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).
Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”—“Fourth Amendment Reasonableness” Is Only a Modern, Destructive, Judicial Myth, 43 Texas Tech Law Review 51 (2010).
The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment “Search and Seizure” Doctrine, 100 Journal of Criminal Law & Criminology 933 (2010).
How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power, 73 Law and Contemporary Problems 1 (2010).
Selective Originalism: Sorting Out Which Aspects of Giles’s Forfeiture Exception to Confrontation Were Or Were Not “Established at the Time of the Founding,” 13 Lewis & Clark Law Review 605 (2009).
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).
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).
Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule:" A Reply to Mr. Kry," 72 Brooklyn L. Rev. 557 (2007).
What Did the Framers Know, and When did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brooklyn L. Rev. 105 (2005).
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).
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).
Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999).
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.