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
Thomas Davies
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.