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Full-Text Articles in Law
A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind
A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind
Journal Articles
The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …
The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports
The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports
Journal Articles
This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.
In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
Journal Articles
This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
Journal Articles
This Article will, in large part, present its thesis regarding fourth amendment doctrine by employing, as an illustration, a recent application of the current approach by the Seventh Circuit Court of Appeals. In United States v. Torres, the Seventh Circuit held video surveillance constitutional and further found that the judiciary had the authority to issue warrants for such a technique. Although welcomed by prosecutors and law enforcement officials, this decision highlights the absurdity of the current interpretation of the reasonableness clause. Moreover, Torres provides a vehicle through which this Article's historical interpretation can be brought into focus under the cold …