Standing Up for Mr. Nesbitt

12 Pages Posted: 8 Sep 2012 Last revised: 25 Mar 2016

See all articles by Stephen W. Smith

Stephen W. Smith

Stanford Law School Center for Internet and Society; Texas Southern University - Thurgood Marshall School of Law

Date Written: September 7, 2012


“Well, you know what magistrates are. The lowest form of pond life. When a fellow hasn’t the brains and initiative to sell jellied eels, they make him a magistrate.”

-- P.G. Wodehouse, “Jeeves and the Feudal Spirit” (1955)

Whatever its merit in early 20th century Britain, this description does no justice to the federal magistrate judge of today. In 1968 Congress began to reform the first echelon of the federal judiciary by creating United States magistrate judges as a new corps of judicial officers in the United States district courts. Building upon and superseding the 175 year-old United States commissioner system, the Federal Magistrates Act granted to each magistrate the powers previously conferred upon commissioners, along with substantial additional responsibilities for handling the civil and criminal docket. Subsequent amendments further enhanced the position’s judicial stature by adding a rigorous merit selection process, expanding its judicial duties and powers (including the power to conduct a civil trial with consent of the parties), and changing the title of the office to “United States magistrate judge.” One of the most important of these judicial functions is to make sure that court warrants and orders in criminal investigations satisfy the requirements of the Fourth Amendment and related statutes. In recent years, with the explosion of digital technology and electronic surveillance capacities, magistrate judges have been thrust into the front lines of the privacy vs. security battles of the 21st century.

Professor Orin Kerr, one of the most prolific and popular writers working at the intersection of the Fourth Amendment and digital technology, is no fan of this development. According to Professor Kerr, magistrate judges should not be trusted to consider the constitutionality of a statutory provision unless the statute expressly confers that power. In fact, he says, constitutional issues are not even ripe for consideration by a magistrate judge at the warrant stage, and should only be considered by an Article III judge long after the search has been carried out. Finally, he posits that such an ex ante ruling by a magistrate judge is not even an appealable order, and can be corrected by an appellate court only via writ of mandamus for abuse of power. It would perhaps be too strong to equate Kerr’s opinion of magistrates with Bertie Wooster’s “lowest form of pond life” -- a combination potted plant/rubber stamp is more like it.

For reasons explained in this Essay, it is a good thing that Kerr’s provocative views on magistrate judge authority have yet to be adopted in any circuit. In an era of legislative inertia and appellate court reticence, magistrate judges have by necessity become surge protectors, guarding ordinary citizens from the sometimes excessive surveillance powers of law enforcement. To illustrate the point, we turn to another character from the rich lore of British humor -- Mr. Nesbitt, a law-abiding resident of Harlow New Town.

Keywords: magistrate judges, police investigations, criminal procedure, electronic surveillance, geolocation monitoring, Fourth Amendment, ex parte proceedings, legislative facts

Suggested Citation

Smith, Stephen W., Standing Up for Mr. Nesbitt (September 7, 2012). 47 University of San Francisco Law Review 257 (2012), Available at SSRN:

Stephen W. Smith (Contact Author)

Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Texas Southern University - Thurgood Marshall School of Law

3100 Cleburne Street
Houston, TX 77004
United States

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