Document Type

Article

Publication Date

2008

Abstract

I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision came down.4 The Supreme Court does not seem to be in a hurry to take on the exclusionary rule-at least not directly-and only a tiny handful of lower courts since Hudson have applied the reasoning of the Hudson majority to deny exclusion of evidence for constitutional violations other than the knock-and-announce rule.5 In this Symposium, then, I propose to do two different things. First, in the event that my worst fears are realized and Hudson comes to be seen as a historic case leading to a sea change in the law, I want to create a record of some of the background events that led to the decision so that future scholars might understand how it is that I came to litigate the Hudson case and how it is that I managed to lose it. Second, I will review developments since Hudson in order to gauge the likelihood that my worst fears will be realized in the foreseeable future. In particular, I will look at the depressing effect Hudson seems to have had on the Court's Fourth Amendment docket, and I will examine the more aggressive approach to Hudson that a few lower courts have taken. I will also briefly examine the two Fourth Amendment cases the Court recently agreed to decide next term and consider whether either of those cases is likely to result in any further damage to the exclusionary rule. Thus, my presentation will focus on the events leading up to Hudson and the fallout since Hudson, but I will not analyze the opinion, concurrence, or dissent in Hudson itself. I will leave that task to others, both because I have already published a fairly lengthy analysis of the various opinions in Hudson6 and because my involvement in the case makes it difficult for me to step back and reanalyze the decision with any objectivity, even now.


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