Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule

In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary rule entirely. I suggest that the Supreme Court might already be willing to abandon the rule, provided that Congress enacts reforms aimed at making the threat of financial liability for Fourth Amendment violations more robust. I close by identifying several ways in which Congress could help pave the way for the exclusionary rule’s demise

Letter from Iowa: Same-Sex Marriage and the Ouster of Three Justices

This is the published version

Killing Roger Coleman: Habeas, Finality, and the Innocence Gap

For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court\u27s determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman\u27s habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed their notice of appeal one day late. Amidst international media attention, Virginia authorities executed Coleman the following year. Faced with continuing controversy about the case, the governor of Virginia ordered new DNA tests in January 2006-tests that confirmed Coleman\u27s guilt and finally brought an end to a story that began with a young woman\u27s death twenty-five years earlier. In this Article, Professor Pettys argues that there are important lessons to be learned from the fact that finality was not achieved in Coleman\u27s case until long after the Supreme Court declared the case closed. Although finality is a worthy goal, the Court has failed to account for the fact that finality is exceptionally elusive when the public fears that a person facing severe punishment was convicted of a crime he or she did not commit. Although the Court has said it will adjudicate the merits of a procedurally flawed habeas petition when a prisoner makes a persuasive showing of innocence, Professor Pettys argues that the Court\u27s habeas jurisprudence suffers from an innocence gap\u27 --a gap between the amount of exculpatory evidence sufficient to thwart finality and the amount of exculpatory evidence sufficient to persuade a federal court to forgive a prisoner\u27s procedural mistakes and adjudicate the merits of his or her constitutional claims. Professor Pettys concludes by arguing that Congress is harmfully widening that gap even further

Civil Cases in the Supreme Court’s October 2018 Term

The October 2018 Term will not best be remembered for the Court’s rulings on such matters as the National Park Service’s regulatory authority over the Nation River in Alaska,1 the relationship between state and federal law for events occurring on the Outer Continental Shelf,2 or whether maritime law permits punitive damages on claims of unseaworthiness.3 Anyone who tells this Term’s story will surely focus instead on two 5-4 rulings with potentially enormous political implications: one finding that partisan-gerrymandering claims are beyond federal courts’ authority, and the other blocking the Trump Administration from including a citizenship question on the 2020 census (at least for the time being). Although the gerrymandering and census cases dominated the national media’s coverage of the Court, the Justices also took on a wide range of additional important matters on the civil side of their docket, from abortion to takings, from alcohol to taxes, from arbitration to Title VII. Below is a full accounting of the Court’s most broadly noteworthy civil cases of the 2018 Term

Constructing Students’ Speech Rights, from College Admissions to Professional Schools

In a closely watched 2021 ruling concerning a high school student’s profane post on Snapchat, the Supreme Court declined to shed significant light on the murky First Amendment status of speech that K-12 students produce off campus, whether on social media or elsewhere. Legal uncertainties concerning such speech afflict higher education, as well. I focus on two dimensions of that uncertainty here. First, many admissions officers say they look at college and university applicants’ social-media posts when making their admissions decisions. Yet only one federal appellate court has said anything at all about whether the First Amendment restricts public postsecondary institutions’ ability to reject applicants because of their speech, and the court in that case only addressed speech that applicants produce as part of the admissions process. Second, there recently has been a spate of efforts by professional schools (in pharmacy, medicine, dentistry, and the like) to discipline students for speech that school officials believe violates professional standards. Yet only a few federal courts have grappled with the thorny First Amendment issues that such cases raise, and those courts have not always agreed on how the constitutional analysis should proceed. In this Article, I tackle those and related matters by drawing lessons from the comparatively well-developed First Amendment law of public employment. Public employment and postsecondary education are importantly different in some ways but usefully similar in others. Building on the similarities, I provide analytic frameworks for determining when the First Amendment bars admissions officers from rejecting applicants because of their speech and when it bars professional schools from disciplining students for speech that falls short of professional standards. I also provide a lens for more deeply understanding the speech rights of postsecondary students in curricular settings of all kinds

The Myth of the Written Constitution

Many Americans have long subscribed to what this Article calls the myth of the written constitution — the claim that the nation\u27s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans\u27 attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to ease the tension created by the American people\u27s paradoxical beliefs that they are morally entitled to govern themselves and that human beings often cannot be trusted to behave in morally praiseworthy ways;it helps to ease the tension between Americans\u27 commitment to self-rule and their attraction to judicial supremacy;and it helps to secure the strong sense of nationhood that so many Americans deeply desire. The Article suggests that embracing the myth of the written constitution for its functional value need not be seen as a shameful act of self-delusion, despite the fictive qualities of the myth\u27s claims. So long as courts and scholars maintain the necessary conditions, the American people can responsibly embrace the myth as an act of “poetic faith.” Reprinted by permission of the publisher