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| Written by George W. Bonelli | |
| The watering hole for intellectual exchange on constitutional issues has moved and those who thirst should take note. Again this year, the annual roundup of the toughest and the best hands in their particular specialties of the law and its constitutional fencing will follow the trail to Texas Tech Law School to be a part of Professor Arnold Loewy’s Spring Symposium. It only seems like an unlikely venue to the uninitiated. “Is this your first rodeo, pardner?” an old hand might ask a tentative tenderfoot, and whether it is or not, the welcome could not be warmer. | |
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| Written by Scott E. Sundby & Lucy B. Ricca | |
| The Supreme Court’s decision in Herring v. United States resurrected the debate over the future of the exclusionary rule in American criminal procedure. In many ways, however, the decision is as fascinating for how it views the history of the exclusionary rule as for what it portends about the rule’s future. In Herring, Chief Justice Roberts and Justice Ginsburg articulated remarkably different visions of the exclusionary rule and its judicial heritage. | |
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| Written by Kenneth W. Starr & Audrey L. Maness | |
| This Symposium on the Fourth Amendment posed a variety of questions to a number of contributors: How important is history to resolving Fourth Amendment questions, how good of a job does the Supreme Court do in construing history and what values does the Fourth Amendment serve, among others. Our small contribution focuses on a very practical question—whether the exclusionary rule is an effective way of enforcing Fourth Amendment values, with the key word being “effective.” In other words, and setting aside (for now) the question of what values the Fourth Amendment is meant to advance, the question is: How do we vindicate those values and, perhaps more importantly, do we do it well? | |
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| Written by David A. Harris | |
| Picture this: a police officer shoots a civilian in the back in a public place. The police officer says that the man assaulted him, resisted arrest, and appeared to have a gun, leaving the officer no choice but to fire. In the last fraction of a second, the man turned away from the officer to hide... | |
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| Written by Lawrence Rosenthal | |
| Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure,” has received more criticism than Terry v. Ohio. Rejecting an argument that “the authority of the police must be strictly circumscribed by the law of arrest and ... | |
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| Written by Thomas K. Clancey | |
| The Fourth Amendment speaks of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” The Amendment’s words are plural: the right of the “people” and “their.” Yet, the Amendment has been traditionally interpreted to safeguard the rights of individuals in atomistic spheres of interests: it safeguards my person, and your house, and her papers, and his effects, against unreasonable searches and seizures. An alternative view would treat the Amendment as requiring the government to keep us collectively secure in our persons, houses, papers, and effects. | |
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| Written by Paul Butler | |
| There is a scene near the end of the Academy Award winning film The Blind Side in which the character played by Sandra Bullock has gone to a low-income, African-American neighborhood to find her black adopted son who has run away from home. She does not find him, but her presence in the ghetto amus... | |
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| Written by Fabio Arcila, Jr. | |
| 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 propo... | |
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| Written by George C. Thomas | |
| Most of what you think you know about the Fourth Amendment is wrong—at least as a matter of what the Framers intended. The problem begins with the text, which does not provide a workable metric for a general theory of the appropriate limits on government searches and seizures. Indeed, reading the ... | |
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| Written by Andrew E. Taslitz | |
| I will argue here that history should play an expansive, though by no means decisive, role in giving the Fourth Amendment meaning. By expansive, I mean two things: first, temporally expansive, the broad swathe of American history and not just some “founding moment” matters; second, morally expansiv... | |
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| Written by Thomas Y. Davies | |
| Should Fourth Amendment decisions be based on history? And, how well does the Supreme Court do in setting out Fourth Amendment history? These questions—obviously prompted by “originalist” claims in some recent Supreme Court search-and-seizure rulings—were posed to the symposium panel on Fourth Amendment history. The normative question whether decisions about arrest or search law should be based on history is pertinent, however, only if Fourth Amendment history can be accurately recovered—and then only if the authentic historical doctrine connects up sufficiently with modern conceptions. | |
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| Written by Morgan Cloud | |
| Originalism is not a theory of constitutional interpretation. It is not a historical method. It is a rhetorical device deployed to win arguments. Originalism survives in constitutional discourse not because its advocates succeed at identifying the “Framers’ original intent” or the “original publi... | |
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| Written by Erwin Chemerinsky | |
| On Tuesday, June 29, 2010, the Supreme Court officially concluded its fifth year with John Roberts as Chief Justice, its first year with Justice Sonia Sotomayor, and its thirty-fifth and final year with Justice John Paul Stevens on the bench. In this essay, I want to assess the Roberts Court’s approach to criminal procedure. | |
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| Written by Arnold H. Loewy | |
| In this symposium issue, the papers are addressed primarily to three topics: (1) How important is (should) history (be) to the resolution of Fourth Amendment questions, and how good (or bad) a job does the Supreme Court do in construing history?; (2) What value(s) is (are) the Fourth Amendment intended to serve?; and (3) Is the exclusionary rule a good (the best) way of enforcing these values? As the convenor of this symposium and the purveyor of this opening address, I deem it my function to comment briefly on each of these questions. So, I will now do so. | |
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| Written by Volume 43 Executive Board | |
| The Executive Board is honored to present Volume 43, Book 1 of the Texas Tech Law Review. The Volume 43 Board of Editors has worked extremely hard to continue the fine tradition of our Law Review while expanding our capacity to provide timely scholarship and leadership within the legal community. ... | |
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