3 ms·

At least in the cases I have read have not assumed publicity. Most of what I have gotten on the subject has been from Orin Kerr's discussion of Ashcroft v. Al-

At least in the cases I have read have not assumed publicity. Most of what I have gotten on the subject has been from Orin Kerr's discussion of Ashcroft v. Al-Kidd and a number of other cases (he's a law prof), and some stuff another law prof (Eugene Volokh) has blogged about on some other cases. I make a hobby of actually reading what the courts have said. Now all this being said, it isn't out of the question for different circuits to have subtly different standards. As a note dissents on several relatively obscure cases I have read have noted that after the finding of violation that the law will be sufficiently clear for the next case to proceed. My understanding at least in the circuits I have looked at is that "reasonable person" includes "reasonable person having been advised by a lawyer." Note that a lot of cases really do fall into the case where beforehand reasonable lawyers could disagree as to whether a violation occurred. I think this is what this is usually intended to resolve. But again there are so many areas of law where circuits adopt remarkably different tests (a hot one right now is airport searches with the 5th and 11th circuits giving the TSA largely a blank check and the the 3rd and 9th circuits saying there are limits but not yet having found that those limits have been exceeded).

btilly 14y ago
I believe that the point made before the courts was that a legal principle that had not shown up once in litigation in nearly two hundred years is obscure enough that even a lawyer could be excused for failing to remember its existence. At this point that would be a legal principle that has shown up only once in over 200 years, and which created precedent supporting the claim that it is so obscure that even a lawyer could be excused for failing to remember its existence. Obviously a lawyer whose attention was drawn to the 3rd should draw a correct inference. But there is so much to the law, and lawyers focus so much on precedent from previous cases, that a lawyer can be excused for forgetting about it.

btilly 14y ago

I believe that the point made before the courts was that a legal principle that had not shown up once in litigation in nearly two hundred years is obscure enough that even a lawyer could be excused for failing to remember its existence. At this point that would be a legal principle that has shown up only once in over 200 years, and which created precedent supporting the claim that it is so obscure that even a lawyer could be excused for failing to remember its existence. Obviously a lawyer whose attention was drawn to the 3rd should draw a correct inference. But there is so much to the law, and lawyers focus so much on precedent from previous cases, that a lawyer can be excused for forgetting about it.