Ex Ante Regulation of Computer Search and Seizure: A Reassessment

In the last decade, magistrate judges around the United States have introduced a new practice of regulating the search and seizure of computers by imposing restrictions on computer warrants. These ex ante restrictions are imposed as conditions of obtaining a warrant: Magistrate judges refuse to sign warrant applications unless the government agrees to the magistrate’s limitation on how the warrant will be executed. These limitations vary from magistrate to magistrate, but they generally target four different stages of how computer warrants are executed: the on-site seizure of computers, the timing of the subsequent off-site search, the method of the off-site search, and the return of the seized computers when searches are complete.

This Article contends that ex ante restrictions on the execution of computer warrants are both unconstitutional and unwise. The Fourth Amendment does not permit judges to devise limits on the execution of warrants. When such limits are imposed, they have no legal effect. The imposition of ex ante limits on computer warrants is also harmful: Ex ante assessments of reasonableness in ex parte proceedings are highly error-prone, and they end up prohibiting reasonable practices when paired with ex post review. Although ex ante restrictions may seem necessary in light of the present uncertainty of computer search and seizure law, such restrictions end up having the opposite effect. By transforming litigation of the lawfulness of a warrant’s execution into litigation focusing on compliance with restrictions rather than reasonableness, ex ante restrictions prevent the development of reasonableness standards to be imposed ex post that are needed to regulate the new computer search process. Magistrate judges should refuse to impose such restrictions and should let the law develop via judicial review ex post.

Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

Some public choice-influenced scholars claim that voluntary interlocal bargaining can effectively address city-suburb wealth disparities. On this view, economic interdependence encourages (comparatively) affluent suburbs to enter into “burden-sharing” agreements with cities, diminishing the need for so-called regional governments. This perspective holds that Virginia’s distinctive system of city-county separation is uniquely well-suited to the formation of such agreements. Interlocal burden sharing is rare in Virginia, however, and proponents’ example of such burden sharing—a tax base sharing scheme between Charlottesville and Albemarle County—is deficient in several respects.

This Note thus challenges the invocation of Virginia as a model to which other states might aspire. The paucity of burden sharing and the deficiencies of existing agreements stem from two weaknesses in the bargaining thesis. First, the conditions necessary to bargaining are frequently absent. For instance, Virginia’s annexation moratorium eviscerates cities’ bargaining power against counties. Second, and more fundamentally, the bargaining thesis neglects structural disincentives to bargaining resulting from Virginia’s system.

The weaknesses of the bargaining thesis have important repercussions for addressing interlocal inequities. Although some call for regional governments to cure disparities, such reforms are substantively undesirable and politically unfeasible. Similarly, Virginia’s now-dormant annexation system was problematic. Although annexation enhanced cities’ bargaining power, it also produced bitter conflicts. The annexation system also failed to promote significant burden sharing. Several reforms would realign suburban counties’ bargaining incentives, providing a means by which existing governmental entities can address metropolitan disparities. 

Originality

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules’ application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.