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Full-Text Articles in Law

The Illusory Eighth Amendment, John F. Stinneford Dec 2014

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

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 …


Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, David Robertson Sep 2014

Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, David Robertson

Georgia Journal of International & Comparative Law

No abstract provided.


Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral May 2014

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.


A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio Jan 2014

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.


Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine Jan 2014

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.


Juries And The Criminal Constitution, Meghan J. Ryan Jan 2014

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …