Eugene Volokh's Blog, page 2674

Justice Frankfurter Writes A Former Student During WWII

(Orin Kerr)

Regular readers know of my love for antiquarian law books, an interest that extends to letters and court documents. See here and here, for example. One favorite recent acquisition is this letter that Justice Felix Frankfurter wrote during World War II to a former student who was serving in the military:

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Dated August 24, 1944, the letter reads:

Dear Lieutenant Fleischer,

You are wholly right in assuming that I follow with warm interest the progress of former students, and it was thoughtful of you to let me share your good [news? deeds?]. I have no doubt that you will look back with genuine satisfaction to your service for your country in such a cause as this war signifies.

With Every Good Wish,
Felix Frankfurter

I would guess that Lieutenant Fleischer is Malcolm L. Fleischer, a Jewish lawyer who graduated from Harvard Law School in 1932. According to some biographical information I found for him online, Fleischer went to CUNY for college, and he served for four years in the military and and exited as a First Lieutenant. He subsequently worked at a law firm and for a judge, and he later became a lawyer and lobbyist for the tobacco industry. He died in 1997.

You Can Now Read This Opinion

(Jonathan H. Adler)

Today the U.S. Court of Appeals for the D.C. Circuit ordered the release of a redacted copy of its opinion in Latif v. Obama.  When the case was first decided in October, the opinion was classified. Based on his initial read, Ben Wittes thinks the opinion is "a very big deal" because it "expressly adopts a presumption in favor of the government's evidence in Guantanamo habeas cases."

Camping Out to See a Supreme Court Argument

(Orin Kerr)

A report from the front of the line for United States v. Jones, the GPS case.

How DOJ Can Use the CFAA to Try to Federalize State Crimes

(Orin Kerr)

I've blogged a lot about 18 U.S.C. 1030, the Computer Fraud and Abuse Act (CFAA), and how broad readings of the statute potentially criminalize a tremendous amount of entirely innocuous activity. The broad readings of the CFAA also have another important effect: They allow DOJ to try to turn any state crime that happens to involve computers into a federal crime. In that sense, the CFAA is being used as a catch-all to try to punish computer misconduct that otherwise would not be thought to be a federal offense. An interesting example is United States v. Nestor, a prosecution that is pending in the U.S. District Court for the District of Nevada.

Andrew Nestor learned of a programming flaw in certain video poker machines used in Las Vegas. By using a certain feature and playing a particular combination, a person could trick the poker machine into paying out winnings at a higher rate than it should have. Nestor played the combination, and he was able to receive winnings that he was not entitled to have. At this stage, it sounds like a state law offense of theft or fraud. Nestor stole the money from the machine by fraud.

But was a federal crime committed, as opposed to a state crime? Federal prosecutors love to charge fraud cases under the wire fraud statute, 18 U.S.C. 1343, but that wouldn't work here. Liability under the wire fraud statute requires a crossing of state lines, while here all the action occurred in a single room. So instead the government charged Nestor with a CFAA violation, and specifically 18 U.S.C. 1030(a)(4), which punishes:

knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period[.]

Note that there is no longer a requirement of crossing state lines, as there is in the case of the wire fraud statute. Instead, the only federal hook is that the computer be a "protected computer." But that's really no federal hook at all: Protected computers are defined as any computers that can be regulated under the Commerce Clause power, which paired with Gonzales v. Raich seems to be any computers, period. So voila, there is federal jurisdiction over the state law crime because a computer is involved.

Of course, whether the government can use 1030(a)(4) to federalize state law fraud schemes involving computers depends on the legal interpretation of "accesses . . . without authorization, or exceeds authorized access," which is the main issue involved in cases like United States v. Nosal, currently pending before the en banc Ninth Circuit. In the Nestor case, I assume DOJ's view is that it is implicitly unauthorized to exploit a programming error in a computer in order to commit a fraud. I think this reading essentially reads "without authorization, or exceeds authorized access" out of the statute, and instead treats 1030(a)(4) as punishing fraud committed using any computer, period. But we'll see what the district court does with the motion to dismiss in Nestor, which may in turn depend on what the en banc Ninth Circuit does in Nosal.

Unpopular?

(Randy Barnett)

From the Weekly Standard Blog:

A ballot measure that StateImpact Ohio (a creation of local public media and NPR) describes as "a referendum on a constitutional amendment…aimed at keeping the national health care reform law from taking [e]ffect" won in all 88 counties in Ohio. In 81 of the counties, it won by a margin of at least 20 percentage points. Statewide, it won by 32 points (66 to 34 percent).

