Why Does the U.S. Have an Exclusionary Rule?

"In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature's control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law."

Interesting article by Orin Kerr. See:
http://volokh.com/posts/1216498467.shtml

Update on SF Network Situation

"If the details given to me in this e-mail are accurate, it would appear that this case is not nearly what it seemed originally. Perhaps it comes with the pressure and responsibility of the job, or the belief that the network they’ve built is simply too complex for mere mortals to comprehend, but it's not uncommon for highly skilled network administrators to become overprotective of their networks, or for networks of significant size to become an extension of the person who built them.

It certainly appears that Terry Childs believed San Francisco's FiberWAN network was his baby, and that by refusing to allow others to access the inner sanctum was in the best interests of the city, the citizens, and perhaps most importantly, himself."

See the InfoWorld article at: http://ping.fm/trCRx

Patent Gridlock Suppresses Innovation

"The Founders might have used quill pens, but they would roll their eyes at how, in this supposedly technology-minded era, we're undermining their intention to encourage innovation. The U.S. is stumbling in the transition from their Industrial Age to our Information Age, despite the charge in the Constitution that Congress 'promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' "

Interesting article from the WSJ:
http://ping.fm/mXH0c

Network Tech Locks SF Out of Network

"A disgruntled city computer engineer has virtually commandeered San Francisco's new multimillion-dollar computer network, altering it to deny access to top administrators even as he sits in jail on $5 million bail, authorities said Monday."

Craziness! See the SF Chronicle article at:

http://ping.fm/NK8kW

Evidence Faulted in Detainee Case

Evidence Faulted in Detainee Case - NYTimes.com:

With some derision for the Bush administration's arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem "The Hunting of the Snark": "I have said it thrice: What I tell you three times is true."

And the response defending the earlier military decisions?

"This case displays the inadequacies of having civilian courts inject themselves into military decision-making," said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

You mean civilian courts expect their to be evidence?

Social Science Research Network (SSRN)

Sam Kamin at PrawfsBlawg points out that the New York Times has discovered SSRN. He writes:

It's actually a pretty decent synopsis of the SSRN phenomenon, noting that it takes away the power of gatekeepers, makes scholarship available to the masses and lets them decide what's worthy, etc. It points out that sexy still sells, noting that an essay with an unspeakable title is the 11th most downloaded article on the site (sorta NSFW, unless you're an academic).

He also raises an interesting point:

It's still not clear to me what SSRN means for the future of legal academics. I used to think that it would be the death of most law journals—that people would essentially self-publish their work on SSRN and advertise it on their blogs instead of seeking law journal placement.

. . .

I understand that untenured faculty still need the stamp of approval that comes with law journal acceptance. For those of us with tenure, though, what makes us continue to seek such acceptance?

Lawrence Solum responds at the Legal Theory Blog, suggesting that (1) SSRN is not focused on being a permanent repository, (2) the benefits of Westlaw & LexisNexis searching vs. the "noise" of Google (I'm not sure I agree with this!), and (3) the certification function of law reviews.

I think it comes partly too from a confusion amongst law professors (one of the few groups of academics without doctorates) that they need the prestige of journals in the same way scientists do. But a peer-reviewed scientific journal is in a different league than a student-managed law review. Nonetheless, we all pretend it's close enough...