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.
James P. Fleissner, Glide Path to an "Inclusionary Rule": How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule, 48 Mercer L. Rev. 1023 (1997).