Cross: Orin Kerr, Because Computers Aren’t Going Away

Dec. 9, 2015 (Mimesis Law) — Ed. Note:  Scott Greenfield crosses Orin Kerr, Volokh co-Conspirator, Fred C. Stevenson Research Professor of Law at George Washington Law School, prolific law review author on computer crime and Fourth Amendment law, and beltway bon vivant.

Q. Your college degree came from that bastion of racism, Princeton, where you received a B.S. in mechanical engineering. You went on to Stanford for your masters in mechanical engineering. And then, having the capacity to contribute beneficially to society, something went horribly awry and you went to Harvard Law School. What went wrong? Why waste a fine education and an opportunity serve humanity by becoming a lawyer? What the hell were you thinking?!?

A. I really enjoyed studying engineering as an undergraduate. But by the time I reached grad school, engineering lost its sense of excitement. In my field, fluid mechanics, professors were spending their entire careers seeking only incremental improvements to the solutions of very specific problems. I didn’t want to devote my career to solving small problems that only a few people cared about.

Q. It took a smart guy like you until the completion of his masters in mechanical engineering to realize that fluid mechanics might be a bit limiting? There are certainly a wealth of opportunities beyond fluid mechanics to apply your education in ways that served a broader purpose, but you instead chose to abandon engineering altogether for law school. Why law, of all the possibilities that were open to you?

A. I thought it would be intellectually exciting, I thought it would lead to gainful employment, and I had a sense that lawyers could do important things. And I got into Harvard.

Q. After law school, you clerked for Third Circuit Judge Leonard Garth, then headed straight for Main Justice. Was that the plan when you decided to waste your life by going to HLS? Did you have the dream of saving society from the bad guys?  You landed in the Honors Program, doing computer crime, which was in its relative infancy back then. Was this deliberate? Did they figure your engineering background made you one of the few who could figure out how computers worked?  Did you have an interest in the budding field of computer law before, or did it come from your work at DoJ?  Or do you really hate computer crime, but can’t figure out what else to do with yourself?

A. As far as I can remember – it’s been a while – I didn’t have much of a plan when I decided to go to law school. I vaguely recall that I wanted to go to a big law firm and make a lot of money representing large corporations, probably in a field that involved technology.

But I caught the criminal law bug instead. Part of that was being inspired by my first-year criminal law professor, James Vorenberg. He was awesome. And part of that was my experience as a summer associate after my 1L year. I was at Morris Nichols Arsht & Tunnell, a law firm in Wilmington, Delaware, mostly working on patent litigation. The people were nice, but I found patent work pretty dry. An associate at the firm had a pro bono criminal case and she let me help her. I was hooked. The human stakes were so much more interesting to me than which large corporation would keep a pot of money.

I ended up in the computer crime section mostly by accident. I was accepted into the Honors Program, and they gave me a list of sections I could rank. Computer crime seemed cool and the section had a good reputation, and I figured it was a good fit with my tech background. So I ranked the Computer Crime and Intellectual Property Section (CCIPS) first. But I got the job only because CCIPS management made a mistake. CCIPS was new and they had never hired an Honors Program lawyer before. When they received the form to rank candidates, they thought it was a form to invite candidates in for an interview. They decided to interview me and submitted the form. Later on, they were informed that they had permanently hired me. The Chief of CCIPS was livid because I was filling a spot he wanted to use for an experienced lawyer. He tried to get me fired before I arrived.   But it was too late, as there was no form to unhire someone. When I started the job and met with the Chief of CCIPS in his office, he told me that he didn’t want me in the section and that he had tried unsuccessfully to get rid of me. But there I was.

Q. You spent three years toiling in the trenches of Main Justice as a trial lawyer. Did you try cases? Back then, the internet was still in its infancy (maybe toddlerdom), and while the Computer Fraud and Abuse Act was already a tween by the time you showed up, it too was still subject to interpretation as to its application to ever-changing technology.  What did you think of the CFAA as a prosecutor? What were the issues with computer fraud when you were in the trenches?  Looking back now, are you happy with how you handled computer crime? Would you have done things differently knowing what you know now?

A. My trial experience at DOJ all happened when I was a SAUSA in the EDVA, which I did on a detail from CCIPS. I had two jury trials, a bunch of misdemeanor bench trials (common in the EDVA, which has a big misdemeanor docket), and the usual run of hearings (supervised release violations, etc.).   When I was at CCIPS in Main Justice, my title was “trial attorney,” but there wasn’t much cyber-related trial work to go around. The AUSAs in the field took most of what was there. I helped AUSAs with the cyber aspects of their cases, but the cases belonged to them.

