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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 …
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 …
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, …
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 …
The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber
The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber
Publications
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