Would Flying a Drone "Outside of Navigable Airspace" be a Fourth Amendment Search?

John Burkoff has recently posted an article to SSRN on whether the Fourth Amendment's protection from unreasonable searches can limit the government's use of drones for law enforcement purposes. After surveying the history and development of Fourth Amendment jurisprudence, he concludes:

[L]aw enforcement officers cannot, in any event, use drones – as a matter of federal constitutional law – when they: (1) are flown outside of navigable airspace; (2) create undue noise, wind, dust, or threat of injury; or (3) obtain any information in an effectively physically intrusive manner from a constitutionally protected area.

I've blogged previously about the extent of Fourth Amendment protection against aerial surveillance of one's home and person. To briefly summarize, the government may use a plane or helicopter to conduct surveillance of one's home or person as long as the government is flying within commonly-navigated airspace. (See Florida v. Riley).

Already, there is a problem with Burkoff's claim that "navigable airspace" limits where law enforcement agencies can conduct aerial surveillance. While the plurality in Riley stated that Federal Aviation Administration (FAA) regulations governed where law enforcement helicopters could fly, Justice O'Connor's concurrence took the narrower approach that police needed to fly their aircraft in locations and at heights where that type of aircraft was commonly used. The test, therefore, is not whether the airspace is "navigable," but rather, whether the airspace is "navigated."

This test is difficult to apply to government drone use. The government may not use planes or helicopters to conduct surveillance at certain heights (say, below the Riley height of 400 feet), because those types of aircraft are not commonly flown below those heights. But drones are not subject to the same limitations as aircraft. In fact, the FAA has stated that drones may be used by hobbyists as long as they are flown below 400 feet. The FAA also states that drones are not to be flown above heavily populated areas, which may be a point in favor of those who argue that the Fourth Amendment limits government drone use. Perhaps these restrictive FAA guidelines can lead to stronger Fourth Amendment restrictions government drone use compared to Fourth Amendment restrictions on the use of planes and helicopters.

Drone advocates, however, argue that these regulations are simply advisements that do not carry the force of law, since the FAA has not yet drafted explicit rules for the use of drones. Hobbyists, after all, frequently use drones for photography and shooting video over populated areas, and this activity has not been prosecuted by FAA officials.

In the absence of clear restrictions, frequent and widespread hobbyist drone use may mean that the Fourth Amendment restricts government drone use even less than it restricts alternate means of aerial surveillance. Regulations governing helicopters and airplanes have the force of law and are consistently followed, which means that there are clear boundaries governing where law enforcement can and cannot fly these aircraft. But the legal uncertainty surrounding regulations of drone flight means that it is not at all clear where and how drones are commonly used.

This uncertainty could lead courts to conclude that drones are not commonly flown above houses or streets, and therefore could allow for greater Fourth Amendment protection against government drone use. But it could also lead courts to find that hobbyist drones are commonly flown at low heights over houses, streets, and parks, meaning that government drones could be flown in the same manner without implicating the Fourth Amendment.

In light of this uncertainty, it may be overly hasty to conclude that the Fourth Amendment prohibits government drone use outside of "navigable" airspace. Even if that conclusion is true, the boundaries of this navigable airspace are not at all clear.

All of this discussion illustrates only one of the difficult issues that courts would need to answer in the event that government drone use is challenged on Fourth Amendment grounds. I argue elsewhere that legislation is a better avenue for addressing these complicated questions. But in states without drone laws, whether it is because of legislatures' resistance or executive vetoes, courts may not have long until they are required to rule on these issues.

Moot Court Competitors Sue Competition Organizers Over "Arbitrary and Blasphemous" Interpretation of Rules

Bar and Bench reports that several students from KLE Society's Law College have sued the principal of BMS College of Law over an unfavorable moot court competition outcome. It seems that the KLE students won against their opponents in the semifinal round of the competition, but ended up not advancing to the final round of the competition. From the article:

It all started in the semi-final rounds of the B M Sreenivasaiah Memorial National Moot Court Competition, organized by BMS Law College in March this year. At the end of the semi-final rounds, KLE Society's moot teem was left flummoxed, wondering how the sweetness of victory could turn into that despicable feeling of being cheated. Having beaten their opponents convincingly in the smi-final round, the team were in for a rude shock. They were told that the losing semi-finalist of the other round would go through to the final rounds, on the basis of cumulative marking. In the opinion of the BMS Principal, the term "knock out" meant that the organizers have the power to eliminate a team on the basis of cumulative marking.

The aggrieved KLE Society students have filed suit for a declaratory judgment that their loss was due to an unfair interpretation of the competition's rules. They are also suing for emotional suffering. From paragraph 16 of the complaint (included in the Bar and Bench Article):

That, the Plaintiffs despite having performed exceedingly well, by the arbitrary and blasphemous attitude and actions of the First Defendant had to bear the pain and suffering of a loss which they were not entitled to. Injustice was inflicted blatantly and the First Defendant having no remorse whatsoever just dismissed the Plaintiffs without providing a suitable remedy.

The complaint itself is extremely dramatic, and a delight to read. Here is another excerpt -- this time from paragraph 18:

Lawlessness prevailed in a law college and the Plaintiffs deeply condemn this attitude of theirs. If the Defendants intended to change and interpret the rules like the way they wanted to, they should at least have had the decency and courtesy to inform the Plaintiffs of the same before the competition began, failing which they have miserably failed in upholding the principles of law which they boast of teaching in their institution.

It seems to me like the competition's organizers' reading of the rules was strained, and perhaps arbitrary. But I doubt that the KLE students' dramatic, litigious response will help improve their reputations in the legal community.

Two Important Perspectives on Scholarship

This weekend, I read two informative articles on scholarship that approached academic writing from two very different perspectives.

The first is On Legal Scholarship by Robin West and Danielle Citron. A short version of the article is available here at the Association of American Law Schools' website. The full article is available here.

West and Citron defend legal scholarship against claims that it is too "normative," esoteric, and impractical. From the article:

The goal of normative scholarship is to influence the shape of the path of the law, but its impact will be felt differently than that of briefs, opinions, or white papers, and sometimes over a longer time frame. Normative legal scholarship does not aim to have the impact of an amici brief written for a particular case or a white paper written for a congressional subcommittee. But that does not mean that it lacks impact or that if it has an impact, it is not scholarly. Scholarship advocating a “reasonable person” or “reasonable woman” standard for purposes of some tort causes of action, arguing that cyber gender harassment constitutes a form of sex discrimination, or making the case for a new law protecting consumers of financial instruments against seller over-reach, or documenting the pernicious and racially skewed effects of over-incarceration of a large swath of the population for relatively trivial and victimless crimes, and demonstrating the racially skewed effects of both the death penalty and of failures of policing in both city and rural populations, are all self-avowedly “normative,” and arguing that all of that violates fundamental constitutional norms, and are all, in different ways, looking to change law quite fundamentally, albeit not directly through the filing of a lawsuit.

The impact of normative scholarship is felt, rather, through the force of its argument on its readership, including students who go on to become judicial clerks, lawyers, judges, and legislators. More broadly, and sometimes more deeply, it is felt in the understanding of law and the possibility it holds out for justice, held by law students who go on to become critically and constructively engaged citizens, bringing to the work of citizenship a deep understanding of both the law that is their calling and the justice it purports to serve. The doctrinal and reformist scholarship – all of which aims to align law with justice – that they read and in some cases edit in their much maligned student-run law reviews, contribute mightily to that self understanding. It all rests on the understanding that the work of justice is squarely within the purview, and the reach, of law. It also rests on as well as demonstrates the implicit assumption that that work of the citizen-lawyer requires scholarly virtues: deep engagement and rigorous thought.

