In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.

First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:

Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.

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Professor Steven G. Galabresi has an impressive resume. From the Northwestern School of Law website, consider the following:

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law.  He is also a Visiting Professor of Law at Yale Law School, Fall 2013-2016; a Visiting Professor of Political Theory at Brown University for 2016-2017; and the Chairman since 1986 of the Federalist Society’s Board of Directors. Professor Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a Special Assistant for Attorney General Edwin Meese III; and he clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals.

(Italics by Kopf.)

As SHG has written, Professor Calabresi[i] published a piece on the Social Science Research Network. It is entitled, Proposed Judgeship Bill, and it consists of a memorandum written November 7, 2017, and rather pompously addressed to the entire Senate and House of Representatives. (I refer to this article as “The Memo.”[ii]) Continue reading →

My brother is dead.[i] He died last Thursday. As you read this, I am in Cleveland to attend to the committal of his ashes.

Despite being closely monitored by the Cleveland Clinic for the recurrence of a cancer that he had beaten against all odds, a different cancer silently struck. Sarcomatoid renal cell carcinoma (RCC) is an aggressive form of RCC and is associated with an awful prognosis. That’s what hit my brother literally out of the blue.

His spine, hips and other distant structures were riddled with metastases. Even though he denied it, his pain was off the charts. In the last month, he could not walk for fear his pelvis would shatter. He was dead in a little less than three months after the diagnosis.

I saw my brother about a week before he died. He was at the Ames Family Hos​pice House. That place, its doctors, nurses, staff and volunteers, are all a marvel. Even though my brother, a former locomotive engineer and local union chairman, would sometimes demand the nurses allow him to put on his pants so he could go to work, he was afforded maximum cognitive clarity while still achieving relief from his extreme pain. Continue reading →

I write about the Standing Committee on the Federal Judiciary of the ABA.[i] The Standing Committee’s recent “not qualified” rating given by a unanimous vote of the members who voted (one abstained) regarding the nomination of Steve Grasz[ii] to serve as a judge on the United States Court of Appeals for the Eighth Circuit has created a firestorm of criticism.[iii]

According to Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, members of the Standing Committee will appear before the Senate Judiciary Committee on November 15, 2017. I predict a nasty hearing as the Chair and maybe other members from the Standing Committee are grilled about the handling of the Grasz nomination and, perhaps, other nominations.

As a preview, watch this detailed, and maybe even devastating, criticism (nearly 20 minutes) of the Standing Committee by Senator Sasse on the floor of the Senate on November 2, 2017, following the confirmation hearing of Mr. Grasz on November 1, 2017: Continue reading →

On October 18, 2017, the CATO Institute held a day-long program on “Criminal Justice at a Crossroads.” The program consisted of various panels discussing a variety of issues regarding the criminal law.

Our host, Scott Greenfield, sat on one of the CATO panels with Judge Jed Rakoff, the eminent Senior Judge from the U.S. District Court for the Southern District of New York. The third panelist was Suja Thomas, Professor of Law at the University of Illinois at Urbana-Champaign and a scholar devoted to studying the American jury system. The panel discussion was entitled, “The Defendant in Court.”

The primary discussion that ensued dealt with the dearth of criminal jury trials and the large number of plea bargains. Everyone seemed to agree that more criminal jury trials would be a good thing.[i] But then the discussion turned to plea bargains. Continue reading →

If you have not read A Gentleman in Moscow by Amor Towles, you must do so. It is writing at its very best. I suppose that is why it was on the New York Times bestseller list for over 40 weeks.

If Jefferson’s celestial watchmaker would, playing against type, deign to bestow upon me the ability to write only 10 percent as well as Towles, I would pledge my troth to Roxane Gay.[i] If the omnipotent maker preferred, I would prostrate myself before the insipid youngsters who attacked Scott for being a misogynist or a sexist,[ii] and therefore unworthy of a legal writing award. But I digress.

A Gentleman in Moscow centers on the witty and observant Count Alexander Ilyich Rostov who was already ensconced in luxury in Suite 317 of the Hotel Metropol when he was sentenced to house arrest at the very same hotel by earnest Russian revolutionaries. (Think of a certain strain of Appellate Twitters!) This banishment took place after a 1922 trial, where Rostov was condemned for writing an insufficiently proletarian poem. (Think of our host!) It is from this hotel in Moscow that the story unfolds.

No more, now, about the book, except to recount one of the Count’s trenchant observations. The reader is informed that “pomp is a tenacious force. And a wily one too.” And it is about judicial pomp that I write. Continue reading →

There are two Codes of Conduct applicable to those who work in the federal judiciary. One is for employees and the other for judges. The Judicial Conference (the administrative governing body of the federal courts) has authorized its Committee on Codes of Conduct (the Committee[i]) to render advisory opinions about the judges’ Code, but only when requested by a judge to whom the Code applies.[ii]

I have enormous respect for the Committee, the members of the Committee, and the truly excellent work of the Committee. The Committee is comprised of 15 members appointed by the authority of the Chief Justice.[iii] The primary responsibility of the Committee is to issue confidential advisory opinions to judges regarding compliance with the judges’ Code. It toils in anonymity (most of the time), turning out thoughtful and confidential opinions very rapidly on a whole host of questions regarding the Code and related matters (like the issuance of certificates of divestiture[iv]).

There are two things one must understand about the Committee’s work. First, the Committee does not serve as the “ethics police.” Complaints against judges are handled through an entirely different and unrelated mechanism. See, for example, here. Second, the opinions of the Committee are advisory. While the judges’ Code is binding, the opinions of the Committee are advisory. Thus, every opinion of the Committee (of which I am aware) begins with this language: Continue reading →

This is whimsical but true. If I mightily stretched things, I could even say this is about legal realism.

Long ago—when I was 12—I lived in Florida. I took to water skiing. One day while racing along on two skis I decided to drop one and ski on the other.[i] The remaining one was not a slalom ski. But, I made it work until it didn’t.

As I fell forward into the onrushing water the ski submerged tip first. Then, the butt end popped back up and hit me in the mouth. My teeth, and particularly my lowers, were never the same.

My parents evidently had an aversion to dentists (as I do now) and, eventually, I came to like my new look anyway. Think of actor Bill McKinney in Deliverance.[ii] Continue reading →

A bootlicker is an obsequious or servile person, so says the Oxford Living Dictionary.  It is an “Americanism dating back to 1835-45” according to another dictionary. “Foot-licker” in the same sense dates back to around 1610. Douglas Harper, Online Etymology Dictionary (2017).

There are others words like “butt-kisser” that may be substituted if you lack my slavish devotion to taste and decorum. But you need to be careful about substituting “butt-kisser” for “bootlicker.”  As I shall next show pictorially, there are subtle differences.

Thus, for this post, I will use the term “bootlicker” because it fits better for those who have studied law and are thus trained to understand nuance.[i] Having solved, I hope to your satisfaction, the definitional issue, I now turn to substance. Continue reading →

Professor Amy Coney Barrett, a most certainly qualified nominee[i] to the United States Court of Appeals for the Seventh Circuit and a law professor at Notre Dame, recently had her confirmation hearing.  The hearing resulted in quite a controversy.

The Professor, who clerked for Justice Scalia, was grilled by the ranking member of the Judiciary Committee (Senator Feinstein) and other Democrats about whether the nominee’s deeply held religious beliefs (Catholicism) might interfere with her job as a judge. It is fair to say that this inquiry (but perhaps not the tenor of it[ii]) was brought about by Barrett herself. See, for example, Amy Coney Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1998).

Here is the conclusion of the article cited above taken from the current Notre Dame Law School website:

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect. (Italics by Kopf.)

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