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A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur
A Small But Mighty Docket: Select Criminal Law And Procedure Cases From The Supreme Court's 2019-20 Term, Eve Brensike Primus, Jeremy Shur
Articles
With its 2019-20 Term disrupted by the COVID-19 pandemic, the Supreme Court released just 53 signed decisions, the fewest decisions in a Term since the Civil War. But the Court's lighter docket still featured important criminal law and procedure cases touching on what constitutes reasonable individualized suspicion, the necessity of jury unanimity, and the proper form of the insanity defense.
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel
Articles
Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …
The Future Of Disparate Impact, Richard A. Primus
The Future Of Disparate Impact, Richard A. Primus
Articles
The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Parens Patriae Run Amuck: The Child Welfare System's Disregard For The Constitutional Rights Of Non-Offending Parents, Vivek Sankaran
Articles
Over the past hundred years, a consensus has emerged recognizing a parent's ability to raise his or her child as a fundamental, sacrosanct right protected by the Constitution. Federal courts have repeatedly rejected the parens patriae summary mode of decision making that predominated juvenile courts at the turn of the twentieth century and have instead held that juvenile courts must afford basic due process to parents prior to depriving them of custodial rights to their children. This recognition has led to the strengthening of procedural protections for parents accused of child abuse or neglect in civil child protection proceedings. Yet, …
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Protecting A Parent's Right To Counsel In Child Welfare Cases, Vivek Sankaran
Articles
A national consensus is emerging that zealous leagal representation for parents is crucial to ensure that the child welfare system produces just outcomes for children. Parents' lawyers protect important constitutional rights, prevent the unnecessary entry of children into foster care and guide parents through a complex system.
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus
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Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.
Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott
Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott
Articles
This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …
The Riddle Of Hiram Revels, Richard A. Primus
The Riddle Of Hiram Revels, Richard A. Primus
Articles
In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …
Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker
Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker
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When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for the same …
Bolling Alone, Richard A. Primus
Bolling Alone, Richard A. Primus
Articles
Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …
Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott
Derechos Y Honra Públicos: Louis Martinet, Plessy Contra Ferguson Y El Acceso A La Ley En Luisiana, 1888-1917, Rebecca J. Scott
Articles
Rebecca J. Scott explores the historical context of Plessy v. Ferguson to two ends. First, Scott argues that that the historical situation, including everyday legal practice, helps us understand the source of the arguments in the case. In particular, the plaintiffs based their understanding of their rights in the French revolution, the Louisiana Constitution, and their experience exercising their rights through notaries. Second, Scott argues that the plaintiffs and defendants sought to frame the case with different rights. For the plaintiffs, the issue with the Separate Car Act was "public rights" and "the dignity of citizenship." The defendants instead framed …
A Glimpse Behind And Beyond Grutter, Evan H. Caminker
A Glimpse Behind And Beyond Grutter, Evan H. Caminker
Articles
Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Equal Protection And Disparate Impact: Round Three, Richard A. Primus
Equal Protection And Disparate Impact: Round Three, Richard A. Primus
Articles
Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Articles
The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Miranda Thirty-Five Years Later: A Close Look At The Majority And Dissenting Opinions In Dickerson, Yale Kamisar
Articles
Over the years, Miranda v. Arizona1 has been criticized both for going too far2 and for not going far enough.3 Nevertheless, on the basis of talks with many criminal procedure professors in the sixteen months between the time a panel of the Fourth Circuit upheld a statute (18 U.S.C. § 3501) purporting to "overrule" Miranda and a 7-2 majority of the Supreme Court overturned that ruling in the case of Dickerson v. United States,4 I am convinced that most criminal procedure professors wanted the Supreme Court to do what it did-"reaffirm" Miranda. This is not surprising. As Professor Grano once …
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Private Remedies For Public Wrongs Under Section 5 (Symposium: New Directions In Federalism), Evan H. Caminker
Articles
The Supreme Court has ushered in the new millennium with a renewed emphasis on federalism-based limits to Congress's regulatory authority in general, and Congress's Section 5 power to enforce the Fourteenth Amendment in particular. In a recent string of cases, the Court has refined and narrowed Section 5's enforcement power in two significant ways.1 First, the Court made clear that Congress lacks the authority to interpret the scope of the Fourteenth Amendment's substantive provisions themselves, and may only "enforce" the judiciary's definition of Fourteenth Amendment violations. 2 Second, the Court embraced a relatively stringent requirement concerning the relationship between means …
An Essay On Texas V. Lesage, Christina B. Whitman
An Essay On Texas V. Lesage, Christina B. Whitman
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When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …
Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider
Making Sausage: The Ninth Circuit's Opinion, Carl E. Schneider
Articles
As I write, the Supreme Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy …
Physician Assisted Suicide: A Bad Idea, Yale Kamisar
Physician Assisted Suicide: A Bad Idea, Yale Kamisar
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It would be hard to deny that there is a great deal of support in this country - and ever-growing support - for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. I shall discuss five common reasons - and explain why I do not find any of them convincing.
The 'Right To Die': On Drawing (And Erasing) Lines, Yale Kamisar
The 'Right To Die': On Drawing (And Erasing) Lines, Yale Kamisar
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Until this year, no state or federal appellate court had ever held that there was a right to assisted suicide no matter how narrow the circumstances or stringent the conditions. In 1996, however, within the span of a single month, two federal courts of appeals so held; in an 8-3 majority of the Ninth Circuit (sitting en banc) in Compassion in Dying v. Washington and a three-judge panel of the Second Circuit in Quill v. Vacco. What heartened proponents of a right to physician-assisted suicide even more, and pleased those resistant to the idea even less, was that the two …
State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider
State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider
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Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform …
Selective Incorporation Revisited, Jerold H. Israel
Selective Incorporation Revisited, Jerold H. Israel
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In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …
A Defense Of The Exclusionary Rule, Yale Kamisar
A Defense Of The Exclusionary Rule, Yale Kamisar
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The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Articles
More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Articles
Two of America's most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color …
A New Dimension In Equal Protection?, Theodore J. St. Antoine
A New Dimension In Equal Protection?, Theodore J. St. Antoine
Articles
Two of America's most cherished values will collide head-on this year, when the U.S. Supreme Court comes to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color are taken into …
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
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Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …
Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar
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Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon's criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked, are …