Disagreement and Interpretation

The question of what weight--if any--courts should give to elected government resistance to court decisions is examined. A principle is sought that explains why courts should not consider local resistance when deliberating on constitutional questions

Outcome Sensitivity and the Constitutional Law of Criminal Procedure

Iconic criminal procedure doctrines that perform the same function go by different names. When constitutionally disfavored conduct taints a criminal proceeding, courts must determine how much the taint affected an outcome—and whether the damage requires judicial relief. These doctrinal constructs calibrate judicial responses to, among other things, deficient defense lawyering (prejudice), wrongful State suppression (materiality), unlawful policing (attenuation), and an assortment of trial-court mistakes (harmless error). I refer to these constructs, which tightly orbit the constitutional law of criminal procedure, as rules of “outcome sensitivity.” Formal differences in sensitivity rules remain enduring puzzles subject to only the most superficial inspection. In this Article, I surface the parallel functions that these rules perform, explain why they should be banished from substantive constitutional law, and advance my preferred view of their legal status: as subconstitutional limits on judicial remedies. At stake are basic behavioral incentives for defense lawyers, police, prosecutors, and judges. I proceed in three parts. In Part I, I map the universe of sensitivity rules. They can be internal pieces of substantive constitutional law (like materiality and prejudice elements), or they can be external limits on remedies for completed constitutional wrongs (like harmless error rules). They can also define downstream constitutional errors distinct from upstream constitutional violations (like certain rules against in-court identification). In Part II, I reject internal sensitivity rules, which unwisely transmit mixed signals to criminal justice actors engaged in disfavored conduct. Such rules undermine crucial professional norms, and they degrade constitutional enforcement that takes place outside the criminal process. In Part III, I argue that external sensitivity rules should be conceptualized as subconstitutonal limits on judicial remedies. That status neatly explains why sensitivity rules apply in state court, it avoids standard criticism of federal common law, and it is less doctrinally disruptive than the external alternatives

Periodical Index

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Review

Pledge Your Body for Your Bread: Welfare, Drug Testing, and the Inferior Fourth Amendment

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are gaining increasingly substantial political support, suggesting that the enactment of drug testing legislation is now a real and immediate prospect. Given the gravity of the suspicionless searches at issue, the proposals raise serious concerns under conventional Fourth Amendment doctrine. Nevertheless, there is considerable doubt whether the federal courts will accede to that authority and prohibit the proposed intrusions, given the long tradition of relegating the privacy rights of the poor to inferior and indifferent enforcement. This Article explores these legislative developments and the constitutional context within which they arise, and makes the case for using the impending battle over suspicionless drug testing to reclaim for the indigent the full reach of the Fourth Amendment’s privacy right

Thus Far and No Further: The New Mexico Supreme Court\u27s Failure to Expand the Rights of the Criminally Accused Beyond Search and Seizure Under the State Constitution

The New Mexico Supreme Court has at once been both proactive and conservative in expanding the rights of the accused under the State Constitution. In the field of search and seizure, the Court has been extremely active in heeding Justice Brennan\u27s call to the states to expand liberties under state constitutions. Interestingly, at the same time, the court has failed to expand other rights of the accused with few exceptions. This paper seeks to explore some of the reasons why this dichotomy has occurred and offers a few strategies to argue for expansion in three other areas. These include the privilege against self-incrimination, the right to counsel, and the right to confrontation. Part I will discuss the Court\u27s expansion in the area of search and seizure. Concomitant to the Court\u27s expansion in this field, has been the development of the procedure for arguing for expansion, including the proper method for raising and preserving a state constitutional claim. Part II will overview the Court\u27s current positions on a few selected subcategories of each of the three categories mentioned above. Finally, Part III will explore possible arguments and strategies for persuading the Court to expand these rights and depart from its propensity to be in lock step with federal precedent

The \u27New\u27 Exclusionary Rule Debate: From \u27Still Preoccupied with 1985\u27 to \u27Virtual Deterrence\u27

The justices of the Supreme Court have drawn new battle lines over the exclusionary rule. In Hudson v. Michigan, 547 U.S. 586 (2006), a five-justice majority, over a strong dissent, went out of the way to renew familiar criticisms of the rule. Just this January, in Herring v. United States, 129 S.Ct. 695 (2009), the justices again divided five to four. This time the dissenters raised the ante, by arguing that the Court\u27s cost-benefit approach to applying the rule is misguided. For the first time since Justice Brennan left the Court, some of the justices appealed to broader justifications for exclusion, including concerns for judicial integrity, judicial review, and long-run and indirect influences on official behavior. This article challenges the majority positions in Hudson and Herring as both normatively mistaken and empirically unsupported. Normatively, the escape of the guilty is a cost of the Fourth Amendment rather than whatever remedies enforce it. The only legitimate cost of exclusion is possible overdeterrence, defined in careful way: discouraging lawful behavior in a pool of cases in which legality is uncertain. The Article then tests the overdeterrence hypothesis against empirical evidence reporting hit rates for different types of searches and seizures. The current mix of Fourth Amendment remedies does not appear to be overdeterring and indeed appears to underdeter certain types of low-cost Fourth Amendment violations. The article also criticizes the Herring dissent\u27s more majestic view of the exclusionary rule, because the dissent\u27s approach (1) cannot account for the law\u27s response to innocent victims of illegal searches and seizures; (2) fails to account for alternative remedies, including a deterrence-based exclusionary rule; (3) conflicts with the good-faith immunity defense to tort actions against the police, thus threatening overdeterrence; and, most fundamentally, (4) mistakes the nature of Fourth Amendment rights as trumps over the application of otherwise valid criminal laws to private behavior, i.e., as a right to commit crimes in secret. Finally, the article presents a proposed improvement on current exclusionary rule practice, the virtual deterrence approach. Under this approach, before suppressing evidence (or admitting tainted evidence under an exception), the court should demand an account of what specific remedial steps, by way of training, discipline, or record-keeping, the department has taken to prevent recurrence of the violation. In typical cases the proposal may not be worth the additional layer of procedural complexity. When, however, the charged offense is exceptionally serious, or when the government exploits an exception to exclusion for fruits of conduct found unconstitutional by the court, virtual deterrence probably would increase compliance by police with constitutional requirements, and reduce both the chances of the guilty escaping and the temptation to distort fact and law to avoid such miscarriages of justice. The government\u27s option to refuse to undertake remedial measures and thereby acquiesce in a suppression order provides a strong safeguard against overdeterrence