Constitutional Law Commons^™

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

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Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

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In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

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Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

Proportionality And Parole, Richard A. Bierschbach

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Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

Proportionality And Parole, Richard A. Bierschbach

Articles

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

They Saw A Protest: Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski

Articles

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

Release As Remedy For Excessive Punishment, Alexander A. Reinert

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Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

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In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

The Death Penalty And The Mentally Ill: A Selected And Annotated Bibliography, Jean Mattimoe

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The United States Supreme Court over the last decade has selectively whittled away at the scope and availability of the death penalty by exempting certain groups from execution under the Eighth Amendment. In 2002 the court ruled that executing mentally retarded criminals violates the Constitution's ban on cruel and unusual punishment. In 2005 the court ruled that the Constitution forbids the execution of individuals who were under the age of 18 when they committed their crimes. Currently there is an active debate on whether to extend the categorical exemptions created by the Court to the mentally ill. At the forefront …

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

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No abstract provided.

“Brisas Del Mar”: Judicial And Political Outcomes Of The Cuban Rafter Crisis In Guantánamo, Christina Frohock

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No abstract provided.

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

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One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

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For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

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The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

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Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

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No abstract provided.

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

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No abstract provided.

The Sky Is Still Not Falling, Richard D. Friedman

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Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …

Does Qualified Immunity Matter?, Alexander A. Reinert

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In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …

Nonparticipatory Association And Compelled Political Speech: Consent As A Constitutional Principle In The Wake Of Citizens United , Frances R. Hill

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No abstract provided.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

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Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's preclearance requirements. …

Reuven Avi-Yonah's Citizens United And The Corporate Form: Still Unuseful, William Wilson Bratton

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I welcome Avi-Yonah's new deployments of descriptive theories of the corporation. But I traversed this territory years ago and came away with a skeptical view of the enterprise. Although Avi-Yonah's interventions are compelling in the encounter, I remain unconvinced that the theories have important lessons to teach us.

Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg

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The article critiques Professor Sanford Levinson's defense of compromise in constitutionalism, arguing that while compromise is ubiquitous, it is not inherently just or morally sound. The author, Richard Weisberg, contends that Levinson's flexible hermeneutic approach risks degrading textual integrity and ethical standards, particularly when compromise is elevated to a norm. Weisberg advocates for maintaining the integrity of sacred and legal texts, emphasizing the dangers of interpretive flexibility, especially in emergencies, and draws parallels to historical examples like Vichy France's complicity in Nazi policies.

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

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No abstract provided.

The Illusory Right To Counsel, Eve Brensike Primus

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Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Searching For Effective And Constitutional Responses To Homegrown Terrorists, Barbara L. Mcquade

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Thank you, Brad, and thank you to the Law Review for inviting me here today. Protecting national security while honoring civil liberties is the greatest challenge of our generation. As a prosecutor, I am charged with protecting national security, and I understand the importance of protecting the public from acts of terrorism. But prosecutors are also sworn to uphold the Constitution. In fact, at the U.S. Attorney's Office, we are also charged with prosecuting violations of civil rights. So in every case, we understand how important it is to protect people's constitutional rights, such as First Amendment rights to free …

From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

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Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the …

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

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Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

The First Amendment Degraded: Milkovich V. Lorain And A Continuing Sense Of Loss On Its 20th Birthday, Richard H. Weisberg

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The article critiques the Supreme Court's decision in Milkovich v. Alabama, arguing that it undermines First Amendment protections by narrowing the distinction between fact and opinion in defamation cases. The Court's ruling, led by Chief Justice Rehnquist, held that statements implying false facts are actionable, even if framed as opinions. This decision, the article contends, reverses the constitutional logic of earlier precedents like New York Times Co. v. Sullivan, which trusted audiences to discern fact from opinion. The article warns that Milkovich erodes the First Amendment's faith in audience discernment, fostering a paternalistic judicial approach that stifles public debate.