Petition For Certiorari Research Articles

Quantifying the Significance of Circuit Splits in Petitions for Certiorari: The Case of Securities Fraud Litigation

Quantifying the Significance of Circuit Splits in Petitions for Certiorari: The Case of Securities Fraud Litigation

Original Public Meaning and Pregnancy’s Ambiguities

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment. This Article refutes these arguments on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common, expected, and impossible to distinguish from abortion. Women and their doctors lived these ambiguities. Nothing in the laws in 1868 changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

저작물의 공정이용 판단과 변형적 이용 기준의 역할

Recently, as the size of the cultural industry has grown and cultural and informational products that utilize copyrighted materials have increased, there have been notable fair use rulings by t he U.S. S upreme C ourt ( such a s G oogle v . Oracle and Andy Warhol v. Goldsmith). Korea Supreme Court upheld an appellate court ruling that the use of nude photographs in satire posters was not fair use. Courts need to show both ① consistency in the application of fair use doctrine in past and recent rulings on new types of cases, and ② that all rulings are consistent with the purpose of copyright law. However, the diversity of types of copyrighted works and uses, and the nature of fair use as a general provision, make this difficult.
 In 2022, the Ninth Circuit ruled in the ‘Zervos Catalog Case’ that the use of copyrighted photographs was not fair use, and the Supreme Court denied certiorari. In this case, both plaintiff and defendant published catalogs of Pablo Picasso’s works, and the defendant had used some of the plaintiff’s copyrighted photographs.
 There were virtually no major issues, considering that the catalogs of the plaintiff and defendant were in direct competition and that the defendant had dead-copied the plaintiff’s work (photographs). However, the trial court’s decision, the appellate court’s decision, and the grounds in the petition for certiorari all show common problems in determining fair use. Therefore, this case is very useful to exemplify errors and issues in fair use applications.
 This article first introduces the ‘Zervos Catalog Case’ (II), compares and analyzes the rulings and grounds for certiorari petition (III), and examines the relationship between the first factor of fair use and other factors. Then, it argues ① that fair use is a tool for balancing the freedom of expression of both creator and the user (secondary creator or information producer), and for allocating the costs of creation between them, along with creativity (idea-expression dichotomy) and substantial similarity, ② that the Supreme Court in ‘Warhol Case’ showed the potential to address issues of balancing freedom of expression and of allocation of creation costs in relation to appropriation art, ③ that the second factor might be deleted from the fair use provision, due to the lack of its independent significance, and ④ that the fair use factors should be considered together, not separately, and a final conclusion should be reached in the light of the purposes of copyright law, which should be explicitly stated in Copyright Act (IV).

Work Product Immunity for Attorney-Created Tax Accrual Workpapers?: The Aftermath of United States v. Textron

United States v. Textron, Inc. has been a high-profile case involving the applicability of work product immunity to attorney-prepared documents known as "tax accrual workpapers." The Textron decision is worthy of careful analysis because it is the first decision at the Court of Appeals level to consider work product immunity for attorney-created tax accrual workpapers. The U.S. District Court ruled that work product immunity applied to the tax accrual workpapers, the First Circuit Court of Appeals ruled that work product immunity did not apply, and on May 24, 2010, the United States Supreme Court denied the certiorari petition in the case. Accordingly, the Textron decision is final, and it is appropriate to review the scope of work product immunity as it may apply to tax accrual workpapers. The denial of certiorari means that the lower federal courts must decide, without the benefit of Supreme Court guidance in Textron, whether work product immunity applies to attorney- prepared tax accrual workpapers.I conclude that attorney-prepared tax accrual workpapers technically do not and, as a matter of policy, should not qualify for protection as work product because of (1) the significant role of tax accrual workpapers in financial accounting and federal income tax reporting and (2) the specific statutory authority of section 7602 empowering the Internal Revenue Service (IRS) to collect information from taxpayers. I propose that courts embrace a doctrine of "tax exceptionalism" for purposes of work product immunity cases, and this doctrine acknowledges the unique public policy considerations that support effective tax administration. Permitting discovery of tax accrual workpapers raises significant fairness issues, but discovery of these workpapers is consistent with extant caselaw regarding work product immunity as well as with the purposes underlying work product immunity.

Confrontation’s Multi-Analyst Problem

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem.

