Thomas Y. Davies

Davies Thomas
  • Professor of Law Emeritus, Elvin E. Overton Distinguished Professor of Law

  • B.A., 1969, University of Delaware
    M.A., 1975, J.D., 1975, Ph.D. (Political Science), 1980, Northwestern University


Biography

Publications of Thomas Y. Davies

Professor Davies's special areas of expertise are the investigatory phase of criminal procedure, especially search and seizure law and the related exclusionary rule, and the history of criminal procedure. His research on the effects of the exclusionary rule has been discussed in several U.S. Supreme Court opinions as well as a number of state supreme court opinions. He has appeared of counsel in two Supreme Court search cases and has also been a witness before the U.S. Senate Judiciary Committee on proposed legislation relating to exclusion. His recent research deals with recovering the authentic historical meanings of the provisions of the Bill of Rights that regulate criminal procedure. To date, Professor Davies has published research on the original meaning of the Fourth Amendment, the "due process of law" clause in the Fifth Amendment, the right against self-incrimination in the Fifth Amendment, and the right of confrontation in the Sixth Amendment, as well as framing-era arrest law.

Professor Davies is currently completing research on two other aspects of constitutional history -- how the Marshall court trumped up its famous claim of unconstitutionality in the 1803 ruling in Marbury v. Madison, and how the recharacterization of an officer's unlawful conduct as a form of government illegality enlarged the significance of the Bill of Rights.

Articles by Professor Davies have been published in the American Bar Foundation Research Journal, the Brooklyn Journal of Law and Policy, the Brooklyn Law Review, the Journal of Criminal Law and Criminology, the Justice System Journal, the Michigan Law Review, Law and Contemporary Problems, the Lewis and Clark Law Review, the Mississippi Law Journal, the Ohio State Journal of Criminal Law, the Texas Tech Law Review, the Wake Forest Law Review, and the Tennessee Law Review. Before joining the UT faculty in 1986, Professor Davies practiced law as a corporate litigator in the Chicago office of Kirkland & Ellis and was also a researcher at the American Bar Foundation.

Publications

Biography of Thomas Y. Davies

Articles

Marbury as Constititional Misdirection: Why "Original Jurisdiction" Should Have Been Inapplicable to the "Prerogative Writ" of Mandamus (forthcoming).

Can You Handle the Truth?   The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”—“Fourth Amendment Reasonableness” Is Only a Modern, Destructive, Judicial Myth, 43 Texas Tech Law Review 51 (2010).

The Supreme Court Giveth and the Supreme Court Taketh Away:  The Century of Fourth Amendment “Search and Seizure” Doctrine, 100 Journal of Criminal Law & Criminology 933 (2010).

How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power, 73 Law and Contemporary Problems 1 (2010).

Selective Originalism:  Sorting Out Which Aspects of Giles’s Forfeiture Exception to Confrontation Were Or Were Not “Established at the Time of the Founding,” 13 Lewis & Clark Law Review 605 (2009).

Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards and the Original Understanding of "Due Process of Law," 77 Mississippi Law Journal 1 (2007).

Not "the Framers' Design:" How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis "Testimonial" Formulation of the Scope of the Original Confrontation Clause, 15 Brooklyn J. Law & Policy (2007).

Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule:" A Reply to Mr. Kry," 72 Brooklyn L. Rev. 557 (2007).

What Did the Framers Know, and When did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brooklyn L. Rev. 105 (2005).

Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez v. Martinez, 70 Tenn. L. Rev. 987 (2003).

The Fictional Character of Law and Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctine in Atwater vs. Lago Vista, 37 Wake Forest L. Rev. 239 (2002).

Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999).

Denying A Right by Disregarding Doctrine: How Illinois v. Rodriguez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 Tenn. L. Rev. 1 (1991). Reprinted in full in 5 Crim. Prac. L. Rev. 217 (1993).

The Doctrinal and Practical Implications of the Supreme Court's Approval of a 'Seemingly Consented Search' in Illinois v. Rodriguez, 19 Search and Seizure Law Report 41 (1992).

A Hard Look at What We Know (and Still Need to Learn) about the 'Costs' of the Exclusionary Rule: The NIJ Study and Other Studies of 'Lost' Arrests, A.B.F. Research J. 543 (1983).

Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal, A.B.F. Research J. 247 (1982).

Do Criminal Due Process Principles Make a Difference? A Review of McBarnet's Conviction: Law, the State, and the Construction of Justice, A.B.F. Research J. 247 (1982).

Gresham's Law Revisited: Expedited Processing Techniques and the Allocation of Appellate Resources, 6 Justice System Journal 372 (1981).

Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of The Spiotto Research and United States v. Calandra, 69 Nw. U. L. Rev. 740 (1974).

Essays in Books

Essays in the second edition of The Oxford Companion to the United States Supreme Court (2004) on The Fourth Amendment, The Exclusionary Rule, Adamson v. California, Mapp vs. Ohio, and United States v. Leon.

Essays in the Oxford Companion to American Law (2002) on The Incorporation Doctrine and Search and Seizure.

Essays in The Oxford Companion to the United States Supreme Court (1992) on The Exclusionary Rule, Adamson v. California, Mapp vs. Ohio, and United States v. Leon.

Book Reviews & Other Publications

Review Essay, "An Account of Mapp v. Ohio That Misses the Larger Exclusionary Rule Story," Ohio State Journal of Criminal Law (2007). This article has been saved in Adobe Portable Document Format (PDF).

Book review of C. Bradley, The Failure of the Criminal Procedure Revolution, 46 J. Leg. Ed. 279 (1996); comment in reply 47 J. Leg. Ed. 134 (1997).

Op-ed columns on the Fourth Amendment appearing in the Christian Science Monitor, Chicago Tribune and National Law Journal.

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