Rights without Remedies: The Court That Cried 'Wolf'

40 Pages Posted: 29 Sep 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 2007


Justice Scalia's majority opinion in Hudson v. Michigan resurrected arguments questioning the legitimacy of the exclusionary rule that had been employed by opponents of the suppression remedy half a century earlier. Although the narrow issue in Hudson was whether violation of the knock-and-announce rule should trigger the exclusionary rule, the majority and dissenting opinions crossed swords over the more fundamental issue of the exclusionary rule's continued viability in the twenty-first century. Ultimately the question they debated was nothing less than the future of constitutional judicial review of searches and seizures conducted by executive branch actors.

That issue is the subject of this paper. It begins by examining Hudson's provocative dicta questioning the efficacy of the exclusionary rule. It then examines the theories employed by Supreme Court Justices in the seminal early opinions that established the suppression remedy in federal cases. This is followed by analysis of the arguments made during the mid-twentieth century in Wolf v. Colorado and Mapp v. Ohio (arguments revisited in Hudson). This discussion includes an analysis of the relationship between the exclusionary rule and the broader issue of constitutional judicial review.

The final section examines Irvine v. California, and explains how this 1954 case transformed Chief Justice Warren's views about the need for the exclusionary rule in search and seizure cases. Chief Justice Warren's conversion on these issues provides a provocative example of why the exclusionary rule is an essential element of constitutional judicial review of police practices.

Suggested Citation

Cloud, Morgan, Rights without Remedies: The Court That Cried 'Wolf' (2007). Mississippi Law Journal, Vol. 77, p. 467, 2007. Available at SSRN: https://ssrn.com/abstract=3044027

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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