The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule

Abstract

Explores the rhetorical and historical arc of these two competing creation stories. In Part II, we will review the development of the majestic conception of the exclusionary rule from it inception in Boyd on through its refinement in later cases. Part III will turn to the rise of the "mere evidentiary rule" creation story of the exclusionary rule, where Justice Cardozo stands out as the Justice who provides much of the foundational thinking. The final part traces the juncture at which these two narratives crossed in history-when the majestic conception lost its dominance and the evidentiary rule conception gained preeminence.