The case is yesterday's Planned Parenthood v. Reynolds, which strikes down a 72-hour waiting period requirement; the court relies on the Iowa Constitution's Due Process Clause and also its Equal Protection Clause. Since this is a state court interpretation of the state constitution, with no federal claim being accepted or rejected, the U.S. Supreme Court won't review the case; but for the same reason, the decision could be overturned by a state constitutional amendment.

Many of our readers were interested in Joanna Schwartz's recent posts on rethinking qualified immunity, so I thought I'd note that yesterday the Iowa Supreme Court considered the closely related question of qualified immunity in state constitutional lawsuits (Baldwin v. City of Estherville); there are quite detailed majority and dissenting opinions—check them out if you're interested in the subject.

My new article, just published in the Notre Dame Journal of Legislation, tackles the controversy over whether laws that require government construction contractors to pay the prevailing wage have a racist history, and whether they continue to have discriminatory effects on minority workers.

Here's the abstract:

Since the early twentieth century, labor unions have lobbied federal and state governments to enact and enforce laws requiring government contractors to pay "prevailing wages" to employees on public works projects. These laws, currently active at the federal level and in approximately thirty states, typically in practice require that contractors pay according to the local union wage scale. The laws also require employers to adhere to union work rules. The combination of these rules makes it extremely difficult for nonunion contractors to compete for public works contracts.

Meanwhile, construction unions have been among the most persistently exclusionary institutions in American society. Not surprisingly, in many cases, the history of prevailing wage legislation has been intertwined with the history of racial discrimination. Economists and others argue that prevailing wage legislation continues to have discriminatory effects on minorities today. Union advocates, not surprisingly, deny that prevailing wage laws have discriminatory effects. More surprisingly, they deny that the granddaddy of modern prevailing wage legislation, the federal Davis-Bacon Act of 1931, had discriminatory intent.

Part I of this Article discusses the discriminatory history of the most significant of all prevailing wage laws, the Davis-Bacon Act. As discussed below, Davis-Bacon was passed with the explicit intent of excluding African American workers from federal construction projects, and its discriminatory effects continued for decades.

Part II of this Article discusses the controversy over whether prevailing wage legislation continues to have discriminatory effects. The section begins with a discussion of the empirical literature on the effects of prevailing wage discrimination on minority employment. The section next presents evidence that construction unions continue to discriminate against members of minority groups, albeit much more subtly than in the past. The section concludes by recounting allegations that prevailing wage legislation serves to exclude minority contractors from obtaining government contracts.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: Special guest Arthur Spitzer of the ACLU of D.C. joins the panel to talk about an American detained in Iraq, jury trials for petty crimes, and banning display of the First and Second Amendments. Click here for iTunes.

