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Friday, December 20, 2013

Rehnquist Weighs In on Law Reviews in Franks v. Delaware

I came across an early discussion of the role of law reviews which I had not seen before, so I pass it on. In Franks v. Delaware seven justices voted to allow challenges to searches based on false police affidavits; the Court noted that there was "widespread opposition to the flat nonimpeachment rule from the commentators,  from the American Law Institute in its Model Code of Pre-Arraignment Procedure, . . . , from the federal courts of appeals, and from state courts."  The court listed the positions of the courts in an appendix, and cited a dozen or so notes and articles.  The order of authority is surely interesting, as it puts student notes before circuit courts.

Justice Rehnquist dissented for himself and Chief Justice Burger.  They objected to the majority's use of scholarship: "The signed articles and student law review notes which the Court refers to in its opinion are not there, I trust, to be considered en bloc or by some process of counting without weighing. Presumably, to the extent that their reasoning commends itself to the courts which are committed to decide these questions, that reasoning will find its way into the opinions of those courts; to the extent that the reasoning does not so commend itself, the piece containing the reasoning does not weigh in the scales of decision simply because it appeared in a periodical devoted to the discussion of legal questions." 438 U.S. 154, 186-87 (1978).  Obviously, if the majority had agreed with this analysis, citing the judicial decisions would have been be sufficient.  I suppose the majority found it telling that no scholar came out the other way; one of the authors they relied on in support of finding police perjury reviewable was the late Professor Joseph Grano, who Erwin Chemerinsky recognized as  "one of the leading conservative acadmic voices in constitutional law and criminal procedure."    

Posted by Jack Chin on December 20, 2013 at 07:26 PM | Permalink


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The first comment, consistently applied, can flag any time "Court" is cited or "the Dissent" (who's to know if Burger really cared about each aspect of the wording of the Rehnquist's dissent as compared to the general tenor? but "they" was cited here). Also, common practice is to say some claimant "says" something when really we are talking about the lawyer's arguments, not some intricate legal argument made in the name of some illiterate prisoner or something.

Justice Blackmun arguably is specifically a bad example of the principle since even if (as I have no reason to dispute really, but he was in no way unique here, going back to my first comment) he delegated, my reading of biographical material is that he was much more exacting in editing his work. That is, he was more likely to catch something, even something small, he might not agree with. Without citations of his papers etc., of course, we don't know exactly what happened here.

As to the order in the footnote, the more elite sources are cited first, which might be in order of preference. Don't know if this is standard, but it seems a reasonable approach. The dissent's (or Rehnquist's) criticism comes off as shallow. It is not apparent that the majority (or the clerk) thought merely that "simply because it appeared in a periodical devoted to the discussion of legal question" the source material should be respected. Legal commentary is repeatedly cited in opinions as ONE source of authority.

Posted by: Joe | Dec 28, 2013 6:10:17 PM

And here I was hoping for a list of the greatest baseball players.

Posted by: brad | Dec 24, 2013 5:00:44 PM

Jack, that's possible, but there are other explanations. Perhaps the dissent was circulated after the Blackmun opinion had a majority, and Blackmun didn't care to change it. Perhaps all seven in the majority had already signed on and didn't feel strongly enough to go back and ask Blackmun to change it after already signing on. Or perhaps no one in the majority cared, as the appendices aren't actually "law." Hard to know.

Posted by: Orin Kerr | Dec 22, 2013 1:16:21 AM


I see your point. But the premise of the post, possibly incorrect, is that many people interested in the modern incarnation of this debate had not considered the relevant language of Franks. The headline was meant to suggest that the post represented a new contribution. I would not find your Lincoln headline inappropriate if someone found a new Lincoln letter contending, say, that the states had no (or full) authority to enforce federal immigration law. The production of a previously unknown letter on a current issue could be characterized as a current weighing in, I think.



Posted by: Jack | Dec 22, 2013 12:11:20 AM

I'm usually not a stickler for correct verb tenses in the title of blog posts, but shouldn't it be "weighed" rather than "weighs"? As written, it sounds strange, like "Abraham Lincoln jumps into debate over the separation of powers."

Posted by: andy | Dec 21, 2013 6:54:36 PM


I see your point, but, particularly because the issue was flagged in the dissent, I assume if the other justices in the majority objected, the law review articles would have been removed, put in a different order, or characterized differently. That being said, as I indicated in the original post, it is odd that the courts were listed last.


Posted by: Jack | Dec 21, 2013 12:46:59 PM

Franks v. Delaware was an opinion by Justice Blackmun, and if I recall correctly, Blackmun largely if not wholly delegated his opinion-writing to law clerks. If that's right, instead of "the Court" disagreeing with the dissent, it may just be that one of Justice Blackmun's law clerks -- a recent law review editor -- thought that law reviews were really important.

Posted by: Orin Kerr | Dec 20, 2013 11:05:15 PM

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