The Fourth Amendment, New Technology, and Judicial Deference

It’s come to fisticuffs. Professor Orin Kerr and I have taken our many debates out of the halls of GW Law School and into the pages of a forthcoming symposium issue in Fordham Law Review.

My piece is a short essay, entitled Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, which critiques an article Orin wrote in Michigan Law Review about the Fourth Amendment, judicial review, and new technologies. Orin argued that “courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies.”

I argue vigorously that Orin is wrong. My essay is a short easy read, and you might find it entertaining to watch me dismantle my colleague and friend – or laugh at me for failing in the attempt. You can be the judge.

And Orin, of course, wanted to have the final word, so read his short reply essay to my attack, which will also appear in the Fordham Law Review.

In the end, my scorecard has me winning by TKO. Orin’s scorecard, surprisingly, has him winning by TKO. So to settle this thing, let us know what you’ve got down on your scorecard.