• In 1958, New York banned "gravity knives," which were used by German paratroopers in WWII and are now quite rare. But NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work. Second Circuit: The law isn't unconstitutionally vague. The possibility that the law is being selectively enforced is concerning, though; the other branches "may wish to give further attention" to the ban. (Gov. Cuomo vetoed reform in 2016 and 2017.) (We discussed an earlier ruling in the case on the podcast.)
• Woman gets 163 messages over the course of a year from her cell phone provider, Time Warner, notifying her she has an overdue balance. Yikes! She's not in arrears; the calls are meant for some other customer. She explains the issue, but the calls continue. Did Time Warner violate the Telephone Consumer Protection Act? The Second Circuit says no; Time Warner isn't an autodialer as the statute defines it. The TCPA doesn't apply.
• Man buys cell phone with reassigned number, receives a text message every time the prior owner of the number gets an email—27,800 of them over 17 months. He is unable to resolve the issue with Yahoo (which provided the text service the prior owner signed up for), so he sues. Did Yahoo violate the Telephone Consumer Protection Act? That sounds super annoying, says the Third Circuit, but Yahoo isn't an autodialer as the statute defines it; the law doesn't apply.
• Illegal immigrant dinged for pot possession in 2002 in Wake County, N.C. gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a "conviction" under the relevant statute, thus preventing him from applying to not be deported? No sir, says the Fourth Circuit; to count as a conviction, the statute says there must have been "some form of punishment, penalty, or restraint on the alien's liberty," and court fees don't count. He can ask not to be deported.
• Allegation: Assistant principal at Houston middle school orders strip search of 22 girls after $50 goes missing from choir class. (The search turns up nothing). School district: Which was unconstitutional, but you can't sue the school district. District court: That's so. The district's failure to provide Fourth Amendment training to staff doesn't amount to deliberate indifference, and even if it did, you can't show such training would have prevented the searches in question. Fifth Circuit: Plaintiffs may be able to show both those things. The case should not have been dismissed.
• In 2012, New Orleans officials detect code violations at city-owned property. Yikes! They commence enforcement action against a former owner (from whom they'd seized the house in 1998 over unpaid taxes). In 2015, officials sell the house to couple without mentioning the still-ongoing code enforcement proceedings. By happenstance, the couple catches wind, persuade officials to cancel the lien against the house. Yikes! Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo. Fifth Circuit: Could be the couple have some colorable Fourth, Fifth, and Fourteenth Amendment claims.
• Informant buys drugs at Grand Rapids, Mich. house from man with history of drug convictions. Police stop another man seen near the house; he has drugs. Several unnamed sources tell police they bought drugs at the house. A search of the home turns up contraband. An open-and-shut case? Not so, says two-thirds of a Sixth Circuit panel. Officers waited eight months after the controlled buy to apply for a search warrant; the application says the other man was seen in the area, not in the house, and the application doesn't give any indication as to the reliability of the unnamed sources. Suppress the evidence.
• Drug addict is accused of pushing sexagenarian out of parked car, stealing the car in 2006. She dies of head injury. He asks for a lawyer; Shelby Charter Township, Mich. police interrogate him without one. At trial, prosecutors repeatedly characterize his failure to deny the crime during the interrogation as inculpatory. (He's convicted, sentenced to life without parole.) Michigan courts: Everything is on the up-and-up. Sixth Circuit: The Fifth Amendment protects against uncounseled interrogations after right to counsel is invoked, the Fourteenth Amendment means silence isn't inculpatory, and the Sixth Amendment guarantees him a lawyer who would have brought that up at trial. These errors likely influenced the jury. New trial or release him.
• Judge McKeague of the Sixth Circuit cites Mark Twain's quip that "there are three kinds of falsehood: lies, damnable lies, and statistics," in reinstating guilty verdicts of an Ashland, Ky. cardiologist for health care fraud and making false statements to health care benefit programs. The doc led the nation in billing Medicare for angiograms and apparently performed quite a few unnecessary procedures.
• Seventh Circuit: The district court should probably appoint counsel to a mentally ill prisoner who alleges Green Bay, Wisc. corrections officers deliberately disregarded his serious risk of suicide. Concurrence: We're getting a little too close to declaring "a presumptive right to counsel in some categories of civil cases."
• In 2014, Montana man kills grizzly bear without a permit. (The authorities are none the wiser until months later when his ex-wife's boyfriend rats him out.) The authorities: Which is a federal crime. Ninth Circuit: But it's a petty crime (punishable by up to six months and a $25k fine), so the Sixth Amendment right to a jury trial doesn't apply. Still, his conviction is vacated because the trial judge ignored his subjective belief that he was acting in self-defense.
• Woman is arrested on state charges in 2014 relating to murder. Shortly after, the feds indict her on a separate charge—but don't tell her. She pleads guilty to state charge, gets sentenced in 2016. Nine months pass, and the feds finally unveil the 2014 indictment. (She's duly tried and convicted.) A speedy trial violation? The Tenth Circuit says no. While the feds don't have a good excuse for the nine-month delay, she failed to show how it hurt her at trial, and, since she was serving her state sentence, it's not as though she were in prolonged pretrial custody.
• Haitian man is convicted in U.S. court for taking American citizen hostage in Haiti. Man: I didn't know she was an American, I didn't have fair notice I could be dragooned to the U.S., and Congress doesn't have the authority to outlaw (this) crime beyond U.S. borders. Eleventh Circuit: Nope. The U.S. and Haiti are parties to an international treaty on hostage taking that puts everyone on notice and gives Congress all the authority it needs. And you needn't know the victim is American for the law to kick in.
• Did a pair of Florida counties violate federal overtime pay requirements by requiring sheriffs' deputies to arrive at work in their uniforms and failing to pay them for time spent donning and doffing said uniforms and policing accoutrements? The Eleventh Circuit says no.
• Low-IQ high school dropout posts ISIS videos on Facebook. Surprise! An FBI informant contacts him, befriends him, videorecords him dressing up as an ISIS recruiter, and persuades him to buy a (fake) bomb to detonate on Key West, Fla. beach. Eleventh Circuit: No reason to reconsider his sentence of life without parole. (Please enjoy some longform journalism on the case.)
• Mesquite, Tex. officers arrest 110-lb. teen tripping on LSD. Officers tell him to calm down, but the teen repeatedly screams, thrashes, and bashes his head against the police cruiser. Officers tase him multiple times. One says, "motherfucker, I'm going to kill you." (Audio here.) The teen dies of head injuries. District court: Can't sue the officers for depriving him of medical help. But a jury might find one officer, who tased the teen in the genitals, used excessive force. (Click here for some longform journalism on the teen's parents' years long effort to get the video that made this case possible.)
• Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to "serious" crimes punishable by more than six months. He's convicted. Man: I'm an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence. He gets a jury trial. Dissent: So now noncitizens can have jury trials for petty offenses, but citizens can't. Concurrence: D.C. officials could remedy that by restoring citizens' right to such trials (which was stripped by legislation in 1994).
• Wisconsin judges shall defer to state agencies' interpretations of state law no longer, says the Wisconsin Supreme Court. The Chevron doctrine, which the state borrowed from federal law and which mandated such deference, violates the state Constitution.
• California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn't exist; complying is impossible. California Supreme Court: California law "never requires impossibilities," but the microstamping requirement isn't invalid.