The second article that I read was Steven Pinker's, Why Academics Stink at Legal Writing. Pinker dives into the myriad shortcomings of scholarly writing and seeks out explanations for how these problems are caused and how to combat them. From the article:

When Calvin explained to Hobbes, "With a little practice, writing can be an intimidating and impenetrable fog," he got it backward. Fog comes easily to writers; it’s the clarity that requires practice. The naïve realism and breezy conversation in classic style are deceptive, an artifice constructed through effort and skill. Exorcising the curse of knowledge is no easier. It requires more than just honing one’s empathy for the generic reader. Since our powers of telepathy are limited, it also requires showing a draft to a sample of real readers and seeing if they can follow it, together with showing it to yourself after enough time has passed that it’s no longer familiar and putting it through another draft (or two or three or four). And there is the toolbox of writerly tricks that have to be acquired one by one: a repertoire of handy idioms and tropes, the deft use of coherence connectors such as nonetheless and moreover, an ability to fix convoluted syntax and confusing garden paths, and much else.

Anybody interested in legal writing and the value of legal scholarship should read both of these articles in their entirety.

California Governor Vetoes Law Restricting Government Drones

The Los Angeles times reports that California Governor Jerry Brown has vetoed AB 1327, a bill that would restrict law enforcement agencies' use of drones. As I mentioned in this previous post on the law, Governor Brown's veto is consistent with his tendency to block legislation that imposes constraints on legislation that go beyond that which is required by the Constitution.

Governor Brown's hesitation to sign off on laws that restrict police action beyond constitutional limits seemed to motivate his decision to veto AB 1327. His veto message can be found here. From the veto message:

There are undoubtedly circumstances where a warrant is appropriate. The bill's exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the 4th Amendment or the privacy provisions in the California Constitution.

I agree that the law went beyond the restrictions required by the Fourth Amendment. But that is because Fourth Amendment restrictions on government drones are extremely limited, as I explain at length in this post. Under long-established case law, the government may use drones to conduct surveillance on people whether they are near their homes or driving in public without raising any Fourth Amendment concerns.

Privacy advocates are therefore understandably disappointed with Governor Brown's veto. But as I argue at length in this paper, law enforcement agencies have reason to be concerned as well. In the absence of legislation that restricts the government's ability to use drones, the courts may attempt to step in and fill the void. There are undertones in recent Fourth Amendment cases that may call for restriction on government surveillance when permissive surveillance is conducted for such a long time that it becomes a Fourth Amendment search. Orin Kerr labels this view the "Mosaic Theory" of the Fourth Amendment.

In the absence of laws that regulate law enforcement drone use, courts may try to take up the task of restricting government drones by expanding Fourth Amendment doctrine. But the courts are ill-equipped for this task, since there is no clear legal basis for expanding Fourth Amendment protections and because courts do not have the technological know-how to determine just how far their restrictions on emerging drone technology may extend. Accordingly, law enforcement agencies should support legislative regulation on drones. Vetoes that leave the courts with the final word on drone technology create a risk of uncertain legal outcomes that may hinder law enforcement interests.

I have acknowledged that AB 1327 had shortcomings. But I think that Governor Brown's reason for vetoing the bill is dangerously broad. At some point, government technology should be regulated through legislation. The Fourth Amendment is becoming increasingly ill-suited to prevent emerging technology from violating privacy. To avoid strained, overly-broad, and potentially irreversible interpretations of the Fourth Amendment, states should enact legislation that increases privacy protection, while giving the government leeway to use new technology to enforce the law.

Judicial Elections and Campaign Finance Regulations

Today's New York Times contains this article by Adam Liptak on campaign finance rules for judicial elections. From the article:

Soon after Justice O’Connor retired, in 2006, the Supreme Court embarked on a run of campaign finance decisions amplifying the role of money in politics. Those rulings are also helping transform state judiciaries. 

“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice John Paul Stevens wrote in his dissent in the 2010 Citizens United decision, which concerned spending in a presidential primary. 

The last three election cycles included $152 million in spending in judicial races, according to Justice at Stake, a research and advocacy group that says it seeks to protect judicial independence. “Judicial campaign cash is burning a hole in the Constitution,” said Bert Brandenburg, the group’s executive director. “You cannot pour millions of dollars into our courtrooms without having an effect.”

Liptak notes that the federal courts of appeals are split over whether states can prohibit campaign solicitations by judges. Liptak highlights one case, Williams-Yulee v. The Florida Bar, that may end up making it to the Supreme Court. The issue in that case is "Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment."

Liptak points out that recent Supreme Court cases have taken a permissive approach to campaign finance regulations in cases like Citizens United v. FEC. He notes, however, that in Caperton v. A.T. Massey Coal Co., the Court seemed to take a different approach to cases involving judicial elections.

In Caperton, the United States Supreme Court overturned a West Virginia Supreme Court of Appeals decision on the ground that one of the West Virginia Supreme Court of Appeals justices, Brent Benjamin, had accepted substantial campaign donations from Don Blankenship, the chair of A.T. Massey Coal Co., and the defendant in the case. Despite having previously received these donations from one of the parties in a case before him, Justice Benjamin refused to recuse himself and ended up being the vote that caused the West Virginia Supreme Court of Appeals to rule in favor of A.T. Massey. The United States Supreme Court held that Justice Benjamin's refusal to recuse himself violated the plaintiff's due process rights.

Liptak's article concludes that the Court would likely strike down restrictions on judicial campaign funding despite its decision in Caperton. I am inclined to agree. While the Court's finding in Caperton recognized that some instances of campaign finance may affect a judge's impartiality and violate due process, Caperton involved a clear case where one judge had previously received a notably high amount of donations from one of the parties in a case before the judge. The Supreme Court would likely distinguish the clear abuse that occurred in the Caperton case from broader questions of campaign finance regulations which do not inherently involve such blatant quid pro quo.

Moreover, the Supreme Court can appeal to its ruling in Caperton to argue that campaign finance restrictions will not have a meaningful impact on preventing judicial corruption. Having ruled that clear instances of quid pro quo can already be remedied through due process challenges, the Court may argue that any additional regulation would be an excessive restriction on the First Amendment right to contribute to political campaigns.

If the Supreme Court does indeed intend to take this approach to judicial campaigns, it is likely that the Court will end up hearing the Williams-Yulee case in order to settle the circuit split on the issue. Moreover, the Ninth Circuit's recent decision to grant en banc review to its earlier decision striking down Arizona's restrictions on judicial campaign financing may increase the probability that the Court will take up Williams-Yulee.

Wall Street Journal Fumbles on Donald Verrilli's Broccoli Success

The Wall Street Journal's Washington Wire blog reports that Attorney General Eric Holder will step down. This announcement gives rise to speculation over who will replace Holder, and the Wall Street Journal reports that Solicitor General Donald Verrilli is a likely candidate.

I haven't been paying very much attention to the Washington political landscape, but I know that Solicitor General Verrilli is an extremely well-qualified candidate. But I think that the Wall Street Journal got a bit mixed up when it shifted to describing Verrilli's success in the litigation over the constitutionality of the Affordable Care Act. From the Journal:

Perhaps Mr. Verrilli’s most famous argument came in the main challenge to the health-care law before the high court in March 2012. It began awkwardly as he coughed and stuttered. But he was prepared when the justices asked him whether the law’s requirement to buy health insurance could open the door for the federal government to mandate that people buy broccoli. 

“A car or broccoli aren’t purchased for their own sake,” Chief Justice John Roberts said to Mr. Verrilli. “They’re purchased for the sake of transportation or, in broccoli, covering the need for food.” 

Mr. Verrilli replied, “The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care, and broccoli is … not the means of payment for anything else.” 

Despite his early stumbles in the arguments, Mr. Verrilli was redeemed when the Supreme Court ruled in the administration’s favor and largely upheld the law.

But the oral argument transcript indicates that this exchange took place in the context of Verrilli's attempt to defend the law on Commerce Clause grounds. While the law was indeed upheld, the Supreme Court ended up holding that the Constitution's grant of power for Congress to regulate interstate commerce did not give Congress the power to require people to purchase health insurance. Instead, the Court held that the individual mandate could be characterized as a tax, and therefore fell under Congress's power to tax.

Furthermore, as Josh Blackman suggests on page 274 his book, Unprecedented, Verrrilli's strategy seems to have been to shift the Court's focus from the commerce clause and "broccoli" arguments to the argument that the individual mandate was a tax. Blackman argues that Verrilli was "vindicated" by the Court's ultimate decision, but it was not because Verrilli was able to win the commerce clause argument, but because he was able to shift the Court's focus away from that argument.

It is therefore misleading for the Journal to indicate that Verilli's point about broccoli was effective and that he was "redeemed" by the Court's decision when the Court ended up rejecting the commerce clause argument. Admittedly, the article is more about political dynamics and possible appointments than it is about constitutional law. But those writing about politics should take care that any incidental forays into the field of law remain accurate.

The Law of Pews

I finally finished R.H. Helmholz's Roman Canon Law in Reformation England. While most of my friends have reacted to my reading this book with disdain, furrowed brows, and concern for my sanity, I maintain that the book, while arcane at times, contains numerous fascinating anecdotes and important insights regarding legal history. I have blogged about several of the more interesting subjects Helmholz discusses here and here.

On finishing the book, I thought that I would share one final, humorous passage on the law of pews:

The law of church seats or pews provides a different but equally clear example of this attitude [of resisting change to spiritual courts' jurisdiction] held by civilians. Large numbers of causes dealing with this strange and trivial subject are to be found within contemporary act books. Evidence about men sitting obstinately in each others' laps, or putting tacks on the seats to keep their enemies from sitting there, figured in contemporary litigation. In these causes, the normal issue of law (slightly simplifying) was whether or not one could acquire a right to a particular seat by sitting there long enough. That is, the outcome of the litigation turned on the law of prescription. Men fought intemperately over who would sit where on a particular Sunday, precisely because they wanted to guard against any interruption of their prescriptive and customary rights. 

Regrettably, no simple and definitive answer to the underlying legal question about pews was ever given. At least none emerges from the records. One opinion held that nothing within a church could be prescribed because it was res sacra. Another was that possession time out of mind could raise a presumption that the right had been legitimately granted. I have not been able to tell which eventually prevailed, if indeed either did, though the persistence of the question suggests that the first view did not carry the day. For present purposes, however, the important fact is that discussion and resolution of the issue went on in spiritual courts without the slightest reference to the English common law. The judges of the ecclesiastical courts treated questions about the existence and validity of this particular sort of custom as belonging fully within their own sphere of determination. (176-77).

While the book was at times dense and difficult to approach, I must acknowledge that I approached the subject matter as somebody with limited knowledge of history and virtually no formal historical education. Even so, I found Helmholz's discussion of the legal community's transition from spiritual law to common law enlightening and often fascinating, and I was struck by the breadth of original case law Helmholz draws upon in reaching his conclusions.

Charles Donahue Jr. reviews Helmholz's book here, and you can find the first sixteen pages of the book here. Here is the Amazon page for the book as well.

"A Proposed Ban on the Sale To and Possession of Caloric Sweetened Beverages by Minors in Public"

That's the title of this article by James G. Hodge Jr., Leila Barraza, Susan Russo, Kellie Nelson, and Greg Measer. Here is the abstract:

Obesity is the definitive epidemic of the modern era in the United States. Its well-documented public health impacts, especially related to children and adolescents, are horrific. Nearly one-third of American minors are overweight; over 50% of them are obese. Already, these kids suffer from multiple adverse physical and mental health conditions. Sadly, absent serious communal and individual interventions, their lives may be cut short compared to their own parents’ life expectancy. While recent surveillance suggests childhood obesity may be trending down slightly in some populations, public health experts remain concerned about the threat obesity poses to the health of America’s youth.

This abstract sounds uncontroversial, and doesn't do justice to the article's attention-grabbing title. So here is a selection from the introduction that more accurately reflects the paper's content:

In the sections below, we take apart and analyze the legal and policy issues underlying a proposed ban on the sale to and possession of CSBs by minors in all public places. To the extent our proposed ban is legally viable, buttressed by available scientific evidence on the harms related to minors’ consumption of CSBs, closely tied to reducing gains in childhood obesity, and already in place in select school districts, it reflects the future of public health policy within and across states.

Some thoughts:

First, the article admits that current policies to reduce the consumption of sugary drinks by children are not succeeding. One reason for the lack of success is that "public opinion" stalls the progress of reform -- which presumably means that people tend to resist passage of restrictions on sugary drinks. The article claims that a full ban on sweetened drinks will succeed where these other restrictions have failed. But it is unclear how a complete ban would overcome the same obstacle of public opinion, especially if public opinion is enough of a barrier to frustrate less-exhaustive bans. Accordingly, it is unclear how this complete ban "reflects the future" of public health policy.

Second, on page 112, the authors state that their ban would not apply to fruit drinks to which no sugar has been added. But administering this ban would be quite difficult, since even single brands of fruit juice may contain varieties in which no sugar is added, and varieties with added sugar. Moreover, those varieties with added sugar may not be obvious -- since it has been my experience that only the varieties without added sugar have labels proclaiming the lack of such sugar. Customers who are under 18 would need to differentiate between these different varieties of drinks, and this same differentiation would need to be carried out by the store's cashiers. The breadth of the authors' definition therefore threatens to create a great deal of confusion for both customers and store employees.

Third, on that same page, the authors state that their definition of "caloric sweetened beverages" applies to milkshakes. This shocks the conscience.

Fourth, the ban would only apply to beverages that are sweetened with "caloric" sweeteners. This would exempt diet sodas from the ban. It is therefore difficult to see how a ban on both the purchase and public possession of these beverages could be enforced. Say a store has a soda fountain that is out of the immediate sight of the store clerk. A mischievous minor could claim that the drink he is purchasing is a diet soda, when in fact it is a regular soda. How is the clerk to verify that the minor is telling the truth?

And say that a police officer spies a group of youths outside a local gas station sipping on beverages that appear to be soda. The authors of this paper propose a ban that would apply to the possession of sugary drinks by minors in public. But how is the officer to determine whether the minors' drinks are regular or diet sodas? There must be some way for the authorities to enforce this new law -- perhaps the authors are suggesting that officers taste young people's beverages. Instead of "stop and frisk," perhaps officers will "stop and sip" minors' beverages in an effort to determine whether their drinks are calorie-free, or carbonated contraband.

The authors are correct to point out the problems caused by childhood obesity. And they are correct to claim that an outright ban on sugary drinks would probably be within state governments' powers. But despite their promise to explain every component of the ban, these six coauthors are unable or unwilling to confront the very apparent objections that this ban would be politically unfeasible and unenforceable.

Childhood obesity is a problem. A complete ban on the sale and possession of sugary beverages is a radical solution. Defending the feasibility of this solution requires more than three full pages of text.

BP Lawyers' Brief Formatting Shenanigans

Students entering law school often remark that law school writing assignments are difficult because of their maximum page requirements. This is different from many students' undergraduate experiences, where writing enough to exceed the minimum page requirement is the daunting task.

Law students are trained to adhere to strict maximum limits in their writing because brevity and efficiency is an important component of legal writing. And courts often have strict formatting rules and page or word limits on briefs that parties submit in legal proceedings.

Unfortunately, it appears that lawyers for oil company BP didn't understand the lesson and relied on an "old-school trick" to circumvent the court's formatting requirements. NPR reports on a recent order of the US District Court for the Eastern District of Louisiana. This order is one small chapter of the complex litigation that is unfolding over BP's massive oil spill in the Gulf of Mexico back in 2010.

From the order:

Finally, the Court must address the format of BP’s opposition memorandum. The briefing order allowed BP’s counsel to file a response of up to 35 pages, double-spaced. (Rec. Doc. 13154). This is 10 pages over the usual limit for response briefs. BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages.

The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

Any future briefs using similar tactics will be struck.

Word limits and formatting guidelines don't fade out of existence at the end of law school. Legal writing professors would do well to share this opinion with students who are inclined to protest the strict rules of writing assignments.

Leeson on Trial by Combat and the Coase Theorem

I have been researching trial by combat for a project I hope to undertake in the near future. In the process I read Peter Leeson's article, Trial by Battle (3 J. Legal Analysis 341 (2011)). It is one of the most fascinating things I have read in some time, and the first three paragraphs of the introduction give a good summary of Leeson's argument:

Modern legal battles are antagonistic and acrimonious. But they aren't literally battles. Disputants don't resolve conflicts with quarterstaffs. Their lawyers don't fight to the death. This wasn't always so. For over a century England's judicial system decided land disputes by ordering disputants' legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle.

To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it "monstrous." The institution's barbarity seems equaled only by its senselessness. As Richard Posner put it, "trial by battle" is one of those "legal practices that no one defends any more."

Almost no one. This paper defends trial by battle. It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179. I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efficiently. (citations omitted).

I previously blogged about trial by combat here. Leeson's article recounts the practice in detail and his approach to the practice from an economic perspective makes Trial by Battle the most interesting article I have read since R.S. Radford's, Going to the Island: A Legal and Economic Analysis of the Medieval Icelandic Duel (62 S. Cal. L. Rev. 615 (1989)).

In case you were wondering, Radford's article is also related to my current project. I will hopefully have more on that later.

Ninth Circuit: CDA Section 230 Does Not Bar Failure to Warn Lawsuit Against Website

Under Section 230 of the Communications Decency Act (CDA), websites are generally not liable for harm caused by content posted by third parties. This is because the CDA provides that websites will not be treated as the publishers of that content for purposes of liability. 

To illustrate, if I post something defamatory on this blog, the person I defame may have a viable claim against me, but not against Blogspot or Google, the platforms on which this blog is run. I explain this law in more detail here.

Every once in a while, courts find that a website encourages the third party's harmful statements in such a way that the website can be liable. But these decisions are a rare exception to the general rule.

Yesterday, the Ninth Circuit released the opinion Doe v. Internet Brands, Inc., an important case that illuminates the boundaries of websites' immunity. While websites may be shielded from lawsuits that concern the statements of third parties, the websites may be liable in failure to warn lawsuits, since those causes of action do not require the inference that the website was the publisher of third parties' statements. While I think that the opinion reaches a correct result, the Ninth Circuit maintains that its reasoning is consistent with the underlying goals of section 230 -- a claim over which I have some doubts.

Jimmy John's Sprouts Class Action Results in Cookie Settlement

These are the terms of a settlement agreement reached by Jimmy Johns in light of a recent class action lawsuit filed against the sandwich chain.

Heather Stark claimed that she ordered a sandwich containing sprouts and did not get sprouts on her sandwich. Rather than ask for sprouts or a new sandwich, Stark did what any red-blooded American would do and sued, arguing (according to the settlement agreement):

 (1) interference with contract; (2) intentional misrepresentation; (3) negligent misrepresentation, (4) fraud; (5) violation of California’s False Advertising Act, California Business and Professions Code sections 17500, et seq.; (6) violation of California’s Business and Professions Code sections 17200, et seq.; (7) Violation of California’s Consumers Legal Remedies Act, Civil Code sections 1750, et seq.; and (8) Violation of the federal Lanham Act, 15 U.S.C. § 1125. 

As a brief note on the last count of the complaint, it has always been my understanding that consumers typically lack standing to sue under the Lanham Act, and causes of actions arising under this statute are limited to business competitors (see, for example, commentary on the law here and here).

Unfortunately, lawyers would probably charge tens of thousands of dollars to make that point in court. So Jimmy Johns has proposed a settlement agreement which you can read here. Here is the part that everybody should know:

Without admitting liability, Defendant has agreed to provide vouchers to any Jimmy John’s restaurants, with a face value of $1.40 and good for any side item (pickle, potato chips or cookie) or soda, to all participating claimants who timely complete the online claim form available on www.jimmyjohns.com, up to a maximum of $725,000.00 less the actual costs of the settlement administration.

The rest of the settlement agreement goes on to say that the fairness of this settlement will be evaluated in court on December 4, 2014.

Admittedly the vouchers can be used to purchase a variety of items, but the quality of Jimmy John's cookies renders all the other options void. Because of this, and because I am mindful of those who have suffered without sprouts, I encourage my readers to pay careful attention to the progress of this litigation.

Potuto on Law Review Editors

Josephine Potuto has posted a delightfully critical article on SSRN entitled, Whose Article Is It Anyway? Student Editors and the Law Review Process. Here is the abstract:

Law professors publish in law reviews, not peer-reviewed journals. They are edited by law students. The editing process can be both irritating and exasperating. From experiences lived and those shared by colleagues across the country, I provide concrete examples of where law student editors go wrong, and also explain why.

And from the introduction:

Strange sounds emanate from a colleague’s office. Moans and groans. Shouts of “No!” Wails of dismay. Perhaps my colleague holds her head in her hands or reaches for an ice pack. The sounds certainly suggest as much. Two guesses. Either she is grading exams or she is reviewing edits made to her article by law review student editors.

Attacking law reviews is in vogue, so the contrarian in me cannot help but call out mistakes that I see in the various blog posts, articles, and papers that criticize the editors of law journals.

This motivation compels me to voice some qualms I have with the footnote following Potuto's name (also known as the asterisk footnote). This footnote, for mysterious reasons, appears on the second page of the paper and follows three numbered footnotes. This observation is partly critical, but primarily one of amazement. If asked to replicate Potuto's placement of the asterisk footnote, I would have no idea how to accomplish the feat.

Also, in that same footnote, there should probably be a comma after "Winning Appeals (1992)" (see Potuto's remark at the bottom of page eight). And "University of Nebraska," is three words, not two.

At the same time, however, I must admit that Potuto's criticism of law journals made me smile. I found her article's use of concrete examples and unsettling anecdotes to be engaging and humorous. I am also of the opinion that law review editors should keep abreast of all criticism of law journals so that they may work to fix the problems critics highlight.

For this reason, I recommend that editors take note of Potuto's criticisms. Editors should pay specific attention to her suggestions near the end of the article. It is unfortunate that these suggestions are buried beneath a host of cringe-worthy anectotes, since most student editors will think they do not commit similar errors, and may therefore think that this article does not apply to them. But editors could learn from Potuto's broader suggestions, and following her advice may mitigate some of the disconnect between professors and editors.

Finally, I would add a suggestion to Potuto's list: in the event that an editor is not entirely sure about making a change to an article, but suspects that a change is needed, the editor should make the change, and include a comment that indicates why the change was made. If the author disagrees with the comment, the author can reject the change. But the inclusion of the comment shows the author that the editor has considered the author's preferences, and is willing to defer to the author's judgment.

A Notable Approach to the Exclusionary Rule in the Ninth Circuit

Over the weekend, I learned about the Ninth Circuit case, United States v. Dreyer. At The Volokh Conspiracy, Eugene Volokh has a post containing the notable selections of the opinion. Here are the facts of the case, as laid out by the majority:

In late 2010, NCIS Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Agent Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network.

Agent Logan found a computer using the Internet Protocol (IP) address 67.160.77.21 sharing several files identified by RoundUp as child pornography. He downloaded three of the files, two images and a video, from that computer. After viewing the files, Agent Logan concluded that they were child pornography.

Thereafter, Agent Logan made a request for an administrative subpoena for the name and address associated at the time of the downloads with the IP address. He submitted his request to NCIS’s representative at the National Center for Missing and Exploited Children, which turned the request over to the Federal Bureau of Investigation (FBI). The FBI sent an administrative subpoena to Comcast. Comcast responded by providing Dreyer’s name and address in Algona, Washington.

After receiving that information, Agent Logan checked a Department of Defense (DoD) database to determine if Dreyer had a military affiliation. He found that Dreyer had no current military affiliation. Agent Logan then wrote a report summarizing his investigation and forwarded it and the supporting material to the NCIS office in the state of Washington. That office then turned the information over to Officer James Schrimpsher of the Algona Police Department. (footnotes omitted).

The majority concluded that Agent Logan's investigation violated the Posse Comitatus Act, which prohibits military personnel from conducting or assisting in civilian law enforcement activities unless authorized by law.

The most notable part of the opinion comes near the end, where the majority concludes that the violation of the Posse Comitatus Act warrants the exclusion of the evidence Agent Logan obtained. From the opinion:

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason. 

Agent Logan carried out these searches repeatedly. He was monitoring another computer at the same time that he found Dreyer’s IP address. And he was involved with at least twenty other child pornography investigations. Further, Agent Logan was not the only NCIS agent who engaged in such searches. He began carrying out these searches with two other agents at least several months before he found Dreyer’s IP address. (footnotes omitted).

At Just Security, Steve Vladek analyzes this portion of the opinion, noting that Judge O'Scannlain dissented in part, taking issue with the majority's conclusion that exclusion of the evidence was warranted. Vladek analyzes O'Scannlain's reasons, and notes that there is a broad question as to whether exclusion is the proper remedy for a statutory violation in light of the Supreme Court's "ever-growing hostility to the exclusionary rule." At The Volokh Conspiracy, Will Baude has additional analysis, noting that he is skeptical of the majority opinion, and highlighting various theories of the exclusionary rule that may apply, including one theory based in due process advanced by Richard Re in a recent article.

This case is certainly worth watching. If the Supreme Court is indeed engaged in a broader project of narrowing the scope of the exclusionary rule, reversing this case would be a convenient way to continue this undertaking. Additionally, this case might bring attention to the military's law enforcement activities and prompt other courts to confront the question of excluding any evidence that violates the Posse Comitatus Act. If additional courts confront this issue, their opinions may clarify the precise theory of the exclusionary rule that is in play.

UPDATE - 9/15/2014

Orin Kerr comments on the case here. He notes that Dreyer demonstrates an approach to the exclusionary rule that is similar to courts' approach in the mid 1900s and suspects that the Ninth Circuit's opinion would be "very vulnerable" if it were appealed to the Supreme Court.

Drone Licenses in Jackson, Mississippi?

That seems to be what members of Jackson's City Council are proposing in this WAPT News Report. Councilwoman Larita Cooper-Stokes recommends a policy that would require "everyone who's using drones in the City of Jackson" to register, noting that "we need to know who you are and we need to know what you're doing." Councilman De'Keither Stamps points out that privacy concerns are motivating the call for restriction, and worries about the prospect of people using drones to look through other people's windows.

The Clarion-Ledger reports on the story here, and notes that other cities have restricted the use of drones. This includes Iowa City, which banned the use of police drones last summer. A universal licensing requirement, however, would not be limited to government drones -- it would affect everybody.

While drones may be used to spy on people in ways that alternative technology could not facilitate, I think that calls for a drone registry are alarmist. Gregory McNeal argues that a lot of journalism about drones is "sensational," but that many of these reports end up covering incidents where the drone use was far more benign than initially reported. For example, a Seattle woman claimed that a drone had been spying on her through her window, and this caught the attention of the media. But it turned out that the drone was only being used to survey a site for a new building.

I also think that Cooper-Stoke's vague description of drone registration was concerning, namely that she wants to know what people are doing with their drones. It is not clear to me what sort of information would be collected by this registration scheme, and it is also unclear how this would help prevent the invasive use of drones.

While I am all for clearer regulation of drone technology, I think that the danger of private drones invading people's privacy is currently fairly low. Universal registration is far too blunt of an instrument to address the complicated question of regulating drones.

Don't Quote House of Cards in a Judicial Opinion Without Cite Checking

Sahil Kapur at Talking Points Memo has this post on how a federal judge in the Southern District of Ohio recently quoted Francis (or Frank) Underwood, a character in the Netflix series, House of Cards.

Kapur writes:

A federal judge quoted fictional "House of Cards" character Frank Underwood in an opinion released Thursday for aptly articulating a "longstanding and fundamental principle of American law." 

U.S. District Court Judge Timothy S. Black struck down an Ohio law banning false statements about political candidates, decreeing it unconstitutional. The judge argued that although "[l]ies have no place in the political arena," it's not the role of the government to police the accuracy of statements.

Here's the paragraph of the opinion where the court quotes Underwood:

What then is the alternative? The United States Supreme Court has clearly signaled the answer. For starters, the Supreme Court held flatly in 2012 that: “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (emphasis supplied). The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”

While at first glance the Underwood quote sounds like it recites the principle advanced by the court, the context of Underwood's remark reveals otherwise. In fact, the true meaning of Underwood's quote is probably the last thing the court wants to espouse.

Warning: House of Cards Season One spoilers following the break.

Why Are There No Federal Writs of Erasure?

Eric Pearson, in Foley & Lardner's Wisconsin Appellate Law blog, discusses this recent exchange that took place between Judge Frank Easterbrook and counsel for the appellant during oral argument in O'Keefe v. Chisholm (Bloomberg News has background on the case here):

Counsel: I would request the Court please vacate, in its entirety, the district court’s basis for the ruling. However this Court gets to that issue, if it perceives it needs to. This district court ruling has left a considerable stain, and we do not wish to have that… 

Easterbrook, J.: What are you asking for concretely? 