The measure took particular aim at Obamacare's individual mandate, stating, "In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system."

Voters in Ohio can't opt out of Obamacare any more than the residents of the other 49 states can, so the measure will have no practical effect.  But the message, sent in one of the three largest swing states, could hardly be clearer.

The Cleveland Plain Dealer, which calls the referendum "a strike at President Barack Obama's health care plan," reports, "The measure was ahead by a wide margin even in Cuyahoga County — a traditional Democratic stronghold."  With 100 percent of the precincts counted in that county — where Cleveland is located — the referendum won by 16 percentage points (58 to 42 percent).

This in the same election that unions spent millions in a successful bid to repeal the Republican restrictions on the collective bargaining rights of public sector unions.

My Op Ed on the Passage of Mississippi Measure 31

(Ilya Somin)

Today, I published an op ed in the Daily Caller on the passage of Mississippi referendum Measure 31, an important eminent domain reform law. Here is an excerpt:

The Supreme Court's 2005 decision in Kelo v. City of New London generated a record political backlash. Kelo upheld the condemnation of private property for transfer to other private owners in order to promote "economic development." The case inspired widespread outrage. Polls show that over 80% of the public opposes economic development takings. As a result, 44 states have enacted eminent domain reform laws that restrict the condemnation of property for the benefit of private interests.

The most recent state to react to Kelo is Mississippi. On Tuesday, Mississippi voters adopted Measure 31 by a decisive 73% to 27% margin. The new law will make taking property for economic development unprofitable by forbidding most transfers of condemned land to a private party for 10 years after condemnation. The measure is a major victory for both property owners and the state's economy.

"Three Young People Talking About Bisexuality Were Kicked off a Spokane Transit Authority Bus Last Month"

(Eugene Volokh)

The Spokane Transit Authority just apologized for the incident; I quote the Spokane Spokesman-Tribune article:

Two women in their 20s and a teenage boy were talking among themselves about a friend's sexual orientation during a bus ride on Oct. 20.

After other passengers got off the bus, the young people got into a dispute with the driver about whether they could continue their discussion.

The bus driver told them the topic bothered her and she ordered them off the bus midway between stops and more than a mile from their destination ....

The driver apparently argued that the passengers' speech violated STA rules of conduct, which bar "disturbing others by engaging in loud, raucous, unruly, aggressive, violent, harmful or harassing behavior" and "offensive, disgusting or insulting" language. But the STA concluded that the driver was in error (perhaps partly based on the on-bus videotape, which recorded the incident), and said that "the youth had not violated STA rules of conduct and should have been allowed to finish their ride on the bus." And indeed the rules of conduct limit the ban on "offensive, disgusting or insulting" language to speech that

tends to create or incite, or creates or incites, an immediate breach of peace, including ... personally abusive epithets, or words or language of an offensive, disgusting or insulting nature, which epithets, words or language when addressed to the ordinary citizen are, as a matter of common knowledge, inherently likely to provoke a violent reaction of fear, anger or apprehension.

This seems intended to focus on personally directed "fighting words"; the language borrows heavily from Cohen v. California, which stressed that even vulgarities such as "fuck" are generally constitutionally protected. The prohibition thus seems likely not to cover speech that may offend some people who overhear it, even if the speech might be seen by some as dealing with a vulgar topic or discussing it using vulgar language (and I should stress that the speakers might well not even have been using vulgar language; the story doesn't report on exactly what was said).

Some policies restricting speech on a bus — for instance, on the use of particular vulgarities — might be constitutional under the Court's "nonpublic forum" doctrine, if they are seen as reasonable "in light of the purpose of the forum" and viewpoint-neutral. But it appears that in this case the speech didn't even violate the existing policies.

The STA "did not provide any information about personnel actions that might have been taken against the driver."

Reforming Higher Education: Incentives, STEM Majors, and Liberal Arts Majors — the Education versus Credential Tradeoff

(Kenneth Anderson)

The Wall Street Journal's excellent series on jobless young people features an article today on why students study liberal arts in college over STEM subjects, and why so many would-be STEM majors shift to liberal arts, despite the apparent loss of career prospects.  Larry Ribstein follows up with commentary suggesting that law school becomes a logical option for students who were badly guided in their choices of majors — leading them to liberal arts with few skills and few prospects in today's world.