Georgia legislators recently approved a law requiring lactation consultants, who provide breastfeeding advice and support to new mothers, to obtain a license requiring years of college coursework and supervised clinical training. A salutary measure to protect public health and safety? Not at all! The law will serve only to enrich one group of consultants (who lobbied for it and who mostly already meet its requirements) at the expense another group of consultants. There is no evidence the second group provides anything other than excellent care, and indeed a state agency concluded in 2013 that licensing will not benefit the public. The law will create an instant shortage of consultants, particularly in rural, low-income, and minority communities. This week, IJ joined forces with Mary Jackson—who has trained doctors and nurses about lactation but may soon be out of a job—to challenge the law. Faced with a an injunction motion, the state has agreed to a stay of enforcement until the trial court can decide the case. Read more here.

Orin posts about the substance below, and notes that the court adopted an approach that he had advocated, but I wanted to add that the opinion cited four separate law review articles of his, nine times in total. Unsurprising, given his prominence in Fourth Amendment law generally and especially in the law of computer searches; but still always nice to see scholarship relied on and recognized.

As regular readers know, I have argued in my academic writing that the Fourth Amendment should be interpreted to impose use restrictions on nonresponsive data seized pursuant to a computer search warrant. In a new decision, State v. Mansor, the Oregon Supreme Court appears to have adopted my approach under Oregon's state equivalent of the Fourth Amendment.

Let me start with some context. Computer warrant searches require the government to find a needle in an enormous electronic haystack. When the police execute a warrant to search for and find the needle of evidence, they usually need to seize the haystack first to search it. I have argued that a warrant to seize the needle should allow the police to seize the haystack to search for the needle. But there's a catch: The government should ordinarily not be allowed to use whatever else they find in the haystack. If the warrant is only to seize a needle, the police can only take away and use the needle, unless there are exigent circumstances exposed by the discovery of other evidence. The nonresponsive data—other evidence that may exist in the haystack but is not described in the warrant—ordinarily can't be used. For the details of my view, see this article.

In today's decision, the Oregon Supreme Court adopted my approach under its state constitution. Here's the key part of the Court's opinion:

[The search for the evidence described in the warrant] was supported by probable cause, was sufficiently specific, and was not overbroad. The nature of a computer search, however, means that, in searching for that [evidence], that the forensic examiners were likely to come across or discover additional information. And, in this case, the forensic examination searched for and uncovered information, later used at trial, that went far beyond the scope of the warrant.

To ensure the protection of Article I, section 9, rights, we must consider what restrictions, if any, should be imposed on the use of information police obtain through reasonably executed warranted computer searches when those searches uncover evidence beyond that authorized in the warrant, and when no exception to the warrant requirement supports the collection or use of that evidence.

In our view, the privacy interests underlying Article I, section 9, are best protected by recognizing a necessary trade-off when the state searches a computer that has been lawfully seized. Even a reasonable search authorized by a valid warrant necessarily may require examination of at least some information that is beyond the scope of the warrant. Such state searches raise the possibility of computer search warrants becoming the digital equivalent of general warrants and of sanctioning the "undue rummaging that the particularity requirement was enacted to preclude." Mansor, 279 Or App at 803 (internal quotation marks omitted).

Although such searches are lawful and appropriate, individual privacy interests preclude the state from benefiting from that necessity by being permitted to use that evidence at trial. We thus conclude that the state should not be permitted to use information obtained in a computer search if the warrant did not authorize the search for that information, unless some other warrant exception applies. See Kerr, 48 Tex Tech L Rev at 24 (suggesting use restrictions for data "nonresponsive" to the warrant). Put differently, when the state conducts a reasonably targeted search of a person's computer for information pursuant to a warrant that properly identifies the information being sought, the state has not unreasonably invaded the person's privacy interest, and the state may use the information identified in the warrant in a prosecution or any other lawful manner. But when the state looks for other information or uncovers information that was not authorized by the warrant, Article I, section 9, prohibits the state from using that information at trial, unless it comes within an exception to the warrant requirement.

I'm pleased to see my approach adopted, although unfortunately the case involves horrific facts—and a terribly drafted warrant that caused the problem.

Here's a very simplified version of the facts (enough to explain the legal context, no more). The police suspected that Mansor had abused his infant son in a way that led to his tragic death. The police obtained a warrant to search Mansor's computer for evidence of abuse. But the warrant they drafted was incredibly narrow. As construed by the Oregon Supreme Court, the warrant only authorized a search for the Internet search terms that Mansor had entered in to his browser for a specific 15-minute window before Mansor had called 911 to report his son's injury. As the Court construed the warrant, at least, that was all the warrant authorized: All other evidence of child abuse on the computer was outside the warrant.

You can guess what happened. During the investigation, agents believed there was a lot more relevant evidence on the computer. And I'm guessing they didn't expect courts to read the warrant as narrowly as the Oregon Supreme Court did. In any event, the agents ended up looking through several years' worth of Internet browsing records for evidence related to child abuse. And their hunch was right: The broader search revealed evidence relevant to the charged crime that was then used at trial to convict the defendant.

This is was a horrific crime, and it's always hard to see a conviction overturned in a case like this. It's especially hard when the scope of the warrant was itself unclear, so the ruling seems like a bit of a technicality. But note that the result in this case would have been different if the police had merely drafted the warrant properly. As far as I can tell, the officers had probable cause that would have allowed them to obtain a much broader warrant allowing a search through the computer for any evidence of child abuse. All of the evidence would have been admissible at trial if the warrant had not been written in such a remarkably narrow way. It's also important to note that the Oregon Constitution's Article I, section 9—the state equivalent to the Fourth Amendment—does not have a good-faith exception that would have been an alternative ground for affirmance in the federal system. See State v. Johnson, 120 Or App 151, 156 (1993) (noting lack of a good faith exception in the state constitution).

Mansor is not a Fourth Amendment decision. As I mentioned at the top, it was decided under the Oregon Constitution's search and seizure provision that goes beyond the federal Fourth Amendment. Given that, the decision is interesting and relevant more by way of illustration than precedent. But I though the opinion was worth flagging nonetheless for those interested in computer search and seizure law.

Here's a question for our nonoriginalist readers–and it's not intended to be a trick question. If President Trump won't choose the type of justice you wish he would–defined however you like–would you prefer he replaced Justice Kennedy with:

• (a) A self-described living constitutionalist/multiple modalities/common-law-constitutionalist/moral-readings–pick your fave–justice who shares President Trump's political and moral views or
• (b) A self-described originalist?

Or, to put the question another way: Which type of Justice would you most fear? And, if it is (a), then doesn't that tell you something about the possible merits of (b)?

This is probably the least important news of the day, but the Supreme Court has denied cert in DuPont v. Smiley, which raised the question (among others) of whether an agency is entitled to Skidmore "deference" for interpretations advanced for the first time in litigation. Justice Gorsuch (joined by Chief Justice Roberts and Justice Thomas) issued a statement respecting the denial of cert:

The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions. For example, how are people to know if their conduct is permissible when they act if the agency will only tell them later during litigation? Don't serious equal protection concerns arise when an agency advances an interpretation only in litigation with full view of who would benefit and who would be harmed? Might the practice undermine the Administrative Procedure Act's structure by incentivizing agencies to regulate by amicus brief, rather than by rule? Should we be concerned that some agencies (including the one before us) have apparently become particularly aggressive in "attempt[ing] to mold statutory interpretation and establish policy by filing 'friend of the court' briefs in private litigation"?

(The amici who filed briefs were Cato and the Pacific Legal Foundation.)

It's not obvious how much difference this makes, since Skidmore "deference" is widely considered to be a weak form of deference, and I've even put "deference" in quotes here because Skidmore just tells courts to pay some respect to agencies' interpretations (to the extent those interpretations are persuasive) as the courts come to their own conclusion. (In this way, Skidmore "deference" differs from Chevron deference, which is a true form of deference: it reflects a (presumed) implied congressional delegation of interpretive power to agencies and thus takes some interpretive power away from courts.) Still, this is an interesting administrative law development for those who keep track of such things.

