North Carolina Law Review
In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to warrant a restrictive reading of the Fourth Amendment, one that favored the State. He concludes that, as Justice Marshall's observation suggests, the decisions of a majority of the Court in the Fourth Amendment area were dictated by nothing more than a shared set of personal preferences and a feeling of empowerment to enact these preferences into law.
Bruce A. Green,
Power Not Reason: Justice Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990 Term , 70 N.C. L. Rev. 373
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/252