Dorf on Law

A recent Fifth Circuit decision, Texas Tobacco Barn v. US Dep't of Health & Human Services , was handed down two years to the day after the Supreme Court decision it applied to hold that agency proceedings within the FDA resulting in civil penalties violate the Seventh Amendment. After providing a bit of background for those readers who don't have the misfortune to follow the Supreme Court's convoluted federal jurisdiction rulings as closely as I do, I'll use the case as an opportunity to compare and contrast the historical analogy approach the Roberts Court has taken to the Second and Seventh Amendments. For those readers already put off by the subject, here's the bottom line: the Court's purported use of historical analogies is mostly a mask for its normative preferences. Now, that background: In its 2024 decision in SEC v. Jarkesy , an ideologically divided 6-3 Court held that the Seventh Amendment requires jury trials whenever the government seeks civil ...

Last week, I blogged here at Dorf on Law about Chatrie v. United States , the Supreme Court’s first major Fourth Amendment case in eight years. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. Chatrie was a huge win for digital privacy, and it substantially expanded the scope of the Fourth Amendment. In today’s post, I’ll explain what Chatrie means for Fourth Amendment law going forward. The Chatrie opinion potentially transformed Fourth Amendment search law in several ways. In 2018’s Carpenter v. United States , the Supreme Court held that requesting cell phone location data over a seven day period in order to track a suspect’s movements was a Fourth Amendment search requiring a warrant and probable cause. It discussed several factors that contributed to its decision, but the three that lower courts have used most frequently in the wake of ...

Not having been brought up on soccer/football, I have only in the last twenty years or so learned anything at all about the World Cup.  This year is the men's version, and even with my years of living outside of the US at least temporarily behind me, I have been paying fairly close attention to the tournament and everything around it.  Not that I have actually watched any matches, mind you, given the stranglehold that Fox has on the broadcast rights, but I have certainly followed the results and surrounding news carefully enough to have formed three thoughts that I will share here to end the week. Actually, it is not so much three thoughts as two thoughtlets and one angry observation. Thoughtlet #1 : As soon as I learned that this year's tournament had been expanded in both the number of teams and by adding a Round of 32 to the knockout rounds, I had no doubt that the commentary would lapse into one of my longstanding pet peeves: meaningless "first evers."  I have com...

[N.B. The following essay was first published on SCOTUSblog . The version below includes one additional paragraph and some formatting that do not appear in the SCOTUSblog version.]  Speaking at a Federalist Society event the day the Supreme Court wrapped up its latest term, attorney  Kannon Shanmugam described  an “emerging theme” in the case results. “On issues of . . . broader significance,” the head of Davis Polk’s Supreme Court and appellate practice group said, “the, quote-unquote, ‘conservative’ side is typically winning. On issues that are more specific to this administration, the outcomes are sometimes different.” I agree with Shanmugam’s view about the Court’s conservatism with respect to the issues of broad significance – what I would call issues of longstanding interest to conservatives. In the term just completed, LGBTQ advocates lost cases involving  conversion therapy  and  transgender athletes . The Court validated Second Amendment claims in ...

Twenty-eight years ago, I wrote an article summarizing a pair of essays written in 1900 by Arthur Machen, Jr., in the Harvard Law Review. Machen was the first person to use the phrase the "living Constitution" in a legal essay. He framed the issue as follows (please forgive the long quote): As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law. . . . Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist--the theory of state sovereignty. Commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality ha...

Maya Angelou's famous warning is in serious danger of becoming stale: "When someone shows you who they are, believe them the first time."  I risk adding to its overuse here because it so perfectly fits the big political story coming out of the State of Maine, where a man won the Democratic Party's nomination for US Senate in last month's statewide primary.  His name is Graham Platner, and we should have believed him the first time. Platner's cakewalk in the primary (taking 71.9 percent of the vote) set him up to face the incumbent Republican Susan Collins, who is infamously "concerned" at all times about her party's extremism -- but never quite so concerned that she does anything about it.  Collins is an embarrassment, and the Democrats' extremely slim hopes of retaking control of the US Senate cannot possibly go anywhere without taking that seat.  Maine is a blue state, and it should not be difficult for Democrats there to win a seat against...

Last week, the Supreme Court issued its first major Fourth Amendment case in six years: Chatrie v. United States . Chatrie is a massive victory for digital privacy. It holds that geofence searches, which use cellphone data to track all cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. It sharply limits the “third-party doctrine,” which held that data disclosed to a third party service provider lost all Fourth Amendment protection and could be obtained by the government without a warrant or cause. More than that, Chatrie definitively establishes that Fourth Amendment law in the digital era will be appropriate to that era, and not anchored to traditional property concepts or distant analogies to non-digital contexts. The future of Fourth Amendment law has never been brighter. The Chatrie case involved the investigation of a bank robbery. On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a...