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Articles 1 - 13 of 13
Full-Text Articles in Law
Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan
Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan
Articles
The death of Justice Ruth Bader Ginsburg in September 2020 and the appointment of Justice Amy Coney Barrett to replace her solidified a 6-3 majority on the Court for Republican appointees and is already affecting how the Court approaches and decides its criminal law and procedure cases. Justice Ginsburg, a strong advocate for equality and fair treatment, generally construed criminal statutes narrowly and stressed the importance of defendants’ procedural rights. Justice Barrett is an originalist who will look to history to seek answers on the scope of criminal procedure amendments. The combined appointments of Justice Gorsuch and Justice Barrett mean …
Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, Jj Prescott
Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, Jj Prescott
Law & Economics Working Papers
More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil …
Closing The Gap Between What Is Lawful And What Is Right In Police Use Of Force Jurisprudence By Making Police Departments More Democratic Institutions, Jonathan M. Smith
Closing The Gap Between What Is Lawful And What Is Right In Police Use Of Force Jurisprudence By Making Police Departments More Democratic Institutions, Jonathan M. Smith
Michigan Journal of Race and Law
On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against …
Soundings And Silences, Laurence H. Tribe
Soundings And Silences, Laurence H. Tribe
Michigan Law Review Online
My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence …
Supreme Court Jurisprudence Of The Personal In City Of Los Angeles V. Patel, Brian L. Owsley
Supreme Court Jurisprudence Of The Personal In City Of Los Angeles V. Patel, Brian L. Owsley
Michigan Law Review First Impressions
Recently, the Supreme Court issued a 5-4 decision in City of Los Angeles v. Patel striking down a city ordinance that required hotel and motel owners to make their guest registries available to police officers whenever requested to do so. Although the Court’s opinion in Patel simply affirmed the Ninth Circuit’s finding that the ordinance was unconstitutional, the Court could have used Patel to readdress the third-party doctrine, which establishes that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Patel provided a vehicle for the Court to do so, particularly because …
Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar
Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar
Book Chapters
Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
The Warren Court And Criminal Justice, Yale Kamisar
The Warren Court And Criminal Justice, Yale Kamisar
Book Chapters
Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda.
Privacy's Problem And The Law Of Criminal Procedure, William J. Stuntz
Privacy's Problem And The Law Of Criminal Procedure, William J. Stuntz
Michigan Law Review
Part I of this article addresses the connection between privacy-based limits on police authority and substantive limits on government power as a general matter. Part II briefly addresses the effects of that connection on Fourth and Fifth Amendment law, both past and present. Part ID suggests that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force. The upshot is that criminal procedure would be better off with less attention to privacy, at least as privacy is defined in …
Response: The Problems With Privacy's Problem, Louis Michael Seidman
Response: The Problems With Privacy's Problem, Louis Michael Seidman
Michigan Law Review
A Response to William J. Stuntz's "Privacy's Problem and the Law of Criminal Procedure"
Reply, William J. Stuntz
Reply, William J. Stuntz
Michigan Law Review
A Reply to Louis Michael Seidman's Response
Francis A. Allen: 'Confront[Ing] The Most Explosive Problems' And 'Plumbing All Issues To Their Full Depth Without Fear Or Prejudice', Yale Kamisar
Articles
Frank Allen began his distinguished teaching career more than thirty-five years ago - at a time when, at more law schools than we like to remember, "the basic criminal law course was routinely assigned to the youngest and most vulnerable member of the faculty or to that colleague suspected of mild brain damage and hence incompetent to deal with courses that really matter."' That those of us who taught criminal law years later were warmly received by our colleagues is in no small measure a tribute to the quality of mind and character and intellectual energy of people like Allen, …