Eugene Volokh's Blog, page 134

[Eugene Volokh] Black Student Expelled for Sexual Assault of White Classmate Seeks Pseudonymity Partly Because "Interracial Sexual Relationships …

[between White women and Black men are the subject of heightened prejudice and violent responses that create a tangible risk of retaliation and animus against him."]

No, says the Seventh Circuit, in yesterday's Doe v. Young, decided by Judges Michael Brennan, Amy St. Eve, and Nancy Maldonado:

After the University of Illinois investigated and dismissed him for sexually assaulting another student [Jane Roe], John Doe sued, arguing that the University's investigation was discriminatory and violated his right to due process…. The University … charged [Doe] with sexual assault, as well as drug manufacturing, sale, and distribution. Both Doe and Roe reportedly ingested "molly" (a synthetic drug) prior to the events at issue….

Doe alleged that the University—throughout its investigation—subjected him to race, gender, and disability-based discrimination, and failed to provide sufficient due process. He further alleged that his dismissal from the University was a breach of contract….

[T]he [district] court reviewed {two recent decisions from this court addressing the use of pseudonyms by litigants in Title IX student litigation[,] Doe v. Trs. of Ind. Univ (7th Cir. 2024) and Doe v. Loyola Univ. Chi. (7th Cir. 2024)} …. The court rejected Doe's suggestion that his alleged disabilities (a visual impairment and learning disability) justified proceeding anonymously or that the allegations against him in this case would subject him to acts of violence and harassment….

District judges have the discretion to permit pseudonymous litigation when the balance of harms justifies it. Anonymity can be justified by a minor's status, a substantial risk of harm, or improper retaliation from a third party. However, plaintiffs may not proceed anonymously merely to avoid reputational damage or embarrassment. And while anonymity has been common in Title IX litigation, these cases are "not an exception to the norm that adult litigants are identified by name." We uphold a district court's anonymity decision so long as the correct legal standard was applied, and the decision was based on facts supported by the record….

[Doe] argues, first, that the court ignored the risk of substantial harm he faces if he cannot proceed anonymously. He elaborates that interracial sexual relationships between White women and Black men are the subject of heightened prejudice and violent responses that create a tangible risk of retaliation and animus against him. In support, he cites the dissenting opinion from Thomas v. Lumpkin (2022) (Sotomayor J., dissenting from the denial of certiorari), which discusses the history of racism and prejudice evoked by interracial intimacy between Black men and White women.

But Doe does little to connect his current circumstances to the historic injustices addressed in the Thomas dissent—a nonbinding opinion in an entirely different context. Nor does he explain how national statistics of on-campus violence show that he, specifically, faces a substantial risk of harm from retaliation.

We have recognized that anonymity can be justified by a substantial risk of retaliation beyond the reaction legitimately attached to the facts—such as animus toward certain religious groups. Doe v. Elmbrook Sch. Dist. (7th Cir. 2011). But to support a retaliation justification Doe needed to present specific facts showing that he is a potential subject of the racial animus he describes.

For example, the plaintiffs in Elmbrook pointed to more than religious animus on a national scale—they submitted sworn affidavits showing that they had previously suffered reprisals for airing their views on religion, supported by posts from online forums that included anonymous direct threats to their safety. While we credit the history of racial violence and prejudice that Doe describes, the existence of this racial animus alone—without facts particularizing a threat to Doe—is not enough to show that Doe faces a tangible risk of retaliation.

Doe next points to other potential harms—namely loss of job prospects, reputational harm and loss of privacy—that, he thinks, justify the use of a pseudonym. But in Doe v. Trustees of Indiana University, a similar case where the plaintiff sued his university for sex discrimination during its investigation of his alleged sexual assault of another student, we held that fear of stigmatization and a desire not to reveal intimate details were not enough to justify anonymity for the plaintiff.

Plaintiffs suing in this context are not "free to inflict reputational harm while sheltering themselves from loss." And anonymity is not justified simply because Doe prefers to keep the public from learning that the University found that he committed misconduct.

