Washington and Lee Law professor Timothy MacDonnell’s 2002 article, “Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts” was republished in the 500th anniversary issue of The Army Lawyer. The 500th anniversary issue was published in January 2015. The editors acknowledge Professor MacDonnell’s work as “cited more frequently than any other appearing in this publication written by a judge advocate.”
Washington and Lee law professor Timothy McDonnell published a new article in the Virginia Journal of Criminal Law. The article, “Justice Scalia’s Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism”, appears in volume three, issue one of the journal.
From the abstract:
Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity. This article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the interpretation of the Fourth Amendment in favor of law enforcement interests.
Washington and Lee Law Professor Tim MacDonnell has published an article examining contraband searches of the home. The article is titled “Florida v. Jardines: The Wolf at the Castle Door” and was published in the New York University Journal of Law & Liberty. From the introduction:
Despite its potential impact, Jardines seems innocuous at first. The State of Florida has appealed the Florida Supreme Court’s determination that police violated the Fourth Amendment when they used a narcotics dog to sniff the front door of a suspect’s home without a warrant. In its brief in support of certiorari, the State of Florida points out that police are already permitted to use narcotics dogs without warrants in airports and at traffic stops. Florida and seventeen other states have argued that the dog sniff of an automobile is no different than the dog sniff of a home. The claim is that there is no reasonable expectation of privacy in possessing contraband, thus any investigative technique that only reveals the presence or absence of contraband is not a search.
The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Jardines decision. The article will begin by examining the cases that make up the Supreme Court’s contraband exception and some of the Court’s precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court’s holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the Florida court’s conclusions with Supreme Court precedent. Finally, the article will examine the three most probable results of the Jardines decision and advocate for the Court’s rejection of warrantless canine sniffs of the home.
A PDF of the article is available here.
Professor David Millon, the J. B. Stombock Professor of Law and Law Alumni Faculty Fellow at Washington and Lee University School of Law, was named president-elect of the Southeastern Association of Law Schools (SEALS) at its recent annual meeting. Millon will serve in this position during 2011-12 and will become president of the organization for the 2012-13 term.
Started in 1947, SEALS is comprised of 65 institutional member schools, 23 affiliate member schools and several foreign member schools. The primary activity of the organization is an annual legal conference held during the summer at a family-friendly venue. SEALS just completed its 64th annual meeting, which was attended by more than 500 scholars, the largest attendance in the history of the conference.
W&L Law faculty are very active within SEALS. This year Professors Christopher Bruner, Johanna Bond, Mark Drumbl, Jim Moliterno, Tim MacDonnell, Joshua Fairfield, and Robin Wilson all joined distinguished panels to present their research. In addition, John Keyser, Associate Dean for Administration and Technology, presented on teaching empirical methods, outcome measurement compliance and was also named chair of the conference technology committee.
The full press release can be found here.
Professor Timothy C. MacDonnell, Assistant Clinical Professor of Law and Director of the Black Lung Legal Clinic, recently had his article, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. Mem. L. Rev. 299 (2010), published in the University of Memphis Law Review.
In the article, Prof. MacDonnell discusses how courts have interpreted the Fourth Amendment as technology advanced and the government became capable of listening to and seeing into traditionally private places. Indeed, in Katz v. US, the Supreme Court changed from a test that asked whether there had been a physical invasion of an individual’s person, house, papers, or effects to one that asks whether the government invaded (physically or technologically) a place where an individual had a reasonable expectation of privacy. Courts have carved an exception to that rule: there is no expectation of privacy in contraband. The only articulated limitation to that exception is that the test or technique must only reveal the presence or absence of contraband.
The article examines the contraband exception, its potential ramifications, and at least one method of limiting its application. It begins by examining the history and development of the contraband exception. Next, Prof. MacDonnell describes how the Supreme Court created and refined the exception, expanding its application from airports, to the mail, to automobiles, and paving the way for its use in the home. Then, he discusses how federal and state courts have applied the contraband exception since Caballes in a variety of situations, such as traffic stops, mail inspections, and self-storage containers. Finally, Prof. MacDonnell examines those cases that have applied the exception to the home, where the greatest individual privacy exists. The article concludes with a discussion of two cases that have laid a foundation for limiting the contraband exception.
Congratulations to Professor MacDonnell.