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Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—August 26



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2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules. 



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