Lastly, Doe relies on an out-of-circuit and a district court decision to advocate for a multifactor approach for anonymity decisions. See, e.g., James v. Jacobson (4th Cir. 1993) (highlighting factors relevant to anonymity decisions, including whether the matter is of a sensitive and highly personal nature); Doe v. Trs. of Ind. Univ. (S.D. Ind. 2022) (recognizing similar multifactor approach). But we have already rejected this approach and held that many of the factors are irrelevant to the determination whether anonymity is appropriate….

The Seventh Circuit has indeed become a dissenter from the general (though not uniform) trend of district courts allowing pseudonymity to plaintiffs challenging Title IX discipline (see pp. 1441-48 of The Law of Pseudonymous Litigation). It has also seemingly adopted a more generally skeptical approach to pseudonymous litigation, which would extend outside Title IX cases as well; and this is just one facet of how badly split lower courts are on when litigants should be allowed to proceed pseudonymity.

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[Josh Blackman] Today in Supreme Court History: March 28, 1955

3/28/1955: Williamson v. Lee Optical decided.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] What VanDerStok Says about Agency Interpretations of Statutes

[The Court's opinion upholding federal regulation of "ghost guns" makes passing reference to Loper Bright Enterprises.]

Yesterday, in Bondi v. VanDerStok, the Supreme Court upheld the federal regulation of so-called "ghost guns." Specifically, the Court upheld a regulation promulgated by the Bureau of Alcohol, Tobacco and Firearms pursuant to the Gun Control Act of 1968 to cover weapon parts kits "designed to or may readily be converted to expel a projectile."

The opinion for the Court by Justice Gorsuch concluded that the regulation was not facially inconsistent with the statute, while leaving aside whether the regulations lawfully reach particular weapons part kits or unfinished gun frames or receivers. (Justices Thomas and Alito dissented.)

One interesting portion of the opinion discussed the extent to which reviewing courts should give deference or respect to agency interpretations of the statutes which they administer. On this point, Justice Gorsuch wrote:

Without question, ATF's new rule seeks to regulate a greater variety of unfinished frames and receivers than the agency has in the past. But it is equally true that, for decades, the agency has consistently interpreted subsection (B) to reach some unfinished frames and receivers, including ones no more finished than Polymer80's product. See, e.g., Are "80%" or "Unfinished" Receivers Illegal?, ATF (Apr. 6, 2020), https://www.atf.gov/firearms/qa/are-&... App. 117–118 (2013 guidance); id., at 5, 8, 10 (1990–1994 classification letters); id., at 22 (deeming a frame with additional "material left on top" to be a "firearm"). And while "courts must exercise independent judgment in determining the meaning of statutory provisions," the contemporary and consistent views of a coordinate branch of government can provide evidence of the law's meaning. Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 394 (2024).

Of note, in this instance the Court concluded that the rule at issue reflected "the agency's consistent understanding" that the relevant statutory provisions reach at least some incomplete gun frames or receivers.

This reference to Loper Bright Enterprises underscores that the justices are concerned about the sort of dynamic that motivated the major questions decisions--the discovery of latent, previously undiscovered and unheralded sources of agency authority in long extant statutes--and not about disregarding agency interpretations altogether. It also suggests that the Trump Administration can expect resistance if it seeks to adopt new interpretations of old statutes, particularly where there is a long history of consistent agency understanding and application of the law in question.

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[Eugene Volokh] Planned New Faculty-Supervised Independent Law Journal

Prof. Paul Robinson (Penn), a top criminal law scholar, is leading this project, and I think it's an excellent idea. I think we should have more faculty-supervised law journals, though I think there's also merit in student-edited law journals—having a mix of editorial structures may be better than having all be one or all be the other. (Indeed, the structure of this journal looks like it would be different from that of some other faculty-run journals, such as our Journal of Free Speech Law, but there too I think it's good to have different journals experimenting with different models.)