Easterbrook, J: Do you want us to issue a writ of erasure? 

Counsel: Well… 

Easterbrook, J.: Tell the district court it has to say something else? 

Easterbrook, J.: When we review a case on appeal, we will issue our own opinion. But we don’t go about erasing district court opinions. That seems to be what you want us to do. 

Counsel: Well…what I was thinking, Your Honor, was the vacation of that opinion. 

Easterbrook, J.: We do not vacate opinions. We review judgments.

Asking for a vacation of a "basis for the ruling" in front of a panel containing Judge Easterbrook is a bad idea in light of prior decisions that Judge Easterbrook has authored. Judge Easterbrook has repeatedly refused requests to vacate opinions of district courts, labeling these requests as actions for "writs of erasure."

But why are there no writs of erasure? The language of the All Writs Act (28 U.S.C § 1651) suggests that federal courts have broad powers to issue a variety of writs:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In light of this broad language, I would expect Judge Easterbrook to give some reason for why writs of erasure are not permitted. But many of his recent opinions on the subject simply contain a conclusory statement that the Seventh Circuit does not issue writs of erasure. See, e.g., Tara Gold Resources Corp. v. S.E.C., 678 F.3d 557, 560 (7th Cir., 2012) (noting, in the context of a request to vacate a letter sent to a business by the Securities and Exchange Commission that "[t]he judicial arsenal does not include a writ of erasure that blots documents from existence."), United States v. Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004) ("A Writ of Erasure is not among those remedies that are “agreeable to the usages and principles of law” and authorized by 28 U.S.C. § 1651(a), the All-Writs Act.").

After some searching, I found some other opinions by Judge Easterbrook that shed light on why he rejects writs of erasure. But after I reviewed those opinions, I was still left wondering whether his blanket rejection of these writs is truly justified. In the remainder of this post, I explore the reasons for rejecting writs of erasure and close with some brief remarks on why these reasons may not sufficiently a blanket rule against such writs.

Texas Courts Can Order Removal of Defamatory Material Posted Online

So holds the Texas Supreme Court in Kinney v. Barnes. The full text of the opinion is available here. Texas Lawyer reports that court orders for the removal of online content is a new remedy for defamed parties. Texas Lawyer goes on to note that the opinion still holds that courts cannot enjoin any future online speech since that would be an unlawful prior restraint, something that the Supreme Court has roundly rejected (see footnote 7 of the opinion).

From the opinion:

In this case, Kinney’s request for injunctive relief may be broken down into two categories. First, as reflected in the pleadings, Kinney would have the trial court order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

While injunctive relief is typically not available in defamation cases, ordering the removal of posted defamatory material seems to be a sensible exception to the general rule. Were the statement to remain online, courts would need to estimate the continuing damage the statement could cause, or re-adjudicate the case if harm continued to occur as a result of the statement. Ordering the removal of a defamatory statement may at least partially mitigate some of this continuing harm.

California Passes Law Prohibiting Non-Disparagement Clauses

So reports the LA Times:

Californians offering online opinions or reviews of businesses will have new legal protection under a bill signed Tuesday by Gov. Jerry Brown.

The measure by Assemblyman John A. Pérez (D-Los Angeles) aims to crack down on retailers seeking to stop negative online reviews by requiring consumers not to make negative public comments about the business.

Those requirements, known as non-disparagement clauses, are at times buried in the lengthy terms and conditions that some businesses ask customers to agree to before making a purchase. Pérez's measure makes such clauses illegal in most cases.

The bill is AB 2365. From the text of the bill:

SECTION 1. Section 1670.8 is added to the Civil Code, to read:

1670.8. (a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. 

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section. 

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

The bill goes on to include monetary penalties for businesses violating the law. These penalties take the form of statutory damages which could be recovered in any lawsuit filed by a consumer or by a government agency.

In a previous post, I highlighted an instance where a company engaged in oppressive use of its non-disparagement agreement. In light of the potential for companies to use these clauses to oppress customers and silence criticism, I think that this law is a good idea. Companies remain free to remove any disparaging remarks that are posted on their websites, and they remain free to pursue defamation cases, so there are still legal remedies available for companies that are facing significant harm caused by false criticism.

It will be interesting to see the effect of this bill on non-disparagement agreements throughout the country. I imagine that many companies that employ these clauses do so on their websites. These companies should probably remove those clauses from their online forms, since there is a significant chance that these forms will be signed by customers in California.

UPDATE: 9/12/2014

Eugene Volokh notes that subsection (a)(2) of the bill may prohibit a dangerous amount of conduct. Not only does that subsection prohibit the enforcement of a non-disparagement clause, it also states that businesses cannot "otherwise penalize a customer" from criticizing the business.

Volokh worries that this subsection could be construed to restrict businesses from refusing to do business with customers who make constant, disparaging remarks. And Volokh worries that this subsection could be construed to restrict defamation lawsuits against consumers' statements that are indeed defamatory.

I suspect that the most likely penalty businesses would seek to impose on customers would be liquidated damages that are stated in the non-disparagement clause. But these liquidated damages provisions would presumably be barred by the ban on enforcement of the non-disparagement clause -- a prohibition that is stated in subsection (a)(2) in addition to the broader, "otherwise penalize" statement.

While I think that courts would be hesitant to characterize filing a defamation lawsuit as "penalizing" a customer, Volokh is correct to point out that subsection (a)(2) of the law could have been more carefully drafted.

Wyoming Bill Would Regulate Law Enforcement Drones

The AP reports that Wyoming legislators are considering a bill that would regulate law enforcement agencies' use of drones:

Wyoming lawmakers are considering a bill to ban law enforcement use of drones without a warrant. 

Members of the Wyoming Legislature's Joint Judiciary Committee are set to hear a draft bill this week in Laramie. If it's approved, the full Legislature could consider the measure early next year. 

Linda Burt is executive director of the American Civil Liberties Union in Wyoming. Burt says it's important for the state to set limits on the use of drones before they become more prevalent in law enforcement. 

Legislative staffers drafted the bill the committee is set to consider at its meeting Thursday working from a model bill Burt presented to the committee earlier. 

"Basically what it does is it asks that before any law enforcement uses a drone for any kind of searches that they get a warrant based on probable cause," Burt said.

A few other websites have similar versions of this story, but they all seem to be copies of the AP report (although the Washington Times provides its own paraphrasing of the AP report here). Because of this, there are some missing details -- namely, the text of the bill.

After some investigative Google searching, I located the text of the bill -- you can find it here. 

While the bill is not much of a deviation from laws that have been passed and proposed in other states, I have a few comments on the current version.

An Early Version of Sexual Harassment Law in the Ecclesiastical Courts

From R.H. Helmholz's Roman Canon Law in Reformation England, (Cambridge Univ. Press, 1990), I learned about the process of ex officio proceedings in the English Ecclesiastical Courts in the sixteenth century. Helmholz writes that these proceedings concerned the "enforcement of the Church's rules relating to morality and personal conduct" (104) and covered a wide range of offenses.

The sixteenth century saw an expansion of ex officio proceedings and enforcement. Helmholz writes:

Conduct in and around one's parish church was more closely regulated by the ecclesiastical courts than had once been true. Interrupting the parson's sermon, throwing a snowball in the churchyard, sitting obstinately in the wrong seat, wearing one's hat during the reading of the Gospel, even being a "common sleeper" during church services; all could subject the offender to a required appearance before a spiritual tribunal. A mother's failure to appear for "churching" after the birth of a child was cause for citing her. So was marrying in a church during a prohibited time of the year. Equally punishable was speaking abusively against the churchwardens. The best that any of these offenders could hope for from the courts was dismissal with a warning not to repeat the conduct. They almost always had to pay court fees, and very often to contribute something towards relief of the poor. Elizabethan and Jacobean act books, though dominated by the prosaic sexual offences that were their medieval inheritance yet made room for new wrongs. (112-13) (footnotes omitted).

As Helmholz mentions at the end of that passage, ex officio proceedings had historically been concerned with sexual offenses. And while new prosecutions arose for different types of conduct, the sexual offense prosecutions remained.

Helmholz notes that new types of prosecutions arose in the sexual offense category as well:

Birth of the tort of "attempting the chastity" of a woman also belongs to this period. The terseness of most act book entries makes it difficult to generalize about the offence, but it is clear that it required no use or even threat of force. Little more than a serious and perhaps persistent proposition of sexual relations seems to have been all that lay behind most such prosecutions. A man from the diocese of Bath and Wells, for example, was prosecuted in 1621 for having so "very earnestly" solicited the chastity of a woman that she could allege an inability to "go quiet" on his account. A few of the ex officio causes tempt one to see in them antecedents of the modern notion of "sexual harassment." (111-12) (footnotes omitted).

From other research that I have been doing in the area of character evidence in sex offense cases (related to the issue I discuss in this post), I have learned in painful detail just how the early English courts, and early American courts, left a great deal to be desired when it came to treating women with respect. In light of this, it is interesting to learn about the existence of a tort under which men could be punished for propositioning women absent any physical force or threats of physical force. 

Knowing about the sad state of early law towards women deemed "unchaste," I expect that there were still many sexual propositions that went unpunished. But the existence of a tort that punishes sexual propositions is an interesting nuance in the history of this area of law.

My New Paper on Regulating Law Enforcement Drones

Last Friday, I posted about my new paper where I argue for the regulation of law enforcement drones by state legislatures rather than by courts. Because I did not post the paper or mention it on this blog until late Friday evening, I thought that I should mention it again this morning, and provide a bit more context as to how my arguments in the paper fit in with some of the existing commentary on drone laws.

You can download the full version of my paper here. Here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. 

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

In light of the California Assembly's recent passage of AB 1327, which would require law enforcement officers to obtain warrants before using drones, many commentators have written in support of the bill. In the rest of this post, I would like to highlight some of the commentary, and how my paper fits in with what has already been said.

Murphy on "Case Grids" and Legal Reasoning

I noticed this article by John F. Murphy in a recent SSRN notification email. The title is The Case Grid: A Tool for Analogical Reasoning. Here is the abstract:

This paper describes a graphical method for comparing the relevant facts and outcomes of several cases as they relate to a single legal test. I call this method the “case grid.”

The case grid allows a writer to easily identify similarities and differences between several precedent cases, and between the precedent cases and the facts of the “client” case (the case being analyzed, argued, or decided). These similarities and distinctions form the basis of analogical reasoning. Analogical reasoning — the process of predicting or arguing the outcome of a client case based on its factual similarities to and differences from precedent cases — is in turn a fundamental characteristic of brief-writing and opinion-writing. Because the case grid facilitates analogical reasoning, it deserves a place in every appellate advocate’s — and appellate judge’s — writing toolbox.

I thought this article was worth sharing because I frequently use my own version of the case grid method when writing briefs or papers, and it is a good way to keep cases organized and to outline how cases can be analogized or distinguished from one another. Murphy has some good advice for writing and refining case grids, and I recommend his article to anybody interested in learning about this method for organizing and outlining their legal writing.

Why State Legislatures Should Regulate Government Drones

At Slate, Margot Kaminski writes in support of California's AB 1327 which would regulate the government's ability to use drones. From the article:

There are no guarantees of how courts will come out on drone use. Like GPS tracking, it’s a complex issue, and there are old cases giving little credence to the notion that we have privacy rights in public. But the newest Supreme Court cases push back against this, showing a more sophisticated understanding of dragnet digital surveillance and privacy.


One guarantee is that court decisions will take time—and there are costs to waiting for courts to make up their minds. In 2011, the California Legislature passed a bill requiring a warrant for the search of cellphones at the time of arrest. Gov. Brown vetoed it. It took three years for the issue to work its way up through courts, only for the Supreme Court to find this summer in Riley v. California that a warrant is required for exactly that kind of search. The opinion was 9–0. In the meantime, Californians were subject to unconstitutional searches without legal protection.

Alito, writing in U.S. v. Jones, noted that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” I and 40 other law professors—in criminal procedure, privacy, and First Amendment law—have written to Brown in support of AB-1327’s warrant requirement. This is an example of good privacy lawmaking. People are concerned, and the California Legislature is responding.

I support state legislative efforts to regulate drone use because I think that regulating drones would be a dangerous enterprise if left up to the courts. I recently wrote an article where I make this argument in detail. I sent it to some law journals and I was waiting to post it on SSRN, but in light of Governor Jerry Brown's impending decision on whether to veto AB 1327, I have made a last minute, (probably) badly timed (Friday night?) decision to post the paper. It is available here, and here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. 

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

I will likely mention this article again next week at a more reasonable time, but I thought that I should mention it on the blog now. As is the case with any paper or post that I write, comments and criticism are welcome.

Contracts Exam Prediction: The Salaita Controversy at the University of Illinois

I've blogged about predicting law school exams and how students can go about predicting exam content, and I've posted some predictions about exam content on this blog and elsewhere on Facebook. As I have mentioned before, students should be on the lookout for stories in the news that have a legal hook, especially those that implicate several areas of a particular area of law. Events this August have led me to make another prediction -- this time in the field of contract law.

I predict that law professors may seek to structure a contracts exam around a recent controversy involving Professor Steven Salaita who was recently denied an offer to teach at the University of Illinois. Inside Higher Ed was one of the first outlets to report on this:

Many faculty job offers (which are well-vetted by college officials before they go out) contain language stating that the offer is pending approval by the institution's board of trustees. It's just a formality, since many college bylaws require such approval. 

Not so with a job offer made to Steven G. Salaita, who was to have joined the American Indian studies program at the University of Illinois at Urbana-Champaign this month. The appointment was made public, and Salaita resigned from his position as associate professor of English at Virginia Tech. But he was recently informed by Chancellor Phyllis Wise that the appointment would not go to the university's board, and that he did not have a job to come to in Illinois, according to two sources with knowledge of the situation. 

The university declined to confirm the blocked appointment, but would not respond to questions about whether Salaita was going to be teaching there. (And as recently as two weeks ago, the university confirmed to reporters that he was coming.) The university also declined to answer questions about how rare it is for such appointments to fall through at this stage. 

. . .

The sources familiar with the university's decision say that concern grew over the tone of his comments on Twitter about Israel's policies in Gaza. While many academics at Illinois and elsewhere are deeply critical of Israel, Salaita's tweets have struck some as crossing a line into uncivil behavior.

The Huffington post covers the story here.

This incident raises a number of questions, including whether there was an offer of employment, and whether Salaita has a promissory estoppel claim against the university. At ContractsProf Blog, Nancy Kim argues that Salaita may have had a valid contract of employment. David Hoffman replies to her claim here. This case also involves a significant promissory estoppel dimension: Michael Dorf argues that Salaita has a strong claim, Hoffman replies, arguing that the claim would be weak, and Dorf responds here.

