Constitutional Right to Informational Privacy: Today's News Scan linked to Bob Egelko's report on the Supreme Court's grant of certiorari in NASA v. Nelson. Yesterday, Eugene Volokh posted his thoughts on the case, comparing the background checks conducted by NASA to criminal investigations by police. Volokh explains that in NASA the Ninth Circuit concluded it was unconstitutional for the government to ask people who knew NASA employees broad questions. Questioning "references, employers, and landlords" presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe. Volokh believes the ruling's implications are "stunningly broad." He writes that the Ninth Circuit's suggestion, that the right to privacy is violated when an officer asks broad questions, will limit an officer's ability to ask people broad questions about what they know of a potential suspect.

Debunking The Belief That "We Execute Innocent People": At Homicide Survivors Dudley Sharp posts on Texas District Court Judge Fine's decision to clarify his ruling regarding the death penalty in Texas. Sharp finds Judge Fine's clarification that his ruling was " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people . . . ," curious when "(1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process." Last Friday's Blog Scan reported on the ruling, and Kent's comments are available here.

Abandoning the Exclusionary Rule: At CrimProf Blog, Kevin Cole links to Todd E. Pettys' SSRN article, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule. Pettys' argument is that allowing the exclusionary rule in cases involving juries infringes upon jurors' deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court's deterrence objectives. He believes it might be time to abandon the exclusionary rule, and suggests that the Supreme Court might already be willing to abandon the rule, depending on whether Congress enacts laws that will strengthen the threat of financial liability for Fourth Amendment violations. Two Volokh Conspiracy bloggers also have posts on the exclusionary rule. Orin Kerr continues his discussion of whether Herring v. United States establishes a good faith exception to the exclusionary rule, this time distinguishing Illinois v. Krull, a case where the police relied on a statute which had not been held unconstitutional at the time of the search. Eugene Volokh discusses Texas's statutory exclusionary rule, applied in Wilson v. State. He is surprised Texas has a statutory exclusionary rule.