Digital Commons Network^™

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

The Opioid Crisis: The States' And Local Governments' Response To Bigpharma's Deception And Why The Supremacy Clause May Provide A Cloak For Opioid Manufacturers To Hide Behind, Tracie Childers

Barry Law Review

No abstract provided.

Democratic Conditions, Barry Sullivan

Faculty Publications & Other Works

According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions …

From Poverty To Personhood: Gideon Unchained, Ken Strutin

Mitchell Hamline Law Review

No abstract provided.

Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Mike K. Steenson

Mitchell Hamline Law Review

No abstract provided.

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

What's Going Wrong In Nevada? A Comparative Analysis Of California And Nevada Gun Control Laws As They Relate To Gun Violence, Danielle Chami

CMC Senior Theses

The recent mass shooting on October 1, 2017 in Las Vegas, Nevada has been marked in history as the worst mass shooting in the United States to this point. The details of the shooting beg the question, is it coincidence that it happened in Nevada, a state with some of the least restrictive gun control laws? Mass shootings have become an unfortunate part of reality in the United States, but these are fairly uncommon occurrences. While they are horrific and deserve attention, daily gun violence cannot be forgotten. In the face of such a multitude of gun violence, what can …

A Life Sentence: An Evaluation Of Voter Disenfranchisement Through A Constitutional Lens, Miranda Noel Janssen

Departmental Honors Projects

As the number of incarcerated pupils has increased in the United States, so has the number of pupils who cannot vote, due to a felony conviction. This paper is organized, (i) the history of felon voter disenfranchisement, (ii) statistics on state and federal levels, (iii) the collateral consequences of felon voter disenfranchisement, (iv) different perspectives about felon voter disenfranchisement, (v) understanding suspect classification and voting as a fundamental right, (vi) understanding strict scrutiny, (vii) examining past court rulings, (viii) identifying why the United States needs to change its current laws on felon voter disenfranchisement, an (ix) the proposal of a …

Constitutional Confessions: In Favor Of A "Loewy Plus' Approach, Tracy Hresko Pearl

Faculty Articles

Professor Arnold Loewy famously argues that, given the failings of Fifth Amendment jurisprudence, the Sixth Amendment right to counsel should attach at interrogation rather than at the onset of adversarial proceedings. His proposal is wise and should be adopted. However, given the failure of the Court's ruling in Miranda v. Arizona to reduce psychological coercion during custodial interrogations, several additional reforms are needed. Namely, it should be significantly more difficult for suspects to waive their right to counsel during interrogation, all custodial interrogations should be recorded, and particularly coercive interrogation techniques – like lying about evidence – should be banned.

The "Uncanny Valley" And The Verisimilitude Of Sexual Offenders--Part I: An "Ethorobotic" Perspective, Michael T. Flannery

Texas A&M Law Review

This Article is the first in a series of three articles in which I explain the cycle of misperception of sexual offenders that has encouraged the unconstitutional application of sexual offender laws, including civil commitment laws, in a false effort to quell public fear, protect children, and reduce sexual victimization. In this first Article of the series, I propose that this cycle of misperception and the resistance to the release of civilly committed sexual offenders may be, in part, the product of a novel phenomenon known as the “uncanny valley” effect.

Reefer Madness: The Constitutional Consequence Of The Federal Government's Inconsistent Marijuana Policy, Zachary Ford

Texas A&M Law Review

In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …

The Privilege Against Cellphone Incrimination, Bryan H. Choi

Publications

No abstract provided.

Law Enforcement In The American Security State, Wadie E. Said

Publications

This Article documents the evolution of the modem American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena-the terrorist, the criminal, the illegal immigrant-as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is …

Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen

Scholarly Works

The Supreme Court ordinarily supports its establishment of major constitutional principles with detailed justifications in its opinions. On occasion, however, the Court proceeds in a very different way, issuing landmark pronouncements without giving any supportive reasons at all. This Article documents the recurring character and deep importance of these “quietrevolution rulings” in constitutional law. It shows that—however surprising it might seem—rulings of this sort have played key roles in shaping incorporation; reverse incorporation; congressional power; federal courts; and freedom-ofspeech, freedom-of-religion, and equal-protection law. According to the synthesis offered here, these rulings fall into two categories. One set of cases involves …

Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook

Scholarly Works

In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …

Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island, James M. Kovach

Roger Williams University Law Review

No abstract provided.

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

The End Of Miller's Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Con Law Center Articles and Publications

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority …

National And Transnational Constitutionalism, And The Protection Of Fundamental Human Rights, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2019 Plenary Session
Nation, State, Nation-State
1-3 May 2019
V. Hösle (editor)
Acta 22, Vatican City, 2019

From the Author

In this paper I would like to explore the complicated and ambiguous relationship between the idea of universal human rights and the idea of a nation state with its own particular identity, history, and culture. I will do so from the disciplinary perspective of law, in particular comparative constitutional law and international human rights law, by examining the basis of claims of what I will call “national constitutionalism”, focusing on the …

Paypal Or Plastic, Don't Matter The Court Won't Have It: Why The Case For Removing "In God We Trust" From The Dollar May Still Gain Traction Under The Religious Freedom Restoration Act, Olivia Firmand

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Fourth Amendment Gloss, Aziz Z. Huq

Northwestern University Law Review

Conventional wisdom suggests that a constitutional right should be defined so as to effectively constrain government actors. A right defined in terms of what state actors routinely do would seem to impose in practice an ineffectual brake on much intrusive state action—and so seems pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of contemporaneous government actors to define the constitutional floor for police action. The actions of the regulated thus define the content of regulation. This Article isolates and analyzes this seemingly paradoxical judicial practice, which it labels “Fourth Amendment gloss,” by analogy …

The Single-Subject Rule: A State Constitutional Dilemma, Richard Briffault

Faculty Scholarship

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 …

Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw

Faculty Scholarship

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Redefining The Reasonable Person In Police Encounters: The Impact Of The Mainstream News Media’S Portrayal Of Modern Police Conduct, Taurus Myhand

Scholarly Works

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some …

The “New” District Court Activism In Criminal Justice Reform, Jessica A. Roth

Articles

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article …

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.

Fair And Impartial Adjudication, Thomas W. Merrill

Faculty Scholarship

Any legal system that purports to respect the rule of law must ensure the fair and impartial adjudication of disputes under the law. Classic accounts of the rule of law assume that courts should resolve such disputes. However, this is too narrow. All forms of adjudication, not just by courts, need to be fair and impartial. In any event, no one could claim that courts or entities by that name are always fair and impartial. All legal systems need a guarantee of fair and impartial adjudication that applies to all forms of dispute resolution under law.

A dispute arising under …