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Articles 241 - 270 of 468
Full-Text Articles in Constitutional Law
The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell
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
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 …
In The Stationhouse After Dickerson, Charles D. Weisselberg
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
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
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
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
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 …
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 …
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
Articles
Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Articles
Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Just Compensation, Incentives, And Social Meanings, Hanoch Dagan
Michigan Law Review
In Takings and Distributive Justice, I proposed a progressive interpretation of the Compensation Clause. In his response, published in this issue, Professor Lunney challenges the plausibility and the desirability of my interpretation and proposes an alternative. This Essay compares our approaches. It concludes that Professor Lunney's careful examination of the public choice analysis of takings does refine my theory. Contrary to Professor Lunney's claims, however, these refinements reinforce - rather than undermine - the viability of a progressive takings doctrine. Parts I and II set the stage by summarizing the principal claims made, respectively, in my original Article and in …
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Takings, Efficiency, And Distributive Justice: A Response To Professor Dagan, Glynn S. Lunney Jr.
Michigan Law Review
In A Critical Reexamination of the Takings Jurisprudence, I addressed an efficiency problem that arises when the government attempts to change property rights in a manner that burdens a very few for the benefit of the very many. Specifically, in the absence of compensation, the collective action advantage of the few in organizing to oppose the proposed measure will often give them a decided edge against the many. As a result of that advantage, the few will too often be able to persuade the legislature not to act, even when an objective evaluation of the proposal's costs and benefits would …
The Arbitrary Path Of Due Process, Harry F. Tepker Jr.
The Arbitrary Path Of Due Process, Harry F. Tepker Jr.
Oklahoma Law Review
No abstract provided.
Criminal Procedure: Allowing The Prosecution A "Second Bite At The Apple" In Non-Capital Sentencing: Monge V. California, Eva Maria Floyd
Criminal Procedure: Allowing The Prosecution A "Second Bite At The Apple" In Non-Capital Sentencing: Monge V. California, Eva Maria Floyd
Oklahoma Law Review
No abstract provided.
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Articles
The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Articles
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
Cornell Law Faculty Publications
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not …
Ultra Vires Takings, Matthew D. Zinn
Ultra Vires Takings, Matthew D. Zinn
Michigan Law Review
When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …
Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell
Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell
Federal Communications Law Journal
Section 253 of the Telecommunications Act of 1996 was promulgated in an effort to remove unnecessary regulation by local governments and open up competition among local phone companies, cable providers, and other telecommunications concerns. However, this provision effectively prohibits local governments from managing their rights-of-way. Furthermore, it violates modern Fifth Amendment takings jurisprudence, Section 253 and the first three FCC and court decisions examining it not only have jeopardized effective municipal management and resource allocation discretion, but also have usurped local governments' property rights without just compensation in explicit violation of the United States Constitution.
Claims For Damages For Violations Of State Constitutional Rights - Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
Claims For Damages For Violations Of State Constitutional Rights - Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
Touro Law Review
No abstract provided.
Overdue Process: Why Denial Of Physician-Prescribed Marijuana To Terminally Ill Patients Violates The United States Constitution, Matthew Segal
Overdue Process: Why Denial Of Physician-Prescribed Marijuana To Terminally Ill Patients Violates The United States Constitution, Matthew Segal
Seattle University Law Review
This Comment will begin with a brief history of the medical use of marijuana in western culture and the United States. It will then examine the existing federal statutory scheme governing the use of marijuana and conclude with a look at current beliefs about the medical value of marijuana. Section III will analyze previous attempts to collaterally attack the scheduling of marijuana through the courts and show why those efforts have generally failed. Section IV will perform a substantive due process analysis of William Cohen's case and submit that Mr. Cohen has a fundamental right to consult with his physician …
Review Essay / Criminal Procedure As Constitutional Law, Gerard V. Bradley
Review Essay / Criminal Procedure As Constitutional Law, Gerard V. Bradley
Journal Articles
Book review and essay of The Constitution and Criminal Procedure: First Principles by Akhil Reed Amar.
A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret
A Tempered "Yes" To The "Exculpatory No", Scott D. Pomfret
Michigan Law Review
What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker. John Henry Cardinal Newman made exceptions for lies that achieved some positive end. Hugo Grotius permitted lies to adversaries. The philosophy of twentieth-century common sense largely permits white lies. Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. § 1001 than these other, more relaxed standards. According to this view, the prohibition …
Recalibrating The Scales Of Justice Through National Punitive Damage Reform, Kimberly A. Pace
Recalibrating The Scales Of Justice Through National Punitive Damage Reform, Kimberly A. Pace
American University Law Review
No abstract provided.
Unitedstates V. Ursery: Drug Offenders Forfeit Their Fifth Amendment Rights , Sean M. Dunn
Unitedstates V. Ursery: Drug Offenders Forfeit Their Fifth Amendment Rights , Sean M. Dunn
American University Law Review
No abstract provided.
It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein
It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein
Touro Law Review
No abstract provided.
Self-Incrimination, Supreme Court, Appellate Division Second Department People V. Hendricks
Self-Incrimination, Supreme Court, Appellate Division Second Department People V. Hendricks
Touro Law Review
No abstract provided.
Self-Incrimination, Court Of Appeals People V. Siegel
Self-Incrimination, Court Of Appeals People V. Siegel
Touro Law Review
No abstract provided.