I think everyone recognizes that the law's rule-maker can consider results. But the question is always, who is the proper rule-maker? For an originalist, the proper rule-maker was those who enacted the constitution, not judges centuries later.
Totally unscientific, obviously, but perhaps still interesting: Among those law review authors who answered, 18% had AI write a lot of their articles; 27% had AI write a little bit of their articles; and 55% didn't have AI write anything.
A jury needs to figure out if the man the officer shot and killed who was firing his gun at New Years was (a) pointing his gun at the officer or (b) just shooting into the air. The former wouldn't be a 4A violation, but the latter would be. So no QI.
www.opn.ca6.uscourts.gov/opinions.pdf...
For a deep dive example, consider the arguments and opinion in the Aaron Burr case on the privilege against self-incrimination. Lots of policy arguments as to why the rule was or was not a particular way. harvardlawreview.org/print/vol-13...
This matches my read of historical legal arguments: In the 18th century, courts and commentators were very attuned to the consequences of legal rules, and considered them as justifications for/against rules.
review.law.stanford.edu/wp-content/u...
Curious of what you make of Carpenter v. United States and Torres v. Madrid.
Employer can still complain/sue, but that's not likely.
Relatedly, what we tell kids that a word means may only be one part of what the word means.
Only that which is in the screenshot.
I suppose the thinking is that you have the most 4A rights in your home, so whatever 4A rights you have elsewhere can also be infringed by the arrest warrant? Maybe, but that seems like a step that would have to be justified.
Not sure this is right. In the caselaw the court is relying on, the defendant has no 4A rights in the place that is searched. But as an employee, he did have 4A rights in the place searched; not sure why that would result in him still lacking standing to challenge the claimed Steagald violation.
Armed w/an arrest warrant for the defendant, officers enter his workplace w/o permission & arrest him. CA8: Assuming the defendant has 4A rights at work, he still lacks standing; they could enter his home to arrest him, so can enter his workplace, too.
ecf.ca8.uscourts.gov/opndir/26/03...
Thus you see "Father of Candor" in 1765 talking about the seizure of all papers being "unreasonable" not in the sense that it violates the common law, but rather in the sense that it would be (as he puts it) extravagant, inquisitorial, leading to tyranny, etc.
It's an interesting claim, and I agree that the Fourth Amendment would have been understood generally as drawing from the common law, but I don't see any historical evidence that anyone put those pieces together in that particular way in the 18th century.
The claim is based on the idea that, in the 18th century, the common law was thought to be based on reason. If the common law was based on reason, the argument runs, then an unreasonable search and seizure would violate the common law.
BTW, there's an academic literature arguing that "unreasonable" searches and seizures meant searches and seizures not authorized by the common law, but I'm somewhat underwhelmed by the historical basis for that claim.
Father of Candor also says that seizing all of the papers would be "unreasonable," which may be the earliest (or at least is one of the earliest) discussions in which a search or seizure is spoken of as reasonable or unreasonable.
In an influential pamphlet on search and seizure published in London in 1765, "Father of Candor" opposes general warrants: Under such warrants, "every part of a man's most valuable possessions and privacy is liable to the ravage, inroad, and inspection of suspicious Ministers . . . "
This is great stuff
And honestly just makes sense. The past is a foreign country. But it’s not Mars.
Given all the things happening at Yale in this window, the entire run of Yale Advocate issues are a good read. See Laura Kalman's Yale Law and the 60s for more...
www.amazon.com/Yale-Law-Sch...
"Rodell Says Passed over for 37 Years," your reminder that every legal academic has to complain about something, from a 1968 issue of the Yale Advocate.
collections.library.yale.edu/catalog/3249...
Arkansas SCT, 2002: We reject Whren under our state constitution, and hold that pretextual stops and arrests violate it.
Arkansas SCT, today: We were wrong in 2002, and we embrace Whren under the state const today. Pretexts aren't unconstitutional.
opinions.arcourts.gov/ark/supremec... #N
The opinion is by Nicholas Ridgely, who I believe was an ancestor of the more recent Delaware Supreme Court Justice Henry duPont Ridgely. (This is all very Delaware.) Here's an 1813 letter N. Ridgely wrote to James Madison.
founders.archives.gov/documents/Ma...
Simpson v. Smith, 2 Del. Cas. 285 (1817): When a person gets a valid warrant to search a place for their stolen goods, and they go with an officer and search the place but find nothing, the private party is liable for trespass (but the officer isn't). static.case.law/del-cas/2/ca...
Graham v. Connor says to treat excessive force in policing as a Fourth Amendment issue, not a due process issue. That's the issue Graham was about.
Some Supreme Court Justices think that viewing the Fourth Amendment as a right to "privacy" is an illegitimate 1960s Warren Court policy invention. But it's not: That language goes back to the beginning, as I showed in this 2022 article. scholarship.law.duke.edu/cgi/viewcont...
I take it that's the choice Graham v. Connor made in making excessive force a 4th Amendment issue instead of a due process issue.
The lower-court cases interpreting Torres v. Madrid are really interesting, btw.
During 2020 George Floyd protest-turned-riot in Iowa, officer engaged in crowd dispersal shoots person with an impact round, breaking her finger. She sues for excessive force. CA8: There's no seizure here, the evidence doesn't show intent to restrain.
ecf.ca8.uscourts.gov/opndir/26/03...
lol, thanks.
