Constitutional Law Commons^™

The Right Approach To Harmless Error, Daniel Epps

Scholarship@WashULaw

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights.

Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Publications

No abstract provided.

The Lost Promise Of Lambert V. California, Cynthia Alkon

Faculty Scholarship

This Article will start with a brief overview of the Lambert case. It will then discuss the differing views on how to interpret this relatively short case. Next, it will review the cases citing to Lambert that illustrate the narrow approach that courts have taken when applying this case. Finally, it will offer some thoughts on how Lambert could have played a role in preventing some of the excesses of mass incarceration, but failed.

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Anderson V. State, 135 Nev. Adv. Op. 56 (Nov. 27, 2019), Tayler Bingham

Nevada Supreme Court Summaries

The Court determined that (1) when the government relies on the forfeiture exception of the Confrontation Clause to introduce a witness’s out-of-court statements, the burden of proof the litigant must meet is that of preponderance of the evidence; and (2) that a trial court does not abuse its discretion in denying a motion to substitute counsel and thereby violate the Sixth Amendment right to counsel when the trial court holds a Young hearing for each motion and enough evidence indicates there is not a complete breakdown in the attorney-client relationship.

Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell

Faculty Scholarship

Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Buffalo Law Review

No abstract provided.

“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin

Fordham Law Review

Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” …

From Decarceration To E-Carceration, Chaz Arnett

Cardozo Law Review

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to theircommunities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of …

The Right To Stay: The Suspension Clause, Constitutional Avoidance, And Federal District Court Jurisdiction To Grant Stays Of Removal Despite 8 U.S.C. Sec. 1252(G), Yael Ben Tov

Cardozo Law Review

No abstract provided.

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

William & Mary Law Review

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

The Right To Appointed Counsel: The Case For Unaccompanied Immigrant Children, Amanda Kavita Sewanan

Cardozo Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.

Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette

Nevada Supreme Court Summaries

The Court determined that the trial judge’s actions during jury selection rose to the level of judicial misconduct in response to a prospective juror indicating she could not be unbiased. These actions could have impeded Azucena’s right to a fair trial with an impartial jury as the court feared that the potential jurors would not have been able to answer candidly about any biases they may have had.

Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar

Nevada Supreme Court Summaries

In light of recent statutes limiting the right to bear arms for people convicted of misdemeanor battery constituting domestic violence, the Court determined that because the Legislature reclassified misdemeanor battery in that context to constitute a serious offense, those convicted of it are entitled to a jury trial.

“We Are Still Citizens, Despite Our Regrettable Past” Why A Conviction Should Not Impact Your Right To Vote, Jaime Hawk, Breanne Schuster

Seattle Journal for Social Justice

No abstract provided.

We The People: These United Divided States, Catherine Powell

Cardozo Law Review

In the wake of President Trump's announcement that he will withdraw the United States from the 2015 Paris Agreement on climate change, then-California Governor Jerry Brown called on the President to fight climate change or to "get out of the way" while the rest of the world works to reduce emissions and invest in clean energy. Similarly, former New York City Mayor Michael Bloomberg-now a United Nations (U.N.) Special Envoy for Cities and Climate Change-said, "If Washington won't lead, then mayors and governors will." Indeed, Trump's threat to withdraw has not only been met with widespread criticism and derision abroad …

Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales

St. Mary's Law Journal

The Sixth Amendment safeguards an accused in criminal proceedings and affords them “the right to a speedy and public trial, by an impartial jury.” Consistent with this right, the no-impeachment rule prohibits a juror from testifying after a verdict has been handed down about the jurors’ deliberations. While there are limited exceptions to the no-impeachment rule, juror expressed racial bias is not one of them. When presented with the dilemma of a juror using racial bias in deliberations, courts must weigh two competing doctrines that serve as the foundation to our judicial system: (1) affording a defendant his or her …

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process Pringle V. Wolfe (Decided 28, 1996)

Touro Law Review

No abstract provided.

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Supermajoritarian Criminal Justice, Aliza Plener Cover

Articles

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …