Double Reasonableness and the Fourth Amendment
Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.
The Fourth Amendment at a Three-Way Stop
There are three general litigation forums for persons aggrieved by constitutional violations - exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.Commentary criticizing recent curtailments of constitutional remedies has focused primarily on the way that limited remedial access might result in the under-enforcement of the Fourth Amendment and a corresponding under deterrence, or skewing of police incentives. This Article, in contrast, addresses the potential for under-announcement of Fourth Amendment law based on a skewing of judicial incentives. Procedural limitations on the development of the Fourth Amendment threaten to create a substantive three-way stop, a virtual freezing of search and seizure doctrine. The threat of a procedurally induced constitutional stagnation is particularly notable in view of the fact that the modern hallmark of Fourth Amendment law is the Katzian imperative of doctrinal evolution and the need for an ever evolving set of legal protections.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.