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 Rise of Unnecessary Constitutional Rulings
One of the oldest principles of constitutional adjudication is that federal courts will decide only those constitutional questions that are necessary to the resolution of cases or controversies. This principle provides a key justification for judicial review and underlies much of the law of justiciability. Yet in recent years, the Supreme Court has systematically departed from this principle by authorizing (and in some cases, ordering) lower federal courts to decide constitutional questions even when doing so is clearly not necessary to the resolution of a case. This Article provides the first account of this troubling development and examines it from several perspectives. The Article begins by arguing that the rise of unnecessary constitutional rulings is both part of a larger trend toward judicial supremacy and the result of pressures specific to each of the areas in which the Court has authorized such rulings. It then considers whether the Court's embrace of unnecessary constitutional rulings in four areas - qualified immunity, habeas corpus, harmless error, and Fourth Amendment good faith cases - can be squared with Article III's ban on advisory opinions, which prohibits federal courts from deciding legal questions that will have no effect on a dispute between adverse litigants. Finally, the Article considers whether the Court's recent approach, even if consistent with Article III, is good policy. Although several scholars have advocated unnecessary constitutional rulings in qualified immunity cases as a way to ensure the evolution of new rights, the Article shows that these rulings are far more likely to retard, than promote, the development of constitutional rights.
The Illustrated Story of Copyright
PART 1: COPYRIGHT AND TECHNOLOGY - Books and Other Literary Works - Music and Sound Recordings - Movies and Television - The Computer - The Internet - PART 2: COPYRIGHT BASICS - What Does Copyright Protect? - What Does Copyright Grant? - Copyright Limitations, Exclusions, and Compromises? - Other Major Copyright Principles - International Copyright Relations