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Full-Text Articles in Law
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
ExpressO
Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …
Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson
Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson
ExpressO
Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …
Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman
Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman
ExpressO
In this article I examine to what extent Indianapolis v. Edmond is in keeping with the original understanding of the Fourth Amendment. I conclude that the Founders were much more concerned with searches of real property, often insisting, not only on suspicion, but also a on warrant when searches of real property are involved. Secondly, while the Founders did not consider warrants necessary for searches and seizures off of real property (which for the sake of simplicity I call searches in public areas) the evidence suggests suspicion was required. Indeed, the Fourth Amendment was a direct response to the British …
National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock
National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock
ExpressO
In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …
The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen
The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen
ExpressO
No abstract provided.
Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel
Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel
ExpressO
This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …
The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless
The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless
ExpressO
In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …