Monday, January 3, 2011
"Strange Things Happening With the Exclusionary Rule: The Introduction of Case-by-Case Balancing After Herring v. United States"
Orin Kerr has this interesting post at The Volokh Conspiracy. The beginning:
When the Supreme Court handed down Herring v. United States, 555 U.S. 135 (2009), a case about the Fourth Amendment’s exclusionary rule, there was an interesting blog debate about how much it mattered. Tom Goldstein thought it was a revolutionary case; I thought it was not. Almost two years later, I think it’s fair to say that the disagreement has been shared by lower court judges. Some courts have interpreted Herring as changing very little. Others have seen it as drastically reshaping the exclusionary rule. I wanted to flag one of the latter readings of Herring that I think is pretty clearly wrong, but that some courts have adopted or strongly suggested: Weighing costs and benefits of the exclusionary rule on a case-by-case basis.