In any event, the Independent Law Journal is still in its planning stages, but if you're a law professor, legal scholar, or judge who supports the ILJ's mission, please get in touch with the ILJ folks. Here's the Journal's announcement, from Prof. Robinson:

Help Us Improve Publishing in Legal Academia

Legal academia is unique among academic fields in that publishing is largely controlled by graduate students through the law review system. While this saves faculty time, it also leads to numerous downsides when third-year law students guide scholarship in topics they barely know. Students on law review tend to be both less knowledgeable and more ideologically extreme than their professors. The result is a system that struggles to recognize good scholarship and penalizes pieces that differ from the current academic mainstream. Nobody benefits when free debate is suppressed, publications are siloed by ideology, and editors making publishing decisions simply don't know enough to determine an article's contribution to the literature.

To help foster high-quality publishing and free and robust debate in legal academia, a number of law professors from top schools are working together to start a new publication—the Independent Law Journal. All articles published in the Journal will be peer-approved by a faculty board, but student staff will still handle most of the Journal's operations and will collaborate with faculty in initial article selection. The Journal's mission statement is as follows:

The Independent Law Journal (ILJ) is a forum for independent-minded law professors, students, and professionals to publish scholarly articles, including pieces that conflict with current academic mainstream thought. The Journal is committed to free speech, freedom from ideological discrimination, and fostering robust scholarly debate across a wide range of viewpoints. In keeping with this mission, the Journal is overseen by a board of distinguished and ideologically varied legal scholars. It is staffed by independent-minded law students drawn from America's top law schools and selected for their academic excellence. As a nationwide scholar-led, peer-approved, and student-staffed journal, the Independent Law Journal brings together current and future legal experts to publish groundbreaking ideas. The Journal aims to provide a space for conversation across the ideological spectrum and believes that progress is often made through disagreement and that truth often emerges from debate.

It is worth stressing that the ILJ is not a conservative journal (of which there are already several) but a non-partisan one committed to publishing equally from left, right, and center. Nobody benefits from groupthink, and the Journal will work hard to prevent itself from becoming an echo chamber.

We are currently enlisting public supporters for the ILJ to give it maximum credibility and reach in legal academia. We are encouraged by the support we have received so far from many prominent legal scholars who span the ideological spectrum (including support from this blog's own Eugene Volokh). If you are a law professor, legal scholar, or judge who supports the ILJ's mission, we would love to list you as a public supporter (the time commitment is zero). And even if you don't fall into one of those categories, we still value your support and hope you will spread the word about the ILJ and keep it in mind if you are ever publishing a piece of legal scholarship. Our primary faculty contact for supporters is Paul H. Robinson (phr@law.upenn.edu).

You can find more details about how the ILJ will operate on our (developing) website here. Support, suggestions, and constructive criticism are all welcome. If you value high-quality scholarship, free and robust debate, or think the law review system needs improvement in other ways, we hope you will join us in making this new journal a success.

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[Josh Blackman] Today in Supreme Court History: March 27, 1996

3/27/1996: Seminole Tribe of Florida v. Florida decided.

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[Josh Blackman] Updated Authorship Predictions for the October Sitting

[Justice Barrett (almost certainly) has Medical Marijuana v. Horn.]

On Wednesday, Justice Gorsuch wrote the majority opinion in Bondi v. VanDerStock. My prediction that Justice Barrett would write this majority opinion was wrong. I was right that Justice Thomas had Bufkin, the Veterans Claim case, and Alito had San Francisco v. EPA. The only remaining undecided case from the October sitting is Medical Marijuana v. Horn. Justice Barrett has not yet written a majority opinion from the October sitting. Justice Barrett almost certainly has Medical Marijuana, unless she lost the majority opinion in some other case.

 

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[Ilya Somin] DC Circuit Upholds District Court Order Blocking Deportations Under The Alien Enemies Act

[The 2-1 ruling is procedural, but strongly suggests the majority judges also reject the Trump administration's position on the merits.]

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Earlier today, the US Court of Appeals for the DC Circuit upheld a district court temporary restraining order blocking the Trump Administration from using the Alien Enemies Act of 1798 to deport Venezuelan migrants it claims are members of the Tren de Aragua drug gang. The Alien Enemies Act is the only one of the notorious Alien and Sedition Acts of 1798 still in force. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government."

The ruling was a 2-1 decision. Judge Karen LeCraft Henderson (appointed by George H.W. Bush) and Judge Patricia Millett (appointed by Obama) each issued separate opinions upholding the trial court TRO for somewhat different reasons.

Judge Henderson's opinion primarily emphasizes the point that there is no war, invasion, or predatory incursion going on, and therefore the legal preconditions for invoking the AEA have not been met. She includes an excellent analysis of the meaning of "invasion":

First, the invasion must be "against the territory of the United States by any foreign nation or government." 50 U.S.C. § 21 (emphasis added). The requirement that the "invasion" be conducted by a nation-state and against the United States' "territory" supports that the Congress was using "invasion" in the  military sense of the term  See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 131 (1807) (describing levying war against the United States as "a military enterprize . . . against any of the territories of the United States"); Wiborg v. United States, 163U.S. 632, 633 (1896) (explaining that a group of seamen were charged with preparing for a "military expedition . . . against the territory and dominions of a foreign prince"). Undesired people do not arrive against the territory. But foreign armies can—and as the 1798 Congress feared might—invade the territory of the United States. Second, the invasion may be actual, "attempted, or threatened." 5 U.S.C. § 21. Again, when used in reference to hostilities among nations, an attempted or threatened invasion of the United States would mark a logical trigger for enhanced presidential authority. Third, and relatedly, the conditional list of triggering events—a declared war, invasion or predatory incursion—must be read against the means the Congress employed to combat the same. The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power. Such power tracks when invasion is considered in its military sense.

Finally, consider history. The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and center in the minds of the enacting legislature. A little over one month before enacting the AEA, the same Congress authorized the President to raise a standing army of 10,000 men to combat any French invasion. But he could do so only "in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion." Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558. This language bears more than a passing resemblance to the language of the AEA, which the Congress enacted a mere thirty-nine days later. In his most famous exposition against the Alien and Sedition Act, Madison  explained that an "[i]nvasion is an operation of war." James Madison, Report of 1800 (Jan. 7, 1800), in Founders Online [https://perma.cc/2D3N-N64Z]. In such times, the "law of nations" allowed for the expulsion of alien enemies as "an exercise of the power of war." Id…..

The term "invasion" was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that "[t]he United States shall . . .protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." U.S. Const. art. IV,§ 4. The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection). In describing the clause, the Federalist Papers refer to invasion and domestic violence as "bloody" affairs involving "military talents and experience" and "an appeal to the sword." The Federalist No. 44 (J. Madison). To effectuate the guarantee the Congress has power "[t]o provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions." U.S. Const. art. I, § 8, cl. 15. Again, to use military force against invasion. During these exigent times of hostilities—"in Cases of Rebellion or Invasion"—the Congress may suspend "The Privilege of the Writ of Habeas Corpus . . . when . . . the public Safety may require it." Id. art. I, § 9, cl. 2. Finally, if the federal guarantee fails, a state may exercise its Article I power to "engage in War" but only if "actually invaded, or in such imminent Danger as will not admit of delay." Id. art. I, § 10, cl. 3. When the Constitution repeats a phrase across multiple clauses—and the early Congresses echo that phrase in statute— it is a strong signal that the text should be read in pari materia…. The theme that rings true is that an invasion is a military affair, not one of migration.

I agree on all points, and have made similar arguments in my earlier writings about this issue. In particular, I have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution. If courts accept the Trump argument that illegal migration and drug smuggling qualify as "invasion," that would have dire constitutional implications, such as enabling states to "engage in war" in response and the federal government to suspend the writ habeas corpus (including for US citizens) virtually anytime it wants.

