Appellate Court Debates Professor's Scholarship

Professor Orin S. Kerr was cited 16 times in the Second Circuit's opinion in United States v. Ganias.

June 15, 2016

Professor Orin S. Kerr

One George Washington University Law School Professor's scholarship is the subject of debate at the U.S. Court of Appeals for the Second Circuit. In May, the en banc court extensively cited Orin S. Kerr, Fred C. Stevenson Research Professor of Law, in its ruling on the case United States v. Ganias.

At issue in the case was whether the government may retain and search copies of electronic files if the files were not covered by the warrant under which they were seized. In its opinion, the Second Circuit affirmed the judgment of the district court but did not decide whether retaining electronic copies violated the Fourth Amendment.

This opinion cited Professor Kerr, an expert on criminal procedure and computer crime law, 16 times. The opinion also included footnotes debating whether Professor Kerr approved or disagreed with the panel opinion in one of his articles, "Executive Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data."

"As an initial matter, the dissent cites Professor Kerr as having concluded that the panel “largely got it right.” Id. In fact, Kerr’s analysis of the original panel opinion is generally critical, not complimentary. See Kerr, Executing Warrants for Digital Evidence, supra, at 32..." — Second Circuit Opinion in United States v. Ganias

The case is one that Professor Kerr has followed closely for years. He previously wrote about it in 2014 and 2015 as part of the legal blog "The Volokh Conspiracy." His many citations in the new en banc opinion highlight his work as one of the preeminent digital evidence scholars.