Suspicion and the Protection of Fourth Amendment Values

Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement\u27s provenance is historically questionable, both as a matter of the common law and in light of federal statutory search law during the Framers\u27 era. Even apart from the historical case, I critique it because it is demonstrably wrong in terms of contemporary constitutionalism. Fourth Amendment jurisprudence is not honest about suspicion\u27s role in protecting Fourth Amendment values, and our failure to look critically at suspicion has prevented us from doing a better job of protecting those values. It can no longer do the heavy lifting we have asked it to do, and it is time to look elsewhere to develop alternative methods for protecting Fourth Amendment interests

Suspicion and the Protection of Fourth Amendment Values

Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement\u27s provenance is historically questionable, both as a matter of the common law and in light of federal statutory search law during the Framers\u27 era. Even apart from the historical case, I critique it because it is demonstrably wrong in terms of contemporary constitutionalism. Fourth Amendment jurisprudence is not honest about suspicion\u27s role in protecting Fourth Amendment values, and our failure to look critically at suspicion has prevented us from doing a better job of protecting those values. It can no longer do the heavy lifting we have asked it to do, and it is time to look elsewhere to develop alternative methods for protecting Fourth Amendment interests

Discoverymania: Plausibility Pleading as Misprescription

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly underinclusive because it does nothing to impact defendant discovery abuse. Additionally, the Court emphasized the universality of the new plausibility pleading standard in a qualified immunity context that may have caused it to misconceive a right to avoid discovery. All of this has greater implications for access to justice than for addressing the perceived deficiencies in our discovery procedures that so concerned the Court.Discovery reform — not pleading reform — is a better option. Though the Rules Advisory Committee has recently campaigned to reform discovery, it has unwisely sought to bring discovery into accord with plausibility pleading, as evidenced by proposals to tighten and reduce discovery and to eliminate form complaints. These proposed reforms are misguided because what is needed is not less discovery but better-tailored discovery. In an effort to broaden the discussion, this article closes by surveying numerous discovery reform options

Nuance, Technology, and the Fourth Amendment: A Response to Predictive Policing and Reasonable Suspicion

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests

Discoverymania: Plausibility Pleading as Misprescription

In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly underinclusive because it does nothing to impact defendant discovery abuse. Additionally, the Court emphasized the universality of the new plausibility pleading standard in a qualified immunity context that may have caused it to misconceive a right to avoid discovery. All of this has greater implications for access to justice than for addressing the perceived deficiencies in our discovery procedures that so concerned the Court.Discovery reform — not pleading reform — is a better option. Though the Rules Advisory Committee has recently campaigned to reform discovery, it has unwisely sought to bring discovery into accord with plausibility pleading, as evidenced by proposals to tighten and reduce discovery and to eliminate form complaints. These proposed reforms are misguided because what is needed is not less discovery but better-tailored discovery. In an effort to broaden the discussion, this article closes by surveying numerous discovery reform options