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Articles 1 - 14 of 14
Full-Text Articles in Law
The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports
The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports
Kit Kinports
In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it. Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, …
The Dog Days Fourth Amendment Jurisprudence, Kit Kinports
The Dog Days Fourth Amendment Jurisprudence, Kit Kinports
Kit Kinports
This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing …
Rape And Force: The Forgotten Mens Rea, Kit Kinports
Rape And Force: The Forgotten Mens Rea, Kit Kinports
Kit Kinports
In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …
So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports
So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports
Kit Kinports
Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …
Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports
Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports
Kit Kinports
When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Probable Cause And Reasonable Suspicion: Totality Tests Or Rigid Rules?, Kit Kinports
Kit Kinports
This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.
Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer
Orders Of Protection In Domestic Violence Cases: An Empirical Assessment Of The Impact Of The Reform Statutes, Kit Kinports, Karla Fischer
Kit Kinports
The authors' concern that domestic violence reform statutes might not be having their intended effect sparked their decision to evaluate the protective order statutes empirically. The authors therefore distributed a lengthy survey to 843 domestic violence organizations nationwide that helped battered women obtain protective orders. The survey focused on three issues. The first issue was access to the courts: Is the protective order remedy accessible to battered women? The second issue related to the procedures for obtaining orders of protection: Are judges granting orders in appropriate cases, and are they awarding the full range of remedies contemplated by the reform …
Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports
Habeas Corpus, Qualified Immunity, And Crystal Balls: Predicting The Course Of Constitutional Law, Kit Kinports
Kit Kinports
After describing the basic legal and policy issues surrounding the qualified immunity defense and the use of novelty to explain procedural defaults in habeas cases, Part I of this article advocates a standard for both types of cases that asks whether a person exercising reasonable diligence in the same circumstances would have been aware of the relevant constitutional principles. With this standard in mind, Part II examines the qualified immunity defense in detail, concluding that in many cases public officials are given immunity even though they unreasonably failed to recognize the constitutional implications of their conduct. Part III compares the …
Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports
Rosemond, Mens Rea, And The Elements Of Complicity, Kit Kinports
Kit Kinports
The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. …
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Diminishing Probable Cause And Minimalist Searches, Kit Kinports
Kit Kinports
This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …
Defending Battered Women's Self-Defense Claims, Kit Kinports
Defending Battered Women's Self-Defense Claims, Kit Kinports
Kit Kinports
This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases. Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …
Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports
Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports
Kit Kinports
This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …
Criminal Procedure In Perspective, Kit Kinports
Criminal Procedure In Perspective, Kit Kinports
Kit Kinports
This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports
Kit Kinports
Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied …