Legal Commentary

New Article: ?Good Faith, New Law, and the Scope of the Exclusionary Rule?

By Orin Kerr

I have posted a new draft article: Good Faith, New Law, and the Scope of the Exclusionary Rule, forthcoming in the Georgetown Law Journal. Here?s 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. 

Readers may recall the basic argument from my blogging, as the article began as a series of blog posts here at the VC. The article will be published in the GLJ in the early spring. Meanwhile, the Justice Department has petitioned for certiorari on this question in United States v. Gonzalez, and the Supreme Court likely will rule on whether to grant DOJ?s petition one week from today.

Comments on the article are very welcome, as always.

Full post as published by The Volokh Conspiracy on September 21, 2010 (boomark / email).