blog: Paul Ohm, Jones is a Near-Optimal Result

Concurring Opinions Blog: Margot Kaminski, Three thoughts on U.S. v. Jones


Oct 6
12:00 PM
Aug 24
10:25 AM

Student Cyber-speech: An update on last spring’s McLennon Moot Court topic

Over the summer, there was a flurry of activity on the topic of last spring's Paul A. McLennon, Sr. Honors Moot Court Competition. For those of you who spent many, many hours last semester preparing your briefs and oral arguments (congrats to winner Craig TenBroeck and all the competitors), you need no reminder. But for the rest of you, here's a brief synopsis of the competition topic:

A high school took disciplinary action against a student for posting a link on his blog to a song he'd written containing violent and offensive lyrics. The song referred to a school administrator by name and to a fellow student by the initial "M." The disciplined student posted the link using his home computer. There were two primary issues: (1) whether the school had authority over the student's off-campus cyber-speech; and (2) if the school did have such authority, whether the school's disciplinary action was proper under the First Amendment.

On July 25, 2011,the student in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), one of the cases cited by Moot Court competitors, petitioned the U.S. Supreme Court for a writ of certiorari. Read a summary of the issues before the court here and here.
Also, a number of appellate cases concerning school discipline over a student’s off-campus, online speech were handed down over the summer. Two 3rd Circuit cases favored students:

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 08-4138 (3rd Cir. Jun. 13, 2011)
Layshock ex rel. Layshock v. Hermitage Sch. Dist., No. 07-4465 (3d Cir. Jun. 13, 2011).

And cases from the 4th and 8th Circuits favored school districts:

Kowalski v. Berkeley Co. Sch., No. 10-1098 (4th Cir. Jul. 27, 2011)
D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, No. 10-1428, No. 10-1579 (8th Cir. Aug. 1, 2011)

Here's some of the coverage of these cases around the blawgosphere:
J.S. and Layshock: LawProfBlog & SPLC
D.J.M: EdWeek & Fire
Kowalski: EdWeek & WSJ Blog

Here are a couple of other recent interesting blog posts and articles on the topic:
Ed. Law Rep. article & Justia blog post  [JML]

Apr 29
4:42 PM

The Free Law Reporter

Earlier this week, CALI's latest project, the Free Law ReporterTM, went live. According to the announcement, "[t]he goal of FLR is to develop a freely available, unencumbered law reporter that is capable of serving as a resource for education, research, and practice."

It's still experimental, and very much a work-in-progress. As the CALI announcement says, "[t]he next steps will depend upon community involvement."

Current functionality is limited to basic keyword searching, but the underlying technology allows for more sophisticated search functionality down the line — facet searching and “more like this” functionality reportedly coming soon.

The cases are also being compiled as downloadable eBooks (.epub). Each state and federal jurisdiction is gathered into a volume each week. An example file can be found here, although links to all available .epub files haven't yet been posted.

FLR's current contents are posted here. To read more about the project and the technology behind it, click here. To get updates on the project and hear how you can get involved, click here. [JML]

Jan 27
12:47 PM

Report on the Causes of the Financial Crisis Released

Media Advisory: Crisis Inquiry Commission Releases Report on the Causes of the Financial Crisis

This Crisis was Avoidable – a Result of Human Actions, Inactions and Misjudgments; Warning Signs Were Ignored

(Washington, DC) – Today the Financial Crisis Inquiry Commission delivered the results of its investigation into the causes of the financial and economic crisis. The Commission concluded that the crisis was avoidable and was caused by:

  • Widespread failures in financial regulation, including the Federal Reserve’s failure to stem the tide of toxic mortgages;
  • Dramatic breakdowns in corporate governance including too many financial firms acting recklessly and taking on too much risk;
  • An explosive mix of excessive borrowing and risk by households and Wall Street that put the financial system on a collision course with crisis;
  • Key policy makers ill prepared for the crisis, lacking a full understanding of the financial system they oversaw;
  • And systemic breaches in accountability and ethics at all levels.

Read more of the Media Advisory or download the Full Report. JML

Jun 7
12:00 PM

Textbook Affordability Rules

As reported in the Chronicle of Higher Education, new rules concerning the timely selection of course texts by faculty will go into effect on July 1, 2010. The rules are set out in section 112 of the 2008 Higher Education Opportunity Act (Public Law 110-315). According to the Chronicle:

The new federal rules have three goals: to provide students more time to shop around for deals on books; to ensure that campus bookstores know by buyback time which books will be used again; and to allow students to consider the costs of books and other required materials when deciding whether to register for a course.

To meet those ends, the new rules require publishers to tell bookstores how much they'll charge them for the textbooks; provide general descriptions of changes that have been made in new editions (so that faculty members can decide whether to assign the new version); and unbundle textbook packages [that include workbooks, CD's, DVD's, and other media, which make the book more expensive] before selling them, unless doing so would make the book unusable.

The law calls on colleges and their stores to provide, at preregistration time, ISBN's and textbook prices on the electronic course schedule "to the maximum extent practicable."


Apr 18
3:47 PM
Apr 10
4:01 PM