Digital Commons Network^™

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben Trachtenberg

Florida Law Review

Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking”—defined as pretty much any cooperative activity—even if the “conspiracy” is not illegal. Because this new interpretation of an old …

Coy V. Iowa: A Constitutional Right Of Intimidation, John A. Mayers

Pepperdine Law Review

No abstract provided.

Evidence Of Mental Disorder On Mens Rea: Constitutionality Of Drawing The Line At The Insanity Defense , Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

Juror Journalism: Are Profit Motives Replacing Civic Duty?, Brent K. Ashby

Pepperdine Law Review

No abstract provided.

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Drugs, Dignity And Danger: Human Dignity As A Constitutional Constraint To Limit Overcriminalization, Michal Buchhandler-Raphael

Scholarly Articles

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where …

Unlocking The Eighth Amendment's Power To Make Innocence A Constitutional Claim: The 'Objective' Views Of State Legislators, David Niven

Barry Law Review

No abstract provided.

Between Secession And Federalism: The Independence Of South Sudan And The Need For A Reconsidered Nigeria, Obehi S. Okojie

Global Business & Development Law Journal

No abstract provided.

Meaningless Opportunities: Graham V. Florida And The Reality Of De Facto Lwop Sentences, Mark T. Freeman

McGeorge Law Review

No abstract provided.

The Evolution Of Justice Kennedy’S Eighth Amendment Jurisprudence On Categorical Bars In Capital Cases, Linda E. Carter

McGeorge Law Review

No abstract provided.

Kennedy And The Prisons—Moral Exhortation And Technical Fastidiousness, Robert Weisberg

McGeorge Law Review

No abstract provided.

Justice Kennedy’S Sixth Amendment Pragmatism, Stephanos Bibas

McGeorge Law Review

No abstract provided.

Removing The Presumption Of Innocence: A Constitutional Analysis Of The Ogden Trece Gang Injunction, Megan K. Baker

Utah OnLaw: The Utah Law Review Online Supplement

Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as …

The Evolution Of Justice Kennedy’S Eighth Amendment Jurisprudence On Categorical Bars In Capital Cases, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Scholarly Publications

This essay discusses the Supreme Court’s 2012 decision in Florence v. Board of Chosen Freeholders allowing strip searches of minor offense arrestees without any suspicion that they possess a weapon or contraband. After summarizing the Court’s holding, the essay explores how Florence builds upon prior caselaw affording police virtually unlimited discretionary authority to execute warrantless arrests, and the unlikelihood that institutional limits will be placed on the strip search authority of corrections officials.

Implications Of United States V. Jones On Dna Collection Form Arrestees: Trespass Prohibited By The Fourth Amendment, Angelique Romero

St. Thomas Law Review

This comment discusses the constitutionality of warrantless DNA collection from arrestees, and proposes an analysis that the Supreme Court should use when deciding on this issue to find that this practice violates the Fourth Amendment. Part II of this comment discusses the general development of DNA collection laws, how the laws have expanded to include persons that have been arrested but not convicted of certain crimes, and the procedures used to collect the DNA samples. In addition, Part II includes a survey of the conflicting decisions by courts across the country and demonstrates the disagreement over the constitutionality of this …

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

The Procedural Due Process Rights Of The Stigmatized Prisoner, Lindsey Webb

Sturm College of Law: Faculty Scholarship

This Article addresses the role of stigma in procedural due process claims brought by prisoners. In particular, the Article focuses on inmates whom prisons have classified as sexual offenders although they have never been convicted of a sex offense. Prisons label these inmates—identified here as the “branded class”—as sexual offenders based on information outside of the inmates’ conviction histories, including charges that ended in dismissal or acquittal. As a result of the sex offender classification, prisons impose upon the branded class a wide range of sex offender-specific conditions, including mandatory treatment and sex offender registration.

