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Articles 1 - 24 of 24
Full-Text Articles in Law
The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan -- Professor
The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrin, Wayne A. Logan -- Professor
Vanderbilt Law Review
In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of "unreasonable" seizures does not bar legally mistaken seizures because "[t]o be reasonable is not to be perfect." Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be "exceedingly rare." In a solo dissent, Justice Sotomayor fairly "wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …
The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein -- Professor Of Law
The Harms Of Heien: Pulling Back The Curtain On The Court's Search And Seizure Doctrine, Steven M. Goldstein -- Professor Of Law
Vanderbilt Law Review
In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized …
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Community Control Over Camera Surveillance: A Response To Bennett Capers's "Crime, Surveillance, And Communities", Christopher Slobogin
Vanderbilt Law School Faculty Publications
Professor Capers's article helps stimulate thinking about the way in which community views and individual rights interact. In my view, where police propose to conduct surveillance of groups, as occurs with camera surveillance (including the newly developing drone camera systems)', the affected group should be heavily involved in the authorization process. If the surveillance is authorized, care must be taken to ensure that all members of the group are equally affected by it unless and until individualized suspicion, proportionate to the intrusion, develops. That formula ensures that the interests of both the collective and the individual are protected.
What Is The Essential Fourth Amendment?, Christopher Slobogin
What Is The Essential Fourth Amendment?, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given …
Some Hypotheses About Empirical Desert, Christopher Slobogin
Some Hypotheses About Empirical Desert, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of justice“ defined in terms of moral blameworthiness will not only satisfy retributive urges, but will also often be as efficacious at controlling crime as a system that revolves around other utilitarian purposes of punishment. Constructing criminal laws that implement empirical desert has the latter effect, Robinson argues, because it enhances the moral credibility of the law, thus minimizing citizens desire to engage in vigilantism and other …
Comparative Empiricism And Police Investigative Practices, Christopher Slobogin
Comparative Empiricism And Police Investigative Practices, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …
Government Dragnets, Christopher Slobogin
Government Dragnets, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as "government dragnets" because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them …
Category Iii Films And Vcds: The Failure Of Deterrence In The Copyright Ordinance Of Hong Kong, Allen Woods
Category Iii Films And Vcds: The Failure Of Deterrence In The Copyright Ordinance Of Hong Kong, Allen Woods
Vanderbilt Journal of Transnational Law
In 1997, the government of Hong Kong enacted the Copyright Ordinance. The goal of the Ordinance was to establish a strong deterrent against the illegal manufacture and sale of copyright infringing materials, especially pirated video and digital compact discs. Courts have interpreted the Ordinance to allow the Customs and Excise Department sweeping powers of search and seizure. As a result, the government has seized many thousands of copyright infringing video compact discs and courts have enforced lengthy custodial sentences against guilty parties.
Despite these efforts, though, film piracy continues to grow throughout Hong Kong and transnational film interests have begun …
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe (specifically, England, France and Germany). It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory systems. More often than not, the existing data call into question preconceived notions of what "works." In particular, American reverence for search warrants, the exclusionary rule, and "Miranda" warnings …
Why Liberals Should Chuck The Exclusionary Rule, Christopher Slobogin
Why Liberals Should Chuck The Exclusionary Rule, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article makes the case against the exclusionary rule from a "liberal" perspective. Moving beyond the inconclusive empirical data on the efficacy of the rule, it uses behavioral and motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutional searches and seizures. It also argues, contrary to liberal dogma, that the rule is poor at promoting Fourth Amendment values at the systemic, departmental level. Finally, the article contends that the rule stultifies liberal interpretation of the Fourth Amendment, in large part because of judicial heuristics that grow out of constant exposure …
Let's Not Bury Terry: A Call For Rejuvenation Of The Proportionality Principle, Christopher Slobogin
Let's Not Bury Terry: A Call For Rejuvenation Of The Proportionality Principle, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Thirty years ago, "Terry v. Ohio" established a conceptual framework for the Fourth Amendment that makes more sense than any alternative the courts or commentators have come up with since. That frame-work, which I call the proportionality principle, is very simple: a search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action. As the Court put it, "there is 'no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.' In "Terry" …
The World Without A Fourth Amendment, Christopher Slobogin
The World Without A Fourth Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
The subject of this Article is suggested by a single question: How would we regulate searches and seizures if the Fourth Amendment did not exist? This question is a useful one to ask even leaving aside the possibility of amending the amendment. Starting on a blank slate, as it were, should free us from current preconceptions about the law of search and seizure, ingrained after years of analyzing current dogma. Viewed from this fresh perspective, we might gain a better understanding of the values at stake when the state seeks to obtain evidence or detain suspects. This new understanding in …
Customs Inspectors And International Mail: To Open Or Not To Open?, Andrew H. Meyer
Customs Inspectors And International Mail: To Open Or Not To Open?, Andrew H. Meyer
Vanderbilt Journal of Transnational Law
This Note analyzes the United States statutes and regulations prescribing the standards for the search and seizure of international mail entering and leaving this country. It also examines cases construing these issues prior to the Supreme Court's decision in United States v. Ramsey. In addition, it discusses the Ramsey decision itself and cases decided subsequent to it. Finally, this Note comments on the confusion that has followed the Ramsey decision and sets forth possible solutions.
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article examines the "forced linkage" between state and federal provisions that the 1983 amendment establishes in Florida. It concludes that forced linkage is ill-conceived, because it is inimical to state court independence. Accordingly, this article argues, the 1983 amendment to article I, section 12 of the Florida Constitution should be repealed. If not repealed, it should be interpreted to permit Florida courts broad discretion in developing their own stance on search and seizure law. So construed, the amendment would only require Florida courts to abide by those United States Supreme Court opinions that provide (1) an authoritative holding that …
Case Digest, Law Review Staff
Case Digest, Law Review Staff
Vanderbilt Journal of Transnational Law
FORCED ENTRY OF THE SINGLE CABIN OF A 27-FOOT SAILING SLOOP TO CONDUCT A DOCUMENT AND SAFETY INSPECTION Is NOT AN UNREASONABLE SEARCH--United States v. Thompson, 710 F.2d 1500(11th Cir. 1983).
EXCLUDABLE ALIENS HAVE A CONSTITUTIONAL RIGHT TO A HEARING AFTER THE INITIAL PERIOD OF DETENTION--Fernandez-Roque v. Smith, 567 F. Supp. 1115 (N.D. Ga. 1983).
EXCLUSIONARY RULE BARs USE IN DEPORTATION PROCEEDINGS OF EVIDENCE OBTAINED BY INS OFFICERS IN VIOLATION OF THE FOURTH AMENDMENT--Lopez-Mendoza v. Immigration and Naturalization Service, 705 F.2d 1059 (9th Cir. 1983) (en banc).
LABOR UNION HAS STANDING TO MAINTAIN ACTION FOR VIOLATION OF DUE PROCESS RIGHTS …
Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff
Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff
Vanderbilt Law Review
This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …
Recent Decision, Duane A. Wilson
Recent Decision, Duane A. Wilson
Vanderbilt Journal of Transnational Law
The Fifth Circuit Court of Appeals has taken the instant opportunity to write an essay on the law of search and seizure on the high seas. Applying Ramsey, the majority found authority for the Coast Guard action, either under section 89(a) or through the consent of the Panamanian Government. Although both conclusions are open to dispute, the major question arises from the court's analysis of the constitutionality of the Coast Guard action. While a firm resolution of the confusion engendered by previous conflicting Fifth Circuit decisions is certainly desirable, the instant court's resolution fails to provide necessary analytical clarity. Judge …
Capacity To Contest A Search And Seizure: The Passing Of Old Rules And Some Suggestions For New Ones, Christopher Slobogin
Capacity To Contest A Search And Seizure: The Passing Of Old Rules And Some Suggestions For New Ones, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Professor Slobogin examines recent Supreme Court decisions involving standing to challenge search and seizure violations, and argues that the Court's commitment to a "totality of the circumstances" approach has permitted erosion of fourth amendment protections. After concluding that these decisions provide little guidance to lower courts, Professor Slobogin offers a set of principles which will aid in analyzing the Court's direction.
Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley
Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley
Vanderbilt Law Review
Noerr-Pennington Immunity for Joint Efforts to Influence Governmental Action - Intent to Cause Competitive Injury, Evidenced by Repeated, Baseless Opposition Before an Adjudicatory Body, Does Not Result in Loss of Noerr-Pennington Immunity Absent Specific Allegations of Conduct External to or Abusive of the Adjutory Processes
Samuel E. Stumpf, Jr.
Constitutional Law - First Amendment - Student's Right to Receive Information Precludes Board's Removal of Allegedly Offensive Books from High School Library
M. Carolyn Barefield
Constitutional Law-Search and Seizure - Federal Courts Are Bound by Federal Wiretapping Statutes and Will Not Exclude Evidence Seized by State Agents in Violation of More …
Recent Cases, Walter S. Weems, Mary M. Schaffner, Ronald G. Harris
Recent Cases, Walter S. Weems, Mary M. Schaffner, Ronald G. Harris
Vanderbilt Law Review
Constitutional Law-State and Local Tax-- Nondiscriminatory Ad Valorem Property Tax on Imports Stored in Warehouse Pending Sale Is Not Prohibited by Import-Export Clause
The framers of the Constitution enacted the import-export clause with the apparent intent that it remedy shortcomings of the Articles of Confederation and achieve specified national goals. Since the Articles of Confederation allowed individual states to regulate commerce as they saw fit, the seaboard stales, through whose ports goods in foreign commerce had to pass, were able to impose duties on imports destined for inland states. One reason for the import-export clause was to preserve harmony among …
Recent Cases, Robert L. Teicher, Timothy C. Maguire
Recent Cases, Robert L. Teicher, Timothy C. Maguire
Vanderbilt Law Review
In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …
The Beginning Of Juvenile Justice, Police Practices, And The Juvenile Offender, Elyce Z. Ferster, Thomas F. Courtless
The Beginning Of Juvenile Justice, Police Practices, And The Juvenile Offender, Elyce Z. Ferster, Thomas F. Courtless
Vanderbilt Law Review
The public is being asked to make many important decisions which will affect the structure, jurisdiction and function of the juvenile justice system. Before making these decisions, it should have more facts about the present system and the proposed changes. The aim of this study, is to provide some of the needed information. This article, the first publication of the study, concerns the juvenile offender's initial contacts with the juvenile system, his relations with the police and the consequences of these relations. Thus far, this stage of the juvenile justice system has received far less attention than any other aspect …
The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen
The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen
Vanderbilt Law Review
The question whether illegality in the means of procuring evidence is a bar to its admissibility has received little consideration in the English authorities. There is little authority in the reports, while most text-writers do not deal with the problem at all. Halsbury, who considers it briefly, states a rule that if property or documents have been wrongfully seized, the seizures will be excused if they are in fact material evidence of a crime committed by any person." The principal authority cited in support is Elias v. Pasmore. Archbold states a similar rule, but Phipson, who twice cites Elias v. …