# Oh, good! A New Constitutional Theory of Privacy!
**URL:** https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942
**Category:** Great Debates
**Created:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942 "2010-08-11T16:06:12Z")
**Posts on this page:** 20
**Page:** 14
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 15, 2011, 9:51pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/261 "2011-07-15T21:51:51Z")
> [@Whack-a-Mole](#):
>
> If the FBI determine you are in public (via the geolocation ability) they can turn on your phone and listen in. No different than if they were standing near you and overheard you right?
Not true. As the seminal _Katz_ pointed out:
> [@](#):
>
> The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.
> [@](#):
>
> Why shouldn’t they have to get a warrant first? Now they can just fish for evidence apparently and for some reason people here are ok with that.
To listen to your private conversations? Yes, they need a warrant, per _Katz_. To track your car’s travels over the public ways? No warrant needed.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 15, 2011, 9:53pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/262 "2011-07-15T21:53:29Z")
> [@Whack-a-Mole](#):
>
> The FBI can eavesdrop on you by [turning on your cell phone’s mic](http://news.cnet.com/2100-1029_3-6140191.html) (even when your phone is off in some cases).
>
> Then can also access the phone’s [geolocation features](http://www.foxnews.com/scitech/2010/02/12/fbi-knows-thanks-cell-phone/) (if it has it which is quite common nowadays).
>
> I suggested they use RFID earlier but hell…why bother?
>
> Apparently the people here who are fine with the GPS would be fine with this too since your phone is a GPS device too (or many are anyway). If the FBI determine you are in public (via the geolocation ability) they can turn on your phone and listen in. No different than if they were standing near you and overheard you right?
>
> Why shouldn’t they have to get a warrant first? Now they can just fish for evidence apparently and for some reason people here are ok with that.
As I have pointed out before, the sneakier the police get the more they know they wouldn’t get the evidence they seek if they were actually present, which speaks volumes about what expectation of privacy you have. As in, the secreter they get, the more they know they are violating your privacy.
They claim efficiency, and while we can’t deny efficiency is a legitimate police interest, no need to waste tax dollars, their real interest is OBVIOUSLY secrecy.
---
### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [July 15, 2011, 9:56pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/263 "2011-07-15T21:56:39Z")
> [@Bricker](#):
>
> Not true. As the seminal _Katz_ pointed out:
>
> To listen to your private conversations? Yes, they need a warrant, per _Katz_. To track your car’s travels over the public ways? No warrant needed.
Why does _Katz_ apply? It is not the same issue.
We are talking about GPS here. If they can put it on your car why not access your phone’s geolocation ability?
And when was the last time you saw a glass phone booth? If they can determine the guy is standing in a park he is in public. If he talks others can hear him. The way this thread is going he would have no expectation of privacy apparently so why not turn on his phone’s mic?
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 15, 2011, 10:00pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/264 "2011-07-15T22:00:53Z")
> [@Whack-a-Mole](#):
>
> The FBI can eavesdrop on you by [turning on your cell phone’s mic](http://news.cnet.com/2100-1029_3-6140191.html) (even when your phone is off in some cases).
In this example you provide, the FBI got a warrant from a judge to do this.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 15, 2011, 10:03pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/265 "2011-07-15T22:03:48Z")
> [@Whack-a-Mole](#):
>
> Why does _Katz_ apply? It is not the same issue.
>
> We are talking about GPS here. If they can put it on your car why not access your phone’s geolocation ability?
>
> And when was the last time you saw a glass phone booth? If they can determine the guy is standing in a park he is in public. If he talks others can hear him. The way this thread is going he would have no expectation of privacy apparently so why not turn on his phone’s mic?
The Supreme Court also held in Katz that one can still seek privacy in public and be afforded fourth amendment protection. If the guy is standing in line to buy a drink in the park, he’s fair game. If he made a point to walk fifty yards away from anyone in the park before making his call, the fourth amendment protects him.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 15, 2011, 10:12pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/266 "2011-07-15T22:12:22Z")
> [@David42](#):
>
> The Supreme Court also held in Katz that one can still seek privacy in public and be afforded fourth amendment protection. If the guy is standing in line to buy a drink in the park, he’s fair game. If he made a point to walk fifty yards away from anyone in the park before making his call, the fourth amendment protects him.
I should have qualified–only his side of the conversation is fair game. Sorry.
---
### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [July 16, 2011, 4:35am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/267 "2011-07-16T04:35:24Z")
> [@David42](#):
>
> In this example you provide, the FBI got a warrant from a judge to do this.
They did but given these rulings and the apparent opinion of our resident legal experts here do they _have_ to? We have [warrantless wiretapping](http://www.npr.org/series/5189144/warrantless-wiretaps-a-guide-to-the-debate) now so why not?
> [@David42](#):
>
> The Supreme Court also held in Katz that one can still seek privacy in public and be afforded fourth amendment protection. If the guy is standing in line to buy a drink in the park, he’s fair game. If he made a point to walk fifty yards away from anyone in the park before making his call, the fourth amendment protects him.
While this may be true (I do not know) that seems a distinctly vague measure. When, exactly, have you moved from the public to an expectation of privacy? Seems to me a court can decide any way they want in such a case.
And for my hypothetical we have two issues:
1. GPS of where you are (the topic in question)
2. Listen in on your conversation
For #1, if I am getting what **Bricker** is saying, using your phone’s geolocation ability is peachy with no warrant. So, in essence, you are granting the police the ability to track any of us on a whim (at least any of us with a phone with that capability which is pretty common now and becoming more common). You cannot have an expectation of privacy with regard to where you are. No warrant necessary. If the police want to track you on a whim they can do so.
I am frankly surprised that **Bricker** thinks this is fine.
Admittedly #2 starts getting more dicey but why not? If they locate you in your home I can see them not being allowed to listen in without a warrant (caveat to warrantless wiretapping as linked above) but if you are located at McDonalds then why not?
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 16, 2011, 3:59pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/268 "2011-07-16T15:59:21Z")
> [@Whack-a-Mole](#):
>
> They did but given these rulings and the apparent opinion of our resident legal experts here do they _have_ to? We have [warrantless wiretapping](http://www.npr.org/series/5189144/warrantless-wiretaps-a-guide-to-the-debate) now so why not?
To my knowledge the Supreme Court has not approved the Patriot Act in this regard, and it is clearly unconstitutional under _Katz_. But I am rusty on the law, not having kept up on current developments except as they appear in the news. I would have thought it would have come up by now, but maybe I missed it. Why the lower courts aren’t mentioning it, I do not know.
The Patriot Act is, of course, statutory in nature and statutes are supposed to conform to the constitution, not repeal it. The fourth Amendment governs searches, and not the Patriot Act, IF the Patriot Act and the 4th disagree.
> [@Whack-a-Mole](#):
>
> While this may be true (I do not know) that seems a distinctly vague measure. When, exactly, have you moved from the public to an expectation of privacy? Seems to me a court can decide any way they want in such a case.
Have you never walked a ways away from a group in public in order to make a phone call so that they would not know your business? Reasonable people do this, and I really do not understand how you do not understand it. As for the court deciding any way it wants to, it tries or says it tries to use an objective person standard. So far as I gather, what they decide a reasonable person would do is somewhat arbitrary. Sometimes they give hypothetical examples of reasonable or unreasonable behavior. Most of the time I am agreeable to their examples and reasoning, but sometimes I have to say, “yeah, right, from the perspective of a (insert political leaning) Justice of the S. Ct., that makes sense, but not from the perspective of an ordinary disinterested objective person.”
Also, the S. Ct. says repeatedly that decisions must turn on the facts of each case.
> [@Whack-a-Mole](#):
>
> And for my hypothetical we have two issues:
>
> 1. GPS of where you are (the topic in question)
>
> 2. Listen in on your conversation
>
> For #1, if I am getting what **Bricker** is saying, using your phone’s geolocation ability is peachy with no warrant. So, in essence, you are granting the police the ability to track any of us on a whim (at least any of us with a phone with that capability which is pretty common now and becoming more common). You cannot have an expectation of privacy with regard to where you are. No warrant necessary. If the police want to track you on a whim they can do so.
>
> I am frankly surprised that **Bricker** thinks this is fine.
>
> Admittedly #2 starts getting more dicey but why not? If they locate you in your home I can see them not being allowed to listen in without a warrant (caveat to warrantless wiretapping as linked above) but if you are located at McDonalds then why not?
To be fair to Bricker, but not to speak for him, I don’t see where he has approved of GPS tracking by phone. I think he cited Katz against it, didn’t he? His approval appears to be limited to vehicles or objects carried in vehicles.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 16, 2011, 4:09pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/269 "2011-07-16T16:09:51Z")
> [@Whack-a-Mole](#):
>
> They did but given these rulings and the apparent opinion of our resident legal experts here do they _have_ to? We have [warrantless wiretapping](http://www.npr.org/series/5189144/warrantless-wiretaps-a-guide-to-the-debate) now so why not?
>
> While this may be true (I do not know) that seems a distinctly vague measure. When, exactly, have you moved from the public to an expectation of privacy? Seems to me a court can decide any way they want in such a case.
>
> And for my hypothetical we have two issues:
>
> 1. GPS of where you are (the topic in question)
>
> 2. Listen in on your conversation
>
> For #1, if I am getting what **Bricker** is saying, using your phone’s geolocation ability is peachy with no warrant. So, in essence, you are granting the police the ability to track any of us on a whim (at least any of us with a phone with that capability which is pretty common now and becoming more common). You cannot have an expectation of privacy with regard to where you are. No warrant necessary. If the police want to track you on a whim they can do so.
>
> I am frankly surprised that **Bricker** thinks this is fine.
>
> Admittedly #2 starts getting more dicey but why not? If they locate you in your home I can see them not being allowed to listen in without a warrant (caveat to warrantless wiretapping as linked above) but if you are located at McDonalds then why not?
Seeing your comment in a slightly different light than above, I’d point out differences between cell phones and cars. Cars are most often “in public” (for our purposes) and cell phones are far more frequently inside the home. There has long been different thought on cars vs. phones for fourth amendment purposes.
---
### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 16, 2011, 4:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/270 "2011-07-16T16:17:54Z")
> [@David42](#):
>
> To my knowledge the Supreme Court has not approved the Patriot Act in this regard, and it is clearly unconstitutional under _Katz_. But I am rusty on the law, not having kept up on current developments except as they appear in the news. I would have thought it would have come up by now, but maybe I missed it. Why the lower courts aren’t mentioning it, I do not know.
A case dealing with the Terrorist Surveillance Program (“ACLU v. NSA”) did get up to the 6th Circuit, where it was dismissed for lack of standing.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 16, 2011, 5:39pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/271 "2011-07-16T17:39:36Z")
I change my opinion on placing a GPS device on a vehicle in the driveway after reading Judge Kozinski’s dissent in the denial of a petition for rehearing _en banc_ United States v. Pineda-Moreno, 591 F.3d 1212, 1214-15 (9th Cir. 2010)
Dissents and concurrences have no current force of law under _stare decisis_. This does not mean they aren’t sometimes very informative. Sometimes dissents are later adopted as a majority opinion. For instance, Justice Brandeis dissent in _Olmstead_ was later upheld by the majority in _Katz_.
So I am not suggesting that Judge Kozinski’s dissent is the law in the ninth circuit. It does however convincingly explain why the panel in _Pinedo-Moreno_ is wrong.
Whack-a-Mole, this ought to help explain your questions.
Judge Kozinski’s dissent, in part, joined by four other 9th circuit judges:
“1. The opinion assumes that Pineda-Moreno’s driveway was part of his home’s curtilage, yet concludes that Pineda-Moreno had no reasonable expectation of privacy there. Curtilage is a quaint word most people are not familiar with; even among judges and lawyers, the word is seldom well understood. Yet, it stands for a very important concept because it rounds out the constitutional protections accorded an individual when he is at home.
Curtilage comes to us by way of Middle English and traces its roots to the Old French courtillage, roughly meaning court or little yard. In modern times it has come to mean those portions of a homeowner’s property so closely associated with the home as to be considered part of it. The walkway leading from the street to the house is probably part of the curtilage, and the stairs from the walkway to the porch almost certainly are, as is the porch where grandma sits and rocks most afternoons and watches strangers pass by. The attached garage on the side of the house is part of the curtilage, and so is the detached shed where dad keeps his shop equipment and mom her gardening tools—so long as it’s not too far from the house itself. The front lawn is part of the curtilage, and the driveway and the backyard—if it’s not too big, and is properly separated from the open fields beyond the house. Whether some portion of property—the porch, the stairs, the shed, the yard, the chicken coop—is part of the curtilage is sometimes a disputed question. But once it is determined that something is part of the curtilage, it’s entitled to precisely the same Fourth Amendment protections as the home itself. How do we know? Because the Supreme Court has said so repeatedly.
In Oliver v. United States, the Court said as follows: [O]nly the curtilage . . . warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life,” and therefore has been considered part of home itself for Fourth
Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage.”
FULL TEXT HERE: [http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf](http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf)
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 18, 2011, 1:02am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/272 "2011-07-18T01:02:39Z")
> [@David42](#):
>
> I change my opinion on placing a GPS device on a vehicle in the driveway after reading Judge Kozinski’s dissent in the denial of a petition for rehearing _en banc_ United States v. Pineda-Moreno, 591 F.3d 1212, 1214-15 (9th Cir. 2010)
>
> Dissents and concurrences have no current force of law under _stare decisis_. This does not mean they aren’t sometimes very informative. Sometimes dissents are later adopted as a majority opinion. For instance, Justice Brandeis dissent in _Olmstead_ was later upheld by the majority in _Katz_.
>
> So I am not suggesting that Judge Kozinski’s dissent is the law in the ninth circuit. It does however convincingly explain why the panel in _Pinedo-Moreno_ is wrong.
“Convincingly?”
I suppose if you are convinced, then the adjective is accurate to some extent.
I am not. The rest of the Ninth Circuit were not. Other circuits were not.
The Supreme Court, when they get their hands on US v Jones this October, will not be, either.
When the best explanation of your proposed rule of law appears in a dissent, you’re not in good shape.
---
### Author:  [@Marley23](https://boards.straightdope.com/u/Marley23)
#### Post date: [July 18, 2011, 1:40am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/273 "2011-07-18T01:40:31Z")
**David42** , I’ve fixed some the formatting in your quote from the dissent and inserted a link so other posters can read it in full.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 1:53am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/274 "2011-07-18T01:53:38Z")
> [@Marley23](#):
>
> **David42** , I’ve fixed some the formatting in your quote from the dissent and inserted a link so other posters can read it in full.
Thx. I didn’t realize how long that got until afterwards.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 2:02am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/275 "2011-07-18T02:02:34Z")
> [@Bricker](#):
>
> “Convincingly?”
>
> I suppose if you are convinced, then the adjective is accurate to some extent.
>
> I am not. The rest of the Ninth Circuit were not. Other circuits were not.
>
> The Supreme Court, when they get their hands on US v Jones this October, will not be, either.
>
> When the best explanation of your proposed rule of law appears in a dissent, you’re not in good shape.
How about when it appears in two Supreme Court Majority opinions?
"In _Oliver v. United States_, the Court said as follows:
[O]nly the curtilage . . . warrants the Fourth Amendment
protections that attach to the home. At common
law, the curtilage is the area to which extends the
intimate activity associated with the “sanctity of a
man’s home and the privacies of life,” and therefore
has been considered part of home itself for Fourth
Amendment purposes. Thus, courts have extended
Fourth Amendment protection to the curtilage.
466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116
U.S. 616, 630 (1886)) (emphasis added). Three years later, the
Court reiterated the same view in\* United States v. Dunn\*, 480
U.S. 294, 300 (1987):
[In Oliver] we recognized that the Fourth Amendment
protects the curtilage of a house and that the
extent of the curtilage is determined by factors that
bear upon whether an individual reasonably may
expect that the area in question should be treated as
the home itself."
The circuits you are following are ignoring the Supreme Court.
At least I explained the effect of a dissent or a concurrence without trying to present it as force of law. You on the other hand have presented a 7-1-1 ruling, and presented the 1 concurring judge’s opinion as having force of Law.
Why you didn’t claim your opinion was weak while standing on a concurrence by one Judge, I don’t know.
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 2:10am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/276 "2011-07-18T02:10:10Z")
Pinedo-Morales is bad because it ignores _Oliver_ and _Dunn_, as above…_Garcia_ ignores _Katz_…_MArquez_ doesn’t even have anything to do with any of the issues involved, and I don’t understand why you cite it.
I am standing upon Supreme Court majority opinions, you are standing on a handful of circuit court opinions ignoring the Supreme Court, and you think your position is in better shape?
---
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 2:48am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/277 "2011-07-18T02:48:52Z")
> [@David42](#):
>
> Pinedo-Morales is bad because it ignores _Oliver_ and _Dunn_, as above…_Garcia_ ignores _Katz_…_MArquez_ doesn’t even have anything to do with any of the issues involved, and I don’t understand why you cite it.
>
> I am standing upon Supreme Court majority opinions, you are standing on a handful of circuit court opinions ignoring the Supreme Court, and you think your position is in better shape?
_Pinedo-Moreno_, that is.
---
### Author:  [@quixotic78](https://boards.straightdope.com/u/quixotic78)
#### Post date: [July 18, 2011, 3:17am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/278 "2011-07-18T03:17:29Z")
> [@Bricker](#):
>
> Would the Fourth Amendment be violated if the police assigned a team of 75 agents, with 35 cars and a pair of helicopters, to track you daily for a month?
But can’t I reasonably expect that my local PD cannot afford to track me with such resources? Is this really the standard against which “reasonability” is to be compared, a police department with unlimited resources?
Remind me, why was it so onerous to get a warrant to affix the GPS to this guy’s car? In browsing the six pages of this thread, I saw mention of an expired warrant, but I think that was in reference to some other information-gathering technique. IANAL, but is it unreasonably (there’s that word again) burdensome to ask a prosecutor to take a text message to a judge showing a conspiracy to purchase cocaine and get a warrant to electronically tail the guy? Why couldn’t that be done?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 18, 2011, 2:19pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/279 "2011-07-18T14:19:34Z")
> [@quixotic78](#):
>
> But can’t I reasonably expect that my local PD cannot afford to track me with such resources? Is this really the standard against which “reasonability” is to be compared, a police department with unlimited resources?
>
> Remind me, why was it so onerous to get a warrant to affix the GPS to this guy’s car? In browsing the six pages of this thread, I saw mention of an expired warrant, but I think that was in reference to some other information-gathering technique. IANAL, but is it unreasonably (there’s that word again) burdensome to ask a prosecutor to take a text message to a judge showing a conspiracy to purchase cocaine and get a warrant to electronically tail the guy? Why couldn’t that be done?
The expired warrant was indeed the GPS case _Jones_.
The idea of police who employ vast resources over a long period of time but can’t spare one guy to get a warrant is ludicrous, of course. **Bricker** seems to forget that the starting point in fourth amendment reasoning is the presumption for a warrant. Exigent circumstances, such as no time to get a warrant are reasonable, but clearly in a month-long surveillance scheme there is no hurry. Police should cover their bases if they want good cases in court and should always get a warrant where possible.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 18, 2011, 2:24pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/280 "2011-07-18T14:24:59Z")
> [@David42](#):
>
> Pinedo-Morales is bad because it ignores _Oliver_ and _Dunn_, as above…_Garcia_ ignores _Katz_…_MArquez_ doesn’t even have anything to do with any of the issues involved, and I don’t understand why you cite it.
>
> I am standing upon Supreme Court majority opinions, you are standing on a handful of circuit court opinions ignoring the Supreme Court, and you think your position is in better shape?
Heh heh heh.
Hilarious. Of course, you’re the one _claiming_ that _Garcia_ ignores _Katz_. The _Garcia_ court didn’t think so, and in fact they discuss Katz in their opinion.
Let’s put it another way: I’ll bet you $200, loser pays the winner’s charity, or $100, loser pays the winner directly, that the Supreme Court will overrule the DC Circuit in _Jones_.
That will be, when it happens, CURRENT Supreme Court precedent.
Now how strongly do you like your argument?
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