Digital Commons Network^™

When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus

Catholic University Law Review

Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.

Are We Still Not Saved? Race, Democracy, And Educational Inequality, Lia Epperson

Articles in Law Reviews & Other Academic Journals

Thirty-four years ago, in his seminal book, "And We Are Not Saved: The Elusive Quest for Racial Justice," Derrick Bell provided a critical view of American history and constitutional jurisprudence to illustrate the challenges the United States faces in reaching true equality. In his enlightened observations about the structure of our republic, Bell refers to “the American contradiction.” To see true progress toward meaningful equality, he contends, we must reckon with the challenging truth of our history—that we are a nation founded on this “constitutional contradiction”... In his work, Professor Bell argued that this American contradiction, “shrouded by myth,” serves …

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

The “Critical Stage” Of Plea-Bargaining And Disclosure Of Exculpatory Evidence, Gabriella Castellano

NYLS Law Review

No abstract provided.

Environmental Indifference, Anthony L. Moffa

Faculty Publications

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon …

The Biden Administration's First Hundred Days: An Lgbtq Perspective, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Majestic Law And The Subjective Stop, Kyron J. Huigens

Faculty Articles

Justice John Paul Stevens subscribed to "a majestic conception" of the Constitution. This Article articulates and defends that vision. Majestic law and legal reasoning characteristically involve frank moral reasoning, such as one finds in the Eighth Amendment's "evolving standards of decency" test for proportionate punishment, or in Due Process formulations such as an appeal to "immutable principles of justice, which inhere in the very idea of free government." Majestic law employs moral values, norms, and judgments in legal reasoning, taking them on their own terms. Majestic legal reasoning does not weigh revealed preferences for decency, for example. It asks whether …

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review Online

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.

Working Papers

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Felony Disenfranchisement & The Nineteenth Amendment, Michael Gentithes

Con Law Center Articles and Publications

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes

Con Law Center Articles and Publications

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne's Testimony, Neal Devins

Neal E. Devins

No abstract provided.

Brief Of Amicus Curiae 290 Criminal Law And Mental Health Law Professors In Support Of Petitioner's Request For Reversal And Remand, Kahler V. Kansas, 18-6135 (U.S. June 6, 2019), Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles.

Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Panel 4: Criminal Procedure And Affirmative Action

Georgia State University Law Review

Moderator: Lauren Sudeall

Panelists: Dan Epps, Gail Heriot, and Corinna Lain

The End Of Miller's Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Con Law Center Articles and Publications

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority …

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

Uncovering Juror Racial Bias, Christian Sundquist

Articles

The presence of bias in the courtroom has the potential to undermine public faith in the adversarial process, distort trial outcomes, and obfuscate the search for justice. In Pena-Rodriguez v. Colorado (2017), the U.S. Supreme Court held for the first time that the Sixth and Fourteenth Amendments required post-verdict judicial inquiry in criminal cases where racial bias clearly served as a “significant motivating factor” in juror decision-making. Courts will nonetheless likely struggle in interpreting what constitutes a "clear statement of racial bias" and whether such bias constituted a "significant motivating factor" in a juror's verdict. This Article will examine how …

Gundy And The Civil-Criminal Divide, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

It could have been the case that declared “most of Government ... unconstitutional,” by reviving a robust application of the doctrine that prohibits Congress from delegating its law-making power to the other branches. At least that is what many awaiting the Court’s widely-anticipated 2019 decision in Gundy v. United States believed, after the Court agreed to decide whether “Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of [the federal Sex Offender Registration and Notification Act]’s registration requirements to pre-Act offenders.” Gundy did not deliver on its potential to upend the administrative state. Instead, …

Book Review: Dershowitz On Presidential Impeachment: An Analysis Of The Case Against Impeaching Trump, Michael Conklin

ConLawNOW

This is a review of Alan Dershowitz’s 2018 book, The Case Against Impeaching Trump. Because the Constitution provides little guidance on presidential impeachment, the issue is often interpreted based on political party affiliation. Dershowitz, a strong Hillary Clinton supporter, provides a neutral examination of the issue. This review contains analysis of the current state of impeachment efforts, Dershowitz’s arguments against impeachment, and a critique of his proposed “shoe on the other foot” test.

Introduction To The "Lockett V. Ohio At 40 Symposium": Rethinking The Death Penalty 40 Years After The U.S. Supreme Court Decision, Margery B. Koosed

ConLawNOW

Professor Koosed provides an introduction to the symposium on the fortieth anniversary of the U.S. Supreme Court’s decision in Lockett v. Ohio, which discusses the backstory and import of the case. The decision in Lockett laid the framework for narrowing application of the death penalty by overturning Ohio’s 1974 era death penalty law, and heralding the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led …

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year …

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.