The Congressional Review Act and Judicial Review

Pending before the Supreme Court of the United States is a certiorari petition in a case entitled Kansas Natural Resources Coalition v. U.S. Department of Interior (KNRC). KNRC involves the issue of whether an agency’s refusal to comply with the requirements imposed on agency rulemaking set forth in a federal statute known as the Congressional Review Act (CRA) is subject to judicial review. By a 2-1 vote, the Tenth Circuit ruled that the CRA forecloses judicial review of an agency’s failure—or refusal—to comply with the requirements of that statute. That issue is of considerable legal, practical, and policy importance—and the Tenth Circuit majority got it wrong. A defendant can raise as a defense in an administrative or civil action, and in a criminal prosecution, the defense that the rule on which the agency relies has not gone “into effect,” as the CRA provides, because the agency did not submit the rule to Congress, for its review. If so, a potential defendant can bring an action under the Administrative Procedure Act to have the agency’s rule held invalid without needing to wait for the “hammer” to fall, as a unanimous U.S. Supreme Court held in Sackett v. EPA. It is impossible to believe that Congress ordered the courts to “see no evil” by an agency, or that it matters whether a private party raises that claim in an answer or a complaint. When read as a whole, the CRA and the APA permit the courts to call out an agency for breaking the law.

CERTIORARI AS CODA: After Lexmark Rejects Multifactor Measures for Standing, Which Challengers Stand in the Zone of Interests for Lanham Act Remedies?, 25 Fed. Circuit B.J. 699 (2016) and SSRN 2807167.

The U.S. Supreme Court interpreted the provision in Lanham Act that provides remedies to any who believes that he is or will be damaged, The Court set forth a two-prong test tied to the Act that should be used to assess whether a statutory person can seek remedies. The Fourth Circuit followed the Court's decision and applied the test to petitions to cancel trademarks. The Federal Circuit used a real interest and reasonable belief approach, which the Supreme Court criticized. A petition for certiorari will be filed which asks for the Court to resolve this conflict between the Circuits on a threshold issue of federal statutory law. The petition for certiorari is no. 20-1309 on the docket of the Supreme Court of the U.S.

Brief for Professor Daniel Epps as Amicus Curiae in Support of Petitioner, Pon. v. United States

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”

In Re: Courtney Wild

This petition for a writ of certiorari to the U.S. Supreme Court asks the Court to review the issue of whether the Crime Victims’ Rights Act (CVRA) required federal prosecutors confer with victims of Jeffrey Epstein before concluding non-prosecution agreements (NPA) with him. The petition arises from a NPA federal prosecutors in Florida reached with Epstein—blocking not only his prosecution for federal sex crimes but also that of his co-conspirators. The prosecutors never conferred with the victims about the non-prosecution agreement. After years of litigation about the validity of the secret NPA, the case reached the Eleventh Circuit. The Circuit ruled in an en banc decision, 7-4, that the CVRA does not give victims the ability to enforce their rights in court until the Justice Department formally files federal charges. This certiorari petition argues that the important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the government to secretly conclude pre-indictment NPAs with targets of federal investigations warrants immediate review. Because such arrangements are, by definition, secret, other circuits may never be able to speak to the legality of such resolutions. Leaving the issue to percolate means that the Justice Department will be free to dispense with victims’ rights and orchestrate clandestine deals without affording victims any rights under the CVRA. The Supreme Court may well face a now-or-never opportunity to review the important question of whether the CVRA permits such secrecy. In addition, the illegitimacy of the Justice Department’s practice of covertly and deceptively arranging non-prosecution deals is far too serious for the Supreme Court to wait to see what other circuits might say. The Eleventh Circuit’s decision guts victims’ rights under the CVRA. Such a dubious interpretation runs counter to the statute’s plain language, which Congress designed to create a comprehensive bill of rights for crime victims—with enforceable rights.

Kansas V. Johnson: On Petition for a Writ of Certiorari to the Supreme Court of the State of Kansas

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence. The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even more challenging, without any corresponding benefit. In domestic violence cases, there is rarely direct evidence of specific intent, and domestic-violence victims often struggle to confront their abusers in court. Indeed, the impact of abusers’ psychological, emotional, and physical abuse is often so severe that victims frequently struggle even to seek help. The Kansas Supreme Court’s decision to impose a specific intent requirement in a case involving violent threats is inconsistent with decisions from other courts, the law in over a dozen states, the Model Penal Code, and the history and tradition of the First Amendment. This amicus brief concludes that the Supreme Court should grant certiorari to review the decision below and reverse it.

Why the U.S. Supreme Court Should Review Whether Arbitrability May Be Incorporated by Reference

Editor's note: In Part 1 last month, the authors discussed the second trip to the U.S. Supreme Court for Archer and White Sales Inc. v. Henry Schein Inc., No. 19‐1080, on a petition for certiorari regarding whether an arbitration agreement unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place. The legal standard focuses on whether there is “clear and unmistakable” evidence of the parties' intent to have arbitrators decide whether a case goes to arbitration. If not, the decision goes to a court.

Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

Brief of Amicus Curiae Professor Kristin E. Hickman In Support of Petitioners, CIC Services, LLC v. Internal Revenue Service (U.S. Sup. Ct.)

This amicus brief was filed before the United States Supreme Court, supporting the petition for certiorari in CIC Services, LLC v. Internal Revenue Service, No. 19-930. The issue in the case is whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of Administrative Procedure Act challenges against Treasury and IRS rules and regulations -- specifically in this case, IRS Notice 2016-66. The brief summarizes and expands upon issues raised and arguments made in some of my previous scholarship.

Confronting Memory Loss

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption—evidence of a current witness’s prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.

Selection of Cases for Discussion

AbstractThe first, hidden stage of the Supreme Court’s agenda-setting process is the formation of the “discuss list,” the small set of cases actually considered in conference. Yet few have systematically considered the operation of and the influences on this critical initial phase of decision making. No systematic, empirical work makes comparisons over time of how features of cases shape the makeup of the chief justice’s discuss list. Here, we examine the composition of the discuss list through a multivariate analysis of all paid petitions for certiorari filed in October Term 1939, 1968, and 1982. We are thereby able to compare the tendencies and efficacy of three long-serving chief justices—Hughes, Warren, and Burger—in making up the discuss list. And, methodologically, we present an alternative to the “observed-value” and the “representative-case” methods of calculating effect sizes for second differences, with software to implement our proposal.

Brief of Amici Curiae Mozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia in Google v. Oracle (Cert. Petition 2019)

This Amicus Brief was filed in the United States Supreme Court in the case of Google v. Oracle in support of Google's 2019 petition for certiorari. Competition and innovation are two principles at the heart of a healthy internet and the field of software development that fuels it. For decades, software engineers have relied heavily on reuse and reimplementation of functional protocols, such as the Application Programming Interfaces (APIs) in this case, to create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement. In accord with the Supreme Court’s ruling in Baker v. Selden, 101 U.S. 99 (1879), and the plain language of 17 U.S.C. § 102(b) (2012), the software industry has flourished utilizing this approach to make internet and software ecosystems more accessible, affordable, diverse, and robust. By reversing this rule in the context of APIs, the Federal Circuit upended decades of industry practice and the well-established expectations of developers, investors, and consumers. API reimplementation is a common theme among developers of all sizes — from those wishing to create entirely new platforms to those wishing to develop on them. The court below heedlessly unraveled this reasonably predictive rule and set of reliable norms that are critical to software coders for understanding what is appropriate to carry over from one project to another and what is not. This is especially true for individual coders, small startups, or nonprofit software projects, who often lack legal counsel or large financial reserves to defend themselves against unwarranted litigation. In this brief, Amici urge the Court to grant Google’s petition for certiorari in order to correct this misreading of copyright law. Specifically, Amici wish to highlight two fundamental concerns with the lower court’s opinion. First, the court’s dramatic expansion of copyright protection to include APIs, which Amici believe are not copyrightable under U.S. law, stifles innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before. Second, the Federal Circuit’s rejection of the fair use doctrine stands to undermine not only reimplementation and reuse of APIs, but also other valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements. Specifically, by creating irreconcilable conflicts with bedrock software fair use principles that have set the norms of engineering practice for over two decades, the Federal Circuit has opened the door to re-litigating many status quo software engineering practices — practices that open source projects and small startups depend on every day to produce new platforms, programs, features, and interfaces. This brief was prepared with the help of NYU Law clinical students Iman Charania and Michael Pizzi under the supervision of Professor Jason Schultz.

State of Arizona v. Guy James Goodman: On Petition for a Writ of Certiorari to the Arizona Supreme Court

