This Article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice. Once an automatic remedy for any constitutional violation, the exclusionary rule now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the law enforcement officer—conduct that if not sufficiently “culpable” does not require exclusion. This Article analyzes the doctrinal moves of a Supreme Court focused on constitutional culpability and raises questions about the evolving doctrine’s implication for trial practice. The Article then suggests several responses for lawyers and courts approaching this new reality.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital