Police Ignorance and (Un)Reasonable Fourth Amendment Exclusion

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was lawful. Judges and commentators sharply disagree about whether and which police mistakes of law are, in fact, reasonable so as to deny the application of the exclusionary rule remedy. They also disagree on the nature and scope of the reasonableness standard and its impact on the very existence of the exclusionary rule as a remedy against police misconduct. This Article offers a new approach to the “good faith” exception doctrine based on a revisionist reading stemming from the Supreme Court’s recent decision in Heien v. North Carolina. There is widespread consensus that the good faith exception to the exclusionary rule doctrine determines the application of the evidence suppression remedy to acknowledged violations of the Fourth Amendment. But I argue that the exception is, in fact, better understood as an inquiry into the substance of Fourth Amendment rights and not into the application of the remedy. After the Supreme Court holding in Heien that the reasonableness of a police mistake of law is relevant in the evaluation of conduct under the Fourth Amendment, there is no need for a “good faith” reasonableness exception to the exclusionary rule remedy when that rule kicks in only after a violation of the Fourth Amendment. This approach renders the “good faith exception” to the exclusionary rule doctrine redundant. Instead of ruling that the exclusionary rule does or does not apply, courts in these cases can simply hold that an unreasonable search did or did not take place. This approach bears a significant practical payoff: courts will no longer be able to declare broadly that the police have violated the Fourth Amendment while in the same breath undercutting the value of remedying this violation based on two different questions on what constitutes one reasonable police officer

No Longer Immune? How Network Theory Decodes Normative Shifts in Personal Immunity for Heads of State

The customary international law (CIL) norm of personal immunity for Heads of State has come under significant fire in the past decade. While immunity norms have traditionally been absolute, the increasing influence of the human rights and anti-impunity movements, coupled with pleas for international criminal responsibility for egregious human rights and humanitarian violations, have eroded them, particulary within international jurisdictions. These changes reflect a larger challenge to the traditional statecentric model. Although states remain the primary makers of international law, many other participants, including international organizations, courts, and non-governmental oganizations (NGOs), are crucial to the development of international legal norms today. But there is, of yet, no formal model integrating these actors into existing legal frameworks. The goal of this Article is to provide an analyticalf ramework to appy to the shifting norm of personal immunity for Heads of State based on the relationships and connections among actors. Using the tools of network theory, this Article determines the defining properties of this network of actors, including its topology, density, centraliy, and actor similarity, which explain current normative shifts and predict developments. Based on this quantitative analysis, this Article puts forward two arguments. First, non-state actors, even though not formaly accepted as capable of contributing to international law, have a clear normative effect. Second, insofar as the hubs in this network continue to pursue an exception to Head of State immunity before International Criminal Courts, we are likey to see an exception cystalliZe as a new rule of CIL. Vie)ing international law through networks of actors provides lawyers andpoly-makers with a descriptive tool that translates and maps the elusive global realities that lead to international law-making

Consent and Intuitions of Justice

https://scholarlycommons.pacific.edu/facultybooks/1171/thumbnail.jp

The Parthenon Marbles Revisited: A New Strategy for Greece

Cultural property disputes raise questions of ownership, possession, alleged destruction, and looting. They are also affected by legal vacuums, and idiosyncratic statutes of limitations. Should objects of cultural heritage that have been removed in the past be returned to their source nation? This article discusses the perennial claim Greece made to the British Museum for the return of a collection of sculptures from the Parthenon and the Acropolis of Athens. This article identifies a trajectory towards a more effective approach on cultural property disputes transcending the traditional ownership versus value debate. It advocates a shift of the discussion from one of legal title and ownership to one of negotiation, cooperation, and advancement of both nationalist and internationalist ideals. This article adds a new spin to an old unresolved debate by advancing two primary arguments: (1) an inalienability argument based on Margaret Radin\u27s theory of personhood; and, in the alternative, (2) a reassessment of the cultural nationalism/internationalism debate, and a negotiation strategy based on prior successful returns of cultural property objects. First, Margaret Radin\u27s theory of personhood gives the country of origin a normative argument against typical commensurate perceptions of property. Second, and in the alternative, instead of approaching cultural nationalism and internationalism as mutually exclusive, the two can flourish together under clarified objectives that do not mesh with each other\u27s agendas but rather bolster one another. Finally, this article examines successful return strategies under this new integrated cultural nationalism/internationalism approach using the Four Quadrant Negotiation Model. Ideas such as loan agreements, trading and exchange of cultural artifacts, touring collections, exclusive excavation agreements, joint trusteeship, fractional ownership, personnel education, and liability waivers provide starting points in a negotiation on how to form a partnership between Greece and the British Museum that will promote collaboration, international exchange of cultural heritage, public access, and education

Rethinking Constitutionally Impermissible Punishment

Prisons and jails endanger the health and wellbeing of incarcerated individuals and their communities. These facilities are often overcrowded and unsanitary,1 with limited access to medical care, 2 and no basic sanitation and personal hygiene products unless a person can pay the spiked prices of the jail\u27s commissary.3 Public health emergencies compound these dangers. Most recently, the spread of the COVID-19 pandemic created a crisis for people in detention, their families, and the communities surrounding jails and prisons. For over a year, there were no vaccines against COVID-19, new strains of the virus continue to evade vaccine-induced immunity, and there is still no known cure for the disease caused by the virus. For over a year, the only known measures to mitigate the spread of this pandemic were social distancing, vigilance with hygiene and disinfectants, and proper ventilation. Yet individuals in jails and prisons had no ability to implement these measures in spaces that, even in the absence of a pandemic, pose public health risks.4 Every decision to send a person into the jails or prisons, or to deny requests for release, had the potential to cause severe illness and turn into a death sentence for members of communities across the country. Now, with new variants appearing across the globe, we face an uncertain next chapter for public health. In this Essay, we discuss how the COVID-19 pandemic has affected our understanding of constitutionally permissible punishment. We argue, first, that the protracted failure to act by those who have had authority to do so during this public health emergency created a high risk that incarcerated people would suffer severe illness-and even death-in violation of due process protections and the Eighth Amendment prohibition against cruel and unusual punishment.5 Second, we suggest that a changed understanding of public safety in the context of detention and release during public health emergencies has the potential to shift the framework even after the emergency subsides. Conceptions of what qualifies as a danger to the community and what enhances public safety have radically shifted during this time in a way that supports release of individuals back to their communities. This shift can spur a further interrogation of how we define constitutionally permissible punishment in a system that has fueled mass incarceration

Rethinking Constitutionally Impermissible Punishment

In this Essay, we discuss how the COVID-19 pandemic has affected our understanding of constitutionally permissible punishment. We argue, first, that the protracted failure to act by those who have had authority to do so during this public health emergency created a high risk that incarcerated people would suffer severe illness—and even death—in violation of due process protections and the Eighth Amendment prohibition against cruel and unusual punishment. Second, we suggest that a changed understanding of public safety in the context of detention and release during public health emergencies has the potential to shift the framework even after the emergency subsides. Conceptions of what qualifies as a danger to the community and what enhances public safety have radically shifted during this time in a way that supports release of individuals back to their communities. This shift can spur a further interrogation of how we define constitutionally permissible punishment in a system that has fueled mass incarceration