Law Commons^™

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

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 …

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Ulan Galperin, Zaheer Tajani

Elisabeth Haub School of Law Faculty Publications

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

Reconsidering Constitutional Protection For Health Information Privacy, Wendy K. Mariner

Faculty Scholarship

What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special …

Taking Patents, Gregory Dolin, Irina D. Manta

All Faculty Scholarship

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The …

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

Justice Thomas's Kelo Dissent: The Perilous And Political Nature Of Public Purpose, Carol N. Brown

Law Faculty Publications

This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional …

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

Publications

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …

Raisins And Resilience: Elaborating Home's Compensation Analysis With An Eye To Coastal Climate Change Adaptation, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

The State of New Jersey, the Borough of Harvey Cedars, and the United States Army Corps of Engineers were all preparing for an event like Hurricane Sandy years before the 2012 super-storm made landfall along the Mid-Atlantic coast. The governments began, for instance, a major dune restoration project in 2005 in order to protect the New Jersey coast from massive storm surges that could destroy homes and businesses. To carry out the effort, the local governments sought to purchase the right to build along the seaward portion of property owners' land, and would then construct roughly twenty-foot-high, thirty-foot-wide dunes. If …

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

UF Law Faculty Publications

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 …

Resilience And Raisins: Partial Takings And Coastal Climate Change Adaptation, Joshua Galperin, Zahir Hadi Tajani

Articles

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The …

A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar

Articles

I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.

A Comprehensive Analysis Of The History Of Interrogation Law, With Some Shots Directed At Miranda V. Arizona, Tracey Maclin

Faculty Scholarship

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been …

Confessing In The Human Voice: A Defense Of The Privilege Against Self-Incrimination, Andrew E. Taslitz

School of Law Faculty Publications

ABSTRACT OF CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its …

Against Professing: Practicing Critical Criminal Procedure, Mae Quinn

Journal Articles

No abstract provided.

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

It's Alive!: How Early Common Law Changes In The Right Against Self-Incrimination Inform The Right's Continuing Relevance, Sheldon Evans

Faculty Publications

The intersection of the Self-Incrimination Clause and Miranda warnings has stemmed disagreement among courts on the scope and application of the right against self-incrimination. To aid in their dilemma, court's often embark on a historical inquiry to give insight into proper interpretations of the Clause. In light of a recent circuit split on one of the Clause's key terms—namely what constitutes a “criminal case”— this Article embarks on a historical inquiry that adds clarity to the topic. By highlighting the several ways the right against self-incrimination changed in its 200 year common law history before the Constitutional Convention, this Article …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

A Comprehensive Analysis Of The History Of Interrogation Law, With Some Shots Directed At Miranda V. Arizona, Tracey Maclin

UF Law Faculty Publications

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been …

Happy Together? The Uneasy Coexistence Of Federal And State Protection For Sound Recordings, Gary Pulsinelli

Scholarly Works

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Presumed Guilty, Terrence Cain

Faculty Scholarship

It would probably surprise the average American to learn that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately …

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Faculty Scholarship

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

Powerless Against Police Brutality: Felon’S Story, Tamara F. Lawson

Articles

Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. Next, envision recovering from these injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record than …

What Is The Matter With Antigone?, Emily A. Hartigan

Faculty Articles

No abstract provided.

Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang

GW Law Faculty Publications & Other Works

In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it …

Abolition Of The Insanity Defense Violates Due Process, Stephen J. Morse, Richard J. Bonnie

All Faculty Scholarship

This article, which is based on and expands on an amicus brief the authors submitted to the United States Supreme Court, first provides the moral argument in favor of the insanity defense. It considers and rejects the most important moral counterargument and suggests that jurisdictions have considerable leeway in deciding what test best meets their legal and moral policies. The article then discusses why the two primary alternatives to the insanity defense, the negation of mens rea and considering mental disorder at sentencing, are insufficient to achieve the goal of responding justly to severely mentally disordered offenders. The last section …

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …