Professor

Boston College Law School Faculty Papers

Warrant Requirement -- The Burger Court Approach

The Supreme Court and its Purported Preference for Search Warrants

The Japanese seeking to involve their citizens in the judicial system as well establishing a check on the power of the judiciary have enacted legislation to create jury trials. The type of jury trial enacted by this legislation, which takes effect in 2009, is a mixed-jury system where judges and citizens participate together in the jury deliberation. This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. From that point the article explores psychological theory surrounding collective judgment and how dominant individuals influence the group dynamics. With these theories in mind the article explores Japanese cultural attitudes and suggests that the objective of meaningful citizen participation might be impeded in the jury deliberation process. Finally the article proposes specific procedural devices to ensure meaningful citizen participation.

Jury Trials in Japan

This Article will first explore the problem of wrongful convictions resulting in part from false informant testimony. Eyewitness exoneration has gotten considerable attention by the courts. False informant testimony exoneration has gotten less attention than other causes of exoneration. We will argue for the use of expert witnesses to assist the juries. We will explore the acceptance of expert witnesses in eyewitness identification cases. It will be our main argument that a similar approach of utilizing expert witnesses should be taken with regard to informant testimony. We will then examine the acceptance of expert testimony regarding informants using the state of Connecticut as an example. Finally, we will explore the value of the expert testimony regarding informants to demonstrate the information the fact finder should know in evaluating the credibility of an informant witness.

What Jurors Should Know about Informants: The Need for Expert Testimony

Inevitable Discovery: An Exception beyond the Fruits

United States v. Leon and its Ramifications

Jailhouse Informants

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and finds that judicial integrity is no longer the bulwark it once was for justifying Fourth Amendment exclusionary remedies, sanctioning the Court’s use of supervisory powers, and the application of due process. The author contrasts the current Court’s view on judicial integrity with examples from Australia and New Zealand, where the doctrine has re-emerged and gained force. The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.

Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court's last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have on border searches in this post-9/11 world.

Border Searches in the Age of Terrorism

Systemic racism in the United States is pervasive. It runs through every aspect of society, from healthcare to education. Changing all of the parts of society touched by racism is necessary, however, this Article does not provide a cure for systemic racism. It seeks to address a byproduct of this racism: police brutality. Over and over, headlines broadcast the deaths of Black Americans at the hands of the police – why has nothing changed? This Article argues that meaningful reform requires trust in U.S. law enforcement, which can only be achieved by holding police accountable and deterring misconduct. To do so, this Article proposes meaningful and forceful police licensing to guarantee more third-party, unbiased oversight.

The Challenge of Deterring Bad Police Behavior: Implementing Reforms that Hold Police Accountable

For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the workplace.

Grutter v. Bollinger (2003) purported to immunize good faith race-conscious university admissions for a period of twenty-five years, but with the retirement of its author, Sandra Day O’Connor, the Court chose to revisit the matter in Fisher v. University of Texas, decided on June 24. While remanding to the lower courts without a definitive ruling on UT’s program, it is the contention of this article that the decision may well seal the fate of race-sensitive decision-making by public actors. Seven justices, over the dissent of Ruth Bader Ginsburg, sign onto an exacting strict scrutiny standard of review anachronistically borrowed from cases challenging pernicious discrimination motivated by a desire to exclude and subjugate disfavored groups. This “searching” examination, which treats affirmative action in the interest of diversity as inherently suspect and presumptively unlawful, is unjustified legally and unwise as a matter of policy. Implicitly, the Court adopts a paradigm of white male victimhood, which has turned anti-discrimination provisions on their head.

The article also challenges the contention that affirmative action inevitably sacrifices “merit” to preference, by confronting the misconceptions regarding merit, and particularly the glorification of standardized testing.

The Fourth Amendment Fetches Fido: The Future of Dog Searches

This Article examines Justice Scalia’s effort to limit judicial discretion through the lens of the debate between rules and standards. It is the first article to situate Scalia’s goal of limited discretion within the framework of the debate between rules and standards, as well as the first to discuss this issue specifically with respect to his Fourth Amendment decisions. Justice Scalia has been called the leading supporter of the “rules-as-democracy argument.” He argued that rules were preferable because they are more likely to ensure equal treatment among like cases, they make the law clear in a system where the Supreme Court can review only a small number of cases, and they ensure predictability.
In criminal Fourth Amendment cases, Justice Scalia usually applied rules. He noted that rules allowed judges to serve countermajoritarian interests by protecting the rights of unpopular criminal defendants. However, Scalia occasionally strayed from his rules-oriented philosophy and applied a standard. This was especially true in cases involving civil special needs as well as cases dealing with remedies for Fourth Amendment violations. Attempts to classify Justice Scalia as favoring the government or favoring individual Fourth Amendment rights are fraught with difficulty. It is probably best to characterize him as in favor of rules in the criminal context, and in favor of standards in other contexts.

Rules and Standards in Justice Scalia's Fourth Amendment

This Article argues that the Court’s recent decisions have effectively revived Pennoyer’s focus on physical presence and status, at the expense of the fairness and contact considerations set forth in International Shoe, as the bases for asserting personal jurisdiction. Part II details the jurisdictional analysis under both Pennoyer and International Shoe. Part III discusses the evolution of personal jurisdiction doctrine under International Shoe. Part IV demonstrates that the Court’s recent decisions have revitalized Pennoyer’s territorially based regime, and consequently diminished the thrust of International Shoe.

Back to the Future: The Revival of Pennoyer in Personal Jurisdiction Doctrine and the Demise of International Shoe

The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty in the hands of a comparative few, we now live in an age where, as the U.S. Supreme Court recently recognized, cell phones could be seen “an important feature of human anatomy.” In 1986, there were only an estimated 681,825 subscribers serviced by 1531, cell sites. By 2013, there were 335 million subscribers and over 340,000 cell sites.Recently, cell phone service providers have begun to use small cell technologies, miniature cell phone towers that can provide additional coverage and bandwidth support to overburdened cellular networks. Small cells, known variously as femtocells, picocells, and microcells, are already installed throughout the United States, in particular in urban areas. As small cells overtake traditional cell phone towers as the most common means of transmitting cellular signals, CSLI will transform from a means of placing a person’s phone in a general area within a matter of miles to a precise location tracking tool charting a person’s movements down to a matter of feet.The late Justice Scalia in his 2001 majority opinion in Kyllo v. U.S., a case involving thermal imaging, opined that “while the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”This Article explores the evolution of CSLI by focusing on the rise of small cell technologies. It also canvasses decisions in the circuits involving CSLI. It points out that the third-party exception to the Fourth Amendment is inapplicable to CSLI. Following Justice Scalia’s admonition, we believe that CSLI will only grow more precise as small cells infiltrate cellular networks and we therefore adopt an approach that incorporates the Fourth Amendment requirements for a search warrant particularly describing the place to be searched and items to be seized as well as the requirement for probable cause. Placing CSLI under the Fourth Amendment would make a major section of the Stored Communication Act unconstitutional.

Small Cells, Big Problems: The Increasing Precision of Cell Site Location Information and the Need for Fourth Amendment Protections

In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations. This balancing has been used most recently in two Supreme Court cases, Michigan v. Hudson (2006) and Herring v. United States (2009). In Herring, Justice Ginsberg’s dissent pointed out that there was a “more majestic conception” for the exclusionary rule due to its important role in preserving judicial integrity. Judicial integrity was the original reason for adopting the exclusionary rule in the Supreme Court case of Weeks v. United States (1914). The Court in Weeks saw the exclusionary rule as a remedy that would give meaning to the Fourth Amendment as well as prevent the Court from participating in an illegality by utilizing unlawfully obtained evidence. Through balancing, the Court has eviscerated the relevance of judicial integrity as the original justification for the exclusionary rule. This article will demonstrate that the exclusionary rule is the only viable remedy to give meaning to the Fourth Amendment, and argues that the exclusionary rule be returned to its previous prominence by reinstating judicial integrity as its primary purpose.

“A More Majestic Conception:” the Importance of Judicial Integrity in Preserving the Exclusionary Rule

Annual Survey of Massachusetts Law

Chapter 19: Rent Control

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection infrastructure to further this effort. Fueling the controversy are undeniable similarities between the current surveillance program and the improper use of electronic surveillance that was listed as an article of impeachment for former President Richard M. Nixon. President Bush argues that the surveillance program passes constitutional inquiry based upon his constitutionally delegated war and foreign policy powers, as well as from the congressional joint resolution passed following the September 11, 2001 terrorist attacks. These arguments fail to supersede the explicit and exhaustive statutory framework provided by Congress and amended repeatedly since 2001 for judicial approval and authorization of electronic surveillance. The specific regulation by Congress based upon war powers shared concurrently with the President provides a constitutional requirement that cannot be bypassed or ignored by the President. The President’s choice to do so violates the Constitution and risks the definite sacrifice of individual rights for the speculative gain from warrantless action.

The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court also has provided more leeway to federal officers in the past few decades, for example by limiting the scope of the exclusionary rule. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether to suppress evidence obtained legally by federal law enforcement officers but in violation of state law. In deciding these cases the states usually rely on a state evidentiary basis ignoring federalism concerns. This article proposes a framework by which state courts may suppress this evidence while recognizing notions of federalism.

Accounting for Federalism in State Courts - Exclusion of Evidence Obtained Lawfully By Federal Agents

The American Constitution Society and the Internet Law Society co-sponsored a panel discussion on legal issues raised by NSA surveillance practices. Presenters included three Boston College Law School professors: Prof. George D. Brown, Prof. Mary-Rose Papandrea, and Prof. Robert M. Bloom.

Robert M. Bloom

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