I want to reiterate something I wrote about a few weeks ago about the incentive structures for students. I'm basing this on my current experience as a law professor who talks a lot with students at a mid-tier law school and what led them there, as well as my experience as a parent of a student who will be doing humanities as her major at Rice, a school with world class STEM and world class humanities.

There are a lot of smart students out there who will nonetheless not be able to compete in world class institutions in STEM.  Why?  They might have, say, near 800s in verbal and writing, and mid 600s in math on the SAT.  (This matches up, btw, to Gene Expression blog's mapping of the GRE scores of various college majors for the highest testing of the humanities majors — the philosophy students, who have about exactly those scores.  I'll put up the charts in a later post, but very roughly the verbal and math scores flip for the highest scoring of the sciences — physics, and are somewhere in the middle for the highest scoring of the social sciences, economics.)  At a school like Rice — and any university ranked above it — specialization has already taken place, sorting by subject area.  A tiny handful of students can be true polymaths, but that's hardly the norm.  Instead, the STEM students are sought competitively on a world-wide basis, and it will be academic suicide and frankly impossible for a student who is not at the top of those competitive areas even to pass the classes.

In that case, if you are a smart but not brilliant student in STEM, you might tell yourself until you are blue in the face that you must study STEM to be employable and have real skills.  But the reality is that you will flunk out or come close to it, or be lucky to get by with Cs.  Moreover, at that level of performance, it is not clear that you are actually acquiring STEM skills, just at a C level compared to an A level.  Pedagogically, it doesn't work that way.  The bottom end students wind up not really learning anything, because the class moves at a pace and in a way that they can't keep up with, even to get a lesser grounding in it.

Why do the STEM departments grade so strictly, compared with other departments?  There are reasons why the liberal arts departments tend to grade inflation; treat that separately.  The STEM departments have their own incentives for holding grades down, especially in the introductory courses.  Basically, the reputation of the department rests disproportionately on the very top performers.  Less on the average, and not at all on what general ed classes are offered to the rest of the university.  If that's the case, then better to relentlessly winnow down in the first classes, and concentrate resources on the top performers.  Reputation is measured mostly at the top margin.

From the standpoint of a student who says, I don't want to be an engineer or research chemist or computer scientist — I want to get a strong grounding in those fields, in a genuinely technical way — but I want to be a manager or someone with a non-technical job that requires interaction with the technical fields — how do I do that?  At the top range of universities, the STEM departments simply don't have a place for you.  The university might require that the departments offer general ed courses — and so you will be offered, "rocks for jocks."  It won't be technical; it will be gee-whiz, without the math.  What you are looking for is a technical track designed for a student who is Yale quality in history or philosophy, but who needs something more like State College for technical skills.   That would be the ideal mix — but there is little incentive for the STEM departments to create such a thing.

I've suggested that what these liberal arts students need, then, is for the university somehow to provide technical minors for liberal arts students that are genuinely technical, but at a level for students who do have some quantitative skills, but who cannot compete against the world class technical specialist students.  But now there is a problem for those liberal arts majors.  Why, going back to the WSJ article, do they gravitate to the easiest majors that provide the fewest skills?  Because they understand that in many cases, in today's world no liberal arts major — apart from economics — will be taken very seriously to gain entry level to management, corporate consulting, etc.  You will eventually be looking at professional school — business school or law school.  And those schools care only about the GPA/LSAT-GMAT.  That's because those two figure so heavily in the USNWR rankings.  So the GPA matters fantastically much — and, perhaps surprisingly to outsiders, the difficulty of the major is not taken into account.

These professional schools have traditionally accepted any major, and do not differentiate.  So, a friend here in DC asked me about two recent interns of his who had gone on to law school — he was astonished and troubled to find that the MIT grad with the B average in STEM had fared far less well than the NYU English major.  As in: the NYU lit grad went to Harvard and the MIT grad was wait-listed at American.  That might seem surprising, but in addition, USNWR takes a generally hands off attitude toward the ranking of the undergraduate institutions.  Meaning (and if someone in admissions processes wants to correct me on this regarding how USNWR treats the undergraduate institutions in law or b-school rankings, I would be very interested to know about it): a law school taking a bunch of B+ students from Harvard undergrad will be worse off than taking A students from University of Arizona.  The law or b-school admissions offices might want to have some number of Ivy graduates, but so far as I know, that does not count in USNWR rankings of the professional schools.

The top universities have many reasons for grade inflation in liberal arts, but this fact counts among them.  Undergraduates who realize that they cannot compete with global specialists in STEM, particularly at the top universities, opt for liberal arts subjects.  They and the universities realize that GPA is all that matters, and unsurprisingly, GPAs rise.  How much?  Well, just this week the University of Illinois College of Law was forced to restate downwards its false GPA and LSAT data for the last couple of years.  Illinois is a darn fine school, with one of the great faculties in law — a leading top 25 school — but it is still not Harvard, Yale, or Stanford.  Its average GPAs were restated downwards from 3.8 to ... 3.7.  I regard that as an astronomical GPA, and that's average.

Overlooked in all this is the immensely damaging effect of grade inflation on risk-taking among our supposedly brightest elites.  Grade inflation is really grade compression against a top line.  And grade compression means that mostly you have nowhere to go but down.  How do you avoid that?  When falling below, in effect, an A– at worst average easily drives you out of the top ten law schools?  Or out of the top 20?  And when you know, and your parents know, that in addition to the 50k a year you've paid to study some liberal arts subject that only has a return on investment if you double down the bet on law school or b-school — at another 50k a year?  And further, when you know that outside of the top 25 or so law schools at this very moment, the job opportunities are sufficiently iffy that you are not so much making an investment as placing a bet on employment ... well, you are going to not just rationally, but desperately, seek every way of ensuring that your GPA is as close to 4.0 as humanly possible.

It is not, in other words, that you made irrational, foolish, or bad choices as a sophomore to study liberal arts, and the easiest majors among them, rather than STEM.  Nor is law school then a way of merely making a more rational best of a bad and irrational situation.  It is, rather, that you figured out that precisely because you had managed to get into a highly regarded university, you could not compete with the worldwide competition that the engineering school sees as its reputational guarantor — and in any case, your desire was not to be purely a technical STEM person, in research or pure engineering.  Getting a C in courses in engineering at Rice or Stanford is not the equivalent of getting As at Cal Poly; getting Cs in these subjects probably means you didn't learn anything substantial at a level you could understand and apply.  So you switch to liberal arts, and immediately notice that your GPA goes up.  Then you notice that top 25 law schools are basically demanding a near 4.0 GPA.

At that point (if not before, way back in high school), serious risk aversion kicks in.  You do not take any class, if possible, where you aren't pretty assured of getting an A or at worst an A-.  That will lead you to fields in which the major offers no job prospects, by the way, and so the tradeable currency of the department (all the ethnic and gender studies programs, anthropology, globalization studies, and many more) turns out to be As as a mechanism for continuing to get majors to come to the department.  If anyone does not believe that university administrations monitor closely the numbers of majors, think again; many of these majors will come under serious pressure as students realize there is nothing on the other side.  They will offer students As.  And so long as the professional schools and USNWR treat all grades as fungible, there will be an market in arbitrageable As as surely as Greece depended on it being treated as well as Germany.

In response to having said this in blunt, fatherly-advice terms in in earlier posts on this blog, I've received many well-meaning, sometimes pious comments from people saying, well, you should just suck it up in order to get genuinely educated.  Here is what Dad says:  sorry, but forget it.  Higher education is both too expensive and the risks of failure — serious downward mobility of a kind I've also written about on this blog, not to universal acclaim — too great for it to be rational to put the education ahead of the credential.  I wish, as an educator, a human being, and a parent, it were otherwise, but it's not.

My advice to my own daughter is to ask:

(a) is there a serious possibility that you might decide to stop with an undergraduate education?  If the answer is yes, better make sure you study things like accounting, because you can't compete against the best students China has to offer in STEM.  If you major in something like Human Rights and Global Justice, you might as well go sleep in a tent somewhere, because you will have no employable skills, and while there might be a Santa Claus, there is not a line of NGOs waiting to hire you.  You'd do somewhat better with a liberal arts major that sent a signal that you had analytic writing skills, but philosophy and intellectual history are the only two that come to mind, given the general analytic implosion of English departments.

And then to ask:

(b) is there a serious possibility that you plan to go on to law school or b-school?  If so, then the strategy is completely different — go with classes and majors that maximize GPA, period.  No other priority in any class that has a grade.  If that means Sustainable Development in Latin America, go for it; if it means anthropology as human rights activism, go for it; if it means Global Justice, go for it.  The professional schools won't care; all that matters is the GPA.

