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Monday, March 12, 2012

Crim. Pro. Profs: How Did You Address (Are You Addressing) U.S. v. Jones?

Much ink has already been spilled (pixels darkened?) on U.S. v. Jones, otherwise known as "the GPS case," and more remains to be said. But I am particularly interested in how those who teach Criminal Procedure addressed it in class.

Very often, the U.S. Supreme Court will decide a reasonably important Fourth, Fifth, or Sixth Amendment case while I am teaching Criminal Procedure. I usually teach Crim. Pro. in the Spring, when the Court hands down the bulk of its decisions. I typically take one of three approaches, depending on how important I think the particular decision is and how long it is after we have covered the subject matter in class. First, I might ignore it. Second, I might distill the decision into a 1-2 page case note in the style of those contained in the casebook. Third, I might give them a fairly lightly edited version of the case and have them read it. If the case is sufficiently important, I prefer the last approach, because it gives me the opportunity to help my students sharpen their case-reading skills, given that the cases contained in the casebooks are, of necessity, heavily edited.

So, for example, I followed that approach during the October 2009 Term, when Maryland v. Shatzer was decided in February, long before we covered the materials on Miranda, and I thought that the case was pretty important for what it said both about Miranda custody and about when the Edwards rule ceases to apply. On the other hand, Arizona v. Gant, decided on April 21, 2009, was monumentally important but decided long after we had covered Belton searches -- indeed, though I don't specifically recall, it was likely the last week of the semester. Though I suppose I could have ignored the decision at that point, I wanted my students on the final exam to apply the law as it then existed, not as it has existed in the past, so I compromised and gave them a one-page case note.

U.S. v. Jones was decided just as we were covering the "what is a search" question -- literally. On a Thursday, I gave them a hypothetical that tracked Jones, and we almost finished discussing it; the following Monday, Jones was decided and class was to meet the next day. What to do? I quickly read the decision and decided Jones was way too important to ignore. Indeed, I doubt too many professorial eyebrows did not rise after reading this on p. 5 of the slip op.: "Jones's Fourth Amendment rights do not rise or fall with the Katz formulation." And again on p.8: "[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." I also decided it was too rich a case -- all three opinions -- to pass up the opportunity to practice case-reading skills with my students. So, I edited it down by early evening to about 14 pages and asked my students to read it for class at 2:45 p.m. the next day. And at least a good number of them seemed to have done so.

But clearly that is not the only acceptable approach. I have spoken to one prof. who ignored Jones completely. And there certainly is room for an intermediate approach. So, what did other Crim. Pro. profs do with Jones? For that matter, what is your approach in general to important cases that are decided while you are teaching the subject matter?

Posted by Michael J.Z. Mannheimer on March 12, 2012 at 10:20 PM | Permalink

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Jones was handed down less than an hour before my crim pro class -- a class that was going to begin with a discussion of Jones. I tried to tell the class what I could get from the opinions in the 45 minutes or so I had to read them before class, but I ended up deciding that the case was far too important to keep it at that. So I ended up editing a version of the case and assigning it as a main case at the end of the Fourth Amendment materials, together with the Davis v. United States (2011) case, as a new inserted class on "latest developments in Fourth Amendment law."

My thinking is that Jones has to be considered a very big case right now for two reasons. First, just as a matter of blackletter law, it introduces the new and conceptually important idea that Katz is no longer the exclusive test for what is a search. Second, as a matter of Fourth Amendment theory, the two concurring opinions seem to have five votes endorsing the mosaic theory, which introduces a dramatically different way to think about Fourth Amendment protection. We don't know how either innovation will play out, but I don't think we can ignore the case if we're teaching this semester.

Posted by: Orin Kerr | Mar 12, 2012 10:57:50 PM

I generally tell my students about all relevant pending cases for the term as cert. is granted and review what is at stake in the case as we get to the pertinent unit. If it is likely a very important case but one unlikely to be decided before the end of the term, I might assign them to read the lower court opinion, or to skim the merits briefs, or (if available) to read the oral argument transcript. Sometimes I will just link them to the ScotusBlog page compiling all of those materials and assign them to sift through whatever they need to sift through in order to understand what is at stake in the case (I think that is a useful skill). If the opinion is handed down during the semester (rare, as I teach criminal procedure in the fall), I just assign them to read it. I like to assign one at least one unedited opinion during the semester anyway.

Posted by: Deb Ahrens | Mar 13, 2012 12:34:46 AM

I made them read the entire case, and then we spent two class periods on it. This is a change from my normal course, where I either tell the class about the new case or have them read some excerpts from it. But I thought Jones was important enough to read the entire opinion (including concurrences) in full.

Posted by: Laura Appleman | Mar 13, 2012 4:21:25 PM

Overall, I treat pending opinions on a case-by-case basis. Here, I had previously assigned as class reading the D.C. Circuit's opinion, which I had redacted to 2-1/2 pages. Interestingly, SCOTUS' decision was announced literally a few days after Justices Scalia and Breyer gave a constitutional interpretation talk at my school (South Carolina). Similar to Orin, I had a very short time with the opinion before that day's crim pro class so I gave the students as good of a summary as I could at the time. Of course a more thorough reading later uncovered much more of the decisions' permutations and open questions.

In terms of my class, I decided it was too new and complicated, and with too many unresolved issues, and therefore told the students they would not be tested on the resulting opinion(s) for this semester's exam. Still, since the case has garnered much interest in legal circles and the media, I do not believe they felt the time spent on it in class was wasted.

Posted by: Melissa Hamilton | Mar 13, 2012 10:08:31 PM

All Jones, all the time! Like Orin, I spent pretty much the whole class on Jones the day it was decided. And I reckon I mentioned it just about every search class thereafter. I dredged up the most poetic rhetoric I could think of to emphasize its importance. I don't know if they'll recall the imagery but they'll surely remember that this case is a big deal. I had them read all three opinions, and I asked the class throughout our search materials to analyze fact patterns in light of the majority and the 5-justice concurrence. And, like many of us, I feverishly completed a Jones article that I only just sent out this week... I too teach Crim Pro in the spring, and I love the fact that there is sure to be something big and new and significant coming out each year. And since we have TWEN (or some other electronic readings repository), it's easy to add material.

Posted by: Caleb Mason | Mar 14, 2012 7:01:29 PM

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