CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 15, 2010

Kerr on Overturned Caselaw and the Exclusionary Rule

Kerr orin Orin S. Kerr  (George Washington University - Law School) has posted Good Faith, New Law, and the Scope of the Exclusionary Rule (Georgetown Law Journal, Vol. 99, 2011) on SSRN. Here is the abstract:

Lower courts recently have divided on whether the good-faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned caselaw. This Article argues that the Supreme Court should reject the good-faith exception in this setting.

A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision-making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned caselaw exceed its costs, and the rule therefore should be retained.

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