Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States

I have posted a new draft essay, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, which is forthcoming as a chapter in the Cato Supreme Court Review. Here’s the abstract:

This essay considers how the Supreme Court’s recent limits on remedies for Fourth Amendment violations threaten the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S.Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggests that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

It’s difficult to offer an insightful scholarly analysis of a case you argued and lost, especially so soon after the case was handed down. I’ll leave to the reader whether I succeeded or failed at the task.