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Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

Indiana Law Journal

No abstract provided.

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

UF Law Faculty Publications

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the …

Selective Strict Scrutiny – A New Way To Use Suspect Classifications, Bruce Comly French

Buffalo Public Interest Law Journal

No abstract provided.

The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown

Washington and Lee Law Review

No abstract provided.

How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright

Washington and Lee Law Review

No abstract provided.

Indianapolis V. Edmond: Roadblock To Fourth Amendment Erosion Of Individual Security, Samuel Bateman

Nevada Law Journal

No abstract provided.

The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen

Scholarly Works

Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …

Forfeiting "Enduring Freedom" For "Homeland Security": A Constitutional Analysis Of The Usa Patriot Act And The Justice Department's Anti-Terrorism Initiatives , John W. Whitehead, Steven H. Aden

American University Law Review

No abstract provided.

Street Legal: The Court Affords Police Constitutional Carte Blanche, Wayne A. Logan

Indiana Law Journal

No abstract provided.

Street Legal: The Court Affords Police Constitutional Carte Blanche To Arrest, Wayne A. Logan

Scholarly Publications

This article discusses the Supreme Court's landmark 2001 decision Atwater v. City of Lago Vista, upholding the authority of police to execute warrantless arrests for menial offenses (there, failure to wear a seatbelt) so long as police have probable cause to support such arrests.

The Ideal Victim, The Hysterical Complainant, And The Disclosure Of Confidential Records: The Implications Of The Charter For Sexual Assault Law, Lise Gotell

Osgoode Hall Law Journal

This article explores the current state of Canadian law on the production and disclosure of complainants' records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court's decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants' records, constitutes an erosion of accuseds' rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that …

Do Attorneys Really Matter? The Empirical And Legal Case For The Right Of Counsel At Bail, Douglas L. Colbert, Ray Paternoster, Shawn Bushway

Cardozo Law Review

No abstract provided.

Casting New Light On An Old Subject: Death Penalty Abolitionism For A New Millennium, Wayne A. Logan

Michigan Law Review

For opponents of capital punishment, these would appear promising times. Not since 1972, when the Supreme Court invalidated the death penalty as then administered, has there been such palpable concern over its use, reflected in the lowest levels of public opinion support evidenced in some time. This concern is mirrored in the American Bar Association's recently recommended moratorium on use of the death penalty, the consideration of or actual imposition of moratoria in several states, and even increasing doubts voiced by high-profile political conservatives. An array of troubling empirical realities has accompanied this shift: persistent evidence of racial bias in …

Procedural Justice: Tempering The State's Response To Domestic Violence, Deborah Epstein

William & Mary Law Review

No abstract provided.

Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich

Osgoode Hall Law Journal

Do the police use race as a proxy for criminality, particularly, in drug cases? If so, is this a rational discriminatory practice that is based on who the usual offender is or an offensive exercise of racial prejudice? What are the consequences for those communities targeted by the police? This article investigates these questions that have gone unanswered for too long in Canada. After offering a definition of racial profiling, evidence is presented that suggests that the practice is rampant in the United States and is likely practiced by some Canadian police forces, particularly, in cities with large visible minority …

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy

St. Thomas Law Review

This note will first address Brady and the modifications made to the disclosure law by subsequent cases. Second, this note will explain the ethical obligations concerning a prosecutor's duty to disclose exculpatory evidence post-conviction as set out by the Model Rules of Professional Conduct. Third, this note will critically examine various case law in which the constitutional duty to disclose is seemingly extended to encompass post-conviction, newly discovered exculpatory evidence in the hands of the prosecutor. Finally, this note will conclude with an analysis and opinion of the disclosure law, discussing why the constitutional duty should be extended post-conviction.

Deciding When Hate Is A Crime: The First Amendment, Police Detectives, And The Identification Of Hate Crime, Jeannine Bell

Articles by Maurer Faculty

This Article adds to the debate a story of how hate crime law is enforced, based on the experiences of the police detectives who are required to enforce hate crime law. Part I of this Article provides a brief description of hate crime laws and argues that the police play an important role in the determination of how hate crime law is enforced and ultimately, whether defendants’ First Amendment rights will be respected. Part II describes critics’ concerns about defendants’ First Amendment rights and the narrow constitutional line that enforcers of hate crime law must walk between enforcing hate crime …

The Spectre Of Star Chamber: The Role Of An Ancient English Tribunal In The Supreme Court's Self-Incrimination Jurisprudence, Frank Riebli

UC Law Constitutional Quarterly

The author investigates the Supreme Court's allusions to the ancient English Court of Star Chamber. Throughout its history, the Supreme Court has used the spectre of Star Chamber to develop at least three themes in its Self-Incrimination Clause jurisprudence. Star Chamber appears as a symbol of brutality, the end of a slippery slope towards which our criminal justice system would drift but for the Self-Incrimination Clause's protections. Star Chamber is frequently used to describe the boundaries of the "testimonial evidence" doctrine, and thereby the scope and policies underlying the Self-Incrimination Clause. Finally, Star Chamber has appeared as a symbol of …

Drug Exceptionalism, Erik Luna

Villanova Law Review (1956 - )

No abstract provided.

Texas V. Cobb: A Narrow Road Ahead For The Sixth Amendment Right To Counsel, Beth G. Hungate-Noland

University of Richmond Law Review

Raymond Cobb stabbed sixteen-month-old Kori Rae Owings's mother in the stomach while he was attempting to steal the stereo from their home. He then took the mother's body into the woods behind the house.

Supreme Court Of Arkansas Rule 4-3(J): No-Merit Briefs In Arkansas And The Need To Amend The Rule, Jeffrey A. Weber

University of Arkansas at Little Rock Law Review

No abstract provided.

Coerced Confessions And The Fourth Amendment, Michael J. Zydney Mannheimer

UC Law Constitutional Quarterly

Coerced confessions in State criminal prosecutions have been thought to implicate the Due Process Clause of the Fourteenth Amendment, as well as the Self-Incrimination Clause of the Fifth Amendment. However, pursuant to Graham v. Connor, if an interest is addressed by one of the specific clauses of the Bill of Rights that has been incorporated against the States, only the standards associated with that provision- and not the more generalized notions of Due Process- apply to a claim that the interest has been infringed. Accordingly, one might think that the law of coerced confessions is governed entirely by the Self- …

Knicks-Heat And The Appropriateness Of Sanctions In Sport, Robert L. Bard, Lewis Kurlantzic

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Akron Law Faculty Publications

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished …

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Journal Articles

Much of recent discussions of conservative judicial activism has concerned the revival of federalism-based limits on Congress during the Rehnquist Court. The allure of federalism as a topic for discussion is understandable, yet I argue that constitutional criminal procedure provides a better context within which to test the Rehnquist Court's commitment to judicial restraint. In this Essay, I examine the topic at hand against the background of the many important developments that have taken place in criminal procedure on Rehnquist's watch. The results of this examination are surprising because they suggest that activism is not necessarily the antithesis of restraint. …

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

A Constitutional Crisis In The Digital Age: Why The Fbi's "Carnivore" Does Not Defy The Fourth Amendment, Aaron Y. Strauss

Cardozo Arts & Entertainment Law Journal

No abstract provided.