Apr 262010
 April 26, 2010  Posted by  Court, Surveillance

Another new Fourth Amendment article: The Irrelevancy of the Fourth Amendment in the Roberts Court by Thomas K. Clancy of the University of Mississippi School of Law, 85 Chi.-Kent L. J. 191 (2010).  Here’s the abstract:

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of the Fourth Amendment and, consequently, fewer cases worthy of Supreme Court review. If these premises hold true, the Fourth Amendment, while remaining the most commonly implicated aspect of the Constitution, may lose its status as the most frequently litigated part. What will remain is a residual, complex jurisprudence with little relevance.

Orin Kerr finds the article provocative, but unpersuasive, here.

John Wesley Hall Jr. of FourthAmendment.com points out other Fourth Amendment articles in the same volume of the law review:

  • Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209 (2010)
  • Ronald J. Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt, 85 Chi.-Kent L. Rev. 241 (2010)
  • Scott E. Sundby, Mapp v. Ohio’s Unsung Hero: The Suppression Hearing as Morality Play, 85 Chi.-Kent L. Rev. 255 (2010)

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