Law Commons^™

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

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 …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …

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

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

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

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

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 …

Uncertainty Surrounding Takings Claimants’ Rights In Municipal Bankruptcies, Gillian Deery

Bankruptcy Research Library

(Excerpt)

Governments in the United States and its territories have the power to exercise eminent domain so long as they provide property owners with the constitutionally guaranteed “just compensation.” The Fifth Amendment’s Takings Clause specifically prescribes this remedy for parties whose property has been subject to a government taking. “Just compensation” has proven to be an issue in the context of bankruptcy, as bankruptcy law inherently allows debtors to alter their obligations to their creditors.

In response to Puerto Rico’s financial crisis, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), which created a modified version of …

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 …

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

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

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

Chicago-Kent Law Review

No abstract provided.

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 …

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Witness For The Self: Miranda V. Arizona’S Political Theology, Graham James Mcaleer

Touro Law Review

No abstract provided.

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

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

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

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 …

Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that support …

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of …

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 …

Why Law Of Evidence Supports The Verdict That The President Is Guilty, Edward A. Purcell Jr.

Other Publications

This post originally appeared on https://thehill.com/opinion/judiciary/477186-why-law-of-evidence-supports-the-verdict-that-the-president-is-guilty

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.

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …

A Critical Reexamination Of The Takings Jurisprudence, Glynn S. Lunney Jr

Glynn Lunney

To provide some insight into the nature of these disagreements, and to suggest a possible solution to the compensation issue, this article undertakes a critical reexamination of the takings jurisprudence. It focuses on the two bases which the modem Court has articulated as support for its resolution of the compensation issue: (1) the articulated purpose of using the just compensation requirement "to bar Government from forcing some people alone to bear public burdens"; and (2) the early case law. Beginning with the Court's first struggles with the compensation issue in the late nineteenth and early twentieth century, this article traces …

Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.

Glynn Lunney

In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …