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Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe 2011 American University Washington College of Law

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Scholarly Articles in Law Reviews & Journals

his 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.


Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson 2011 American University Washington College of Law

Crime Mapping And The Fourth Amendment: Redrawing 'High Crime Areas', Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses how “crime mapping” technology has the potential to reshape Fourth Amendment protections in designated “high crime areas.” In the past few years, the ability of police administrators to identify and officially label “high crime areas” has rapidly expanded. Geographic Information Systems (GIS) and crime mapping technology has simplified the collection and analysis of crime statistics. These GIS crime mapping technologies can produce almost perfect information about the level, rate, and geographic location of crimes in any given area.While effective policing tools, these technologies have constitutional consequences that are only now being considered. Under existing Supreme Court precedent, …


Cell Phone Searches Incident To Arrest: A New Standard Based On Arizona V. Gant, Ben E. Stewart 2011 University of Kentucky

Cell Phone Searches Incident To Arrest: A New Standard Based On Arizona V. Gant, Ben E. Stewart

Kentucky Law Journal

No abstract provided.


The Shocking Truth: Law Enforcement's Use And Abuse Of Tasers And The Need For Reform, Michelle E. McStravick 2011 Villanova University Charles Widger School of Law

The Shocking Truth: Law Enforcement's Use And Abuse Of Tasers And The Need For Reform, Michelle E. Mcstravick

Villanova Law Review (1956 - )

No abstract provided.


The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson 2011 University of Oklahoma College of Law

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …


Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard 2011 Indiana University Robert H. McKinney School of Law

Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard

Oklahoma Law Review

No abstract provided.


Framing The Fourth, Tracey Maclin, Julia Mirabella 2011 University of Florida Levin College of Law

Framing The Fourth, Tracey Maclin, Julia Mirabella

UF Law Faculty Publications

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. 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 …


Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye 2011 Penn State Law

Dna Database Trawls And The Definition Of A Search In Boroian V. Mueller, David H. Kaye

Faculty Scholarship

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA …


Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares 2011 Columbia Law School

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 …


Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan 2011 Vanderbilt University Law School

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …


Comments: Naturally Shed Dna: The Fourth Amendment Implications In The Trail Of Intimate Information We All Cannot Help But Leave Behind, Mike Silvestri 2011 University of Baltimore School of Law

Comments: Naturally Shed Dna: The Fourth Amendment Implications In The Trail Of Intimate Information We All Cannot Help But Leave Behind, Mike Silvestri

University of Baltimore Law Review

No abstract provided.


Is There A Doctor In The (Station) House?: Reassessing The Constitutionality Of Compelled Dwi Blood Draws Forty-Five Years After Schmerber, Michael A. Correll 2011 Jones Day

Is There A Doctor In The (Station) House?: Reassessing The Constitutionality Of Compelled Dwi Blood Draws Forty-Five Years After Schmerber, Michael A. Correll

West Virginia Law Review

The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and in- tangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implica- tions of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside - the preservation of bodily integrity. As technology has ren- dered the human body an ever-increasing source of crucial evi- dence, the Supreme Court has remained largely silent on the government's power to harvest information through medical procedures. Since the Court's …


The Need To Overrule Mapp V. Ohio, William T. Pizzi 2011 University of Colorado Law School

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …


How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg 2011 University of Dayton

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …


The Need To Overrule Mapp V. Ohio, William T. Pizzi 2011 University of Colorado Law School

The Need To Overrule Mapp V. Ohio, William T. Pizzi

University of Colorado Law Review

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, …


Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye 2011 Penn State Law

Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye

Faculty Scholarship

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme …


Some Hypotheses About Empirical Desert, Christopher Slobogin 2011 Vanderbilt University Law School

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 …


Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey 2011 Vanderbilt University Law School

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …


Disentangling Administrative Searches, Eve Brensike Primus 2011 University of Michigan Law School

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …


Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran 2011 University of Michigan Law School

Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran

Articles

Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …


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