Jun 282014
 June 28, 2014  Court, Surveillance

Will Baude writes:

Over at Slate’s “breakfast table” series (there is no breakfast table), Judge Richard Posner has a post about Riley v. California that warrants a bit of commentary. My comments are interspersed.

First, from Judge Posner:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

The quoted “law professor” Posner criticizes here is Orin Kerr. Given how much Orin has written about computers and criminal procedure, I think it would be fair to guess that Orin is aware that there have been lower-court cases on the issue. We don’t know whether the quote was excerpted, but when talking to Adam Liptak about Supreme Court cases it is probably implied that “first … case” means “first … Supreme Court case.” Because Posner does not mention Orin by name, it is not clear he realizes that he is the same person whose article is cited twice by the Court’s opinion in Riley.

Read more on WaPo The Volokh Conspiracy.

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