Digital Commons Network^™

A Unified Theory Of Constitutional Facts, David L. Faigman

ExpressO

Facts play an essential role in constitutional cases, ranging from giving meaning to the text’s words to giving those words operational effect. Yet the Supreme Court does not take facts seriously, preferring to see them as a constituent part of doctrine. The Court does not find facts, it interprets them to conform to, or buttress, conclusions reached on other grounds. This constructive view of facts has the salutary effect of consistency, in that doctrine need not change as facts, or our knowledge of the facts, change. This consistency comes at a cost, however, for doctrine built on erroneous factual premises …

Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, Steven Semeraro

ExpressO

This article reassesses the use of federal habeas corpus to enforce the Fourth Amendment’s protection against unreasonable searches and seizures. In 1976, the U.S. Supreme Court prohibited virtually all substantive review of search-and-seizure claims in federal habeas proceedings. A wave of critical commentary followed, arguing that there was no legitimate reason to distinguish the Fourth Amendment from other constitutional rights. In recent years, however, this anomaly in habeas corpus practice has gone almost entirely unexamined despite dramatic changes in the law governing both the Fourth Amendment and habeas corpus itself.

This article does two things. First, it reviews the history …

Facial Challenges, Legislative Purpose, And The Commerce Clause, David L. Franklin

ExpressO

Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress’s power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less academic notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional power. The uncertainty is greatest in the Commerce Clause area, where the Court’s recent cases—including its 2005 decision in Gonzales v. Raich—have shown a strong preference for facial challenges, in sharp contrast to the Court’s traditional inclination …

Cheating The Constitution, Pamela R. Metzger

Vanderbilt Law Review

It is constitutional black letter law. To obtain a criminal conviction, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt. The Constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the Constitution. These laws fly, undetected, beneath the constitutional radar, violating fundamental constitutional rights.

Although other constitutional cheats abound, this Article examines one archetypical example of constitutional cheating: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to …

Fear Of A Blackened Planet: Pressured By The War On Terror, Courts Ignore The Erosion Of The Attorney-Client Privilege And Effective Assistance Of Counsel In 28 C.F.R § 501.3(D) Cases, Chris Ford

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Fixing The Constable's Blunder: Can One Trial Judge In One County In One State Nudge A Nation Beyond The Exclusionary Rule?, H. Mitchell Caldwell

BYU Law Review

No abstract provided.

Down And Out In San Antonio: The Constitutionality Of San Antonio's Anti-Homeless Ordinances., Justin Cook

The Scholar: St. Mary's Law Review on Race and Social Justice

This comment addresses the constitutionality of two San Antonio anti-homeless ordinances which prohibit camping in public and aggressive panhandling. The population of San Antonio, Texas grows at a rapid rate. Mayor Ed Garza established a task force to address the homelessness problem in San Antonio. This task force developed a ten-year plan to end homelessness in the city. The plan proposed by the year 2014 all homeless individuals would have alternatives and access to safe, decent, and affordable housing as well as resources and support to sustain housing. However, not long after approving the proposal, San Antonio’s City Council presented …

Racial Profiling In Texas Department Of Public Safety Traffic Stops: Race Aware Or Race Benign., Steven R. Wolfson

The Scholar: St. Mary's Law Review on Race and Social Justice

It is illegal for Texas law enforcement agencies to racially profile people. However, Texas continues to deal with racial profiling among law enforcement officers. This article concerns the right to travel, unmolested by state action based upon race or ethnicity. Since passing the Fourteenth Amendment and its Equal Protection Clause, our legal system under-includes, and outright excludes, certain groups of people from its promise. Such racial disparities have lived in the United States Constitution since the authors drafted the three-fifths compromise at its inception. When considering the criminality of a group of people and the overpopulation in state prisons, many …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Dangerous Liaisons: The Left’S New Love Affair With Article I, Michael D. Mcclelland

ExpressO

The article examines the current NSA wiretapping controversey in relation to the Supreme Court's privacy and liberty jurisprudence, concluding that the NSA program is Constitutional and that any attempt to usurp Constitutional powers may have rebounding effects.

Misplaced Angst---Another Look At Consent-Search Jurisprudence, Daniel R. Williams

ExpressO

Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Use Of The Drug Pavulon In Lethal Injections: Cruel And Unusual, Casey Lynne Ewart

William & Mary Bill of Rights Journal

No abstract provided.

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie D. Wilson

Scholarly Articles

The Fourth Amendment serves an important constitutional function. It protects the privacy of Americans from intrusions on their personal security. Few rights are held more sacred. When a person is arrested and faces the real likelihood of pretrial detention in jail, the person risks not only a reduction in his privacy rights, but also a loss of his liberty. In such circumstances, the arrested person should be able to bargain away some of his Fourth Amendment rights in exchange for the additional freedoms associated with release to home.

Undoubtedly, defendants forced to choose between incarceration and Fourth Amendment rights will …

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …

Wedlock Deadlock: Equal Protection Versus The Will Of The Voters, Laura E. Friedman

McGeorge Law Review

No abstract provided.

How Just Is The Union's Area Of Freedom, Security And Justice?:An Assessment Of The Normative Status Of International Fundamental Rights In The Union's Legal Order., Stephen Carruthers

Other resources

This thesis argues that international fundamental rights provide the most appropriate measure of justice for the Union’s area of ‘freedom, security and justice’ (AFSJ). However, it is argued that the normative status of international fundamental rights in Union law is undermined by the pursuit of the objective of autonomy of Union law and deficiencies in the legal mechanisms for giving effect to those rights.

This research analyses the sources and normative status of international fundamental rights in Union law, and in particular the AFSJ, both as currently constituted and under the Constitution, and assesses the robustness and effectiveness of the …

What Is Johnny Doing In The Library - Libraries, The U.S.A. Patriot Act, And Its Amendments, Karl T. Gruben

St. Thomas Law Review

A cornerstone of democracy in the United States is the freedom to think whatever we wish to think. Actions, of course, are a different matter, but any thought that can be thought is just fine: under the First Amendment we may not be prosecuted for what we are thinking. The First Amendment guarantees several other freedoms, among them the freedoms of speech and association. To enjoy the freedom of thought to which we are constitutionally entitled we must be able freely to explore the world of ideas to cultivate thoughts and other, possibly new, ideas. Reading and communicating with others …

Narrowing Racial Disparities In Sentencing Through A System Of Mandatory Downward Departures, Douglas Smith

The Modern American

No abstract provided.

Manson V. Brathwaite: The Supreme Court's Misunderstanding Of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006), Ruth Yacona

UIC Law Review

No abstract provided.

Adjudicated On The Merits?: Why The Aedpa Requires State Courts To Exhibit Their Reasoning, 39 J. Marshall L. Rev. 995 (2006), Ezra Spilke

UIC Law Review

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys

UIC Law Review

No abstract provided.

Removing The Vestiges Of Discrimination: Criminal Disenfranchisement Laws And Strategies For Challenging Them, Carl N. Frazier

Kentucky Law Journal

No abstract provided.

Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer

Maryland Law Review

No abstract provided.

Dickerson V. United States: The Case That Disappointed Miranda's Critics - And Then Its Supporters, Yale Kamisar

Book Chapters

It is difficult, if not impossible, to discuss Dickerson1 intelligently without discussing Miranda whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this chapter I focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually "coerced" or "compelled" but obtained merely …