Digital Commons Network^™

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

Funding Gideon's Promise By Viewing Excessive Caseloads As Unethical Conflicts Of Interest, Heidi Reamer Anderson

UC Law Constitutional Quarterly

Some states recently have attempted to legislate around a defendant's constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Step two-the step that has slipped by without sufficient notice or criticism-is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants' Sixth Amendment rights to effective assistance.

In this article, I urge courts to "constitutionalize" the excessive caseload problem via two steps of their …

Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John F. Stinneford

UF Law Faculty Publications

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. …

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another, James E. Moliterno

UC Law Constitutional Quarterly

Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client's information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering "substantial bodily harm." Despite a broader view that would dictate revelation …

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

Delegational Delusions: Why Judges Should Be Able To Delegate Reasonable Authority Over Stated Supervised Release Conditions, Eugenia Schraa

Fordham Urban Law Journal

This Note examines the constitutionality of allowing a probation officer the discretion to either impose or forego particular conditions of a supervised release, depending on the officer's assessment of the defendant's needs. Two federal Circuits allow probation officers to have such discretion; the majority have held that such arrangements violate Article III of the Constitution, which makes imposing a sentence an exclusively judicial task. In this Note, the author investigates the history of delegation of judicial function to non Article-III officers and examines the split in federal courts over this particular issue, ultimately advocating for the adoption of the so-called …

Prosecuting Federal Crimes In State Courts, Michael G. Collins, Jonathan R. Nash

Faculty Articles

Despite the ancient maxim that the courts of one sovereign will not “execute the penal laws of another,” they sometimes do. For example, federal courts can hear state-law criminal prosecutions of federal officers for acts taken in the course of their duties that are brought initially in state court and are then removed to federal court. In addition, some states now open their courthouse doors to officials from other states to pursue tax enforcement actions against delinquent taxpayers. But states still do not (and perhaps cannot) entertain prosecutions of fugitives solely for crimes committed in another state because the Constitution …

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Faculty Scholarship

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin, Stacy Caplow

UC Law Constitutional Quarterly

The newest revision of the influential ABA Standards for the Prosecution and Defense Function recognizes the changing practices and attitudes in today's criminal justice system. Placing even more responsibility on prosecutors than past versions, the proposed Standards require prosecutors to be problem-solvers and reformers who consult and cooperate with defense counsel when engaging in both routine and systemic matters. These changes signal new responsibilities for prosecutors that call for more than lip service to their role as administrators of justice. Candor, cooperation and civility are now explicit values that should pervade all dealings between prosecutors, defense lawyers and courts.

Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams

UC Law Constitutional Quarterly

Chief Justice William H. Rehnquist called Lochner v. New York "one of the most ill-starred decisions that [the Supreme Court] ever rendered." The Justices' deliberations in the case demonstrate the courts' reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state's "incredibly sketchy" brief and Joseph Lochner's sterling submission may have determined Lochner's outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York's maximum-hours law for bakery workers was a reasonable public health measure.

The …

Secure In Their Yards - Curtilage, Technology, And The Aggravation Of The Poverty Exception To The Fourth Amendment, Amelia L. Deidrich

UC Law Constitutional Quarterly

Throughout the history of American jurisprudence, curtilage-the physical space surrounding a home-has been deemed to share the heightened Fourth Amendment protections that have traditionally been applied to the home itself. However, a recent trend in United States Supreme Court decisions has carved out an exception to the heightened Fourth Amendment protection of curtilage. In cases involving an alleged Fourth Amendment search where technological advancements were used in the intrusion of a defendant's curtilage, the Court fails to apply the traditionally heightened Fourth Amendment protections to curtilage. This change threatens to aggravate the already present Poverty Exception to the Fourth Amendment …

Powers Of War: President Versus Congress, Jordan D. Santo

CMC Senior Theses

Before the United States Constitution was ratified there was much debate about what war powers the executive and legislative branches should hold. After much deliberation it was decided that the power to declare war would fall under the control of Congress. But as time passed, control over initiating military action began to shift from Congress to the President. This thesis examines the shift of power from the legislature to the President. The thesis explains the difference between a declaration of war, an authorization of force, as well as using the military as a police force. It examines the precedents set …

Comparative Empiricism And Police Investigative Practices, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Methodology Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Media, The Jury, And The High-Profile Defendant: A Defense Perspective On The Media Circus, John C. Meringolo

NYLS Law Review

No abstract provided.

Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos

Journal Publications

This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to …

Embryo “Adoption”? The Rhetoric, The Law, And The Legal Consequences, Polina M. Dostalik

NYLS Law Review

No abstract provided.

Fictionalized Criminal Law And Youth Legal Consciousness, Avi Brisman

NYLS Law Review

No abstract provided.

Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.

University of Richmond Law Review

No abstract provided.

Rationing Justice By Rationing Lawyers, Peter A. Joy

Scholarship@WashULaw

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's public defender …

Is The "Post" In Post-Racial The "Blind" In Colorblind?, Ian F. Haney López

Cardozo Law Review

No abstract provided.

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

Material Witness Detentions After Al-Kidd, Wesley Macneil Oliver

Kentucky Law Journal

No abstract provided.

Guarding Their Sanctuary On The Offense: Criminal Contempt Actions By Domestic Violence Victims In Private Capacity, Mili Patel

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Book Review, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

Guns, Inc.: Citizens United, Mcdonald, And The Future Of Corporate Constitutional Rights, Darrell A. H. Miller

Faculty Scholarship

The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United …