Admittedly, this case raises a number of other questions, including whether the university violated the First Amendment, as Brian Leiter argues here. But Hoffman takes that into account, and offers an altered hypothetical where he removes a lot of the other issues from the contract law debate.

I think that this may end up being a contracts exam question because this case involves several levels of analysis, including offer and acceptance, promissory estoppel, and possibly good faith. Some of these questions are easy to answer, and others might be a bit tougher -- which is an ideal way to structure a law exam fact pattern. Moreover, while the Salaita case involves a number of non-contracts issues, as Hoffman's later post demonstrates, the fact pattern can be altered to remove those issues.

On the other hand, this controversy is occurring early in the semester, and law professors might not be thinking about using this fact pattern in their exams at the moment. But this may also count in favor of this case, since the attention it is getting now may die out by the time exams roll around, meaning that students will be less likely to have heard of this story.

With major legal blogs like Concurring Opinions, Dorf on Law, and Justia's Verdict covering this case, it is sure to be on the radar of many professors. Students would do well to take note of this case -- especially the debate between Dorf and Hoffman -- in preparing for contracts exams. In the very least, this is a good exercise for students who want to see arguments for and against promissory estoppel applied to a real case.

Constitutional Conflation

People who discuss legal issues or who engage in political debate often appeal to the U.S. Constitution to seek support and authority for their arguments. When the topic being discussed is indeed an issue with constitutional dimensions, this is certainly an appropriate way to argue.

But often the discussion turns to something that sounds like a constitutional issue, but in fact is not a constitutional issue. In those situations, appeals to the Constitution, while potentially persuasive, have no authoritative value. The mistaken attempt to appeal to the Constitution as a source of authority in matters where the Constitution does not apply is what I will call "constitutional conflation."

This post from the National Constitution Center's blog, the Constitution Daily, contains numerous instances of constitutional conflation. The post centers on whether people have a constitutional right for their photographs to be private. The blog accurately outlines the scope of the constitutional freedom from unreasonable search and seizure, but quickly turns in an unrelated direction:

California Legislature Passes Plastic Bag Ban

Reuters reports:

The California state legislature enacted a ban on plastic grocery bags on Friday near the end of its two-year session, a measure that if signed into law would become the first of its kind in America. 

A number of cities and counties in California and other U.S. states, including Hawaii's Maui County, have made it illegal for grocery stores to pack purchases in plastic. But at the state level, opposition from plastic bag makers has usually prevailed.


The California Senate voted 22-15 for the bill, which must be signed into law by Sept. 30 by Democratic Governor Jerry Brown, who has not signaled a position on the measure.

I blogged previously about the law here, where I noted that while I was inconvenienced by Los Angeles's similar ban, the law would probably have an overall positive environmental impact. I have since moved to a California city that permits plastic bags so I once again face the prospect of being somewhat inconvenienced in my shopping experience.

I admit that I still have a few hangups over the merits of this law. For example, Los Angeles stores offered paper bags for a small, additional cost after plastic bags were banned. But whether paper bags can be efficiently recycled is a matter of debate.

Still, even if there are some inefficiencies with paper bags, I still suspect that the bill will have a positive environmental impact. But because this issue raises strong opposition from both bag manufacturers and consumers, it will be interesting to see whether Governor Jerry Brown vetoes the bill or signs it despite this opposition.

Law School Stress and the Benefits of Cautionary Tales: A Response to Patthoff

From the Legal Theory Blog, I learned about Abigail Patthoff's forthcoming article, This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students (Utah L. Rev. 2015). Here is the abstract (from the document itself, not the SSRN abstract):

Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate student populations. As their teachers, law professors cannot ignore the palpable presence of this stress in our classrooms – unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness. Yet, in the name of persuasion, professors frequently, and perhaps unwittingly, introduce additional fear into the classroom as a pedagogical tool via a common fear-based narrative: the cautionary tale.

By taking lessons from existing social science research about “fear appeals” – scare tactics designed to frighten the listener into adopting a particular behavior – this article suggests that we can actively manage one source of law student anxiety by more thoughtfully using cautionary tales.

There is a lot in the article that I find agreeable. Patthoff correctly points out that law students are extremely stressed, and notes that something should be done about this, which is an attitude I certainly share. Patthoff also includes a great deal of information about "fear appeals," the limits of this teaching technique, and how it can increase stress. I don't have the expertise to judge whether Patthoff's characterization of the psychological literature is correct. I will therefore grant that there are limits to the effectiveness of fear appeals and that fear appeals can have a detrimental effect on law students.

Despite Patthoff's agreeable premises that law students are stressed, that this stress should be minimized, and that fear appeals can cause stress, her argument is incomplete. Patthoff equates cautionary tales with fear appeals -- a comparison that is highly questionable. Patthoff also overlooks several important functions that cautionary tales can serve, which include the function of reducing student anxiety in the law school classroom. In light of these issues, I conclude that Patthoff is too quick to criticize cautionary tales.

Citations to State Drone Laws

In light of my earlier post where I pointed out the number of states that have warrant requirements for government drones, I thought it would be helpful to post a list of citations to state laws regulating drone use.

Thirteen states have passed some sort of law regulating drones, and eleven of them contain provisions requiring law enforcement agencies to obtain a warrant before using a drone.

This post is not an exhaustive collection of citations to every drone law in each state. For now, I will only list citations to statutory provisions that require the government to obtain a warrant before using a drone. I will also include the proper Bluebook citations for North Carolina and Virginia's laws, which are a bit more difficult to hunt down and properly cite.

Here are my citations for state statutes that require law enforcement agencies to obtain a warrant before using drones:

Fl. Stat. § 934.50(3)-(4) (2013); Idaho Code Ann. §21-213(2) (2013); 725 Ill. Comp. Stat. 167/10, 167/15(1)-(3) (2014); Ind. Code § 35-33-5-9(a) (2014); Iowa Code Ann. § 808.15 (2014); Mont. Code Ann. § 46-5-109(1) (2013); Or. Rev. Stat. § 837.320(1)(a)-(b) (2013); Tenn. Code Ann. § 39-13-609(d)(2) (2013); Texas Gov. Code Ann. § 423.002(a)(7) (2013); Utah Code Ann. § 63G-18-103(1)(a) (2014); Wis. Stat. § 175.55(2) (2014).

Those states are Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Wisconsin.

One caveat: the dates in parentheses after each laws are the dates on which those laws were passed or most recently amended. It is possible (but somewhat unlikely) that states which passed drone laws in 2013 have released a version of their code in 2014, in which case, the correct year to include would be the year of the most recent code release. But since I do not currently have access to a library with up-to-date state codes, I cannot guarantee that all of those "(2013)" parentheticals are technically correct for Bluebooking purposes.

Finally, North Carolina and Virginia have passed moratoriums on drone use, but these laws can only be located in their Session Law form. This form is difficult to cite, since it requires locating the page of the session laws on which the law is listed.

Here are the citations to North Carolina and Virginia's moratoriums on drone laws: North Carolina: 2013 N.C. Sess. Laws. 1040. Virginia: 2013 Va. Acts 1408.

As states continue to pass drone laws, I will return to this post and update it. I will include a note of each update in addition to changing the text of the post. If, over time, it becomes too difficult to keep up with the updates, I will include a note that I have stopped editing this post.