Thomas Y. Davies

Elvin E. Overton Distinguished Professor of Law and National Alumni Association Distinguished Service Professor of Law
B.A., 1969, University of Delaware
M.A., 1975, J.D., 1975, Ph.D. (Political Science), 1980, Northwestern University

Criminal Law, Criminal Procedure, Civil Rights Actions, and Constitutional History

Davies@libra.law.utk.edu

Professor Davies's special areas of expertise are the investigatory phase of criminal procedure, especially search and seizure law and the related exclusionary rule, and the history of criminal procedure. His research on the effects of the exclusionary rule has been discussed in several U.S. Supreme Court opinions as well as a number of state supreme court opinions. He has appeared of counsel in two Supreme Court search cases and has also been a witness before the U.S. Senate Judiciary Committee on proposed legislation relating to exclusion. His recent research deals with recovering the authentic historical meanings of the provisions of the Bill of Rights that regulate criminal procedure. To date, Professor Davies has published research on the original meaning of the Fourth Amendment, the right against self-incrimination in the Fifth Amendment, and the right of confrontation in the Sixth Amendment, as well as framing-era arrest law. He is currently completing research on the original understanding of "due process of law." Articles by Professor Davies have been published in the American Bar Foundation Research Journal, the Brooklyn Law Review, the Justice System Journal, the Michigan Law Review, the Mississippi Law Journal, the Ohio State Journal of Criminal Law, the Wake Forest Law Review, and the Tennessee Law Review. Before joining the UT faculty in 1986, Professor Davies practiced law as a corporate litigator in the Chicago office of Kirkland & Ellis and was also a researcher at the American Bar Foundation.

Publications

    Articles:

Marbury as Constititional Misdirection: Why "Original Jurisdiction" Should Have Been Inapplicable to the "Prerogative Writ" of Mandamus (forthcoming).

Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards and the Original Understanding of "Due Process of Law," 77 Mississippi Law Journal 1 (2007). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

Not "the Framers' Design:" How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis "Testimonial" Formulation of the Scope of the Original Confrontation Clause, 15 Brooklyn J. Law & Policy (2007). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule:" A Reply to Mr. Kry," 72 Brooklyn L. Rev. 557 (2007). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

What Did the Framers Know, and When did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brooklyn L. Rev. 105 (2005). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez v. Martinez, 70 Tenn. L. Rev. 987 (2003). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

The Fictional Character of Law and Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctine in Atwater vs. Lago Vista, 37 Wake Forest L. Rev. 239 (2002). This article has been saved in Adobe Portable Document Format (PDF). Information on reading PDF files is available here.

Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999). This article has been saved in Adobe Portable Document Format (PDF). Information on reading PDF files is available here.

Denying A Right by Disregarding Doctrine: How Illinois v. Rodriguez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 Tenn. L. Rev. 1 (1991). Reprinted in full in 5 Crim. Prac. L. Rev. 217 (1993).

The Doctrinal and Practical Implications of the Supreme Court's Approval of a 'Seemingly Consented Search' in Illinois v. Rodriguez, 19 Search and Seizure Law Report 41 (1992).

A Hard Look at What We Know (and Still Need to Learn) about the 'Costs' of the Exclusionary Rule: The NIJ Study and Other Studies of 'Lost' Arrests, A.B.F. Research J. 543 (1983).

Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal, A.B.F. Research J. 247 (1982).

Do Criminal Due Process Principles Make a Difference? A Review of McBarnet's Conviction: Law, the State, and the Construction of Justice, A.B.F. Research J. 247 (1982).

Gresham's Law Revisited: Expedited Processing Techniques and the Allocation of Appellate Resources, 6 Justice System Journal 372 (1981).

Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of The Spiotto Research and United States v. Calandra, 69 Nw. U. L. Rev. 740 (1974).

Essays in Books:

Essays in the second edition of The Oxford Companion to the United States Supreme Court (2004) on The Fourth Amendment, The Exclusionary Rule, Adamson v. California, Mapp vs. Ohio, and United States v. Leon.

Essays in the Oxford Companion to American Law (2002) on The Incorporation Doctrine and Search and Seizure.

Essays in The Oxford Companion to the United States Supreme Court (1992) on The Exclusionary Rule, Adamson v. California, Mapp vs. Ohio, and United States v. Leon.

       Book Reviews & Other Publications:

Review Essay, "An Account of Mapp v. Ohio That Misses the Larger Exclusionary Rule Story," Ohio State Journal of Criminal Law (2007). This article has been saved in Adobe Portable Document Format (PDF); information on reading PDF files is available here.

Book review of C. Bradley, The Failure of the Criminal Procedure Revolution, 46 J. Leg. Ed. 279 (1996); comment in reply 47 J. Leg. Ed. 134 (1997).

Op-ed columns on the Fourth Amendment appearing in the Christian Science Monitor, Chicago Tribune and National Law Journal.

Selected Professional Appearances

Witness: The Jury and the Search for Truth -- The Case Against Excluding Relevant Evidence at Trial: Hearing on S.3 before the Committee on the Judiciary, United States Senate, 104th Congress, 1st Session, 119-153, 303-307 (March 7, 1995).

Appeared of counsel pro bono and wrote brief for the defendant in Illinois v. Rodriguez (1990) and Illinois v. Gates (1983), two Fourth Amendment search and seizure cases in the United States Supreme Court.

Recent Presentations and Service

Presentation, "Historical Comparision of Federal and State Search & Seizure Provisions," symposium on Independent State Grounds in Search & Seizure, National Center for Justice and the Rule of Law, University of Mississippi School of Law, and the National Judicial College, Oxford, Mississippi, March 30, 2007.

Presenter, "Originalist Alchemy:" Applying the Crawford-Davis testimonial/Nontestimonial Distinction Despite the Framing-Era General Ban Against Hearsay Evidence," symposium on Crawford and Beyond Revisited, Brooklyn Law School, September 29, 2006.

Presenter, "What Did the Framers Know and When Did They Know It?," symposium on Crawford and Beyond, Brooklyn Law School, February 21, 2005.

Presenter, "Marbury v. Madison: 200 Years of Judicial Review in America," symposium at University of Tennessee College of Law, February 21, 2003.

Faculty Colloquium, "Recovering the Original Understanding of the Fifth Amendment: The Framers' Understanding of 'Due Process,'" University of Tennessee College of Law, June 12, 2001.

Faculty Legal History Colloquium Presentation, "Recovering the Historical Fourth Amendment," Cumberland Law School, Samford University, November 1999.

Centripitals presentation, "Recovering Authentic Constitutional History," University of Tennessee, Knoxville, October 1999.

AALS Workshop on Law and Social Science, Opening Speaker, Supreme Court's treatment of empirical data regarding the exclusionary rule, Washington, D.C., March 1990.

Member, Law and Society Association (Program Committee, 1986).

Editor, Am. Bar Foundation Research J., 1983-84.

Selected Achievements

Chancellor's Citation for Outstanding Scholarly Achievement, 2003.

Elmer L. Stewart Faculty Scholar, 2000-01 and 2002-03.

2002 recipient, Carden Faculty Scholarship Award.

Affiliations

American Society for Legal History

Law and Society Association.

Works in Progress

Research on the creation, development, and demise of the Fourth Amendment exclusionary rule.

Research on the framer's understanding of constitutional criminal procedure and how that understanding was lost and replaced by the modern constructions of the Fourth, Fifth, and Sixth Amendments.

Research on when and how unlawful acts by officers came to be viewed as "unconstitutional" government actions.

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January 7, 2008