I started thinking seriously about the CFAA and what it meant late in 1998 and early in 1999, when I was at CCIPS.  My recollection is that, at the time, everyone thought the CFAA was pretty simple and uncontroversial. You just had to look for unauthorized access, which was thought to be straightforward and obvious. My view was different: It seemed to me that there were lots of different ways of thinking about “access” and “authorization.” I also thought that the narrower reading of the CFAA was correct. When the civil cases adopting really broad interpretations of the CFAA started to emerge around 2000 and 2001, I thought they were wrong.  I wrote my first article on the ambiguity of the CFAA and the need to interpret it narrowly soon after I left DOJ. I left DOJ in 2001, and the article was written in 2002 and published in the NYU Law Review in 2003.

Q. After two years of teaching, you got a gig as law clerk to Supreme Court Justice Anthony Kennedy. How did you manage that coup?  As the “swing vote” on the Court, you were working under perhaps the single most powerful judge in the nation. Did you share his perspective on the law? How involved were you in the decision-making?  What was the coolest case you worked on for Justice Kennedy, and what was your role in the case?  Did you ever find yourself in strong disagreement? If so, how did you deal with it? And how did Justice Kennedy deal with you?

A. How did I get the job? Well, I applied.  It was a long shot, and I wasn’t expecting anything. I hadn’t been on law review, I hadn’t clerked for a feeder judge, and I didn’t have references from the usual bigwig Harvard professors.  But sometimes strange things happen, and it worked out.

I had some common views with Justice Kennedy, but we approached a lot of issues pretty differently.  I think the law clerk ethics rules still prevent me from talking about particular cases, though.

Q. Following your stint as law clerk, you spurned another opportunity to use your not insignificant education and experience for good, and went back to teaching. Why?

A. GW let me come up for tenure the semester I returned from my clerkship. It was an easy call.

Q. For a guy who spurned engineering because it didn’t offer you the opportunity to work on issues that affected a lot of people, academia alone is curious, and tenure as the reason emits an unpleasant odor. You could have gone for the big bucks, the earth-shattering cases, and instead you chose the cloisters and snot-nosed kids. There had to be more than cheap and easy tenure. I call bullshit. Why?

A. You see academia as a way to avoid the real world.  But I think a law professor can have more influence on the real world than a practitioner can.

Q. More influence? Does that mean by scholarship and research, by teaching others, by thinking deep thoughts, by serving on committees where only mitigated speech is tolerated?  What makes you say that?

A. Influence can happen in different ways, but scholarship and research is probably the most direct.  Some people say that no one reads law review articles.  But I don’t think that’s true.  A person who writes intelligently and thoughtfully about a really hard issue, especially one that others are struggling to figure out, can have a big impact.

My co-authors Wayne LaFave and Yale Kamisar are good examples.  Wayne’s work has been cited in thousands of legal opinions.   When there is a hard Fourth Amendment question, a lot of judges consult Wayne’s treatise to see what he has to say.  And Yale’s articles had a significant influence on the shape of interrogation law at the Supreme Court.  Would Yale and Wayne have had more influence on the law if they had started the criminal defense firm of Kamisar & LaFave?  I don’t think so.

Q. As one of the co-conspirators at Volokh, you’ve laid your politics on the table as a pretty conservative libertarian.  How did you come to that view?  How has it influenced you prolific writing?  Aside from computer crime, you’re deeply into Fourth Amendment law as well, where you’re not particularly inclined to be kind to the defense?  What happened to that libertarianism when it comes to search and seizure?

A. In college, I was vaguely left-of-center in the way that I would guess most college students are. After college, I decided to study American political conservatism because I hadn’t thought seriously about conservative ideas. I read as much as I could, and I was more persuaded by it than I expected. I shifted to vaguely right-of-center some time around 1994. Going to Harvard Law School, which I started in the fall of 1994, was probably a part of that. The political orthodoxy at HLS was so strong that it helped pushed me away towards the right.

I think my scholarship generally reflects my Burkean conservative views. I tend to think there’s a lot of wisdom in the traditional ways of doing things, and that plans to quickly and dramatically change the legal system are often utopian and will only make things worse. Given that, my scholarship tends to be more skeptical of dramatic change than that of other law professors. The equilibrium-adjustment theory is a good example. It has judges trying to maintain old protections as technology changes, changing the rules to preserve old values. It’s essentially a Burkean idea – preserving the old amidst the new.

