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Constitutional Law

2010

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Arthur Leavens

Articles 1 - 2 of 2

Full-Text Articles in Law

Prophylactic Rules And State Constitutionalism, Arthur Leavens Aug 2010

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Arthur Leavens

The article looks at state-constitutional expansion of federal prophylactic rules, e.g., Miranda's required warnings, and asks whether it is conceptually legitimate for a state court, under its state constitution, to expand the protection of what is a federal constitutional rule. Even if one takes a conservative view of a state's prerogative to expand cognate constitutional rights, the article argues that unilateral state expansion of prophylactic rules is justifiable. Because the purpose of a prophylactic rule is to guide lower courts in implementing a broader constitutional principle, such a rule -- while surely of constitutional status -- is by nature ...


Prophylactic Rules And State Constitutionalism, Arthur Leavens Jan 2010

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Arthur Leavens

The article examines the conceptual legitimacy of state-law expansion of federal constitutional prophylactic rules. Owing to the nature and purpose of prophylactic rules – to guide lower courts in their implementation of the Constitution’s broader, more indeterminate principles – the article argues that such rules (while surely of constitutional status) are inherently subject to revision where necessary to correct a lack of fit with their respective underlying principles. If a state concludes that a prophylactic rule announced by the Supreme Court under-protects the constitutional principle that it is meant to implement, the article argues that it is conceptually appropriate for the ...