Deborah Tuerkheimer (University of Maine School of Law) has posted Exigency (Arizona Law Review, Vol. 49, 2007) on SSRN. Here is the abstract:
Exigency has, with little notice, become central to judicial interpretations of both the Fourth Amendment Warrant Clause and the Sixth Amendment Confrontation Clause – particularly with regard to the policing and prosecution of domestic violence. Last Term, in two cases addressing the warrant requirement (Georgia v. Randolph and Brigham City v. Stuart) and another defining the contours of the recently-transformed confrontation right (Davis v. Washington), the United States Supreme Court elevated the concept to a new level of doctrinal prominence. The rise of exigency in either sphere is worthy of note. Even more significant, however, is the disparate treatment exigency has received across constitutional divides – a discrepancy with transcending theoretical implications. This article is the first to explore the new law of exigency and the empirical realities underlying it. I show that, in the Fourth Amendment setting, the Court has exhibited a factually nuanced understanding of the dynamics of abuse – an understanding that informs its analysis of exigency in domestic violence cases. By contrast, the Court's categorical approach to the Confrontation Clause has yielded a view of exigency that does not accommodate similarly contextualized determinations. The divergence is striking, and raises the question: why should empirical realities be understood differently depending on the particular legal framework applied to them? This question takes on special urgency in the domestic violence arena, where the dynamics of abuse make exigency-related arguments under the Constitution most likely to arise. But the answer has broad conceptual importance that extends beyond the realm of battering. In conclusion, I offer a theory of the divergence that exposes fundamental flaws in the Court's interpretation of the right of confrontation.
