Can You Hear Me Now? : Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court\u27s Fourth Amendment Jurisprudence

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court\u27s articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court\u27s reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend\u27s observation, the Court\u27s method has united these cases under a single analytical rubric. Part III discusses the unavoidable implication of the Court\u27s approach, and Part IV examines whether there is a principled way out of the dilemma that the Court\u27s reasoning has created. It concludes that there is, but the solution requires recognizing two unstated assumptions that undergird the Court\u27s jurisprudence in this area, assumptions that, when exposed to light, are highly questionable. The Court needs to reconsider how expectations of privacy really work. It has tended to view expectation of privacy as an all-or-nothing proposition, so that for Fourth Amendment purposes, lack of a reasonable expectation of privacy with respect to one person connotes that there cannot be a reasonable expectation with respect to anyone else. The Article suggests that this approach does not reflect the way that either those who wrote and ratified the Fourth Amendment or the majority of Americans today think about privacy. The Supreme Court should recognize, therefore, that when the government employs false friends to gather evidence for use in a criminal case, it does no more than to undertake a search with other eyes and ears and a seizure with other hands. It is a government intrusion all the same. Accordingly, the Fourth Amendment\u27s warrant requirement, which demands probable cause and the acquiescence of a neutral magistrate in the proposed search, should apply in full force

We the People : John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action

The Article is presented in three Parts. Part I documents the enormous effect that Locke\u27s political philosophy had on the Constitution\u27s Framers and traces the idea of collective rights through Locke\u27s Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court\u27s current doctrine in a society founded on the ideas of John Locke. It then explores the constitutional provisions where collective rights have already been recognized by the courts, though not with respect to standing analysis. Finally, Part III proposes a revision of the current test for standing to ensure that vindication of society\u27s collective rights is possible without creating universal standing and thus threatening the courts with a tidal wave of litigation brought by “officious intermeddlers.

What\u27s Wrong with This Picture?: Rule Interpleader, the Anti-Injunction Act, In Personam Jurisdiction, and M.C. Escher

The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the Supreme Court\u27s narrow interpretation the Act\u27s provisions and discussing the federalism values that the Act and the Court seek to serve. Finally, Part II reviews interpleader\u27s status as an in personam action. Even in setting out the problem, one can conceive of at least three potential solutions. One might simply acknowledge that injunctions are not available in rule interpleader actions. Alternatively, one might reverse the Supreme Court\u27s view of interpleader as an in personam action, recharacterizing it as in rem to get around the strictures of the Anti-Injunction Act. Finally, one might leave interpleader itself untouched but reinterpret the jurisdiction exception to the Anti-Injunction Act. Unfortunately, each of these solutions comes with an unpalatable price. Part III discusses the price of each solution. Part IV considers whether, despite the costs of each solution, Congress or the Court should adopt any of them or whether there is some other alternative. In fact, there are two alternatives. Recharacterizing interpleader as an in rem proceeding to fit it within the Anti-Injunction Act is possible, though not the best answer because it would require extended judicial effort to refine the courts\u27 jurisdictional treatment of in rem proceedings generally. This approach is anything but simple and easy to implement. The more elegant option is for Congress explicitly to authorize injunctions against state proceedings in rule interpleader actions, and Part IV offers language that does so

There\u27s No Reason For It; It\u27s Just Our Policy: The Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction

This Article is presented in three parts. Section I traces the statutory and case development of federal question jurisdiction, both under the constitutional and statutory “arising under”\u27 language. Section II demonstrates the problems that the Mottley rule has caused in building a rational system of federal question jurisdiction, particularly in cases seeking declaratory judgments. Section III contends that the Mottley rule is irrational because it is a mechanical rule that ignores important policy considerations underlying the existence of federal question jurisdiction. Section III goes on to suggest that federal question jurisdiction should depend upon the centrality of the federal issue to the litigation and the importance of federal, rather than state, resolution of the issue. Finally, section III urges that federal jurisdiction ought to exist when a plaintiff anticipates a federal defense, and that either party ought to be permitted to remove a case from state to federal court when any of the pleadings raises a pivotal federal issue. Only in this manner can the purposes underlying federal question jurisdiction be served consistently

The Right of the People : Reconciling Collective and Individual Interests Under the Fourth Amendment

Professor Doernberg examines a tension within fourth amendment jurisprudence and sugqests a means of resolving it. On the one hand, the Supreme Court has conferred fourth amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court\u27s view, it would serve as an effective deterrent. Professor Doernberg traces these two po1icies to different conceptions of the fourth amendment: the first interprets the amendment as a guarantor of individual rights; the second construes it as an instrument for securing a collective right. He then shows how the Court, by oscillating between these two conceptions, has eroded fourth amendment protections more severely than it could have done under either conception. The author suggests that the atomistic and collectice views of the fourth amendment be harmonized and sets forth a view of the proper scope of standing to invoke the exclusionary remedy under a dualistic conception of fourth amendment rights

Taking Supremacy Seriously: The Contrariety of Official Immunities

Immunities from suit, whether for governments or government officials, occupy a semi-sacred place in our jurisprudence. Trumpeting sovereign immunity, state and federal governments have long asserted that they are not subject to suit unless they have consented, and the courts have supported them. The U.S. Supreme Court has also created common law immunities for government officials and municipalities. Both kinds of immunity rest on a pervasive misunderstanding of English legal history and a convenient disinclination to consider the distinctive history and political philosophy that underlies the federal government. This Article does not examine the nuances of the official and municipal immunity doctrines, but rather questions their legitimacy in light of constitutional supremacy. It focuses on immunity of executive department officials and municipalities, but casts some doubt on judicial immunity as well

Due Process Versus Data Processing: An Analysis of Computerized Criminal History Information Systems

Based on their empirical study of New York\u27s computerized criminal history information system and on their national surveys of similar systems, Professors Doernberg and Zeigler conclude that current regulations governing the dispersion of criminal history information are grossly inadequate. Although information drawn from computerized criminal history files is often inaccurate, incomplete, or inappropriate, that information is routinely used by criminal justice officials and judges to make decisions affecting defendants\u27liberty. The authors argue that this practice is unconstitutional and suggest ways to regulate criminal history information suystems that would protect a defendant\u27s right not to be deprived of liberty without due process of law