Law Commons^™

The Trauma Of Awakening To Racism: Did The Tragic Killing Of George Floyd Result In Cultural Trauma For Whites?, Angela Onwuachi-Willig

Faculty Scholarship

The act of witnessing the killing of George Floyd, a forty-six-year-old, African-American father, brother, partner, and son, at the hands of the police caused many white individuals to experience an epiphany about racism, specifically structural racism, in the United States. Following the horrific killing of George Floyd, many white people began to shift their thinking about the existence and prevalence of racialized police brutality, reconsidering the manner in which they had always viewed the world around them. Indeed, many white individuals began to recognize and acknowledge the varied ways in which whiteness worked to privilege them in our society, even …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen Pita Loor

Faculty Scholarship

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives — and their emergency management law enforcement actors — when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I …

Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

Faculty Scholarship

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

The Right To Silence V. The Fifth Amendment, Tracey Maclin

Faculty Scholarship

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Anthony Amsterdam's Perspectives On The Fourth Amendment, And What It Teaches About The Good And Bad In Rodriguez V. United States, Tracey Maclin

Faculty Scholarship

Anthony Amsterdam’s article, Perspectives On The Fourth Amendment is one of the best, if not the best, law review article written on the Fourth Amendment. Thus, Minnesota Law Review on its hundredth anniversary fittingly recognizes and honors Professor Amsterdam’s article in its Symposium edition, “Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review.” I am flattered that the Law Review invited me to participate in this Symposium.

Specifically, my article connects two perspectives from Amsterdam’s article — the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

Maryland V. King: Terry V. Ohio Redux, Tracey Maclin

Faculty Scholarship

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene.

In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government.

Although Justice Kennedy's opinion suggests …

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

Faculty Scholarship

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case.

Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today.

Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

Testing Poor Pregnant Women For Cocaine: Physicians As Police Investigators, George J. Annas

Faculty Scholarship

In 1989, Supreme Court Justice Thurgood Marshall surmised that “declaring a war on illegal drugs is good public policy . . . [but] the first, and worst, casualty of war will be the precious liberties of our citizens.” The same year, in the midst of President George Bush's “war on drugs,” the Medical University of South Carolina initiated a program to screen selected pregnant patients for cocaine and to provide positive test results to the police. At a time of high public concern about “cocaine babies,” this program seemed reasonable to the university and local public officials. Drug-screening programs in …

The Prosecutor's Ethical Duty To Seek Exculpatory Evidence In Police Hands: Lessons From England, Stanley Z. Fisher

Faculty Scholarship

The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to discloseexculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidenceto her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case information to …

Some Aspects Of Ethiopian Arrest Law: The Eclectic Approach To Codification, Stanley Z. Fisher

Faculty Scholarship

The Criminal Procedure Code of 1961 is one of Ethiopia's most recent codes, and one of the least "developed" in terms of published commentary and reported cases. In contrast to the "introduced" and "explained" Penal and Civil Codes, the Criminal Procedure Code has apparently been disowned by its drafters, none of whom have written a word of commentary on it. Its origins remain obscure, and at first glance it is difficult to see which, if any, "system" was its inspiration. In fact, it seems, the Code has roots in no single system, nor even in any single "family" of systems. …