Digital Commons Network^™

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …

Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan

Law Faculty Scholarship

This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …

Defining Empirical Frames Of Reference In Constitutional Cases: Unraveling The As-Applied Versus Facial Distinction In Constitutional Law, David L. Faigman

UC Law Constitutional Quarterly

As well illustrated by the litigation in Brown v. Board of Education, it is incumbent on the Supreme Court to identify the empirical frame of reference it uses to evaluate the constitutionality of some challenged action. In Brown, this required the Court to determine whether the proper frame of reference through which to measure constitutionality were the general effects of segregation, or whether constitutionality had to be assessed based on segregation's effects on the children involved in the specific cases before the Court. The Court chose the general frame, thus invalidating school segregation generally. This framing problem occurs throughout constitutional …

Are State Constitutions Un-American?, Justin R. Long

Law Faculty Research Publications

No abstract provided.

A Picture Is Worth A Thousand Words: The Effect Of Spectators' Display Of Victim Photographs During A Criminal Jury Trial On A Criminal Defendant's Fair Trial Rights, Elizabeth Lyon

UC Law Constitutional Quarterly

Spectators at criminal jury trials have displayed photographs of a deceased victim inside the courtroom on items such as on buttons, T-shirts, or collages. Courts have recognized that these photographs simply function as grief occasioned by the loss of a victim. Consequently, courts have allowed photographs inside the courtroom, like many other emotional expressions of spectators that are permissible.

This Note argues that victim photographs in the courtroom go beyond an ordinary showing of emotion, serving to elicit sympathy from jurors and calling on them to vindicate the victim's loss. For these reasons, such photographs violate a criminal defendant's constitutional …

Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr

Articles

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …

Eighth Amedment Gaps: Can Conditions Of Confinement Litigation Benefit From Proportionality Theory?, Alexander A. Reinert

Fordham Urban Law Journal

This Article focuses on two separate issues deriving from the Eighth Amendment's "cruel and unusual punishment" clause. Specifically, it discusses classic conditions of confinement litigation and sentencing proportionality litigation. Confinement litigation includes cases challenging the lived experiences of prisoners such as overcrowding, excessive force, failure to provide adequate medical care, and deprivation of material needs. Sentencing proportionality litigation involves challenges to the length of a prison sentence or mode of punishment. The Article, unlike modern contemporary scholarship, attempts to draw connections between each doctrinal area, ultimately suggesting ways in which proportionality litigation can invigorate conditions litigation. Part I consists of …

Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud

Journal Publications

"Equal protection" and "due process of law" are constitutional guarantees tenaciously embraced by all Americans.' While numerous studies focused on how these guarantees play out in the lives of offenders, few sought to examine these guarantees from the standpoint of offenders, particularly those from disadvantaged socio-economic backgrounds. Guaranteed under the Fourteenth Amendment of the U.S. Constitution, the Equal Protection Clause makes clear, in part, that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due …

Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud

Journal Publications

With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.

Conflict Of Law And Surreptitious Taping Of Telephone Conversations, Carol M. Bast

NYLS Law Review

No abstract provided.

United States V. Leveto, Jennifer Steward

NYLS Law Review

No abstract provided.

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming

Faculty Scholarship

In The Constitution in Wartime: Beyond Alarmism and Complacency, Mark Tushnet distinguishes two voices: "alarmists who see in every action taken by the Bush [A]dministration a portent of gross restrictions on the civil liberties of all Americans, and administration shills who see in those actions entirely reasonable, perhaps even too moderate, accommodations of civil liberties to the new realities of national security."1 Tushnet's volume contains essays, including one by us,2 which he judges to lie "beyond alarmism and complacency" (or perhaps between alarmism and complacency). But critics of the Bush Administration's theory of the unitary executive may be alarmed by …

The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab

All Faculty Publications

The authors identify a gap in Canadian policing law. Police have neither common law nor statutory authority to undertake the sorts of public order policing measures that are thought to be essential to securing large public events, such as Vancouver's 2010 Olympics. The paper argues for the adoption of a Public Order Policing Act designed to confer the necessary powers and ensure their operation in a manner that respects constitutional law and fundamental civil liberties. Revised and published as W. Wesley Pue & Robert Diab “The Gap in Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation” (2010) 28 Windsor …

A Primer On North Carolina And Federal Use Of Force Law: Trends In Fourth Amendment Doctrine, Qualified Immunity, And State Law Issues, J. Michael Mcguinness

Campbell Law Review

This Article analyzes recent trends and updates the status of use of force law under North Carolina and federal standards.

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

McGeorge School of Law Scholarly Articles

No abstract provided.

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

Articles

Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

We Can Do Better: The State Of Custodial Misconduct By Correctional Staff In New York, Tanyika Brime

Cardozo Journal of Equal Rights & Social Justice

The note examines a class action lawsuit filed by female inmates against the New York Department of Correctional Services (DOCS), alleging widespread sexual misconduct by correctional staff and constitutional violations. The court ultimately dismissed most claims due to procedural issues, such as failure to exhaust administrative remedies, except for one plaintiff. The analysis highlights systemic failures in addressing prison sexual abuse and advocates for comprehensive legal reforms and external oversight to protect vulnerable inmates.

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.

Colorado V. Connelly: What Really Happened, William T. Pizzi

Publications

In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …

Evaluating Punishment In Purgatory: The Need To Separate Pretrial Detainees' Conditions-Of-Confinement Claims From Inadequate Eighth Amendment Analysis, David C. Gorlin

Michigan Law Review

The Due Process Clause prohibits all "punishment" of pretrial detainees- individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of "cruel and unusual punishments" upon convicted individuals. Despite the Supreme Court's insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees' claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were …

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

An Open Letter From Heaven To Barack Obama, F. Michael Higginbotham

All Faculty Scholarship

Since the passing of A. Leon Higginbotham, Jr. in 1998, many have wondered what the award winning author, longest-serving black federal judge, first black to head a federal regulatory agency, recipient of the Spingarn Medal and the Congressional Medal of Freedom, and author of the famous “Open Letter to Clarence Thomas” would think of the state of race relations today. Appointed to the Federal Trade Commission in 1962, Higginbotham served in several powerful federal positions including Vice-Chairman of the National Commission on the Causes and Prevention of Violence, member of the first wiretap surveillance court, and chief judge of a …

The Constitutional Future Of Race-Neutral Efforts To Promote Diversity And Avoid Racial Isolation In Our Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools …

Brief Of Law Professors As Amici Curiae In Support Of Respondent, Denedo V. United States, Stephen I. Vladeck

Amicus Briefs & Court Filings

The significant issues raised by this case include (1) the ability of courts with criminal jurisdiction to provide remedies for constitutional errors at trial; (2) the role played by Article III courts in providing collateral relief for convictions obtained in state courts, and in Article III and non-Article III federal courts; (3) the specific interaction between Article I military courts and Article III courts; and (4) the applicability of the canon of statutory interpretation disfavoring repeals of jurisdiction by implication.

Amici curiae, professors teaching the law of federal jurisdiction, criminal procedure, and post-conviction remedies, join together to provide the Court …

Exporting Harshness: How The War On Crime Helped Make The War On Terror Possible, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition. It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …

Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …

Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin

Articles & Chapters

No abstract provided.