Note that (a) and (b) lead to radically different and mostly incompatible strategies.  And how does one know that as a sophomore?  As to an actual education, well, that's nice.  But not at 50k a year, when those four years are themselves simply a downpayment on the law school bet that you can get employed.  At those prices it's the credential that matters.  The education does matter, yes.  So Daddy's advice is:  Use pass-fail classes to take things that you need as education but can't afford to screw up.  Take summer school at other schools in ways that allow the credits to transfer but not the grade (note to students: take these pass fail as well, because usually you will have to give transcripts for all college courses taken, and GPA will reflect that as calculated at the application level).  Use summer courses to get technical background as much as possible.  But remember that at $350k principal for undergrad and law school, it's a credential first.

There are ways in which universities could partly address this at the undergrad level.  The most practical, given the education-versus-credential problem, and the problem of grade inflation across all universities that no single school can fix — technical minors on a pass-not pass basis.  Two requirements to make this work practically.  First, they have to be offered at a level that is genuinely technical, but pitched to a level that meets the math skills of students who got 600s on their math SATs, not 800s.  It is a hard practical judgment — how technical is technical but not beyond reach?  Second, these courses, or better, technical minors need to be pass-not pass, otherwise no student in liberal arts can afford to take them.  The risk is too high.  It's not a perfect solution, but this is something that universities could do without having to solve the impossible coordination problems of grade inflation/compression — or the problem of USNWR rankings.

(I'm in a hurry and on the road; I'll clean up parts of this post later.)

My Take on the Individual Mandate Litigation

(David Bernstein)

It hasn't changed since I wrote the following almost a year ago: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don't contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court's ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the "Greenhouse Effect," or to cement his conservative credentials, which in part will depend on, "How close to retirement is he?" (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, something that I think is always on Justice Scalia's mind? (6) Will the Republican House and the expanded Republican minority in the Senate show in any way that they take federalism and limited national government seriously, the way the Contract with America undoubtedly made Lopez more viable, and the Big Government conservatism of the Bush Administration helped lead to Raich? (7) Will the Court have other issues before it on which the conservative Justices would rather spend their political capital? And so on... UPDATE: [8] I left out a crucial factor: If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Looking at these factors a year later: (1) The mandate is unpopular, and less popular than ever; (2) Ditto for the president; (3) no change; (4) Kennedy seems to have no intention of retiring; (5) there has been a conservative backlash over Scalia's decidedly non-originalist opinions in Raich and McDonald, which has eroded Scalia's standing among Federalist types in favor of Thomas as the new standard-bearer. I can't imagine that Scalia is completely oblivious to this, or to the fact that a vote upholding the mandate will erode his standing further, but the Roe v. Wade question lingers; (6) the Republicans have not shown that they take federalism at all seriously; (7) there are no other issues of similar magnitude before the Court; and (8) this remains to be seen.

Also, consider this line: "Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant." A conscientious circuit court judge, particularly one who, like Judge Silberman, has a lot invested in his reputation as an advocate of judicial restraint, could quite plausibly find that the best interpretation of precedent supports the constitutionality of the individual mandate. But when the case gets to the Supremes, the only relevant question is whether prior precedent clearly dictates upholding the mandate. I think the answer to that has been shown to be "no," given all the opinions going the other way.

In short, I think the factors I enumerate are far more likely to affect the Court's ultimate decision than whether Judge Sutton or Judge Silberman voted to uphold the mandate. I'm still not terribly optimistic that the mandate will be invalidated, but not because of the lower court opinions.

UPDATE: A clarification: I think likely all the conservative Justices on the Court think that if they were deciding things as an initial matter, without any relevant precedents and no political constraints on the Court, that the mandate would be unconstitutional as beyond Congress's power under the Commerce Clause. The constraints of both politics (in the broad sense of the word, including the Court being wary of preserving its authority and so on) and judicial culture (respect for precedent) are what would prevent the Court from invalidating the mandate. So I'm not arguing that the majority would invalidate the law because it suits them "politically." I suspect that they all really think the law is unconstitutional but because of precedent and politics they need the right political environment to say so. If, for example, both the law and Obama were polling at 70%+, and the law had been passed with significant Republican support, and some of the leading Republican candidates supported the law, the chances that the Court would invalidate it would be approximately zero, regardless of the Justices' views of its constitutionality. Maybe Thomas would dissent.

