Law Commons^™

The Next Generation Communications Privacy Act, Orin S. Kerr

Orin Kerr

No abstract provided.

Vagueness Challenges To The Computer Fraud And Abuse Act, Orin S. Kerr

Orin Kerr

No abstract provided.

The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr

Orin Kerr

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Orin Kerr

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect. This Article argues that courts should favor interpreting the Fourth …

The Case For The Third-Party Doctrine, Orin S. Kerr

Orin Kerr

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Orin Kerr

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Shedding Light On Chevron: An Empirical Study Of The Chevron Doctrine In The U.S. Courts Of Appeals, Orin S. Kerr

Orin Kerr

The prevalence of the Chevron doctrine in administrative law has prompted widespread scholarly controversy concerning how the doctrine operates in practice. Three descriptive models have emerged. Some commentators have embraced a contextual model and contend that Chevron is a "revolution on paper" that has failed to replace the traditional contextual approach to judicial review of agency action. Others rely on a political model and maintain that the Chevron doctrine is so indeterminate that it serves primarily as cover for judges who decide cases based on their personal political preferences. Other commentators rely on an interpretive model and insist that Chevron …

Rethinking Patent Law In The Administrative State, Orin S. Kerr

Orin Kerr

This Article challenges the Supreme Court's recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics ofpatent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system.

Lifting The Fog Of Internet Surveillance: How A Suppression Remedy Would Change Computer Crime Law, Orin S. Kerr

Orin Kerr

No abstract provided.

Are We Overprotecting Code? Thoughts On First-Generation Internet Law, Orin S. Kerr

Orin Kerr

No abstract provided.

Congress, The Courts, And New Technologies: A Response To Professor Solove , Orin S. Kerr

Orin Kerr

No abstract provided.

Cyber Security: Protecting America's New Frontier: Hearing Before The H. Subcomm. On The Crime, Terrorism, And Homeland Security Of The H. Comm. On The Judiciary, 112th Cong., November 15, 2011 (Statement Of Orin S. Kerr, Prof. Of Law, Gw Law School), Orin S. Kerr

Orin Kerr

No abstract provided.

Blogs And The Legal Academy, Orin S. Kerr

Orin Kerr

This paper's focus is on today’s technology and ask whether blogs as we know them today are conducive to advancing scholarship. This paper's conclusion is that relative to other forms of communication, blogs do not provide a particularly good platform for advancing serious legal scholarship. The blog format focuses reader attention on recent thoughts rather than deep ones. The tyranny of reverse chronological order limits the scholarly usefulness of blogs by leading the reader to the latest instead of the best.

This doesn’t mean that blogs can’t advance scholarship. The impact of any blog depends on what its author decides …

The National Surveillance State: A Response To Balkin, Orin S. Kerr

Orin Kerr

No abstract provided.

The Modest Role Of The Warrant Clause In National Security Investigations, Orin S. Kerr

Orin Kerr

No abstract provided.

The Effect Of Legislation On Fourth Amendment Protection, Orin S. Kerr

Orin Kerr

No abstract provided.

Limits Of Computer Conversion: United States V. Collins, Orin S. Kerr

Orin Kerr

No abstract provided.

Foreword: The Future Of Internet Surveillance Law, Orin S. Kerr

Orin Kerr

No abstract provided.

Encryption Workarounds, Orin S. Kerr, Bruce Schneier

Orin Kerr

No abstract provided.

Criminal Law In Virtual Worlds, Orin S. Kerr

Orin Kerr

No abstract provided.

Cross-Enforcement Of The Fourth Amendment, Orin S. Kerr

Orin Kerr

No abstract provided.

Computer Records And The Federal Rules Of Evidence, Orin S. Kerr

Orin Kerr

No abstract provided.

Computers And The Patent System: The Problem Of The Second Step, Orin S. Kerr

Orin Kerr

No abstract provided.

Compelled Decryption And The Privilege Against Self-Incrimination, Orin S. Kerr

Orin Kerr

No abstract provided.

An Economic Understanding Of Search And Seizure Law, Orin S. Kerr

Orin Kerr

No abstract provided.