Speaking of Fourth Amendment History…

In light of my last post on Fourth Amendment originalism, I thought I would make two more comments — one a recommendation and the other a question.

1) Among those doing historical work on criminal procedure, I think one scholar’s historical work that is excellent and consistently “underplaced” is Wes Oliver of Duquesne (formerly of Widener). Professor Oliver has published important articles on the history of criminal procedure over the last five years without placing higher in the rankings than a Top 50 or so journal. His articles should have placed much higher; journal editors, take note.

2) I’m teaching a seminar on Fourth Amendment history this coming spring. I haven’t taught a seminar at GW, as I usually teach just large classes, including 351 students last academic year; so this is a gift from the Associate Dean. Anyway, I’d be interested in your help about what materials I should assign. The seminar will focus on the evolution of Fourth Amendment doctrine, to try to understand the law as it was understood then and as it changed over time — and to the extent we can, to speculate about why it changed. To that end, my plan is to immerse students in original sources of various historical doctrines of Fourth Amendment law that are now either forgotten, have been overturned, or are otherwise poorly understood. Subjects might include the rise and fall of the mere evidence rule; the evolution of the search incident to arrest doctrine; changing understandings of probable cause; and the early interpretation of state search and seizure protections. I’ll probably also do one or two classes on the major scholarly debates on Fourth Amendment history (the views of Lasson, Cuddihy, Taylor, Davies, Amar etc.), although that won’t be the focus.

I plan to assign a mix of old cases together with contemporary and modern commentary. Some of the subjects may focus in part on the framing period, but others will be on 19th century or early 20th century developments (or developments of individual doctrines over time). Anyway, if any readers have ideas on what specific materials I should assign, I would greatly appreciate hearing about them either in the comment thread or a private e-mail. Many thanks.