Digital Commons Network^™

Constitutional Privileging, Michael Coenen

Journal Articles

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more …

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Journal Articles

Courts have started to recognize standing to sue for those on the government’s No Fly List, which bars listed individuals from flying. This salutary step, however, leaves untouched the complex watch list infrastructure on which the No Fly List is built and whose flaws it inherits. Lower-profile watch lists have fewer determinate consequences on listed individuals than the No Fly List does. But, this article argues, they exact substantial costs.

This article first explains why the incentive structure of terrorist watch lists encourages government agencies to list more people than necessary and not to check their work. It then demonstrates …

Children First: It’S Time To Change! Mental Health Promotion, Prevention, And Treatment Informed By Public Health, And Resiliency Approaches, Vicki Schwean, Susan Rodger

Journal Articles

Although the importance of healthy mental development in children and youth is not disputed, the mental health needs of far too many Canadian children are being ignored. Within the context of recent federal and provincial calls for systemic reform of the mental health care systems for children and youth, we underscore the necessity for ongoing innovation, development, education, and evaluation. This article describes our aims to establish demonstration and research sites focused on promising frameworks that draw from systems of care, public health, and resiliency approaches.

The Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, Mae C, Quinn

Journal Articles

For years Missouri has been touted as a model for juvenile justice. Stakeholders and commentators continually declare that the Show-Me State – with its “Missouri Model” – employs the most modern and innovative ap-proaches when it comes to treatment of court-involved youth. This account is reflected in press coverage, television news shows, and agency white papers. But this is only part of the picture; there is much more happening in Missouri when it comes to juveniles. However, this “other” part of the story seldom has been openly discussed – until now.1. This Article seeks to contrast the rosy picture painted …

Giving Kids Their Due: Theorizing A Modern Fourteenth Amendment Framework For Juvenile Defense Representation, Mae C. Quinn

Journal Articles

This Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault. It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must …

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - A Disquisition On The Revival Of The Militia At Large, Raymond T. Diamond, Robert J. Cottrol

Journal Articles

No abstract provided.

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Journal Articles

No abstract provided.

The Sky Is Falling (Again): Evaluating The Current Funding Crisis In The Judiciary, Donald E. Campbell

Journal Articles

This Article will consider the current crisis in a broad historical context. This larger narrative can provide a helpful perspective in the current debate. It offers a glimpse into how we came to the current system and allows us to question our assumptions regarding the way the system currently works. Historical context is an important (and under-discussed) aspect of this crisis. As the leaders of the bench and bar come together to evaluate changes to the current system, the discussion should begin with understanding how the system evolved to where it is now and with appreciating the fact that the …

Dismantling America’S Largest Sleeper Cell: The Imperative To Treat, Rather Than Merely Punish, Active Duty Offenders With Ptsd Prior To Discharge From The Armed Forces, Evan R. Seamone

Journal Articles

By separating combat veterans with uniquely military discharges that make many ineligible for effective PTSD treatment, the active duty armed forces are creating a class of future offenders, specially trained to be lethal, whose violent acts against themselves, their families, and the public collectively amass more casualties, incur more costs, and drain more resources in the homeland than the underlying traumatic episode in the war zone. The obligation to treat these offenders and help them successfully transition to civilian society with preserved VA benefits before discharge is not merely a laudatory goal of therapeutic jurisprudence, but a mandate under the …

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin

Journal Articles

In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …

A Fourth Amendment Theory For Arrestee Dna And Other Biometric Databases, David H. Kaye

Journal Articles

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for …

On The 'Considered Analysis' Of Collecting Dna Before Conviction, David H. Kaye

Journal Articles

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland's highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that "given the considered analysis of courts on the other side …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Journal Articles

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

The Immigration Prosecutor And The Judge: Examining The Role Of The Judiciary In Prosecutorial Discretion Decisions, Shoba S. Wadhia

Journal Articles

Legal scholars and judges have long examined the role of judicial review in immigration matters, and also criticized the impacts of the “plenary power” doctrine and statutory deletions of judicial review for certain immigration cases. Absent from this scholarship is a serious examination of the judiciary’s role in immigration decisions involving prosecutorial discretion. I attribute this absence to both a silent concession that prosecutorial discretion decisions are automatically barred from judicial review because of the plain language of the Immigration and Nationality Act (INA); the judicial review “exceptions” in the Administrative Procedures Act (APA), and the cases that analyze these …

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow …

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller

Journal Articles

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …

The Promise And Peril Of Cities And Immigration Policy, Rick Su

Journal Articles

No abstract provided.

Overcoming Overcriminalization, Stephen Smith

Journal Articles

The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken …