The Volokh Conspiracy

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Volokh Conspiracy

Justice Scalia's impact on Fourth Amendment law


Last week, at the Federalist Society National Lawyers Convention, I was on an excellent panel about Justice Antonin Scalia and criminal law. My co-panelists were Rachel Barkow, Stephanos Bibas and Paul Larkin. Justice David Stras moderated. You can watch the entire panel here. It's worth your time, I think, especially if you're interested in criminal law and procedure.

My contribution addressed Scalia's impact on Fourth Amendment law. I argued that that he had a substantial impact on the form of Fourth Amendment doctrine but less of an impact on its substance. My opening comments start at 4:25 and go to 15:15, focusing on the scope of rights. At exactly the one-hour mark, I discuss Scalia's view of Fourth Amendment remedies, covering both the exclusionary rule and qualified immunity.

Let me add a word about measuring impact. I think there are two basic ways to measure a justice's impact on a specific area of law. The more common approach is to focus on the specific votes the justice made and the majority opinions the justice wrote. You then consider the importance of those votes and opinions. A second and less common approach is to focus on the impact of the justice on how courts think about that area of the law. From that perspective, you look for the themes of that justice's view of the law (whether expressed in majority opinions, other opinions or extra-judicial writing) and ask to what extent it was absorbed into what courts do. Either approach is perfectly legitimate, but my comments focus on the second approach instead of the first one.