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June 25, 2002

THE SOUTER-BELLESILES CONNECTION? Well, not quite. But my colleague Tom Davies has published an article in the Wake Forest Law Review that accuses Souter of pretty serious historical falsification in his opinion in Atwater v. Lago Vista. Here's an excerpt:

In this article I present a detailed critique of hte historical analysis that Souter offered in the Atwater majority opinion and of the larger assertions associated with law-and-order originalism. I argue that Souter's claims bear little resemblance to authentic framing-era arrest doctrine. Indeed, I conclude that his supposed historical analysis consisted almost entirely of rhetorical ploys and distortions of the historical sources. The historical authorities regarding arrest authority actually show that warrantless misdemeanor arrests for minor offenses were usually unlawful, except in some categories of minor offenses that gave rise to an unusual need for a prompt arrest -- the position advocated by Gail Atwater's counsel and endorsed by the four dissenting justices in Atwater.

Davies is extremely thorough and well-regarded -- his last article, on the original understanding of the Fourth Amendment, in the Michigan Law Review, has been very well-received and was cited favorably by the Supreme Court last term, which this article really won't be. But he makes a pretty damning case for historical dishonesty on Souter's part, which court-watchers should pay close attention to. Furthermore, this may have some relevance for cases of "proactive law enforcement" as in the Padilla / Al Muhajir case.

For those lawyers out there (and who else would care?) the cite is 37 Wake Forest L. Rev. 239 (2002).