Jurisprudence Commons^™

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Law's Constitution: A Relational Critique, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

It is a simple fact: we begin from others. Without others we, quite literally, could not live, feel, be born. Every mother, every mother's partner, every father, every child, knows this. But law sees these relations as something lesser, as foreign. Mention the word "relationship" to the average lawyer and she will likely assume that you are talking about sex, dating, or perhaps marriage. She may even wonder what "relationship" has to do with the law at all.

In this paper, the author wonders whether it is possible to flip that equation, to think of the relational as central, rather …

A Subversive Strand Of The Warren Court, Gary Peller

Georgetown Law Faculty Publications and Other Works

The choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular …

Beyond Interpretation, Pierre Schlag

Publications

No abstract provided.

A Measure Of Freedom, James W. Nickel

Articles

No abstract provided.

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin

The Journal of Appellate Practice and Process

Judicial review allows the Supreme Court of the United States to perform revolutionary constitutional change. The United States Courts of Appeals could also be a vehicle for revolutionary constitutional adjudication.

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 …

Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein

Michigan Law Review

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …

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 …

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 …

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

Cardozo Law Review

No abstract provided.

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 …

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

Law Faculty Publications

No abstract provided.

In The Wake Of Crosby V. National Foreign Trade Council: The Impact Upon Selective Purchasing Legislation Throughout The United States, 34 J. Marshall L. Rev. 827 (2001), Ako Miyaki-Murphy

UIC Law Review

No abstract provided.

Procedural Reforms In Capital Cases Applied To Perjury, 34 J. Marshall L. Rev. 453 (2001), Steven Clark

UIC Law Review

No abstract provided.

Righting Illinois' Wrongs: Suggestions For Reform And A Call For Abolition, 34 J. Marshall L. Rev. 469 (2001), Sharone Levy

UIC Law Review

No abstract provided.

Bad Medicine: Erisa's Equitable Remedies And The Preemption Of Fundamental Legal Rights, 34 J. Marshall L. Rev. 583 (2001), Marilyn Lablaiks

UIC Law Review

No abstract provided.

Punishing Thought: A Narrative Deconstructing The Interpretive Dance Of Hate Crime Legislation, 35 J. Marshall L. Rev. 123 (2001), Anne B. Ryan

UIC Law Review

No abstract provided.

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

Why The Eleventh Amendment Always Matters, Even When Transaction Costs Are Zero: A Reply To Professor Farber, Neil S. Siegel

Faculty Scholarship

No abstract provided.

The Most Dangerous Justice Rides Again: Revisiting The Power Pageant Of The Justices, Paul H. Edelman, Jim Chen

Vanderbilt Law School Faculty Publications

Who is the most powerful Supreme Court Justice? In 1996 we measured voting power on the Court according to each Justice's ability to form five-member coalitions. From the set of all coalitions formed by the Court during its 1994 and 1995 Terms, we developed a generalized Banzhaf index of the Justices' relative strength. Generally speaking, participating in a greater number of unique coalitions translates into greater judicial voting power. To supplement the small number of decisions then available, we derived hypothetical five-Justice coalitions from the intersections of actually observed coalitions involving more than five members. Professor Lynn Baker contested our …

Replies To Professor Chemerinsky, David W. Levy, Harry F. Tepker Jr., Arthur G. Lefrancois, Kevin W. Saunders, Michael A. Scaperlanda, Katheleen R. Guzman, Lindsay G. Robertson

Oklahoma Law Review

No abstract provided.

Further Thoughts, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.

"Shut Up He Explained", Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …

Cook V. Gralike: Easy Cases And Structural Reasoning, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

In Cook v Gralike, the Court - unanimous as to result - struck down a Missouri initiative amending the state constitution to require that the failure of candidates for U.S. Congress to support a particular term-limits amendment to the United States Constitution be noted on the ballot. In an opinion joined by seven Justices, the Court held that the Missouri law exceeded the scope of states' powers to regulate the "time, place and manner" of holding congressional elections . . . The opinions are analyzed preliminarily in Part I. Part II below suggests that even if there were no Elections …