Seizure Law Research Articles

Rationalizing Drug Policy Under Federalism

This article argues that key aspects of drug policy, such as decisions about which substances to forbid and choices between incarceration and treatment of drug offenders, should devolve to state and local governments. It is contended that current policy is largely ineffective and may actually cause consumption patterns to shift in ways that exacerbate the personal and social costs of drug use. Furthermore, contrary to the claims of current drug policy advocates, it is shown that increasing drug enforcement can reduce rather than enhance public safety. The puzzling question is why the U.S. continues to pursue a costly and ineffective war on drugs when Europe and Canada are exploring ways to decouple hard and soft drugs and are decriminalizing possession of marijuana for personal use. Legislators are responsible for drug policy, but it is argued that they respond to formidable interest groups that push for an expansion of the drug war - police chiefs, sheriffs, prosecutors, and private companies who build and operate prisons. Asset seizure laws reinforce these interests because the police agencies actually profit from drug enforcement since they can retain the proceeds when confiscated assets are sold. The consequence is that police resources are shifted from combating crimes against persons and property toward drug enforcement. It is maintained that only by decentralizing drug policy will the U.S. be able to effectively explore the efficacy of drug policy alternatives. Under a federalist drug policy states could operate as laboratories of democracy that, when freed from perverse federal influences, would allow local jurisdictions to craft policies that are appropriate for the drug problems they experience. When state and local officials are responsible for the financial and intangible costs of drug enforcement, they are more likely to be held accountable for their actions. Only then are they likely to carefully consider the full costs of a largely ineffective drug policy.

X-Rated X-Ray Invades Privacy Rights

X-rated X-ray machines utilizing backscatter technology are strip-searching unsuspecting travelers as they pass through our nation's border and airport checkpoints. These machines not only check for explosives, drugs, or other contraband, but also are capable of counting hairs on a man's chest or measuring the depth of a woman's navel. At the same time the machines are checking for contraband, they can produce an X-rated image comparable in quality to those found in Playboy magazine. This article focuses on the efficacy of the device, the need to protect society, and individual privacy rights in light of the boundaries provided by Fourth Amendment search and seizure laws. Supporting arguments advanced for use of backscatter technology include (a) the enhanced security to society, (b) reduced invasiveness of the search, and (c) the reduction in health risks associated with the use of the devices. Opposing arguments focus upon the slippery slope and unacceptable degree of intrusion upon the privacy rights of the individual. The article concludes by framing the legal arguments within an analysis of the opportunity costs associated with implementation of the X-rated X-ray devices.

The United States Supreme Court and the Fourth Amendment: Evolution from Warren to Post-Warren Perspectives

In the last 25 years, the U.S. Supreme Court's treatment of Fourth Amendment issues has undergone a shift in philosophy that has resulted in a conservative body of search and seizure law that is very different from the more liberal search and seizure law that was developed by the Warren Court in the 1960s. This article examine the most important Fourth Amendment cases decided by die Ware Court and by the post-Warren Court (1975-2000). The article concludes that the post-Warren Court (a)has been very pro-police in its approach to Fourth Amendment issues, (b) ha developed a body of conservative case law in this area while over turning only one of the controversial Warren Court decisions, (c) has often made only minor changes to Fourth Amendment jurisprudence that have nevertheless conveyed a message that constitutional restraints on the police have been relaxed, and (d) has been consistent in its conservative approach to Fourth Amendment issues.

Sovereignty and Suspicion

Academics are virtually unanimous that search and seizure law is a mess, with vacillating interpretations producing a thoroughly confusing and unwieldy doctrine. Although legal scholarship has offered a variety of solutions to the muddle, few authors have attempted to connect Fourth Amendment jurisprudence with overarching theoretical justifications. Instead, critics have either described the Court's precedents or prescribed change within the narrow confines of criminal procedure law. What is needed is a framework that unites the Fourth Amendment with modern constitutional theory. Professor Luna proposes a new approach founded on a sovereignty-based theory of the Constitution. Under this model, government searches and seizures of an individual's zones of personal sovereignty receive the strongest presumption of invalidity. Absent one of three theoretically consistent exceptions, government intrusions into the body and home are beyond the boundaries of official authority. By protecting zones of personal autonomy, the individual rights model fits the constitutional text, context, and precedents while providing a theoretical justification that connects neo-Kantian philosophy and American constitutionalism. Professor Luna contrasts the individual rights model with what he calls an approach to the Fourth Amendment, which focuses on group participation in the political process rather than coercive effects on the individual. He identifies an important flaw in the antidiscrimination model: the lack of a constitutional floor protecting individuals and constraining government. Professor Luna's individual rights model provides content to that constitutional floor--tangible zones of individual sovereignty.

Nonarrest Investigatory Detentions in Search and Seizure Law

Nonarrest Investigatory Detentions in Search and Seizure Law

State Seizure in Public Interest Disputes

I NCREASING intervention in labor disputes by the federal government in so-called public interest situations has overshadowed the fact that such intervention by the state is not uncommon. Yet little information on state activity is available, particularly to industry. The purpose of this article is to focus attention on seizure as a form of state intervention. Experience in five states-Virginia, Missouri, Maryland, New Jersey, and Massachusetts-with various forms of seizure laws is analyzed in terms of the problems and issues that can arise when the government becomes involved in public interest disputes. Seizure involves the invocation of state control of a business that is, or threatens to be, shut down by a work stoppage. Strikes or lockouts are forbidden during the period of seizure, which usually lasts until the threat of work stoppage is abated, or for a designated period. Most of our discussion is concerned with temporary seizure wherein the firm reverts back to private hands after the threat of a stoppage is eased.