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Articles 1 - 12 of 12
Full-Text Articles in Law
Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters
Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters
Duke Journal of Constitutional Law & Public Policy Sidebar
The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.
Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …
Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker
Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker
Faculty Scholarship
Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.
This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …
Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward
Restoring Causality In Attenuation: Establishing The Breadth Of A Fourth Amendment Violation, Bryan H. Ward
West Virginia Law Review
When the police violate a suspect’s Fourth Amendment rights, what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence …
The Second Amendment In A Carceral State, Alice Ristroph
The Second Amendment In A Carceral State, Alice Ristroph
Northwestern University Law Review
No abstract provided.
Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez
Bitcoin Searches And Preserving The Third-Party Doctrine, Christine A. Cortez
St. Mary's Law Journal
Abstract forthcoming.
Who Protects Whom: Federal Law As A Floor, Not A Ceiling, To Protect Students From Inappropriate Use Of Force By School Resource Officers, Elsa Haag
Duke Journal of Constitutional Law & Public Policy Sidebar
Over the past forty years, students in the U.S. have experienced increasingly strict school discipline policies and increased police presence in schools. Sent into schools with the aim of improving security in the wake of mass shootings, school resource officers (SROs) are sworn law enforcement regularly assigned to schools. But there is a paucity of evidence that SROs are effective in preventing mass shootings or provide other significant benefits. Instead, research shows that the presence of SROs results in students achieving less and experiencing more physical and emotional harm, with long-term implications and costs for individuals and communities. As trained …
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Public Land & Resources Law Review
The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …
New Technology And The Right To Privacy: Do E-Scooters Implicate The Fourth Amendment?, Alexander P. Carroll
New Technology And The Right To Privacy: Do E-Scooters Implicate The Fourth Amendment?, Alexander P. Carroll
Journal of the National Association of Administrative Law Judiciary
The Fourth Amendment protects individual’s right to privacy from unwarranted searches and seizures, but the analysis for when the Fourth Amendment applies has become more complicated as new technology is developed. E-scooters are a new piece of technology which may implicate the Fourth Amendment. Cities across the country are beginning to require the mobility companies which provide e-scooter services to turn over location data in order to receive an operating permit. This article first provides a background of the Fourth Amendment, then provides details regarding the new city regulations. The article includes a discussion of the privacy concerns as well …
Rulifying Reasonable Expectations: Why Judicial Tests, Not Originalism, Create A More Determinate Fourth Amendment, Michael Gentithes
Rulifying Reasonable Expectations: Why Judicial Tests, Not Originalism, Create A More Determinate Fourth Amendment, Michael Gentithes
Con Law Center Articles and Publications
For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning.
This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, …
The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber
The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber
Publications
No abstract provided.
Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum
Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum
Faculty Publications
(Excerpt)
Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "presumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …
School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani
School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani
Seattle University Law Review
In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …