SelectedWorks @ Chapman University Dale E. Fowler School of Law
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Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect
No full textIn the four decades since the decision in Miranda v. Arizona, two point of consensus have emerged about that decision. The first area of agreement is that Miranda’s rationale for requiring its now-famous warnings is wrong, or at least dramatically overstated. In Michigan v. Tucker, the Court first labeled Miranda warnings as “prophylactic standards.” For their part, Miranda’s advocates do not spend much time defending its conception of unwarned custodial interrogation as inherently coercive. The second point of agreement is that Miranda has turned out to be a failure combating the coercive nature of custodial interrogation. Despite Miranda, coerced confessions are said to be ubiquitous. Thus, we are told that stronger medicine is needed, such as videotaping custodial interrogation, requiring counsel during interrogation, strengthening constitutional regulation of the admissibility of confessions, forbidding interrogation techniques thought to be particularly likely to produce false or coercive confessions, or abolishing custodial interrogation entirely.
This article\u27s task seeks to demonstrate that both points of consensus are wrong. On the first, I will argue that Miranda was quite right to conclude that custodial interrogation inherently involves compulsion within the meaning of the Fifth Amendment. Thus, Miranda is not prophylactic – its warnings are required only when a suspect is compelled to incriminate himself, and they ensure that incriminating statements are received in evidence only when a suspect has validly waived the right to be free from compelled self-incrimination. On the second, I will argue that Miranda should be measured by whether it has produced greater compliance with the Fifth Amendment, and on that score, Miranda is a resounding success. Miranda’s required warnings succeed in producing valid waivers of Fifth Amendment rights, and therefore prevent what would otherwise be unconstitutional interrogations. Although suspects may frequently misgauge their own interests in deciding whether to submit to custodial interrogation, the Fifth Amendment does not protect suspects from themselves – it is not aimed at “[p]reventing foolish (rather than compelled) confessions,” to use Justice Scalia’s typically memorable formulation. Perhaps Miranda is a failure from the standpoint of those who think that the Constitution condemns any tactic that might smack of overreaching or risk convicting the innocent, but Constitution does not demand perfection. For constitutional purposes, a confession obtained after a valid waiver of Fifth Amendment rights is good enough
AEI-Brookings Joint Center Working Paper
No full textNetwork neutrality is a policy proposal that would regulate how network providers manage and price the use of their networks. Congress has introduced several bills on network neutrality. Proposed legislation generally would mandate that Internet service providers exercise no control over the content that flows over their lines and would bar providers from charging more for preferentially faster access to the Internet. These proposals must be considered carefully in light of the underlying economics. Our basic concern is that most proposals aimed at implementing net neutrality are likely to do more harm than good
Policy Oscillation in California\u27s Law of Premises Liability
No full textThe expansion of tort liability beginning in the middle of the 20th century, and the reaction against that expansion as the century came to a close, constitutes a clear demonstration of the nostrum that tort law is “public law in disguise.” Adjudication of private disputes became a battleground of public policy preferences as to how risks and compensation should be distributed so as to serve societal interests such as fairness, efficiency, and personal autonomy. This article studies examines in detail a critical battleground in a key state, the revolution and counter-revolution in premises liability in California, as a paradigm case. Close attention to the policy oscillation from a limited conception of duty to a more expansive definition and then back again reveals how common law doctrinal change reflects the public policy preferences of repeat players and institutional actors and the political ideology of judges and those politicians who appoint them. The early rule reflected the interests of property and commerce by mandating that a landowner had no duty to address the threat of crime by third parties unless there were prior similar incidents which made the latest event foreseeable. California courts, pioneers in the revolutionary expansion of tort liability, led the way in formulating a new rule that found a duty when the threat of crime was foreseeable under the “totality-of-the-circumstances.” Shortly after, California courts underwent a rapid change in personnel which produced a profound ideological shift in favor of “re-visiting” the expansion of tort liability. The new jurists, aided by ideological and commercial interests as amici, reinstituted a modified version of the old prior similar incidents rule, expressly reflecting policy goals in favor of the prerogatives of property ownership and a certain vision of economic costs and benefits. The changing law of premises liability in California is a clear example of how private law doctrine can be made and remade through policy choices reflecting ideological and political pressures brought to bear on the courts
Building a Market: From Personal to Impersonal Exchange
No full textAdam Smith identified two key components in the wealth creation process of human societies: exchange and specialization. More than two centuries later relatively little is understood about the underlying process by which people build exchange systems and discover comparative advantage. In this chapter we report on a pilot experiment that explores the social mainsprings that give rise to the market. Specifically, using cash-motivated participants we compare and contrast the personal, social interactions within a village with those of the participants engaged in long-distance trade among a system of interconnected virtual villages
Promoting Experimental Economics in the Classroom
No full textEconomic experiments allow the K-12 teacher to promote active learning that is also rigorously grounded in economic theory. In an experiment students test for themselves the economics they hear in lectures and read in their textbooks. The authors have found that working through the existing teacher professional development system is a promising approach to infusing experimental methods into the school curriculum. This paper describes a short professional development course in experimental economics. The experience of conducting the course with two groups of teachers is discussed and survey results pertaining to teacher implementation of classroom experiments are presented
AEI Brookings Joint Center Working Paper
No full textNetwork neutrality is a policy proposal that would regulate how network providers manage and price the use of their networks. Congress has introduced several bills on network neutrality. Proposed legislation generally would mandate that Internet service providers exercise no control over the content that flows over their lines and would bar providers from charging more for preferentially faster access to the Internet. These proposals must be considered carefully in light of the underlying economics. Our basic concern is that most proposals aimed at implementing net neutrality are likely to do more harm than good