The Two Questions of Jones, and the Potential Difficulty of Identifying the Proper Voting Rule

(Orin Kerr)

The Justices of the Supreme Court will meet soon to offer preliminary votes in United States v. Jones, the GPS case. We don't know what the voting alignment will look like: The votes are hard to predict. But it seems to me that there's a substantial chance that the Court's opinions might face a puzzling problem of figuring out which voting rule applies. I wanted to explain a bit about why I think that, and why it might matter.

Here's the problem, at least as I see it right now. There are two issues in the Jones case, and they arise sequentially. The issue that arises first in time is whether the installation of the device is a search or seizure, and if so, whether it was a reasonable search or seizure; the issue that arises second in time is whether the use of the device after it was installed is a search or seizure, and if so, whether it was a reasonable search or seizure. Based on the argument, it was clear there was at least one vote (Scalia) for the view that installation of the device is a search. It was also clear that at least some other Justices are interested in saying that the use of the device is a search or seizure. The tricky question is, what happens if a majority of the Court concludes that somewhere in the process of installing and using the GPS there is a search or seizure, but there is no agreement as to which steps triggers the analysis or what constituties reasonableness?

To frame the issue, consider two common occurrences, each with a different voting rule. First, imagine members of a multi-member court are asked to say whether conduct in a single event is lawful. There are two different theories for why the conduct might be unlawful: Question 1 asks whether the conduct is unlawful because it violates legal theory 1, and Question 2 asks whether the conduct is unlawful because it violates legal theory 2. A majority rules that the conduct is unlawful, but there is no majority view as the reason. How do we figure out the law? We would simply tally the votes for the event. If it's possible to group the votes into broader and narrower rationales, then the job is easy: The narrowest rationale in favor of the majority result becomes the working rule under a Marks analysis: The law is that the conduct was unlawful for the reason offered in the narrow opinion. If it's impossible to group the votes into broader and narrower rationales, then we get a result and yet not a precedential clear rule. The conduct is deemed unlawful, but we don't get a working rule as to why that can guide future caselaw development in the lower courts.

On the other hand, imagine that members of a multi-member court are asked to resolve the lawfulness of two independent events litigated in a single case. Question 1 asks whether the first event is lawful, and Question 2 asks whether the second event is lawful. A majority of the judges rule that one of the events is unlawful, but they disagree as to which event: For each individual event, a majority of judges concludes that the event is lawful. How do we figure out the law? We have the same principle as before: We tally the votes for each event. But the application of the principle is different, as this time there are two events instead of one. So we need to count the votes for each event individually. This ends up with a different voting rule, as now we're considering votes per issue rather than votes as a whole. The result is that the government's conduct is deemed legal, as there is a majority vote for lawfulness for each event.

That brings us back to Jones. As I see it, it's not clear which voting rule applies. Are the two Questions Presented most accurately viewed as presenting two different theories about the lawfulness of a single event? Or are they most accurately viewed as presenting the lawfulness of two different events? It's not entirely clear, as it depends how you group the events: Is installation and use one event, or two distinct events? The answer might conceivably determine whether GPS usage is legal.

To see why, imagine 3 Justices would rule for the government and say neither installation nor use is a search or seizure; 3 Justices would rule that the installation is a search or seizure but the use is not; and three Justices conclude that installation is not a search or seizure but use is. If you see use and installation as two separate events, then the government's conduct is lawful: Each event is lawful by a 6–3 vote. But if you see installation and use as a single event, then the government's conduct is unlawful: Again there is a 6–3 vote, but this time the 6–3 vote is for unlawfulness (albeit on two rationales).

Further, the Justices themselves can disagree on whether the installation and use are one event or two. And that can create real puzzles. To see why, imagine 7 Justices see the installation and use as two distinct events instead of one. Specifically, 3 Justices would rule for the government and say neither installation nor use is a search or seizure; 3 Justices would rule that the installation is a search or seizure but the use is not; and one Justice would rule that installation is not a search or seizure but use is. In contrast, two Justices conclude that installation and use should be viewed as a collective single event and that this one event is a search or seizure. What voting rule applies now, and what rule emerges? I'm not sure there is an answer. Now there is no one event to tally votes: There are 3 votes that installation is a search; two votes that installation and use together is a search; and one vote that installation is not a search but use is. I'm not sure what voting rule should apply given the disagreement as to what counts as an event.

Perhaps I'm just missing something obvious and there is an easy answer to these puzzles. But if there is no majority view in Jones, I would think these puzzles may need to be addressed.