Essay

Void Judgments and “Reasonable Time”

Introduction

Rule 60(b) of the Federal Rules of Civil Procedure authorizes federal district courts, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons.1 1.Fed. R. Civ. P. 60(b).Show More Rule 60(b)(4) specifically allows parties to seek such relief where “the judgment is void.”2 2.Fed. R. Civ. P. 60(b)(4).Show More Rule 60(c)(1) establishes a time limit for Rule 60(b) motions, demanding that certain requests for relief—including requests based on a party’s inadvertence or mistake, newly discovered evidence, or allegations of fraud—must be brought “no more than a year after the entry of the judgment” from which relief is sought.3 3.Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3).Show More All other motions under the Rule must be made “within a reasonable time.”4 4.Fed. R. Civ. P. 60(c)(1).Show More

Notwithstanding the Rule’s seemingly straightforward language, multiple federal courts of appeals have concluded that Rule 60(c)(1)’s “reasonable time” requirement does not apply where a party seeks relief from the consequences of an assertedly void judgment.5 5.See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit).Show More The refusal to apply the reasonable time limitation to motions under Rule 60(b)(4) is premised on the idea that “no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion.”6 6.United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”).Show More This view also finds support among leading academic commentators on federal jurisdiction and procedure.7 7.11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane].Show More

But not everyone is convinced. Some courts, including the U.S. Court of Appeals for the Sixth Circuit, have adopted a literal interpretation of the Rule that would require all motions under Rule 60(b)—including those authorized by Rule 60(b)(4)—to be made within a “reasonable time.”8 8.In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012).Show More The U.S. Supreme Court recently granted certiorari in Coney Island Auto Parts Unlimited, Inc. v. Burton,9 9.Coney Island, 145 S. Ct. 2775.Show More which presents the question of “[w]hether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.”10 10.Petition for a Writ of Certiorari, supra note 5, at i.Show More This case seems to confront the Court with a direct conflict between the literal text of Rule 60 and deep intuitions regarding the relationship between jurisdiction and judgment validity.

This Essay suggests a way in which the Court could answer that question that makes sense of both the Rule’s text and background history, and the traditional conception that void judgments are nullities carrying no legal effect. This interpretation draws upon the traditional common law distinction between judgments that were void on the face of the record and judgments for which the rendering court’s lack of jurisdiction could only be established through extrinsic evidence. Though judgments of the former type were generally regarded as absolute nullities that could be challenged at any time, challenges that hinged on extrinsic evidence often faced additional obstacles, including a potential laches defense if the moving party unreasonably delayed in seeking relief. Interpreting Rule 60(c)(1) in light of this distinction would make sense of the text’s extension of the “reasonable time” requirement to motions for relief from void judgments without imputing to the enactors an intention to depart from deeply rooted background principles regarding the relationship between adjudicative jurisdiction and the validity and finality of legal judgments. This interpretation also comports with the overarching policy goals of Rule 60(b) and of the Federal Rules more broadly.

  1.  Fed. R. Civ. P. 60(b). ↑
  2.  Fed. R. Civ. P. 60(b)(4). ↑
  3.  Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3). ↑
  4.  Fed. R. Civ. P. 60(c)(1). ↑
  5.  See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit). ↑
  6.  United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”). ↑
  7.  11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane]. ↑
  8.  In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012). ↑
  9.  Coney Island, 145 S. Ct. 2775. ↑
  10.  Petition for a Writ of Certiorari, supra note 5, at i. ↑

Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record

Introduction

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas.1 1.See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).Show More At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians,2 2.Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].Show More who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.3 3.Exec. Order No. 14,036, 3 C.F.R. 609 (2022).Show More

Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital.4 4.See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].Show More Inquiring people want to know, and manipulative people want to manipulate.

This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements.5 5.See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.6 6.See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More

Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available,7 7.See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).Show More and several of the significant lawsuits brought by the Administration are still pending.8 8.See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).Show More That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good).9 9.See infra notes 203–05 and accompanying text.Show More By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies.10 10.See infra notes 200–02 and accompanying text.Show More It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.

  1.  See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures). ↑
  2.  Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE]. ↑
  3.  Exec. Order No. 14,036, 3 C.F.R. 609 (2022). ↑
  4.  See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE]. ↑
  5.  See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  6.  See infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  7.  See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published). ↑
  8.  See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss). ↑
  9.  See infra notes 203–05 and accompanying text. ↑
  10.  See infra notes 200–02 and accompanying text. ↑

Fourth Amendment Trespass and Internet Search History

Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed information from search engine companies about any internet user who entered a specific phrase into the search engine. In recent years, the constitutionality of these warrants has sparked growing debate. Underlying this debate rests a critical threshold question: Does the Fourth Amendment require the government to obtain a valid warrant before accessing a person’s internet search data? Thus far, three courts have addressed the question, all reaching different conclusions.

One reason for the lack of consensus is that these courts have relied exclusively on the “reasonable expectation of privacy” test to determine whether a warrant is required to access search data. This Essay explains why assessing search data under the privacy framework leads to muddled analysis and contradictory conclusions, contributing to constitutional uncertainty. We urge courts to look instead to the traditional trespass test set out in United States v. Jones to determine whether the Fourth Amendment protects search data. By analyzing the issue through the lens of trespass, this Essay reaches a clear answer: accessing search data is a Fourth Amendment search. In doing so, this Essay adds urgency to the keyword warrant debate, advances Fourth Amendment doctrine in a rapidly evolving technological landscape, and helps realize the full protections of that constitutional guarantee.

Introduction

On July 19, 2016, someone broke into a Pennsylvania home and assaulted the woman living there.1 1.See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).Show More After spending two months exhausting their physical leads, law enforcement was still without a suspect.2 2.See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).Show More So, investigators turned to Google.3 3.Kurtz, 294 A.3d at 517.Show More Specifically, they obtained a warrant directing Google to disclose detailed information associated with any user who searched the victim’s name or home address in the week preceding the attack.4 4.Id.Show More This novel investigative technique, known as a “keyword warrant,”5 5.Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).Show More led investigators to John Edward Kurtz, who was later charged and convicted.6 6.Kurtz, 294 A.3d at 516–18.Show More On appeal, Kurtz challenged the warrant as unconstitutional, arguing that its omission of a named suspect violated the Fourth Amendment’s probable cause and particularity requirements.7 7.Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. SeeMary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev. 877, 925–27 (2024).Show More The constitutional sufficiency of the warrant was ultimately irrelevant to the case, however, because the court held that government access to Kurtz’s search data was not a search at all.8 8.Kurtz, 294 A.3d at 522.Show More Thus, no valid warrant was required to obtain his search data.9 9.The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).Show More

Commonwealth v. Kurtz raises a pressing question: Can the police access your internet search history without a warrant? Because it is not clear that a keyword warrant can ever be validly issued, the constitutionality of keyword searches may depend on the threshold question of whether it is a Fourth Amendment “search” that requires a warrant.10 10.See supra note 7.Show More As of this writing, however, no consensus answer has emerged: three state courts have addressed the question, and they have all reached different conclusions.11 11.Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.Show More One reason for this uncertainty is that courts have relied on the familiar “reasonable expectation of privacy” framework to answer the threshold search question.12 12.See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).Show More

This Essay seeks to change that. Part I explains why applying the reasonable expectations test to search data produces contradictory results. Part II urges courts to look instead to the traditional trespass test endorsed in United States v. Jones to determine whether the Fourth Amendment protects search data. Though the Supreme Court has never applied the trespass test to intangible property, we explain why adopting this approach in the context of search data is consistent with Fourth Amendment jurisprudence and produces a clear answer: accessing search data is a search. Finally, Part III addresses the limitations of our trespass analysis and explores its impact on existing case law.

  1.  See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023). ↑
  2.  See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). ↑
  3.  Kurtz, 294 A.3d at 517. ↑
  4.  Id. ↑
  5.  Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023). ↑
  6.  Kurtz, 294 A.3d at 516–18. ↑
  7.  Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.

    977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.

    66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. See Mary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev.

    877, 925–27 (2024).

    ↑

  8.  Kurtz, 294 A.3d at 522. ↑
  9.  The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). ↑
  10.  See supra note 7. ↑
  11.  Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question. ↑
  12.  See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same). ↑
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