Judge Henderson also presents what I think is the first judicial interpretation of the meaning of "predatory incursion":

The government finds no safer refuge in the alternative "predatory incursion." The government defines the term as "(1) an entry into the United States, (2) for purposes contrary to the interests or laws of the United States." Gov't Br. 18. And it explains that illegal immigration and drug trafficking readily qualify under that standard. As before, the government misreads the text, context and history. An incursion is a lesser form of invasion; an "[a]ttack" or "[i]nvasion without conquest." Samuel Johnson, Incursion, senses 1 & 2, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). Its predatory nature includes a "[p]lundering," such as the "predatory war made by Scotland." Id., Predatory, sense 1. Secretary of State Thomas Pickering used the term to describe a lesser form of attack that France could conduct against the U.S. and which, in his view, could be repelled by the militia. See Letter from Thomas Pickering to Alexander Hamilton (June 9, 1798), in Founders Online [https://perma.cc/VD5M-QSNA]. This was raised in contradistinction to a full invasion, which would require an army. Id. Rep. Otis likewise described a predatory incursion as a lesser form of invasion or war. 8 Annals of Cong. 1791 (1798). Early American caselaw sounds a  similar theme: incursions referred to violent conflict. Alexander Dallas, appearing before the Marshall Court, described "predatory incursions of the Indians" onto Pennsylvania's frontier, which had led to "an Indian war." Huidekoper's Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11 (1805). Chief Justice Marshall referred to "incursions of hostile Indians," which involved "constant scenes of killings and scalping," and led to a retaliatory "war of extermination. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831); accord Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 545 (1832) (explaining that Pennsylvania's royal charter included "the power of war" to repel "incursions" by "barbarous nations"). Like its statutory counterparts, predatory incursion referred to a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice.

I think Judge Henderson is also right on this point, though the historical evidence here is not as extensive as in the case of "invasion."

Judge Henderson notes she does not definitively resolve whether Tren de Aragua's actions qualify as an "invasion" or a "predatory incursion," merely concluding that the government isn't likely to prevail on these points (which is enough to uphold the trial court TRO). But I think it's clear the government cannot prevail under her (correct definitions) of these terms.

In this opinion, Judge Henderson does not consider the issue of whether Tren de Aragua is a "foreign nation or government." But I think it's pretty obvious that it isn't, and this is an additional reason to rule against the Trump Administration.

In assessing whether an injunction is justified to block the deportations, Judge Henderson properly highlights the extreme egregiousness of the government's actions, under which the Venezuelan migrants have not simply been deported, but sent to imprisonment in El Salvador, often with little or no evidence that they are actually members of any drug gang or have committed any other crime:

The Executive's burdens are comparatively modest compared to the plaintiffs'. Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin…. Indeed, at oral argument before this Court, the government in no uncertain terms conveyed that—were the injunction lifted—it would immediately begin deporting plaintiffs without notice. Plaintiffs allege that the government has renditioned innocent foreign nationals in its pursuit against TdA. For example, one plaintiff alleges that he suffered brutal torture with "electric shocks and suffocation" for demonstrating against the Venezuelan regime. Id. (D.D.C. Mar. 19, 2025), ECF No. 44-5 ¶ 2. While awaiting adjudication of his asylum claim, he was expelled to "El Salvador with no notice to counsel or family" based on a misinterpretation of a soccer tattoo. Id. ¶¶ 5–7. To date, his family and counsel have "lost all contact" and "have no information regarding his whereabouts or condition." Id.¶ 10. The government concedes it "lack[s] a complete profile" or even "specific information about each individual" it has targeted for summary removal….

Judge Millett's opinion emphasizes the lack of due process provided to the deportees. They were not given any opportunity to challenge the government's claims (often based on extremely flimsy evidence or none at all) that they are members of Tren de Aragua. Here reasoning is similar to that of the recent district court ruling in the case, which I analyzed here. However, she goes beyond the district court in emphasizing that the right to a hearing here is not simply statutory, but is rooted in the Due Process Clause of the Fourteenth Amendment.

I emphatically agree, and made a similar argument here. As Judge Millett also explains, the right to due process here is not just an abstract issue of legal theory. The government's denial of due process has apparently led to the deportation and cruel imprisonment of many people who are not actually members of any drug gang and haven't committed any crime.

In his dissent Judge Justin Walker (appointed by Trump) does not address any of the substantive issues in the case. Rather, he argues it should have been brought in Texas (where the five named plaintiffs are currently detained by ICE), rather than in Washington, DC.I find the majority judges' analysis on this more persuasive than Walker's. But I am not expert in these types of procedural issues, so will leave them to others.

Overall, this is a significant win for the detained migrants. And it's notable that - so far - not one judge has endorsed the administration's ultra-broad theory of executive power here. But, obviously, this litigation is going to continue.

The administration may try appeal the DC Circuit ruling to the Supreme Court. If not, or if the justices refuse to take the case at this time, we will see a final ruling on the merits in the district court (which will, I think, almost certainly go against the administration), followed by further appeals.

 

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[Orin S. Kerr] The Idea of My New Book, The Digital Fourth Amendment—and Why It Matters

[A second post on "The Digital Fourth Amendment"]

I posted yesterday about why I wrote my new book, The Digital Fourth Amendment. In this post, I want to give an overview of the book.  What's the subject, and what's the argument?

Welcome to 2025. If the government is trying to solve a criminal case these days, they'll often look for digital records. Sometimes those records are collected from a suspect's physical devices like their cell phones. Sometimes those records are collected from network providers such as Google or Meta. In both settings, the way computers work changes what evidence exists and how the government can find it.  It often means that there's a lot of evidence out there if the government knows where to look.

So for example, in a murder case, in which the government suspects that the defendant killed his best friend for money, the government might get a warrant to search his cell phone and find stored Google searches including "are you capable of killing your best friend?" and "how does it feel when you kill someone for the first time?"  (This happened in a DC case, Burns v. United States.)  In a burglary case, in which the suspect was thought to have entered a woman's apartment at night and illuminated his way with his cell phone flashlight, the government might get a warrant to show that the flashlight app's log showed that it was "on" at the time of the burglary. (A Pennsylvania case, Commonwealth v. Ani.)  And if the government has a hunch that you committed a crime, investigators might tell your Internet provider to run off a copy of your entire account to store it for the government so you can't practically delete your files.  (This happens all the time, so-called Internet preservation.)  These are just a few examples.

The big legal question is, what are the legal rules for collecting all of this digital evidence?

Enter the Fourth Amendment. The Fourth Amendment was enacted in 1791 to prohibit unreasonable searches and seizures.  It's the primary bulwark of privacy protection against government evidence collection.  But what is a "search" of digital evidence?  What is a"seizure" of digital evidence?  And when is such a search or seizure "reasonable"?  Courts are just now trying to answer these questions.  And the answers they come to are important, as they determine what powers the government has to collect your digital evidence. And if you think that matters today, think of how important the digital rules will be in 25 or 50 years.  The future of government power hinges in no small part on these answers.

And here's the thing: Figuring out the answers is hard!  It's hard for a fundamental reason.  Rules about government investigations often depend on the facts.  Like all rules, they reflect the facts that exist when the rule is created.  But technological change tends to destabilize investigative rules.  A rule created in one era that had one meaning with the technological facts that existed in that era will have a very different meaning with the technological facts that exist in a later era.

This poses a basic puzzle for courts in the later era: Do you preserve the rule or the role?  That is, do you stick with the old formal legal rule, and just accept that it now has all sorts of unintended consequences inconsistent with the broader purposes and goals of the law?  Or do you try to preserve the role of the law, maintaining it over time, to make sure that the law's protections don't get outdated?

My book argues that courts should preserve the role, not the rule—and it then shows what new specific rules should follow from that.  Because of the way computers happen to work, sticking with the old rules would mean gutting Fourth Amendment protection over time.  And so the courts should try to retain the role of the Fourth Amendment in the new digital space—something I have called "equilibrium adjustment."  This should lead to a set of digital specific rules for Fourth Amendment law: What I call, as the title suggests, The Digital Fourth Amendment.

Fortunately, the Supreme Court started us on this path in Riley v. California (2014) (the search incident to arrest case) and Carpenter v. United States (2018) (the cell site location records case).  Both cases echoed this answer.  After Riley and Carpenter, preserving the role of the Fourth Amendment in the digital context is not just a theory, but the Supreme Court's directive.

But it's one thing to have a general direction, and quite another to figure out how to get there.  Riley and Carpenter are a start, but lower courts (and eventually the Supreme Court) have to answer a ton of new questions.  For example, what is a "search" of an electronic device?  What is a "seizure" of data?  How should digital warrants be drafted?  How broad a search should be permitted?  How should exceptions to the warrant requirement like the border search exception apply, if at all? And the questions are not just about physical devices.  They're also about the network setting.  What is a "search" in the network context?  How should courts interpret Carpenter?  Should governments be allowed to buy data outside the Fourth Amendment?

Lower courts and state courts are just starting to grapple with these questions, and much of the book is about approaches they are trying out—and my arguments for what I think they should be doing, as they try to craft The Digital Fourth Amendment.

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[David Post] Next Up: Jenner and Block

[Are you getting the message yet? Kiss the ring! And throw in some cash while you're at it. Or Our Leader will destroy you. Do not cross him - he has the entirety of the executive power of the United States at his disposal.]

Given that the VC is a blog that is heavily focused on the law and the legal profession in all of its various manifestations, I think it is incumbent upon us to at least pay a little bit of attention to the Trump Administration's continuing attacks on lawyers and judges, if only to ensure that our silence is not construed as capitulation.  So no, I'm not going to let it go - no one's forcing you to read anything I write. 

The punishment that was meted out to Paul Weiss last week for having "hired unethical attorney Mark Pomerantz [who] according to his coworkers, unethically led witnesses in ways designed to implicate President Trump" while at the Manhattan DA's office has been rescinded! The Executive Order has been withdrawn! All it took, apparently, was $40 million in pro bono legal assistance for Trump-endorsed causes - cheap!!

Of course, the money was never the point (though I am surprised Trump couldn't extort a few million more; I bet Paul Weiss would have paid another $50 million for, say, a statue of Trump somewhere, or a nice fat contribution to the DJT Family Foundation).  The point is obedience, about sending the message: "I can crush you, big powerful law firm, like a bug, so don't fuck with me." Mission accomplished.

Brad Karp, Managing Partner at Paul Weiss, sent an email to firm personnel explaining the settlement:

We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn't erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.

At the same time, we learned that the Administration might be willing to reach a resolution with us. So, working with our outside counsel, we did exactly what we advise our clients to do in "bet the company" litigation every day: we talked with the Administration to see if we could achieve a lasting settlement that would not require us to compromise our core values and fundamental principles.

In a matter of days, we were able to negotiate such a resolution. That resolution … had three primary components. First, we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters. Second, while retaining our longstanding commitment to diversity in all of its forms, we agreed that we would follow the law with respect to our employment practices. And third, we agreed to commit $10 million per year over the next four years in pro bono time in three areas in which we are already doing significant work: assisting our Nation's veterans, countering anti-Semitism, and promoting the fairness of the justice system.

Next!!!  From Our Leader's latest Executive Order (emphases added):

"Jenner & Block LLP (Jenner) is yet another law firm that has abandoned the profession's highest ideals, condoned partisan "lawfare," and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.  For example, Jenner engages in obvious partisan representations to achieve political ends, supports attacks against women and children based on a refusal to accept the biological reality of sex, and backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders.  Moreover, Jenner discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based "targets."

