Law Commons^™

Civil Liberties Lost, Waterboarding And The Legacy Of The Bybee-Yoo 'Torture-Power' Memorandum: Reflections From An Erstwhile Bush Administration Apologist, M. Katherine B. Darmer

M. Katherine B. Darmer

This symposium piece argues that waterboarding is torture and that torture is wrong. It reflects on the enduring legacy of the August 1, 2002 memo defining torture narrowly, which this paper describes as the Bybee and Yoo Torture and Power Memorandum [or 'BYTAP'].

'Activist Courts,' Misleading Wedge Politics And The Tragedy Of Proposition 8, M. Katherine B. Darmer

M. Katherine B. Darmer

This paper explains that Proposition 8 was uniquely devastating in that it stripped vested marriage rights away from a protected minoirty group. Previously, where voters sought to define marriage narrowly to exlude gay and lesbian couples, voters did so in advance of gay and lesbian couples having such rights. The paper defends the California Supreme Court's decision in the May 15, 2008 "Marriage Cases," criticizes misleading advertising ploys of the Proposition 8 campaign and broadly defends the role of the courts in ensuring equal protection, drawing parallels between the current fight for marriage equality and earlier fights for the rights …

Teaching 'Whren' To White Kids, M. Katherine B. Darmer

M. Katherine B. Darmer

This paper was inspired by my experiences as a white criminal procedure professor teaching mostly-white classes and arises at the intersection of WHREN v. UNITED STATES and GRUTTER v. BOLLINGER. The article starts from the premise that criminal procedure remains highly racialized, with blacks experiencing the criminal justice system in significantly different ways than do whites. The article suggests that the lack of minority voices in the classroom poses a significant barrier to effectively teaching criminal procedure and critiques current approaches to criminal procedure pedagogy.

Reliability, Waterboarded Confessions And Reclaiming The Lessons Of ‘Brown V. Mississippi’ In The Terrorism Cases, M. Katherine B. Darmer

M. Katherine B. Darmer

This essay traces a "protection gap" for terrorism suspects to a shift away from a concern with the reliability of confessions in the Supreme Court's post-"Miranda" jurisprudence. It argues that in order to avoid results plainly inconsistent with the Court's earlier repudiation of torture almost 75 years ago in "Brown v. Mississippi," notions of due process must be interpreted more broadly, consistent with "Brown's" recognition of an absolute prohibition on torture in our adversarial system.

Moving Beyond The 'Immutability Debate' In The Fight For Equality After, M. Katherine B. Darmer

M. Katherine B. Darmer

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of "strict scrutiny" for purposes of the state's equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples.

On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to "amend" the state constitution by adding fourteen words in a new clause following the equal protection clause: "only marriage between a …

Scalian Skepticism And The Sixth Amendment In The Twilight Of The Rehnquist Court, M. Katherine B. Darmer

M. Katherine B. Darmer

While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment. In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the Rehnquist Court is now the invalidation of the U.S. Sentencing Guidelines and a testimonial approach to …

Miranda Warnings, Torture, The Right To Counsel And The War On Terror, M. Katherine B. Darmer

M. Katherine B. Darmer

The Miranda warnings are very much a product of their time, and this paper argues that, because they are prophylactic, the warnings can and should be modified in the context of the War on Terror. On the other hand, while Miranda over-regulates confessions in some contexts, it under-regulates in others by failing to vindicate core concerns of the Fifth Amendment. The article demonstrates that, under current doctrine, truly compelled confessions are analyzed under the Due Process Clause, which does not control the actions of foreign agents. Accordingly, detainees are vulnerable to having compelled confessions used against them. The article goes …

Introduction To Morality, Justice And The Law, M. Katherine B. Darmer

M. Katherine B. Darmer

MORALITY, JUSTICE AND THE LAW is a co-edited volume pulling together selections on theories of the moral underpinnings of law, morality and lawyering (including the religious lawyering movement), civil disobedience, capital punishment and immigration. The book was published by Prometheus Books in 2007.

The Federal Sentencing Guidelines After Blakely And Booker: The Limits Of Congressional Tolerance And A Greater Role For Juries, M. Katherine B. Darmer

M. Katherine B. Darmer

On January 12, 2005, the Supreme Court issued its two-part opinion in United States v. Booker. In the first part of the opinion (Booker A), the Court held that it was a violation of the Sixth Amendment for a defendant's sentence to be enhanced based upon judicial fact-finding, as opposed to jury fact-finding. In effect, this part of the opinion rendered the Federal Sentencing Guidelines unconstitutional. In a second part of the opinion, however, (Booker B), the Court fixed the Guidelines by stripping them of their mandatory nature.

This Article argues that the Court's solution is both politically unsustainable and …

Beyond Bin Laden And Lindh: Confessions Law In An Age Of Terrorism, M. Katherine B. Darmer

M. Katherine B. Darmer

This paper uses the cases of United States v. Bin Laden and United States v. Lindh to explore the special problems raised by confessions in cases that implicate national security. In the first case, the district court suppressed statements made abroad during the investigation of the 1998 bombings of U.S. embassies in Kenya and Tanzania, holding, in essence, that the suspect should have been given Miranda warnings. In the second case, the suspect's motion to suppress his confession was never heard becuase of a guilty plea, leaving a number of important questions unresolved.

The paper argues that needs of national …

Lessons From The Lindh Case: Public Safety And The Fifth Amendment, M. Katherine B. Darmer

M. Katherine B. Darmer

In the case of the American Taliban, a plea agreement enabled the courts to avoid deciding difficult questions about the legality of Lindh's confession to authorities, which Lindh argued was made in violation of his Miranda and other rights. This paper points out that questions regarding the legality of interrogation techniques in terrorism investigations will inevitably recur, and argues that there should be a public safety exception to the Edwards rule that normally requres interrogation to cease if a suspect invokes his right to counsel.