Issue 1

A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry

United States v. Bond and United States v. Kyllo significantly departed from the Supreme Court’s prior Fourth Amendment jurisprudence. The definition of a Fourth Amendment search now captures a broader universe of law enforcement conduct. While this enlargement of the Fourth Amendment search inquiry has heretofore puzzled scholars, this Note argues that this enlargement may be consistent with the dynamic relationship that exists between rights and remedies. The erosion of Fourth Amendment remedial scheme “by making the exclusionary rule less available” has facilitated an expansion of the Fourth Amendment right. 

This Note further argues that the dynamic between rights and remedies does not fully explain Bond and Kyllo. A second dynamic is in place that helps explain why the expansion of the Fourth Amendment right targeted the scope of conduct the Fourth Amendment is understood to regulate rather than the protections that attach when conduct is captured by the threshold inquiry. The Note argues that the rigor (or lack thereof) of these protections helps shape and define the threshold inquiry much the way constitutional remedies help shape and define constitutional rights. The corrosion of such protections in recent jurisprudence enabled the expansion of the threshold inquiry evidenced in Bond and Kyllo. 

The Space Between Markets and Hierarchies

The decision to pool production within a firm raises a fundamental tension for corporate law scholars. On the one hand, channeling activity into a centralized entity can economize on transaction costs by replacing the hassles of arms-length contracting with managerial discretion. Instead of attempting to write a complete contract to insulate against counterparty opportunism, firm managers retain the control necessary to make optimal decisions later—if and when a potential contingency arises. On the other hand, agency costs and production costs may be somewhat higher when business is conducted within a firm—because the activity is walled off from the relentless pricing pressure that comes with well-functioning markets. Recent work in the legal academy also shows how intra-firm activity can result in suboptimal capital structures for a given collection of assets. As the story goes, the precise location of a firm’s borders at any point in time will be the result of a mindful balancing between these competing effects.

Yet this account has always been somewhat misleading: there is space between markets and hierarchies. Business alliances, joint ventures, franchise agreements, and other structures offer firms a middle path between market exchange and unconditional firm control. Furthermore, the recent rise in business outsourcing transactions presents another intriguing context for studying hybrid organizational structures. Under many of these arrangements, assets (both physical and intangible) are legally owned by an offshore vendor, but the use of these assets is subject to partial control rights retained by the operational client.

This Article explores the growth of business outsourcing, how it works, and why two firms might logically enter into an outsourcing arrangement not only to cut production costs—but also to craft a sensible governance compromise. It also asks, more generally, whether increased diversity of organizational structures is starting to provide firms with a richer menu of strategies for sharing operational risk—in the same way that recent innovations in corporate finance and capital markets are dramatically altering ownership strategies on the right side of the balance sheet.

Invalid Forensic Science Testimony and Wrongful Convictions

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief. This evidence supports efforts to create scientific oversight mechanisms for reviewing forensic testimony and to develop clear scientific standards for report writing and testimony. The scientific community can promulgate standards to ensure the valid presentation of forensic science in criminal cases and thus the integrity and fairness of the criminal process.

©Virginia Law Review Association. All rights reserved.