P.S. I see that Jonathan has beat me to this.

P.P.S. That Justice Alito didn't join this statement may not tell us much about his views, because it says that he didn't consider the cert petition at all: perhaps he was conflicted out? (It's a Third Circuit case involving labor law, and his sister is a Third Circuit labor lawyer—maybe that has something to do with it, though I'm not motivated enough to research the firms involved.)

The Double Jeopardy Clause generally bars the government from prosecuting a person twice for the same offense, regardless of whether the first prosecution led to an acquittal or a conviction. (If the first prosecution led to a hung jury, reprosecution is allowed.) But the Court has long held that this only bars reprosecution by the same sovereign: The federal government may reprosecute a person after a state prosecution (and vice versa, and in principle the same for multiple states, in the rare cases where multiple states both have jurisdiction over the crime).

In Commonwealth v. Sanchez (2016), Justices Ginsburg, joined by Justice Thomas, argued that this doctrine should be reexamined:

I write only to flag a larger question that bears fresh examination in an appropriate case. The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. Current "separate sovereigns" doctrine hardly serves that objective. States and Nation are "kindred systems," yet "parts of ONE WHOLE." The Federalist No. 82. Within that whole is it not "an affront to human dignity," Abbate v. United States (1959) (Black, J., dissenting), "inconsistent with the spirit of [our] Bill of Rights," to try or punish a person twice for the same offense? Several jurists and commentators have suggested that the question should be answered with a resounding yes: Ordinarily, a final judgment in a criminal case, just as a final judgment in a civil case, should preclude renewal of the fray anyplace in the Nation. The matter warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.

Today, the Court agreed to consider the issue, in Gamble v. U.S. For an earlier petition that makes what strikes me as a powerful originalist argument against the "separate sovereigns" doctrine, see this 2013 certiorari petition written by my UCLA colleague (and legal historian) Stuart Banner.

Jonathan has a nice post on the end of the "Kennedy Court." Just as Justice Kennedy replaced Justice O'Connor as the "swing" justice, it seems reasonable to anticipate that Chief Justice Roberts will be replacing Justice Kennedy as the new swing vote–a role he's likely to be pretty happy with. If it's true that whoever is the swing justice tends to have the most power and influence, then this change could truly mark the beginning of a genuine "Roberts Court."

However, before everyone spins themselves into a tizzy about the departure of Justice Kennedy, the chart below from SCOTUSBlog on the voting relationships of the Justices this term is worth examining. It shows a number of interesting relationships among the Justices.

• Of all the Justices, the ones who voted most frequently together are Justices Ginsburg and Sotomayor (at 96%); after them it is Justices Breyer & Kagan (at 95%).
• On the conservative side, the Justices who voted most frequently together were Justices Thomas and Alito (at 94%)
• The Justice who voted most often with Justice Kennedy was Chief Justice Roberts (at 90%).
• The Justice who was next closest to Justice Kennedy was his former law clerk Justice Gorsuch (at 85%).
• Indeed, Justice Gorsuch voted more closely to Justice Kennedy than to any other Justice: Roberts, Thomas, and Alito all tied for second at 82%.

Of course, these are stats from one term only. Justice Kennedy may well have been more "conservative" in his voting this year than in prior years given on the docket. But if they are measuring something that is real–and they may not–this voting pattern hints that

• The Court may not be pulled as sharply to the right–however you determine this–by the appointment of another Justice Gorsuch as some critics will allege. (Which of the judges on Trump's list is closest to Gorsuch is another matter. None are likely to be clone.)
• A Justice who is committed to originalism may reach many of the same outcomes as a Justice as seemingly eclectic in his methodology as Justice Kennedy.
• While Justice Kennedy did not call himself an originalist and did not generally employ originalists/formalist/textualist methodology, his own instincts may have comported pretty closely–and with significant exceptions–with conclusions yielded by originalism. (This may reflect my own views of the gravitational force of originalism.)
• Finally, the simple conservative-progressive continuum may be too simplistic to accurately capture a more complex reality.

In the end, the original meaning of the Constitution will not always comport with what a "conservative" would prefer to be the outcome of a given case. If that's correct, then the more faithful a Justice is to that meaning, the less his voting will conform to a purely conservative or purely progressive agenda.

FWIW: here is the chart:

Voting relationships (OT17)