Good Faith, New Law, and the Scope of the Exclusionary Rule

42 Pages Posted: 11 Sep 2010 Last revised: 17 Mar 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: April 14, 2011

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.

Keywords: Fourth Amendment, good faith, good faith exception, Herring v. United States

JEL Classification: K14, K41

Suggested Citation

Kerr, Orin S., Good Faith, New Law, and the Scope of the Exclusionary Rule (April 14, 2011). 99 Georgetown Law Journal 1077 (2011). Available at SSRN: https://ssrn.com/abstract=1675115

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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