Will Bode

And well-established traditional way of thinking about it is like, oh, yeah, maybe it incorporates all these old common law rules and go back and look at what the common law cases said in America and in England in the 18th century. Your claim in your scholarship with James Stern is that actually it's incorporating not necessarily just those old sources, but actually modern day positive law.

And well-established traditional way of thinking about it is like, oh, yeah, maybe it incorporates all these old common law rules and go back and look at what the common law cases said in America and in England in the 18th century. Your claim in your scholarship with James Stern is that actually it's incorporating not necessarily just those old sources, but actually modern day positive law.

And then my claim is that it incorporates common law, but as in my and Danielle's article, the Fourth Amendment and general law, the claim is that it incorporates kind of evolving common law. Not the common law frozen at a particular point in the past, but the ability for courts to continue to make common law – engage in common law reasoning.

And then my claim is that it incorporates common law, but as in my and Danielle's article, the Fourth Amendment and general law, the claim is that it incorporates kind of evolving common law. Not the common law frozen at a particular point in the past, but the ability for courts to continue to make common law – engage in common law reasoning.

So it's kind of just like a third – it's the kind of more traditional position there.

So it's kind of just like a third – it's the kind of more traditional position there.

Yeah. This may have been some exception to this rule for Nightwalkers. Nightwalkers sound kind of scary. It's like creepy people that just walked around at night.

Yeah. This may have been some exception to this rule for Nightwalkers. Nightwalkers sound kind of scary. It's like creepy people that just walked around at night.

Yeah.

Yeah.

So two justices interested. I guess those are the two justices I would have assumed would be the most interested. Justice Sotomayor likes defendants' rights. She seems to like Fourth Amendment cases maybe. And Justice Gorsuch likes looking to these common law rules and criminal procedure cases. So I don't know whether they'll be able to get two more people on this.

So two justices interested. I guess those are the two justices I would have assumed would be the most interested. Justice Sotomayor likes defendants' rights. She seems to like Fourth Amendment cases maybe. And Justice Gorsuch likes looking to these common law rules and criminal procedure cases. So I don't know whether they'll be able to get two more people on this.

Seems like there is some disagreement in the lower courts, but it looks like all the federal circuits have said no. So not like a great circuit split. Also, I was aware of this rule and the uncertainty about whether the Fourth Amendment incorporated it. I didn't know that actually a lot of States continue to follow this rule as a matter of state law. That's kind of interesting.

Seems like there is some disagreement in the lower courts, but it looks like all the federal circuits have said no. So not like a great circuit split. Also, I was aware of this rule and the uncertainty about whether the Fourth Amendment incorporated it. I didn't know that actually a lot of States continue to follow this rule as a matter of state law. That's kind of interesting.

That is quite interesting. I kind of would have assumed that they would have all expanded the power of arrest.

That is quite interesting. I kind of would have assumed that they would have all expanded the power of arrest.

Yeah, I was going to go there. There's not a clear constitutional line between those two things. Like there's not like a constitutional test for the difference. I think that it's sort of something that turns on state law.

Yeah, I was going to go there. There's not a clear constitutional line between those two things. Like there's not like a constitutional test for the difference. I think that it's sort of something that turns on state law.

I think that is the traditional rule, but I'm not sure that that rule is a constitutional rule versus just the traditional rule that most jurisdictions follow. I guess I'm not sure. I remember looking into this some years ago and coming away with a lot of uncertainty.

I think that is the traditional rule, but I'm not sure that that rule is a constitutional rule versus just the traditional rule that most jurisdictions follow. I guess I'm not sure. I remember looking into this some years ago and coming away with a lot of uncertainty.