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Articles 1 - 30 of 297
Full-Text Articles in Law
Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii
Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii
Marquette Law Review
This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that
a violation of Miranda was not a violation of the Fifth Amendment privilege
against self-incrimination. This Article examines the original language of the
Miranda opinion, the statements and intentions of the members of the Miranda
Court, and subsequent precedent to determine Miranda’s true nature. Further,
this Article examines the reasoning of Vega and the dangers created by its
pronouncements, especially in light of the Court’s earlier characterization of
Miranda as a constitutional rule in Dickerson v. United States. This Article
asserts that the Justices who …
The Second Founding And Self-Incrimination, William M. Carter Jr.
The Second Founding And Self-Incrimination, William M. Carter Jr.
Northwestern University Law Review
The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay
Indiana Law Journal
The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …
Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee
Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee
University of Cincinnati Law Review
No abstract provided.
Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg
Private Police Regulation And The Exclusionary Remedy: How Washington Can Eliminate The Public/Private Distinction, Jared Rothenberg
Washington Law Review
Private security forces such as campus police, security guards, loss prevention officers, and the like are not state actors covered by the Fourth Amendment’s prohibition against unreasonable searches and seizures nor the Fifth Amendment’s Miranda protections. As members of the umbrella category of “private police,” these private law enforcement agents often obtain evidence, detain individuals, and elicit confessions in a manner that government actors cannot, which can then be lawfully turned over to the government. Though the same statutory law governing private citizens (assault, false imprisonment, trespass, etc.) also regulates private police conduct, private police conduct is not bound by …
Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy
Takings In Disguise: The Inequity Of Public Nuisance Receiverships In America’S Rust Belt, Anna Kennedy
Washington and Lee Journal of Civil Rights and Social Justice
Since they were created in the 1980s in Cleveland, Ohio, public nuisance receiverships have spread across the American Rust Belt. This Note critically analyzes the legal implications of public nuisance receiverships, which involve the intrusion onto private property for public purposes. Despite claims that these actions align with exceptions to due process or public nuisance principles, a deeper examination reveals their fundamental nature as government takings of private property. This Note dissects the legal framework within the context of the Fifth Amendment, debunking the applicability of the public nuisance exception, establishing that receiverships constitute takings, and highlighting conflicts with Anti-Kelo …
Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola
Theft Of The American Dream: New York City's Third-Party Transfer Program, Joseph Mottola
St. John's Law Review
(Excerpt)
On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that …
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
Note: Conflicting Common Law: Application Of The Self-Incrimination Clause As Applied To Smartphone Technology, Andrew Meena
ConLawNOW
This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding …
The Power Of State Legislatures To Invalidate Private Deed Restrictions: Is It An Unconstitutional Taking?, Ken Stahl
Pepperdine Law Review
Over the past several years, state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations (HOAs). In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs, and flags, California has moved much …
An Appeal To Heaven—The Timeless Plea For Nollan/Dolan Extension To The Sphere Of Legislative Exactions, Sam Sturgis
An Appeal To Heaven—The Timeless Plea For Nollan/Dolan Extension To The Sphere Of Legislative Exactions, Sam Sturgis
Mississippi College Law Review
“. . . [W]henever the legislators endeavour to take away and destroy the property of the people . . . they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience . . . .”1
In 1772, the colonists of Weare, New Hampshire, were given a choice: cede all white pine trees grown on their lands to the King of England or pay a hefty fine. It was an odious decree—one that struck at the very ideal of the American colonies. Imbued as they were with a sense of divine right to …
Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo
Banning Abortions Based On A Prenatal Diagnosis Of Down Syndrome: The Future Of Abortion Regulation, Alexandra Russo
Touro Law Review
Since the infamous Supreme Court decision, Roe v. Wade, the United States has remained divided, each side unyielding to the other regarding the legal and moral issues surrounding abortion. The issues surrounding abortion have become progressively more politicized, thus threatening a woman’s right to a safe and healthy termination of her pregnancy. Restrictions on a woman’s ability to terminate a child with a genetic disorder, such as Down syndrome, highlight this concern. State restrictions on abortion that prohibit abortions based on a diagnosis of Down syndrome seek to prevent the stigmatization of the Down syndrome community. Regulations, such as …
When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus
When Is Police Interrogation Really Police Interrogation? A Look At The Application Of The Miranda Mandate, Paul Marcus
Catholic University Law Review
Decades after the Supreme Court’s decision in Miranda v. Arizona, questions abound as to what constitutes interrogation when a suspect is in custody. What appeared a concise, uniform rule has, in practice, left the Fifth Amendment waters muddied. This article addresses a potential disconnect between law enforcement and the courts by analyzing examples of issues arising from Miranda’s application in an array of case law. Ultimately, it attempts to clarify an ambiguity by offering a standard for what conduct classifies as an interrogation.
The Power To “Try” “Cases Of Impeachment”: Some Reflections On The Finality, Transparency And Integrity Of Senate Adjudications Of Presidential Impeachments (Including That Of Donald J. Trump), Vikram D. Amar, Jason Mazzone
The Power To “Try” “Cases Of Impeachment”: Some Reflections On The Finality, Transparency And Integrity Of Senate Adjudications Of Presidential Impeachments (Including That Of Donald J. Trump), Vikram D. Amar, Jason Mazzone
Chicago-Kent Law Review
No abstract provided.
Abridging The Fifth Amendment: Compelled Decryption, Passwords, & Biometrics, Raila Cinda Brejt
Abridging The Fifth Amendment: Compelled Decryption, Passwords, & Biometrics, Raila Cinda Brejt
Fordham Intellectual Property, Media and Entertainment Law Journal
Technological developments change the way we perform tasks by creating more efficient solutions to old problems and giving rise to opportunities not previously possible. Advances in communications technology have made the world feel smaller and more accessible. These changes also affect the methodology of both criminal activity and the investigative procedures of law enforcement. Our fundamental rights are challenged as judges and state actors try to strike the perfect balance between longstanding values and contemporary problems. This Note considers the Fifth Amendment challenges that arise when law enforcement attempts to obtain evidence from a criminal defendant’s encrypted device. This Note …
Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer
Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer
Touro Law Review
No abstract provided.
Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh
Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh
Touro Law Review
No abstract provided.
Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky
Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky
Seattle University Law Review
This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.
We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …
School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani
School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani
Seattle University Law Review
In the wake of George Floyd’s murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread “security” measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective—and constitutionally compliant—alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …
“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines
“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines
Seattle University Law Review
The Takings Clause of the Fifth Amendment has long been controversial. It allows the government to take private property for the purpose of “public use.” But what does public use mean? The definition is one of judicial interpretation. It has evolved from the original meaning intended by the drafters of the Constitution. Now, the meaning is extremely broad. This Note argues that both the original and contemporary meaning of public use are problematic. It explores the issues with both definitions and suggests a new test, solidified in legislation instead of judicial interpretation.
Cryptography, Passwords, Privacy, And The Fifth Amendment, Gary C. Kessler, Ann M. Phillips
Cryptography, Passwords, Privacy, And The Fifth Amendment, Gary C. Kessler, Ann M. Phillips
Journal of Digital Forensics, Security and Law
Military-grade cryptography has been widely available at no cost for personal and commercial use since the early 1990s. Since the introduction of Pretty Good Privacy (PGP), more and more people encrypt files and devices, and we are now at the point where our smartphones are encrypted by default. While this ostensibly provides users with a high degree of privacy, compelling a user to provide a password has been interpreted by some courts as a violation of our Fifth Amendment protections, becoming an often insurmountable hurdle to law enforcement lawfully executing a search warrant. This paper will explore some of the …
Unlimited Data Search Plan: Warrantless Border Search Of Mobile Device Data Likely Unconstitutional For Violating The Fundamental Right To Informational Privacy, Atanu Das
St. John's Law Review
(Excerpt)
Part I of this Article discusses a case in which a United States citizen was subject to an unconstitutional warrantless border search of his mobile device data. Part II explains the history and current state of Supreme Court jurisprudence of the border search exception doctrine. Part III explains the way in which Supreme Court jurisprudence finds the right to informational privacy for mobile device data to be a fundamental right. Part IV discusses the reluctance of some legal commentators to find that a governmental intrusion on the right to informational privacy is subject to strict scrutiny. Part V finds …
Knick V. Township Of Scott, Alizabeth A. Bronsdon
Knick V. Township Of Scott, Alizabeth A. Bronsdon
Public Land & Resources Law Review
The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.
Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben
Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben
Chicago-Kent Law Review
Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.
This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right against …
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney
President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney
Chicago-Kent Law Review
At a press conference held in Trump Tower New York City on June 16, 2015, Donald Trump announced his candidacy for President of the United States by promising to expand the border wall along the Southern United States. President Trump has insisted that his only reasons behind completely separating the United States from Mexico are to curtail illegal immigration and curb drug cartel activity, but many argue that his statements indicate a much more sinister motive based in racial discrimination. The public use requirement of the Fifth Amendment Takings Clause allows the federal government to take private land for the …
"Your Device Is Disabled": How And Why Compulsion Of Biometrics To Unlock Devices Should Be Protected By The Fifth Amendment Privilege, Harrison Metz
"Your Device Is Disabled": How And Why Compulsion Of Biometrics To Unlock Devices Should Be Protected By The Fifth Amendment Privilege, Harrison Metz
Valparaiso University Law Review
No abstract provided.
The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat
The Asylum Makeover: Chevron Deference, The Self-Referral And Review Authority, Jessica Senat
Touro Law Review
No abstract provided.
When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry
When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry
Dickinson Law Review (2017-Present)
The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford
Dickinson Law Review (2017-Present)
Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …
The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps
The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps
Indiana Journal of Global Legal Studies
Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.
A Product Of Childhood: Accounting For Age In The Miranda Analysis, Ariana Rodriguez
A Product Of Childhood: Accounting For Age In The Miranda Analysis, Ariana Rodriguez
Loyola of Los Angeles Law Review
One of the most polarizing areas of constitutional criminal procedure is that relating to police interrogations and confessions. While the Fifth Amendment guarantees a number of protections from self-incrimination and the inherently coercive nature of criminal investigation, these Constitutional promises are more likely to go unfulfilled when the accused is a child. This Article thoroughly examines the current law’s use of the “totality of the circumstances” test in deciding whether a valid Miranda waiver occurred or whether a juvenile has been taken into custody and, more importantly, explores why this current test remains an inadequate solution for protecting children’s Miranda …