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My commentary will be congenial with those of Judge Weinstein and Randy Kennedy insofar as I would characterize myself as a Terry supporter rather than a Terry opponent. Therefore, I'll be arguing against some of the points that Tracey Maclin has made—with a caveat. The caveat is that Tracey Maclin has made incredibly good points for the case that Terry was wrongly decided when it was decided. The question we must answer today, however, is whether Terry is right for today.
Professor Maclin argues that the Terry Court should have followed the Miranda Court model—a model in which the Court takes a more interventionist approach to law enforcement practice to insure that liberty interests are protected. Professor Maclin might also find the Court's approach in Papachristou to be supportive of his argument. Papachristou, as I will argue in a moment, shares similarities with Terry, although the cases came out differently.
In both Miranda and Papachristou the Supreme Court adopted an approach that I believe was obviously right for the time in which those cases were decided. What is not so clear, however, is whether those principles are readily applicable to the current political and social context. Professor Maclin is concerned about the protection of rights of Black people today. So am I. However, I am more confident than Professor Maclin is, about the contemporary relevance of the principles embodied in Terry.
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