From a career perspective, though, I suspect my Burkean conservative instincts are a hindrance. The hip thing in legal academia is to propose radical solutions; that is thought to signal creativity. In contrast, anything that doesn’t boldly challenge the status quo is considered overly cautious and small-minded. But so it goes.

Q. You’ve raised some fairly negative views toward the CFAA as being grossly misinterpreted to elevate terms of service into a sufficient basis for a criminal prosecution.  Along these lines, you served as one of Andrew Auernheimer’s (or “weev,” as we all know him) lawyers in the appeal of his conviction before the Third Circuit, and argued the case.  Of course, the conviction was reversed, but on the least sexy gound possible, venue.  Did it break your heart that the court didn’t decide on CFAA grounds?  When it came to representing weev, one of the most notorious trolls and generally difficult human beings around, did you have misgivings as to your argument on interpreting the CFAA resting on his very low-to the-ground shoulders?

A. I was very happy that we won, and I don’t have any misgivings about the case.

Q. One of the biggest bones of contention deals with the Magistrate’s Revolt, the refusal of some magistrate judges to sign off on warrants for digital content because of overbreadth and issues with disposition of data. You’ve been firm that the mags wrong, and this is for the judge to deal with after arrest. But since you can’t put the genie back in the bottle, you would give the government carte blanche to seize everything and sort it out later, after they’ve seen it all. Is there no hope for privacy in a digital world? Are there no limits, given that our entire lives can be seen online? Why, given your affection for equilibrium theory, shouldn’t the mags get involved to restore balance to the Fourth Amendment in a digital world?

A. I think you have this issue backwards.   I’m arguing for broad privacy protection, and you apparently want a world with only sporadic and discretionary privacy for a few lucky people. That is, I want the Supreme Court to interpret the Fourth Amendment to impose broad privacy protections in all cases, whether the cases involve warrants or not. The only way to get that broad privacy protection is from the Supreme Court in a case involving ex post review. On the other hand, you seem to only want privacy protection in the one in a thousand cases that happen to involve a warrant and one of the handful of appointed magistrate judges who decides to opt in to the revolt in that particular case. So in your approach, there’s privacy protection for the one in a thousand cases. You have to win the lottery to get privacy. But in my approach, everyone gets privacy.

Q. You’ve been a lawprof at George Washington since 2001, with a couple of stints as visiting prof at Penn and Chicago. Is that where you plan to stay?  Any thoughts of moving up the food chain, Harvard or Yale perhaps? A nice, warm bench, perhaps? What are the aspirations of a law professor who has made his mark, earned a firm niche through his scholarship and is still a young man?  Where do you go from here?

A. I’m going to Disney World!

Seriously, I hope to have the health, the energy, and the support to enjoy a long future writing law review articles on issues I care about.

Q. Unlike many academics, you also want to keep yourself in the game, as reflected by your involvement in the weev appeal. You’ve done some very successful pro bono appellate work, but what about getting back into the trenches and trying cases?  Is it now just a matter of getting involved in cases that involve your area of scholarship, or could you see yourself becoming an advocate for, say, the defense?  What do you think of law professors who bootstrap their scholarship for cause advocacy?  Is there a line that an academic shouldn’t cross, even if he still wants to be a player in the game of law?

A. I really enjoyed the small amount of trial work I did at DOJ. In a perfect world, it would be great to do more. But between not having a lot of trial experience, and it being a long time ago, I couldn’t jump back into it easily. Besides, I’m a “law guy,” so I’m mostly drawn to appeals. And when you have a full-time teaching job, it’s much easier to schedule appellate work.

I enjoy both scholarship and advocacy, but I see them as fundamentally different. Scholarship is about the search for truth. As a scholar, you go where the good arguments go, wherever that may be. It’s essential to be open to changing your mind and admitting the weakness of your position.   In contrast, advocacy is about helping the client. Obviously, as an advocate, the result you seek is predetermined. The only question is how you can best persuade the decisionmaker to rule the way that will best serve your client’s interests.

4 thoughts on “Cross: Orin Kerr, Because Computers Aren’t Going Away

  1. Jeff Gamso

    Neither of you mentioned Orin’s most important work of scholarship – one useful to all of us in the profession whether as litigators, judges (or justices), or even lawprofs. A work that proves just why it is that a law review article can be more influential than anything done by anyone in a courtroom.

    Me, I always keep handy my copy of “A Theory of Law,” 16 Green Bag 2d 111 (2012).

        1. Orin Kerr

          You’re welcome.

          I never thought I would write an entire article in 15 minutes, but that is proof it can be done.

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