Law Commons^™

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin

Jaimie K. McFarlin

This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

Trading Police For Soldiers: Has The Posse Comitatus Act Helped Militarize Our Police And Set The Stage For More Fergusons?, Arthur Rizer

Arthur L. Rizer III

The recent protests, police overreaction, and subsequent riots in Ferguson, Missouri, demonstrated to Americans and to the world the true extent of the militarization of police in communities across the United States. Deployed throughout Ferguson, in preemption and then in response to protesters’ actions, were ranks of heavily armed, flak-jacketed, camouflage uniformed police standing atop and around armored personnel carriers with machine guns mounted. Such a response evidences that the line between police and soldiers in communities is blurring, if not blurred. This militarization is, in part, a result of a principle Americans have held dear since our founding, that …

The Widespread Handcuffing Of Arrestees In The United States, Francois Quintard-Morenas

Francois Quintard-Morenas

Handcuffing in the United States has become ubiquitous, regardless of age, offense, or circumstances. Across the nation, children, teenagers, women, men, and elders are handcuffed upon arrest for the most minor offenses. Their ages range from five to ninety-seven. This phenomenon has received little attention from legal scholars, despite its dramatic reversal of a long-standing common law rule.

At common law, police officers were prohibited from handcuffing arrestees absent special circumstances, such as a threat to safety, resistance, or risk of escape. Established in nineteenth-century England and embraced early by U.S. courts, this principle still prevails in most common law …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Legalized Lynch Mobs In The 21st Century: Racial Improprieties In The Death Penalty, Betsy A. Daniller

Betsy A Daniller

No abstract provided.

The Forgotten Nuremberg Hate Speech Case: Otto Dietrich And The Future Of Persecution Law, Gregory S. Gordon

Gregory S. Gordon

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson

Michael P. Johnson

Fifteen Years and Death is a Note that considers a completely novel application of the Double Jeopardy Clause to excessive time on death row. Traditionally, death penalty opponents have attacked the now fifteen-year average wait time on death row as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but this argument has fallen flat time and time again as courts have been reluctant to find merely living in prison to be “cruel” or “unusual.” Most courts do admit, however, that such time on death row does constitute some sort of punishment. As originally imagined, the Double …

Holmes And The Common Law: A Jury's Duty, Matthew P. Cline

Matthew P Cline

The notion of a small group of peers whose responsibility it is to play a part in determining the outcome of a trial is central to the common conception of the American legal system. Memorialized in the Constitution of the United States as a fundamental right, and in the national consciousness as the proud, if begrudged, duty of all citizens, juries are often discussed, but perhaps not always understood. Whatever misunderstandings have come to be, certainly many of them sprang from the juxtaposition of jury and judge. Why do we have both? How are their responsibilities divided? Who truly decides …

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs …

The Risky Interplay Of Tort And Criminal Law: Punitive Damages, Daniel M. Braun

Daniel M Braun

The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite …

Knives And The Second Amendment, David B. Kopel, Claytom E. Cramer, Joseph P. Olson

David B Kopel

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., …

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

Juvenile Justice Reform 2.0, Tamar R. Birckhead

Tamar R Birckhead

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …

Brief Of Amicus Curiae Wesley Macneil Oliver In Support Of The Petition For Writ Of Certiorari, Wesley Oliver

Wesley M Oliver

The United States Court of Appeals for the Ninth Circuit recently held that a lawsuit could proceed against John Ashcroft in his individual capacity for the way he detained material witnesses after the Terror of September 11, 2001. Ashcroft allegedly used those he believed to be terrorist suspects as material witnesses when he lacked adequate suspicion to bring formal charges. All of these “witnesses” otherwise qualified for detention under the federal material witness detention statute. The Ninth Circuit concluded that this “pretextual” use of the material witness detention statute clearly violated the Fourth Amendment as it circumvented the probable cause …

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices, Stephanos Bibas, Jennifer Blasser, Keith A. Findley, Ronald F. Wright, Jennifer E. Laurin, Cookie Ridolfi

All Faculty Scholarship

No abstract provided.

Just The Facts: Solving The Corporate Privilege Waiver Dilemma, Don R. Berthiaume

Don R Berthiaume

How can corporations provide “just the facts” — which are, in fact, not privileged — without waiving the attorney client privilege and work product protection? This article argues for an addition to the Federal Rules of Criminal Procedure based upon Rule 30(b)(6) of the Federal Rules of Civil Procedure, which allows civil litigants to issue a subpoena to an organization and cause them to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf … about information known or reasonably available to the organization.”[6] Why should we look to Fed. …

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Bridge Connecting Pontius Pilate's Sentencing Of Jesus To The New Jersey Death Penalty Study Commission's Concerns Over Executing The Innocent: When Human Beings With Human Flaws Determine Guilt Or Innocence And Life Or Death, James B. Johnston

James B Johnston

No abstract provided.

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …