Sunday, May 06, 2012

My New Article About Criminal Procedure (Consent Searches)

I have a new article coming out this summer in the North Carolina Law Review entitled Judicial Deference To State Legislatures in Constitutional Analysis. It started as a paper about Bustamonte-type consent searches and North Carolina's unique statute defining consent in these cases - but it turned into an article about the relationship between the judiciary and legislatures in Fourth and Fifth Amendment cases.  Here is the abstract: 
North Carolina is one of the only states to have a statutory definition of voluntary consent for police searches; it essentially codified the Supreme Court’s “Bustamonte” rule. In theory, this statute could eventually face a constitutional challenge if the Supreme Court adopted a requirement of informed consent – police warnings of the right to refuse a search – as many have urged. Considering this possibility as a hypothetical, it seems strange that conventional Fourth Amendment analysis has largely ignored whether challenged state actions are legislative, executive, or judicial; attention has focused instead on federalism concerns, interpretive approaches, and tradeoffs between public safety and individual privacy. Nevertheless, there are both policy reasons and anecdotal evidence suggesting that the Supreme Court should, and in fact occasionally does, defer to legislatures in certain matters of criminal procedure, even when it would not defer to identical decisions by police. The potential clash between this statute and constitutional doctrine illustrates these points nicely. This Article uses this localized example as a launching point to address the larger issue of how state legislation can color the Supreme Court’s analysis. Separation of powers is an important but unexplored component of criminal procedure, and this Article is a first foray into this inquiry. This missing piece of Fourth Amendment analysis has broad implications for many areas of criminal procedure.
The article proposes a novel idea about Constitutional Law, so I'm eager to get feedback - please download the paper from the SSRN page and send me comments.  It's still a couple months before it goes to print, so I have time to make some revisions if I get substantial input about it.