Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
The Fourth Amendment as Legal Fiction
"Conservative lawyering has aspired to create rules that restrain the ad hoc policymaking power of judges. The idea is that judges, ensconced among leatherbound books in oak-paneled chambers, don't make good legislators. They can't assess changing facts on the ground or balance difficult policy tradeoffs. What's needed, conservative legal theorists tell us, is a set of clear rules, grounded in legal tradition, that lets us know where courts stand.
Justice Scalia's opinion in Thursday's announced decision of Hudson v. Michigan guts that aspiration in the realm of the Fourth Amendment. The case is about remedies for violations of the knock-and-announce rule. The rule is pretty easy to describe: When the police serve a warrant, they must knock, announce, wait… then enter. The rule is an ancient one, with a high originalist pedigree.
In Hudson, the cops broke the rule. They announced. They didn't knock and they didn't wait. So what's the remedy? The Court's answer (lawyerly 'ifs,' 'buts,' and 'maybes' aside) boils down to: There is no remedy. Or, perhaps, more accurately: We don't care if there is a remedy."
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