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Full-Text Articles in Constitutional Law
Solving Batson, Tania Tetlow
Solving Batson, Tania Tetlow
William & Mary Law Review
The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. The Court could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a “fair cross-section of the community.” By choosing the equal protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system, and instead focused on protecting potential jurors. In doing so, the Court built a fatal error …
Intellectual Property And The Presumption Of Innocence, Irina D. Manta
Intellectual Property And The Presumption Of Innocence, Irina D. Manta
William & Mary Law Review
Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous works have argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which currently is not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power …
Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless
Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless
Articles
In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the "clear" immigration consequences of a proposed plea agreement. This Article argues that the Court's reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would …