Arizona’s pending certiorari petition in Arizona v. Goodman provides the Supreme Court with an opportunity to review the important issue of the circumstances under which the Constitution permits an accused sex offender to be denied bail pending trial. In 2002, Arizona voters amended their state constitution, rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a narrowly divided opinion, the Arizona Supreme Court found that this measure unconstitutional. And yet the Court’s opinion makes clear that the Constitution does not prohibit denying bail to defendants who present (1) “a continuing danger to the community” or (2) “a risk of flight.” Nor does the Constitution prohibit categorically denying bail based on the nature of the charged offense. Indeed, thirty-four states categorically deny bail to persons charged with capital offenses, murder, specified sex offenses, or offenses punishable by life imprisonment. Review of the Arizona Supreme Court’s decision is needed to resolve the conflict between it and the Court’s precedent on an important issue of constitutional law that affects the criminal justice system, crime victims, and community safety in States across the Nation. The Court’s review is especially needed because of the serious implications for victims and their communities if the judgment below is permitted to stand. Given sex offenders’ high recidivism rates, and the life-altering harm suffered by their victims, Arizona’s legislature was entirely reasonable when it opted to categorically deny bail to sexual-assault defendants on the ground that sexual assault is an adequate proxy for future dangerousness - and to build in procedural protections that go above and beyond in ensuring due process. The Constitution does not prohibit States like Arizona and others from taking these steps to ensure sex offenders are brought to justice, victims are protected, and communities are safeguarded.

Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.

Last Stand for Prudential Standing? Lexmark and its Implications

In Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court called into question its “prudential standing” doctrine, a set of self-imposed limits “beyond the constitutional requirements” of Article III that have been “in some tension” with the Court’s “virtually unflagging” obligation to hear any case or controversy that satisfies the requirements of Article III. To ameliorate this tension, the Court in Lexmark reclassified two of the three types of prudential standing restrictions it had previously categorized under that rubric. Notably, however, the Court did not say how third-party prudential standing fits into the picture, instead leaving that question for “another day.” Courts and commentators since then have acknowledged that Lexmark essentially heralded the end of this rule as well, at least in its current form. In Starr International, a recent case before the Federal Circuit, that court applied the third-party prudential standing rule despite acknowledging that the plaintiff had satisfied Article III’s requirements. A pending certiorari petition in that case asks the Court to reverse the Federal Circuit and resolve this lingering issue leftover from Lexmark. Whether or not the Court grants certiorari in Starr International, at some point the Court will need to resolve the issue left open in Lexmark, and when it does this will probably mark the end of prudential standing as we know it. Additionally, if (or when) the Court abrogates prudential standing, it likely will have ripple effects on other self-imposed prudential limitations, as well as other doctrines without clear footing in Article III.

A Location-Based Test for Jurisdiction over Data: The Consequences for Global Online Privacy

U.S. technology companies face growing uncertainty over whether and how they can be compelled to turn foreign-stored user content over to law enforcement officials. In July 2016, the Second Circuit ruled that the government could not require Microsoft to produce user content stored on its server in Ireland because the execution of the government’s warrant constituted an impermissible extraterritorial application of the Stored Communications Act (SCA). But after the Second Circuit declined to rehear Microsoft Corp. v. United States, (formally titled In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, also known as the “Microsoft Ireland” case) en banc in January 2017, the Supreme Court granted the DOJ’s petition for certiorari and heard oral argument on the case in February 2018. Throughout this litigation, other courts have issued orders compelling Google to produce foreign-stored data requested by SCA warrants. Two fundamental questions have divided these courts: (1) whether the physical location of the data at the time it is accessed should determine whether it is within the reach of the SCA, and (2) whether other countries’ data privacy laws and search-and-seizure protections apply. This Article argues that basing government jurisdiction over data on the data’s physical location threatens user privacy. It also creates unworkable and unpredictable results for technology companies by failing to account for the significant differences in how they divide, store and transmit their users’ data around the world. In the context of digital searches, the data location test has two potential effects. First, it will create bottlenecks in the already-burdensome mutual legal assistance system, hindering intergovernmental cooperation on law enforcement investigations. Second, it may embolden foreign governments to circumvent the system by adopting similar, or even more extreme, positions on jurisdiction over data, such as data localization and mandatory encryption backdoor laws. These policies have dangerous consequences for privacy, free expression, and innovation around the world. While some have written about the data location test in Microsoft Ireland in the abstract, this Article takes a step further and considers its role in the rulings conflicting with Microsoft Ireland that have been issued by federal judges over the past two years. It also evaluates several recent legislative and non-legislative proposals to solve the problems arising from the data location test. In particular, this Article highlights the pressing need for Congress to reform the Stored Communications Act, incorporating an alternative test for jurisdiction over user data and provisions that would clarify companies’ data disclosure obligations under conflicting legal regimes. Finally, while much of the literature on this topic focuses solely on legislative proposals rather than the real-world impact of the uncertainty creating a need for statutory reform, this Article focuses on what companies should do while they await a resolution from Congress or the Supreme Court. To that end, this Article offers some practical recommendations for how companies can navigate the issues arising from the data location test, particularly as they make decisions about their global operations and data storage architecture.