Thursday, May 29, 2014
Albert W. Alschuler (University of Chicago Law School) has posted Regarding Re's Revisionism: Notes on 'The Due Process Exclusionary Rule' (Harvard Law Review, Vol. 127, No. 8, pp. 302-324, June 2014) on SSRN. Here is the abstract:
This paper responds to Richard Re’s argument in The Due Process Exclusionary Rule, 127 HARV. L. REV. 1885 (2014) (available at SSRN: http://ssrn.com/abstract=2401979), that a “new originalist” understanding of the Due Process Clauses of the Fifth and Fourteenth Amendments justifies the exclusion of unlawfully obtained evidence. It considers the original objectives of these two clauses, notes some difficulties with Re’s argument, and objects to the restrictions of both constitutional requirements and the exclusionary remedy that Re proposes.