In addition, Jenner was "thrilled" to re-hire the unethical Andrew Weissmann after his time engaging in partisan prosecution as part of Robert Mueller's entirely unjustified investigation.  Andrew Weissmann's career has been rooted in weaponized government and abuse of power, including devastating tens of thousands of American families who worked for the now defunct Arthur Andersen LLP, only to have his unlawfully aggressive prosecution overturned by the Supreme Court.  The numerous reports of Weissman's dishonesty, including pursuit of nonexistent crimes, bribery to foreign nationals, and overt demand that the Federal Government pursue a political agenda against me, is a concerning indictment of Jenner's values and priorities.

Whoa! Those are some really bad guys!  Another firm that re-hired an "unethical" attorney, about whom there have been "numerous reports of dishonesty"!  Unbelievable! I'm surprised that Our Leader, who can, by Executive Order, do pretty much anything he damn pleases, doesn't just toss the lot of them into the slammer.  But at least I'll sleep much more soundly knowing that those bastards don't have any more contracts with the federal government and that their employees are frozen out of federal buildings.

I hadn't heard of any of these terrible things Jenner and Block did until I read Our Leader's E.O., and I'm happy to take his word for all of it. Why wouldn't I?  He is, once again, judge, jury, and executioner - just like the Framers of the Constitution envisioned Presidents to act! He decides who's been unethical, who's been "weaponizing" the legal system on a partisan basis, and he busts their ass. And he's winning - nobody even cares that he issued this attack on Jenner and Block even though a federal judge enjoined him from doing the same thing to Perkins Coie a couple of weeks ago!

Our Leader has meted out the usual punishment:

suspending "any active security clearances held by individuals at Jenner pending a review of whether such clearances are consistent with the national interest"; identifying "all Government goods, property, material, and services, including Sensitive Compartmented Information Facilities, provided for the benefit of Jenner" which "the heads of agencies providing such material or services shall, to the extent permitted by law, expeditiously cease [to provide]; . requiring all Government contractors "to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract"; reviewing "all contracts with Jenner or with entities that disclose doing business with Jenner" and "taking appropriate steps to terminate any contract, to the maximum extent permitted by applicable law, including the Federal Acquisition Regulation, for which Jenner has been hired to perform any service"; "limiting official access from Federal Government buildings to employees of Jenner";  "refraining from hiring employees of Jenner, including but not limited to Andrew Weissmann."

Any libertarians left out there?  How are we feeing a president who unilaterally imposes this kind of punishment on private parties, based on "numerous reports" of bad action (A.K.A. "rumor" and "hearsay")?  No trial. No jury. No fact-finding.  Luckily for us, Our Leader is Infallible, so nobody need worry.

It appears that a group of current associates at some Biglaw firms (and not-so-biglaw firms) are circulating a letter decrying Our Leader's tactics of intimidation, and calling on their employers to take a stand against him.

 The Executive Branch has launched an all-out attack aimed at dismantling rule-of-law norms, including by censuring individual law firms by name because of past representation. On March 6, the Trump administration widened the scope of its attack to target firms with diversity, equity, and inclusion initiatives. This is not normal. We call on our employers, large American law firms, to defend their colleagues and the legal profession by condemning this rapid purge of "partisan actors," a group that seems to be synonymous with those the President feels have wronged him. . . . 

We join the American Bar Association in "reject[ing] the notion that the government can punish lawyers who represent certain clients." . . . When we are united, we cannot be intimidated. These tactics only work if the majority does not speak up. Our hope was that our employers, some of the most profitable law firms in the world, would lead the way. That has not yet been the case, but it still very much can be. It is easy to be afraid of being the first to speak. We are removing that barrier; we are speaking. Now it is our employers' turn. 

Good for them. Sign-on link is here.

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