In addressing procedural due process …

Straightforward On Its Face But Mindbending In Its Application: Juror Concurrence In Criminal Trials, Stephen Ehrlich

Cleveland State Law Review

Ever since In re Winship in 1970, it is well settled that the Due Process Clause requires a jury to find “proof beyond a reasonable doubt of every fact necessary to constitute the crime.” But as axiomatic as this holding may seem, the distinction between necessary facts of a crime and “mere means” of its commission has confounded courts for years. The Supreme Court, recognizing the need to re-address such an important issue, attempted to provide some guidance in this area through two landmark cases decided just before the turn of the twenty first century: Schad v. Arizona and Richardson …

The Best Of Both Worlds: Applying Federal Commerce And State Police Powers To Reduce Prescription Drug Abuse, Michael C. Barnes, Gretchen Arndt

Journal of Health Care Law and Policy

No abstract provided.

Striking A Balance: Why Ohio's Felony-Arrestee Dna Statute Is Unconstitutional And Ripe For Legistlative Action, Brendan Heil

Cleveland State Law Review

This Note argues that Ohio’s felony-arrestee DNA statute violates Article I, section 14 of the Ohio Constitution and the Fourth Amendment to the United States Constitution. The initial physical swab and the subsequent database searches of an arrestee’s DNA sample, while the arrestee is in custody or being prosecuted, do not violate the Fourth Amendment. However, the inclusion of an innocent person’s DNA in Ohio’s DNA database, subject to repeated searches over time, violates both the Ohio and federal constitutional protections against unreasonable searches. Broadly written DNA statutes trample people’s civil rights, and more carefully drawn legislation could meet the …

Docs Versus Glocks: N.R.A. Takes Aim At Florida Physicians’ Freedom Of Speech: Leaving Patients’ Health, Safety, And Welfare At Risk, Michelle Foody

Cardozo Law Review de•novo

Part I of this Note provides background on the Act at issue, its legislative history, the current status of the Supreme Court’s free speech jurisprudence, and it also introduces the constitutional interests at stake. Part II considers the constitutionality of the Act under the existing First Amendment standard and addresses the State’s assertions under the Second Amendment. Part III proposes that the Court’s standard ought to be recalibrated, taking into account the would-be listeners’ cognizable interest in the information. Part III goes on to legitimate the proposal by reconciling this new examination standard with existing free speech jurisprudence and justifications, …

Children Of Two Logics: A Way Into Canadian Constitutional Culture, Benjamin Berger

Articles & Book Chapters

Through an analysis of the Canadian case, this article explores the tension between the universal and the particular in modern constitutional imagination, arguing that the points of friction between these two “logics” of constitutionalism are invaluable entry points into understanding the defining features of various constitutional cultures. The article argues that to understand Canadian constitutional culture, both at the structural level and also in the finer strokes surrounding given issues, one must appreciate that Canadians are the children of two constitutional logics: that of the local, the particular, and harmonious relations between diverse communities achieved through political compromise, and that …

Symposium Foreword: Privacy Rights And Proactive Investigations: Emerging Constitutional Issues In Law Enforcement, Thiru Vignarajah

University of Baltimore Law Review

No abstract provided.

Livelihood, Ability To Pay, And The Original Meaning Of The Excessive Fines Clause, Nicholas M. Mclean

UC Law Constitutional Quarterly

This article highlights the circuit split that has recently emerged regarding the Eighth Amendment's Excessive Fines Clause in the years since United States v. Bajakajian. The article introduces the traditional English legal principle of salvo contenemento and examines the role this principle played in informing the meaning of the excessive fines under English law. It then goes on to consider American colonial understandings of salvo contenemento, undertaking a brief survey of post-Founding considerations of the meaning of the phrase "excessive fines." The article studies the public meaning of the Excessive Fines Clause at the time of the Fourteenth Amendment's ratification …

Foreword: Executive Power: From The Constitutional Periphery To The Constitutional Core, Mark A. Graber

Maryland Law Review

No abstract provided.

Implications Of The President’S Appointment Power, Peter E. Quint

Maryland Law Review

No abstract provided.

Passive-Aggressive Executive Power, Corinna Barrett Lain

Maryland Law Review

No abstract provided.