The Two Unanswered Questions of Illinois v. Caballes: How to Make the World Safe for Binary Searches

This Article discusses the recent Supreme Court decision Illinois v. Caballes, which held that the Fourth Amendment does not bar the use of drug-detection dogs, even in the absence of reasonable suspicion. It argues that the Caballes case paves the way for widespread and indiscriminant use of a new type of surveillance known as a binary search. A binary search is defined as a search which provides the law enforcement official with no information about the subject other than whether or not illegal activity is present. Drug-detection dogs are one example of a binary search, but there are many others which are being developed, such as portable gun detectors or software protocols that sift through all e-mails passing through an internet service provider looking for child pornography. Since the Caballes case did very little in the way of defining binary searches and discussing the appropriate limitations (if any) on their use, the Article seeks provide some guidance to courts in evaluating the constitutionality of binary searches in the future. The Article begins by discussing the history of the binary search doctrine, focusing on its application to drug-detection dogs, which up until now have been the most common form of binary search in use. The Article then analyzes the Caballes decision itself, examining what it does and does not resolve about the constitutionality of binary searches. Finally, the Article attempt to resolve the important unanswered questions in Caballes: first, how accurate does a surveillance technique have to be in order to be considered a binary search, and second, how does the Fourth Amendment prohibition against unreasonable seizures limit or prevent the widespread use of binary searches

Private Plea Bargains

Reprinted with permission from the North Carolina Law Review, Vol. 89, pp. 1125-1196 (2011)

ChooseYourJudges.org: Treating Elected Judges as Politicians

In order to combat this problem of voter ignorance, I recently created a website designed to provide voters with information about judicial elections...Creating the website posed unique practical challenges, such as how to gather the information about the candidates and how to present it to the voter in a way that was meaningful and useful to a non-lawyer. But it also raised even more fundamental questions about the purpose of judicial elections and the role voters are meant to play in the process. This Article describes these challenges and questions, and then proposes my own initial solutions to them, in hopes of beginning a debate about the role of voters in judicial elections. The Article also describes in detail the algorithm that I designed for recommending judicial candidates to voters, and invites suggestions and comments for improving the algorithm for the 2012 election cycle. Part II of the Article provides a brief background of the judicial election process, describing the evolution of judicial elections in this country and the different ways that we elect judges. Part III of the Article describes the challenges inherent in providing useful information to voters in judicial elections. Part IV explains how I addressed these challenges, using a judicial opinion categorization algorithm that had previously only been used by political scientists to study judicial voting records retrospectively. Part V reviews some of the results from the data gathered about judicial voters, and Part VI concludes by discussing the role of judicial elections in our society. Finally, various appendices describe the quiz and the algorithm used on the website