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Publication Date

5-1997

Document Type

Article

Abstract

During recent political debates over the federal budget deficit, it became fashionable to speak of a "glide path" to a balanced budget. Advocates of a budget plan would plan certain tax rates and spending limits, factor in a set of economic assumptions, and graph a swooping path of declining deficits over several years. Needless to say, that sort of exercise in prediction does not involve the sort of odds that would inspire confidence in a gambler. The accuracy of the beguiling graph, of course, depends on whether tax and spending commitments are kept and whether a host of economic assumptions are correct. Common sense tells us to be wary: Reality may well convert that smooth arc of descent into a line resembling an "up" staircase.

Making predictions about the future of our constitutional jurisprudence is a similarly risky business. Shifts in the interpretation of the United States Constitution depend on many variables, from the direction

of the political winds to the chance occurrence of a case and controversy that raises a constitutional issue in the right factual setting. Despite the difficulty of the predictive enterprise, I believe that the jurisprudence of the Fourth Amendment is on a "glide path" toward a fundamental change in the Exclusionary Rule, which currently forbids the use of much illegally seized evidence. I believe that we are on a course towards an erosion of the Exclusionary Rule and a diminution of our rights. I fear that the Exclusionary Rule will be converted into a rule of inclusion. I see the principal vehicle for traveling this glide path as the continued expansion of the good faith exception to the Exclusionary Rule.

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