Digital Commons Network^™

The Right To Counsel In Collateral, Post-Conviction Proceedings, Daniel Givelber

Maryland Law Review

No abstract provided.

Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki

Articles

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the …

The Privilege's Last Stand: The Privilege Against Self-Incrimination And The Right To Rebel Against The State, Michael S. Green

Faculty Publications

No abstract provided.

Victims' Rights: Rethinking Our "Adversary System", William T. Pizzi

Publications

No abstract provided.

Do The Adult Crime, Do The Adult Time: Due Process And Cruel And Unusual Implications For A 13-Year-Old Sex Offender Sentenced To Life Imprisonment In State V. Green, Paul G. Morrissey

Villanova Law Review (1956 - )

No abstract provided.

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. …

Gideon's Muted Trumpet, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Once the darling of the legal academy, criminal procedure has fallen into disrepute. Thirty-five years ago, when Gideon was decided, criminal procedure was the flagship of constitutional law, criminal defense attorneys were heroes, and courts and lawyers were perceived as themselves agents of social justice. Today, there are still heroes. But the conventional wisdom, within the academy and the country at large, no longer associates criminal law or procedure with heroism. Indeed, in some quarters, criminal procedure has become the enemy. Increasingly, scholars urge revisionism, popular pundits brand procedural innovations as a loss of "common sense," and philosophers warn that …

Running From The Law: Should Bounty Hunters Be Considered State Actors And Thus Subject To Constitutional Restraints?, Andrew D. Patrick

Vanderbilt Law Review

The issue of bounty hunter misconduct catapulted into the public spotlight in September, 1997, when a team of commando-like criminals who claimed to be searching for a bail-jumper gunned down a Phoenix couple in their own bedroom. Though the perpetrators' story was later uncovered as a hoax, and though the men would likely have been convicted of second-degree murder regardless of their profession,s their case and others like it aroused impassioned demands for bounty hunter regulation and, more radically, constitutional restraints on the bail bond industry.

Constitutional protections are applicable only against the government and "state actors." Bounty hunters have …

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.

The Effect Of Presidential Pardons On Disclosure Of Information: Is Our Cynicism Justified?, Charles D. Berger

Oklahoma Law Review

No abstract provided.

Another Look At Evolving Standards: Will Decency Prevail Against Executing The Mentally Retarded?, Bryan Lester Dupler

Oklahoma Law Review

No abstract provided.

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen J. Wermiel

William & Mary Bill of Rights Journal

The concept of human dignity has emerged in the United States in recent decades as an important theoretical and sometimes practical source of individual rights and liberties. Human dignity is cited in jurisprudential writings and discussed in some court opinions as a means of enhancing the broad phrases of the Bill of Rights and the Fourteenth Amendment. This Essay examines the pivotal role that the late Justice William J. Brennan, Jr., played on the United States Supreme Court in making concepts of human dignity a valued and essential part of rights formulation. This essay explores Justice Brennan 's vision of …

An Original Model Of The Independent Counsel Statute, Ken Gormley

Michigan Law Review

On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone …

The Treaty Power And American Federalism, Curtis A. Bradley

Michigan Law Review

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.

The Ex Post Facto Clause And The Jurisprudence Of Punishment, Wayne A. Logan

Scholarly Publications

No abstract provided.

Chemical Castration: Constitutional Issues Of Due Process, Equal Protection, And Cruel And Unusual Punishment, Linda Beckman

West Virginia Law Review

No abstract provided.

Vigilantism Revisited: An Economic Analysis Of The Law Of Extra-Judicial Self-Help Or Why Can't Dick Shoot Henry For Stealing Jane's Truck? , Kelly D. Hine

American University Law Review

No abstract provided.

The Moral Failure Of The Clear And Present Danger Test, David R. Dow

William & Mary Bill of Rights Journal

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words …

"We The People" And Our Enduring Values, Susan Bandes

Michigan Law Review

Akhil Amar chides legal scholars for believing that the current system of criminal procedure, both substantive and remedial, is constitutionally compelled. He writes, "Scholars should know better, but too few of those who write in criminal procedure do serious, sustained scholarship in constitutional law generally, or in fields like federal jurisdiction and remedies" (p. 115). Amar believes, as I do, that criminal procedure has been impoverished by its failure to connect to "larger themes of constitutional, remedial and jurisdictional theory" (p. 115). But as one who has done serious, sustained scholarship in all the areas Amar mentions - or so …

Identifying The Enemy In The War On Drugs: A Critique Of The Developing Rule Permitting Visual Identification Of Indescript White Powder In Narcotics Prosecutions , Michael D. Blanchard, Gabriel J. Chin

American University Law Review

No abstract provided.

Private Bar Monitors Public Defense - Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard

Articles & Chapters

The oversight committee drafted standards and guidelines with the primary goal of creating a yardstick for defense services organizations against which to measure performance and the hope that a practical set of standards serve multiple purposes, including: educating a skeptical public about what it takes to provide quality defense services; promoting an understanding of why adequate funding is necessary (to engender public support for more spending); and providing notice to the organizations themselves of what is expected of a publicly funded defense office.

The District Of Columbia Revitalization Act And Criminal Justice: The Federal Government's Assault On Local Authority, Jonathan M. Smith

University of the District of Columbia Law Review

The District of Columbia ("the District") enjoys a unique relationship with the federal government. As a matter of Constitutional pronouncement, citizens of the District are deprived of the right to ultimate control over the content of local laws. The Constitution provides that, "[t]he Congress shall have the power ... to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."2 Since the District's establishment in 1791, 3 Congress has not hesitated to exercise …

Ad Hoc Adjudication: People V. Champion, Another Confusing Element In The Turmoil Following Minnesota V. Dickerson, Audra A. Dial

William & Mary Law Review

No abstract provided.

Two Versions Of Judicial Supremacy, Mark Tushnet

William & Mary Law Review

No abstract provided.

Process, The Constitution, And Substantive Criminal Law, Louis D. Bilionis

Michigan Law Review

Criminal law scholars have pined for a substantive constitutional criminal law ever since Henry Hart and Herbert Packer first embraced the notion in the late 1950s and early 1960s. To this day, scholars continue to search for a theory fhat giv:es content to, in Hart's words, "the unmistakable indications that the Constitution means something definite and spμiething serious when it speaks of 'crime.'" To their dismay, the Supreme Court has - with two exceptions - seemingly resisted the notion. The two exceptions are familiar. First came the 1957 case of Lambert v. California, in which the Court came as close …

Constitutional Elitism - Some Skepticism About Dogmatic Assertions, Pamela S. Karlan, Daniel R. Ortiz

McGeorge Law Review

No abstract provided.

Comment, The Green Aspects Of Printz: The Revival Of Federalism And Its Implications For Environmental Law, Jonathan H. Adler

Faculty Publications

This Comment reviews the Printz decision in the context of the Supreme Court's recent federalism jurisprudence and assesses its implications for environmental law. Part I provides a brief historical overview of the federal-state relationship in the environmental context and recent Supreme Court decisions on federalism. Part II discusses and evaluates the Printz decision. Part III applies the Supreme Court holdings in Printz and related federalism cases to current environmental policies and identifies federal environmental programs that are constitutionally suspect. Finally, Part IV addresses the public policy concern that limiting the federal government's power in the environmental context will inevitably weaken …

Slamming The Prison Doors On Media Interviews: California's New Regulations Demonstrate The Need For A First Amendment Right To Access To Inmates, Daniel Bernstein

McGeorge Law Review

No abstract provided.

Right To Jury Trial, Supreme Court, Dutchess County: People V. Mcintosh

Touro Law Review

No abstract provided.