Law Commons^™

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the …

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Faculty Scholarship

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

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.

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

Faculty Scholarship

No abstract provided.

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 …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

Faculty Scholarship

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.

Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green

Faculty Scholarship

In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to …