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Articles 1 - 30 of 49
Full-Text Articles in Law
Heien'S Mistake Of Law, Kit Kinports
Heien'S Mistake Of Law, Kit Kinports
Kit Kinports
The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …
Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu
Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu
Margaret Hu
This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.
A …
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Stephen E Henderson
A Few Criminal Justice Big Data Rules, Stephen E. Henderson
A Few Criminal Justice Big Data Rules, Stephen E. Henderson
Stephen E Henderson
The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell
The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell
Timothy C. MacDonnell
In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in misplaced …
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson
Stephen E Henderson
If You Fly A Drone, So Can Police, Stephen E. Henderson
If You Fly A Drone, So Can Police, Stephen E. Henderson
Stephen E Henderson
Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen E. Henderson
Ou Professor: Fourth Amendment At Heart Of Dispute Between Fbi, Apple, Stephen E. Henderson
Stephen E Henderson
A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye
A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye
David Kaye
Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for …
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye
David Kaye
As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson
Stephen E Henderson
A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson
A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson
Stephen E Henderson
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson
Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson
Stephen E Henderson
The More Things Change: An Analysis Of Recent Fourth Amendment Jurisprudence, Robert Vaughn
The More Things Change: An Analysis Of Recent Fourth Amendment Jurisprudence, Robert Vaughn
Robert Vaughn, J.D.
Perhaps no Constitutional amendment gets tried and tested more than the Fourth Amendment. Each year, thousands of criminal defendants bring legal challenges to the proceedings against them rooted in claimed Fourth Amendment violations. Changing technology and its use fuels a large part of this as new technology intersects with individual privacy in new ways. An oft heard argument in Fourth Amendment jurisprudence is that the Fourth Amendment must change in order to keep up with the progress of time and societal change. Through an analysis of recent case law examining Fourth Amendment protections and technology, this article concludes that the …
United States V. Jones: Big Brother And The "Common Good" Versus The Fourth Amendment And Your Right To Privacy, Melanie Reid
United States V. Jones: Big Brother And The "Common Good" Versus The Fourth Amendment And Your Right To Privacy, Melanie Reid
Melanie M. Reid
In the center of the town of Siena, Italy, lays the Palazzo Publico which was built between 1297 and 1310. Inside the Palazzo Publico is the Sala della Pace, the Hall of Peace, which houses an early piece of Italian secular arta fresco that illustrates the effect government has on the city, its people, and the countryside.' The painter, Ambrogio Lorenzetti, depicted the "Common Good" as a king, sitting tall and strong above a line of smaller-sized, everyday people who are slowly making their way towards the "Common Good." This picture represents the subordination of private interest to the common …
Whatever Happened To The Fourth Amendment: Undocumented Immigrants' Rights After Ins V. Lopenz-Mendoza And United States V. Verdugo-Urquidez, Victor Romero
Victor C. Romero
This Note rejects the Court's approach to the Fourth Amendment in Lopez and Verdugo and attempts to redefine the boundaries of Fourth Amendment protections for undocumented immigrants. Part I examines the impact of the Lopez and Verdugo decisions upon undocumented immigrants' Fourth Amendment rights. Part II evaluates the arguments for extending Fourth Amendment protections to undocumented immigrants. Viewing the Fourth Amendment as a restriction on government intrusion, Part III examines the constitutional remedies available to undocumented immigrants. This part rejects the Lopez restrictions on the applicability of the exclusionary rule and concludes that the Fourth Amendment neither draws distinctions among …
The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero
The Domestic Fourth Amendment Rights Of Undocumented Immigrants: On Guitterez And The Tort Law/Immigration Law Parallel, Victor C. Romero
Victor C. Romero
This Article is composed of three parts. Part I examines the problems raised by the Gutierrez I regime, including the collapse of the protective constitutional floor of immigrants' rights portended by that decision. Part II contends that the current plenary power approach to immigration and immigrants' rights issues would likely support, rather than dismantle, the Gutierrez I approach to undocumented immigrants' Fourth Amendment rights. Part III provides an alternative to the plenary power regime by drawing a parallel between domestic tort law for premises liability and immigrants' rights law. This part concludes by showing that Rowland and its progeny could …
Constitutional Issues Surrounding Student Possession And Use Of Cell Phones In Schools, Ralph Mawdsley, Charles Russo
Constitutional Issues Surrounding Student Possession And Use Of Cell Phones In Schools, Ralph Mawdsley, Charles Russo
Charles J. Russo
Constitutional challenges to limits on the possession and/ or use of cell phones in schools present potential claims involving the Fourth Amendment rights of students to privacy and to be free from unreasonable searchesalong with parental Fourteenth Amendment Liberty Clauserights to direct the education and upbringing of their children. However, as reflected in this article, as long as educational officials enact policies in line with state laws that are explicitly designed to enhance school safety, challenges filed by students and their parents are probably destined to fail because constitutional claims are likely to be outweighed by concerns for the greater …
The Right To A Fair Trial In The Age Of Facebook, Lori Andrews
The Right To A Fair Trial In The Age Of Facebook, Lori Andrews
Lori B. Andrews
No abstract provided.
Regulating Drones Under The First And Fourth Amendments, Stephen E. Henderson, Joseph Thai, Marc Jonathan Blitz, James Grimsley
Regulating Drones Under The First And Fourth Amendments, Stephen E. Henderson, Joseph Thai, Marc Jonathan Blitz, James Grimsley
Stephen E Henderson
The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …
Orwellian Surveillance Of Vehicular Travels, Sam Hanna
Orwellian Surveillance Of Vehicular Travels, Sam Hanna
Sam Hanna
What would someone learn about you if all your automobile travels were ubiquitously tracked beginning today? Creating an indefinite database of a person’s previous automobile travels to formulate deductions on intimate details of people's lives is precisely what law enforcement agencies are currently able to accomplish with automatic license plate recognition (“ALPR”). With the ubiquity of ALPR cameras, continuous government surveillance of automobile travels is no longer a figment of the imagination. Consequently, the judicial and legislative branches of government must embark on balancing the private and public interests implicated by this technology. Failure to set suitable boundaries around the …
Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson
Our Records Panopticon And The American Bar Association Standards For Criminal Justice, Stephen E. Henderson
Stephen E Henderson
"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented …
Reforming The Grand Jury To Protect Privacy In Third Party Records, Stephen E. Henderson, Andrew E. Taslitz
Reforming The Grand Jury To Protect Privacy In Third Party Records, Stephen E. Henderson, Andrew E. Taslitz
Stephen E Henderson
In late 2014, two grand juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR).
But LEATPR exempts from its requirements access to records via a …
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf
Irene Scharf
The case alerted me to the continuing issue concerning the treatment of alleged violations of Fourth Amendment rights in immigration court, with this article the result of research conducted relating thereto. Beyond reviewing the relevant views of the federal courts of appeals; the administrative tribunal that handles appeals of immigration court cases, the Board of Immigration Appeals (BIA); and even local immigration courts; I consider whether the jurisprudence has remained static since the Supreme Court's watershed opinion on the issue about twenty-five years ago. I also offer suggestions as to how to effectively, fairly, and efficiently resolve the issues raised …
“A More Majestic Conception:” The Importance Of Judicial Integrity In Preserving The Exclusionary Rule, Robert M. Bloom, David H. Fentin
“A More Majestic Conception:” The Importance Of Judicial Integrity In Preserving The Exclusionary Rule, Robert M. Bloom, David H. Fentin
Robert Bloom
In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations. This balancing has been used most recently in two …
Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson
Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen E. Henderson
Stephen E Henderson
American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson
American Bar Association Criminal Justice Standards On Law Enforcement Access To Third Party Records, Stephen E. Henderson
Stephen E Henderson
Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen
Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen
Stephen E Henderson
A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …
Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson
Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson
Stephen E Henderson
In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …
After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson
After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson
Stephen E Henderson
In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.
More detail:
United States v. Jones, in which the …