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Articles 1 - 17 of 17
Full-Text Articles in Entire DC Network
An Original Take On Originalism, Christopher Slobogin
An Original Take On Originalism, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The argument that Professor Orin Kerr proffers in An Equilibrium-Adjustment Theory of the Fourth Amendment' is simple: Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. This equilibrium-adjustment theory is elegant and, because it rests on a relatively "neutral" historical foundation, might be attractive to judges and scholars from different perspectives. Contrary to Kerr's assertion, however, it does not easily explain many of the Court's cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are …
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman
Touro Law Review
No abstract provided.
Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Faculty Scholarship
This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.
A Brave New World Of Stop And Frisk, Ronald J. Bacigal
A Brave New World Of Stop And Frisk, Ronald J. Bacigal
Law Faculty Publications
In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …
Driving Into Unreasonableness: The Driveway, The Curtilage, And Reasonable Expectations Of Privacy, Vanessa Rownaghi
Driving Into Unreasonableness: The Driveway, The Curtilage, And Reasonable Expectations Of Privacy, Vanessa Rownaghi
American University Journal of Gender, Social Policy & the Law
No abstract provided.
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
Indiana Law Journal
No abstract provided.
Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz
Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence For All, Lenese C. Herbert
O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence For All, Lenese C. Herbert
Seattle University Law Review
This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in …
Framing The Fourth, Tracey Maclin
Framing The Fourth, Tracey Maclin
Faculty Scholarship
History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.
Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands …
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins
Faculty Scholarship
No abstract provided.
Arrest Efficiency And The Fourth Amendment, Song Richardson
Arrest Efficiency And The Fourth Amendment, Song Richardson
Articles in Law Reviews & Other Academic Journals
In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity …
Police Mistakes Of Law, Wayne A. Logan
Police Mistakes Of Law, Wayne A. Logan
Scholarly Publications
This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts condone seizures based on what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for unrelated, more serious offenses (usually relating to guns or drugs). The Article surveys the important rule-of-law, separation-of-powers, and legislative-accountability reasons supporting continued judicial adherence to the historic no-excuse …
Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman
Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman
Student Articles and Papers
While the world of commercial air transportation has seen major improvements in many technologies over the last decade, nothing has caused a stir quite like the implementation of full-body scanners (FBS) as a one of the first lines of defense in aviation security at U.S. airports. FBS and “enhanced” pat-downs have been the source of much debate and scrutiny among passengers, flight crews, privacy rights groups, and federal authorities in charge of airport screening. The paper begins with a general overview of the law as it pertains to airport searches and privacy rights. In Part II, the technology behind the …
Framing The Fourth, Tracey Maclin, Julia Mirabella
Framing The Fourth, Tracey Maclin, Julia Mirabella
UF Law Faculty Publications
Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law. Cuddihy’s historical analysis is unprecedented. As Justice …
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning
The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning
Georgetown Law Faculty Publications and Other Works
Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …
Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares
Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares
Faculty Scholarship
Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …