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Articles 1 - 15 of 15
Full-Text Articles in Law
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr
Michigan Law Review
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …
Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi
Michigan Journal of Race and Law
Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the …
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey
A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey
Michigan Journal of Race and Law
Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him …
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Dubious Delegation: Article Iii Limits On Mental Health Treatment Decisions, Adam Teitelbaum
Michigan Law Review
A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court …
Empty Promises: Miranda Warnings In Noncustodial Interrogations, Aurora Maoz
Empty Promises: Miranda Warnings In Noncustodial Interrogations, Aurora Maoz
Michigan Law Review
You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney; if you cannot afford an attorney, one will be provided to you at the state's expense. In 2010, the Supreme Court declined an opportunity to resolve the question of what courts should do when officers administer Miranda warnings in a situation where a suspect is not already in custody-in other words, when officers are not constitutionally required to give or honor these warnings. While most courts have found a superfluous warning to be …
A Tale Of Two Sciences, Erin Murphy
A Tale Of Two Sciences, Erin Murphy
Michigan Law Review
It was the best of times, it was the worst of times . .. . So might one describe the contrasting portraits of DNA's ascension in the criminal justice system that are drawn in David Kaye's The Double Helix and the Law of Evidence and Sheldon Krimsky and Tania Simoncelli's Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. For Kaye, the double helix stands as the icon of twenty-first-century achievement, a science menaced primarily by the dolts (lawyers, judges, and the occasional analyst) who misuse it. For Krimsky and Simoncelli, DNA is a seductive forensic tool that is …
The Problem Of Policing, Rachel A. Harmon
The Problem Of Policing, Rachel A. Harmon
Michigan Law Review
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess …
Exonerations In The United States, 1989-2012: Report By The National Registry Of Exonerations, Samuel R. Gross, Michael Shaffer
Exonerations In The United States, 1989-2012: Report By The National Registry Of Exonerations, Samuel R. Gross, Michael Shaffer
Other Publications
This report is about 873 exonerations in the United States, from January 1989 through February 2012. Behind each is a story, and almost all are tragedies. The tragedies are not limited to the exonerated defendants themselves, or to their families and friends. In most cases they were convicted of vicious crimes in which other innocent victims were killed or brutalized. Many of the victims who survived were traumatized all over again, years later, when they learned that the criminal who had attacked them had not been caught and punished after all, and that they themselves may have played a role …
Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan
Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan
University of Michigan Journal of Law Reform Caveat
One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally, these laws illustrate a fundamental …
One More Good Reason For In-Car Videotaping Of Traffic Stops: An Accurate Assessment Of "Consent", Robert L. White
One More Good Reason For In-Car Videotaping Of Traffic Stops: An Accurate Assessment Of "Consent", Robert L. White
University of Michigan Journal of Law Reform Caveat
There are a number of reasons why legislative reform mandating the use of in-car cameras in police cruisers would benefit the criminal justice system in Illinois. In-car cameras provide evidence for cases involving traffic violations or intoxicated motorists. They produce instantly available training materials. They also assist victims of police misconduct, as well as officers defending themselves against misconduct claims. This Comment looks to add to this list of benefits the role in-car cameras can play in assessing the validity of consents to search that officers obtain during traffic stops.
The Latest 4th Amendment Privacy Conundrum: "Stingrays", Max Bulinksi
The Latest 4th Amendment Privacy Conundrum: "Stingrays", Max Bulinksi
University of Michigan Journal of Law Reform Caveat
Wired is reporting renewed hubbub regarding statutory and Fourth Amendment protections of individuals’ privacy in the digital age. This time, it comes in the form of federal officers using a fake cellphone tower (called a “stingray”) to locate their suspect, Mr. Rigmaiden, by tracking the location of his cellphone. According to an affidavit submitted to the court, the stingray only captures the equivalent of header information – such as the phone or account number assigned to the aircard as well as dialing, routing and address information involved in the communication.
Signal Lost: Is A Gps Tracking System The Same As An Eyeball?, Eric Andrew Felleman
Signal Lost: Is A Gps Tracking System The Same As An Eyeball?, Eric Andrew Felleman
University of Michigan Journal of Law Reform Caveat
On November 8th, the Supreme Court will hear arguments in United States v. Jones. One of the primary issues in the case is whether law enforcement personnel violated Mr. Jones' Fourth Amendment right to freedom from unreasonable searches and seizures by using a GPS tracking device to monitor the location of his car without a warrant. The 7th Circuit and the 9th Circuit have both recently held that use of GPS tracking is not a search under the Fourth Amendment.
A Crisis In Federal Habeas Law, Eve Brensike Primus
A Crisis In Federal Habeas Law, Eve Brensike Primus
Reviews
Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …
False Convictions, Phoebe C. Ellsworth, Samuel R. Gross
False Convictions, Phoebe C. Ellsworth, Samuel R. Gross
Book Chapters
False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.
Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus
Bringing Clarity To Administrative Search Doctrine: Distinguishing Dragnets From Special Subpopulation Searches, Eve Brensike Primus
Articles
Anyone who has been stopped at a sobriety checkpoint, screened at an international border, scanned by a metal detector at an airport or government building, or drug tested for public employment has been subjected to an administrative search or seizure. Searches of public school students, government employees, and probationers are characterized as administrative, as are business inspections and-increasingly-wiretaps and other searches used in the gathering of national security intelligence. In other words, the government conducts thousands of administrative searches every day. None of these searches requires either probable cause or a search warrant. Instead, courts evaluating administrative searches need only …