Constitutional Law Commons^™

Government Messages And Government Money: Santa Fe, Mitchell V. Helms, And The Arc Of The Establishment Clause, Ira C. Lupu

William & Mary Law Review

No abstract provided.

Social Meaning And School Vouchers, Neal Devins

William & Mary Law Review

No abstract provided.

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer

Michigan Law Review

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …

Questioning The Relevance Of Miranda In The Twenty-First Century, Richard A. Leo

Michigan Law Review

Miranda v. Arizona is the most well-known criminal justice decision - arguably the most well-known legal decision - in American history. Since it was decided in 1966, the Miranda decision has spawned voluminous newspaper coverage, political and legal debate, and academic commentary. The Miranda warnings themselves have become so well-known through the media of television that most people recognize them immediately. As Patrick Malone has pointed out, the Miranda decision has added its own lexicon of words and phrases to the American language. Perhaps with this understanding in mind, George Thomas recently suggested that the Miranda warnings are more well-known …

In The Stationhouse After Dickerson, Charles D. Weisselberg

Michigan Law Review

Miranda v. Arizona established the high water mark of the protections afforded an accused during a custodial interrogation. During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling. In Dickerson v. United States, the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing. This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse. As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct …

Miranda'S Failure To Restrain Pernicious Interrogation Practices, Welsh S. White

Michigan Law Review

As Yale Kamisar's writings on police interrogation demonstrate, our simultaneous commitments to promoting law enforcement's interest in obtaining confessions and to protecting individuals from overreaching interrogation practices have created a nearly irreconcilable tension. If the police must be granted authority to engage in effective questioning of suspects, it will obviously be difficult to insure that "the terrible engine of the criminal law . . . not . . . be used to overreach individuals who stand helpless against it." If we are committed to accommodating these conflicting interests, however, some means must be found to impose appropriate restraints on the …

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …

Miranda'S Mistake, William J. Stuntz

Michigan Law Review

The oddest thing about Miranda is its politics - a point reinforced by the decision in, and the reaction to, Dickerson v. United States. In Dickerson, the Supreme Court faced the question whether Miranda ought to be overturned, either directly or by permitting legislative overrides. The lawyers, the literature, and the Court split along right-left - or, in the Court's case, right-center - lines, with the right seeking to do away with Miranda's restrictions on police questioning, and the left (or center) seeking to maintain them. The split is familiar. Reactions to Miranda have always divided along ideological lines, with …

Separated At Birth But Siblings Nonetheless: Miranda And The Due Process Notice Cases, George C. Thomas Iii

Michigan Law Review

Paraphrasing Justice Holmes, law is less about logic than experience. Courts and scholars have now had thirty-four years of experience with Miranda v. Arizona, including the Court's recent endorsement in Dickerson v. United States last Term. Looking back over this experience, it is plain that the Court has created a Miranda doctrine quite different from what it has said it was creating. I think the analytic structure in Dickerson supports this rethinking of Miranda. To connect the dots, I offer a new explanation for Miranda that permits us to reconcile Dickerson and the rest of the post-Miranda doctrine with the …

Deceptive Police Interrogation Practices: How Far Is Too Far?, Laurie Magid

Michigan Law Review

Virtually all interrogations - or at least virtually all successful interrogations - involve some deception. As the United States Supreme Court has placed few limits on the use of deception, the variety of deceptive techniques is limited chiefly by the ingenuity of the interrogator. Interrogators still rely on the classic "Mutt and Jeff," or "good cop, bad cop," routine. Interrogators tell suspects that nonexistent eyewitnesses have identified them, or that still at-large accomplices have given statements against them. Interrogators have been known to put an unsophisticated suspect's hand on a fancy, new photocopy machine and tell him that the "Truth …

Carrington, Cooley, Kennedy, Klare, Patrick O. Gudridge

Cardozo Law Review

No abstract provided.

Duncan Kennedy, A Critique Of Adjudication: Fin De Siècle, David Kennedy

Cardozo Law Review

No abstract provided.

Free? Exercise, Marci A. Hamilton

Articles

No abstract provided.

Karsik V. State Of Israel, Mishael Cheshin, Aharon Barak, Tova Strasberg-Cohen, Aharon Barak, Shlomo Levin, Dalia Dorner, Dorit Beinisch

Translated Opinions

Facts: In the late 1950’s the army needed training area and for this purpose the authorities worked to expropriate a range of about 137 dunam of land in the region of Hadera in accordance with the Lands Ordinance (Purchase for Public Purposes) 1943.  After a number of years – on 24 March 1966 – and according to his authority in section 19 of the Expropriations Ordinance, the Minister of Finance published a notice as to the granting of the land to the State and the land was registered in the land registration books in the name of the State.

The …

Judging Judging: The Problem Of Second-Guessing State Judges' Interpretation Of State Law In Bush V. Gore, Harold J. Krent

All Faculty Scholarship

No abstract provided.

The Gfp (Green) Bunny: Reflections On The Intersection Of Art, Science And The First Amendment, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

The Corporate Defamation Plaintiff In The Era Of Slapps: Revisiting New York Times V. Sullivan, D. Mark Jackson

William & Mary Bill of Rights Journal

Corporations have increasingly used defamation suits as an offensive weapon. Many of these suits may be defined as SLAPP suits-Strategic Litigation Against Public Participation. These suits, often meritless, are designed to harass and silence a corporations' critics. Following a survey oft he history of defamation law and the protection of free speech, this Note argues that corporations should be treated as per se public figures in defamation suits. This derives from the uniquely public nature of a corporation and an assumption of the risk of defamatory falsehoods that arises from the act of incorporation.Treating corporations in this manner would place …

Religion, Rationality, And Special Treatment, Jane Rutherford

William & Mary Bill of Rights Journal

Religion has always played a major role in American society, both politically and socially. Its influence on the Constitution is expressed in the Establishment and Free Exercise Clauses. Why is religion given special treatment by the Constitution? In this Article, Professor Jane Rutherford makes a structural argument for religious liberty. Rutherford posits that religion is treated differently not because of the content of its views, but because of the various other functions it serves, such as providing voices for outsiders and advancing non-market values. Rutherford concludes that we should return to more serious enforcement of the Establishment and Free Exercise …

The State Of The Canon In Constitutional Law: Lessons From The Jurisprudence Of John Marshall, David E. Marion

William & Mary Bill of Rights Journal

Constitutional law has been an active battlefield as competing groups within the academy seek to deconstruct, reconstruct, and/or relegitimize the teaching and practice of law in the United States. Much of the rhetoric of the debate is couched in the language of rights. There is a danger that diminished attention to powers in the rhetoric and teaching of constitutional law may compromise sober and moderate constitutional reasoning. By reinvigorating reflection on powers-related issues, the legal profession can do its part to promote sobriety, and hence an added dose of prudence, in constitutional reflection and discourse by a democratic citizenry whose …

Protecting The Cellular Citizen-Critic: The State Of Political Speech From Sullivan To Popa, Clay Calvert

William & Mary Bill of Rights Journal

The 1999federal appellate court decision of United States v. Popa suggests the startling emergence of a nascent First Amendment right to engage in anonymous and racist telephonic harassment of government officials. Professor Calvert suggests that this decision sadly reflects the state of political discourse in the United States today, namely a dialectical free-for-all directly contrary to the vision of philosopher-educator Alexander Meiklejohn, a vision advanced by the United States Supreme Court in New York Times Co. v. Sullivan but rejected by the shout-and- attack cultures of cable news channel political talk shows and call-in radio programs. The Popa decision also …

Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo

Michigan Law Review

Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …

Weiss V. Prime Minister, Aharon Barak, Izhak Englard, Theodor Or, Eliahu Mazza, Shlomo Levin, Itzchak Zamir, Jacob Turkel

Translated Opinions

Facts: The Prime Minister resigned, and he and the Ministers of the outgoing government continued to fulfill their duties as prime minister and ministers until the new government was to take office. In this framework the outgoing government continued to conduct political negotiations with the Palestinian Authority with the aim of reaching an agreement before the elections.

Held: The majority opinion was written by President Barak. The petitioners claimed that the outgoing government was not authorized to conduct the political negotiation. They asked the court to direct the government to end the political negotiation until the establishment of a new …

Q: Will The Supreme Court Intervention In Florida Fail The Test Of Time?, Ira Glasser, Alan J. Meese

Popular Media

No abstract provided.

Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson

Law Faculty Publications

No abstract provided.

Starbucks And The New Federalism: The Court's Answer To Globalization, Robert Knowles

Law Faculty Publications

No abstract provided.

Beyond Counting Votes: The Political Economy Of Bush V. Gore, Michael Abramowicz, Maxwell L. Stearns

Faculty Scholarship

No abstract provided.

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.

Social Democracy And Constitutional Theory: An Institutional Perspective, Mark A. Graber

Faculty Scholarship

No abstract provided.

Kyllo V. United States And The Partial Ascendance Of Justice Scalia's Fourth Amendment, Richard Henry Seamon

Articles

No abstract provided.