The right to vote is a deceptively complex legal and moral right. Perhaps because the right is considered a “fundamental” constitutional right, or the foundational right of democratic self-governance, or the right “preservative of all [other] rights,” it is tempting to assume the right to vote has an essential core concept that is relatively obvious and widely shared. Undoubtedly there will be disagreements about specific applications—is felony conviction a justifiable basis, for example, for concluding that a citizen has lost the right to vote—but all rights generate some range of disagreement in application. Such disagreements do not undermine shared agreement on the core interests the right protects.
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From Corn to Norms: How IP Entitlements Affect What Stand-Up Comedians Create
In There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy we explored how, why, and what stand-up comedians have created at different points in the history of stand-up comedy. From this study, we offered insights into how intellectual property (“IP”) law affects human motivation to create, how legal and non-legal motivations interact, and how the emergence of IP entitlements (in comedians’ case, norm-based entitlements) may change creative practices.
We consider ourselves very fortunate to have received four insightful responses to our paper by scholars who each have done great work on IP and social norms. We thank each of them for commenting on our work. Reading their responses made us think again about the boundaries of our project, and about the implications of our findings and arguments. Their critiques are both internal to the paper—taking issue with our findings and logic—and external, suggesting possible extensions and noting questions for future research. We cannot, given the breadth and depth of the response papers and the time and space allotted to us, give each of the critiques the full attention they deserve. We will focus our reply on what we see as the core issues identified in each of the responses.
Massive Hard Drives, General Warrants, and the Power of Magistrate Judges
Most legal scholars who write at the intersection of technology and the Fourth Amendment spend much of their time building upon Professor Orin Kerr’s many clear and insightful articles, and I am no exception. It is thus with great respect and deference that I explain what Professor Kerr gets wrong in his latest article, Ex Ante Regulation of Computer Search and Seizure.
In Ex Ante Regulation, Professor Kerr tries to disrupt a trend emerging from the lower federal courts: the imposition by magistrate judges of limits on what the police can do with a search warrant for digital evidence stored on computer hard drives. These judges have tried to impose a diverse set of requirements and restrictions on these warrants—catalogued by Professor Kerr—such as limits on how long the police can retain a computer and what they can do when they examine its hard drive.
Professor Kerr offers both doctrinal and normative arguments against ex ante search warrant restrictions. His doctrinal arguments are the more provocative ones: he thinks ex ante warrant restrictions like these are lawless acts, beyond the constitutional and statutory power of magistrate judges. I disagree, and in this Essay, I respond almost entirely to these arguments, because if they are correct, then a normative debate is almost beside the point.
For support, Professor Kerr points to four Supreme Court cases which, as he concedes, “[v]iewed in isolation . . . do not definitively rule out the lawfulness of ex ante restrictions on the execution of computer warrants,” but which he claims, “[t]aken together . . . undercut every aspect of the lawfulness of such restrictions.” I respectfully disagree. Two of the cases are easy to distinguish, as Professor Kerr seems to concede.