Law Commons^™

Deference And Doubt: The Interaction Of Aedpa §§ 2254(D)(2) & (E)(1), Justin Marceau

Justin Marceau

The deference owed to state findings of fact under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, is hopelessly unclear. This Article identifies the two provisions addressing questions of factual deference, § 2254(d)(2) and (e)(1), and reviews their interaction, ultimately concluding that the treatment of (e)(1) as a superficial gloss on (d)(2) is isguided and undermines the purpose of collateral review of state convictions by federal courts. After addressing both the scope of review and standard of review problems, the Article concludes that the text, structure, and purpose of these provisions require a conclusion that only …

Un-Incorporating The Bill Of Rights: The Tension Between The Fourteenth Amendment And The Federalism Concerns That Underlie Modern Criminal Procedure Reforms., Justin F. Marceau

Justin Marceau

The selective incorporation of the Bill of Rights through the Fourteenth Amendment is the hallmark of modern criminal procedure. After nearly fifty-years, however, it is time to critically reflect on the continued vitality of what has become an unquestioned principle of constitutional hornbook law. This Article confronts the fact that there has been a sea change in the Court’s approach to questions of federalism, ultimately concluding that reforms like the AEDPA require a return to local control that is inconsistent with the concept of constitutional incorporation and the uniformity it requires.

Earlier this term in Danforth v. Minnesota, the Court …