Monday, May 5, 2014
Orin Kerr has this post at The Volokh Conspiracy addressing competing views. In part:
I agree with Stewart Baker that the line-drawing problem once you rejectSmith v. Maryland poses a major problem for Smith‘s critics. I wrote about that at length here and here. In my experience, critics of Smith don’t have much of a response. For example, in our debate on the third-party doctrine, NYU lawprof Erin Murphy had a particularly candid reply to the problem of what would replace Smith: “Truthfully, I have no idea.” I think that’s a problem. If Fourth Amendment scholars who strongly oppose Smith themselves don’t know what should replace it, the need to come up with an alternative should at least give some pause to generalist judges faced with the problem for the first time.