What Remains of the Exclusionary Rule?

Will Hauptman*



The Fourth Amendment exclusionary rule is experiencing death by a thousand cuts. Since the Supreme Court created the rule,[1] its opinions have whittled away at the rule’s application with various exceptions and limitations.[2] So it is today that the Court only finds exclusion appropriate where the benefits of suppressing evidence outweigh its costs.[3] That rarely happens, says the Court. After all, what benefit could outweigh the cost of letting the guilty go free?

Apparently not the benefit of deterring the violation of an elementary Fourth Amendment principle: that no officer may conduct an investigatory stop absent reasonable suspicion of criminal wrongdoing.[4] At least not in Utah v. Strieff.[5] In that case, decided last summer, the Court held admissible drug-related evidence that an officer obtained after a concededly unconstitutional stop.[6] Why? Because the officer, immediately after stopping Edward Strieff, discovered that Strieff had an outstanding arrest warrant, and this discovery sufficiently attenuated the connection between the unconstitutional stop and the officer’s discovery of the evidence.[7]

This Comment discusses Utah v. Strieff in the larger context of the exclusionary rule’s movement toward meaninglessness. Continue reading “What Remains of the Exclusionary Rule?”

No More Hall Passes: A Call to Increase Due Process Protections for Colorado Students

Hope Griffin*

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available on equal terms.[1]

Chief Justice Earl Warren, Brown v. Board of Education

A Colorado first-grader who sang lyrics from the song “Sexy and I Know It” to a peer was suspended for sexual harassment.[2] In Grand Junction, Colorado, a third grade girl was suspended for violating the school’s dress code after shaving her head to express solidarity with a friend battling cancer.[3] A second grade Loveland student was suspended for throwing an imaginary grenade during recess while “trying to save the world from evil.”[4] In Colorado Springs, a severely disabled student was suspended after his mother accidentally packed yogurt mixed with medical marijuana in his lunchbox.[5] Troubling though these instances may be, they offer only a microcosmic glimpse into the unjust and fractured extensive use of suspensions and expulsions in Colorado’s public schools. Continue reading “No More Hall Passes: A Call to Increase Due Process Protections for Colorado Students”

Fighting Fines & Fees: Borrowing From Consumer Law to Combat Criminal Justice Debt Abuses, by Neil L. Sobol

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.


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Supercharged IPOs and the Up-C, by Gladriel Shobe

The “supercharged IPO,” a new and increasingly popular financial transaction, has fundamentally changed the nature of IPOs for many companies. Traditionally, an IPO was a tax nonevent for the company and the owners, meaning it created no tax liability for either. Through creative but questionable tax planning, companies have found a way to do better than this by effectively generating a negative tax liability for the company and its owners. These transactions have received substantial attention from practicing lawyers, investment bankers, and journalists, and even briefly caught the attention of Congress, yet they have attracted surprisingly little scrutiny from scholars. The attention they have received has failed to consider the different types of supercharged IPOs, resulting in misguided analyses and conclusions regarding these transactions. This Article examines the costs and benefits of the different types of supercharged IPOs to show that some of these transactions have greater tax benefits than scholars have realized. It places a particular emphasis on the Up-C, a structure with the greatest tax benefits, which scholars have overlooked even though it is by far the most common, and increasingly popular, form of supercharged IPO. A closer examination of the Up-C reveals that this structure produces tax benefits that are not justified by the regulations that supposedly allow them.


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The Law and Policy of People Analytics, by Matthew T. Bodie et al.

Recently, leading technology companies such as Google and IBM have started experimenting with “people analytics,” a new data-driven approach to human resources management. People analytics is just one example of the phenomenon of “big data,” in which analyses of huge sets of quantitative information are used to guide a variety of decisions. Applying big data to workplace situations could lead to more effective work outcomes, as in Moneyball, where the Oakland A’s baseball franchise used statistics to assemble a winning team on a shoestring budget. People analytics is the name given to this new approach to personnel management on a wider scale.


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The Law Review Article, by Pierre Schlag

What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article, then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article.


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