Abstract
Abstract:
I. Introduction The Fourth Amendment "exclusionary rule" is one of the main stays of liberal ideology. Among those who place themselves some what left of center, a stance against using unconstitutionally seized evidence is as de rigueur as being anti-death penalty or pro-choice. As a liberal (yes, I admit it) who grew up with the exclusionary rule, I resisted questioning its preeminence as a Fourth Amendment remedy for some time. Today, however, I have come to believe that the rule actually disserves the liberal cause. In this article, I argue that the rule ought to be limited dramatically and that an administrative damages regime should take its place. The liberal creed, in Justice Holmes's oft-cited language, is that without the exclusionary rule the Fourth Amendment would be a mere "form of words." 1 In modern parlance, the argument is that the rule does a good job at deterring illegal searches and seizures, or at least a better job than any other realistic alternative. In case it does not, however, liberals hold in reserve a whole series of noninstru mental arguments on behalf of the rule, all of which conclude that criminal defendants have a personal constitutional right to exclude ev idence regardless of exclusion's real-world effects. Convinced of some or all of these propositions, most liberals (or at least most academics who have considered the Fourth Amendment remedy issue) 2 cling to the exclusionary remedy despite its costs - not just of lost prosecu tions, ...
