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American Constitutionalism; Volume II: Rights and Liberties
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In Whose Custody? Miranda, Emergency Medical Care & Criminal Defendants
Get PDF“Respect for the rule of law in all its dimensions is critical to the fair administration of justice, public order, and protection of fundamental freedoms.” The rule of law surrounding the Fifth Amendment right against self-incrimination will not be respected by the police or public at large until major loopholes that allow the police “to take advantage of indigence in the administration of justice” are closed. The major loophole this Note tackles is the “in custody” requirement for Miranda warnings, which allows officers to question suspects without providing them with a Miranda warning. Specifically, this Note focuses on the damage such a loophole causes in the context of emergency medical care. It considers scenarios in which the power dynamics are so severe the suspect involuntarily confesses to a crime. To close this specific loophole, courts must expand what is considered “custodial” to represent the actual judicial intent behind Miranda: protecting the disadvantaged from state coercion and abuse. This conclusion is rooted in the judicial ideology that is used in the other Criminal Constitutional Revolution cases, which all sought to protect against police tendency to take advantage of indigence. This Note is not seeking to expand the rights of the accused. Rather, it is focused on closing a loophole in an existing right
Who Now Sits atop the Pyramid of Violence?
Get PDFThis Note seeks to provoke a conversation about the rise in power of federal prosecutors at the expense of district court judges, focusing on the controlled-substances context. While referencing Robert Cover’s portrayal of the justice system as a “pyramid of violence,” this Note shows how the federal mandatory-minimum sentencing laws and the U.S. Sentencing Commission’s Sentencing Guidelines brought about this change. These sentencing schemes have anchored what prosecutors and judges deem an appropriate sentence. Prosecutors are thinking about sentences while deciding what charges to bring. After a discussion about sentencing legislation and current sentencing procedures, this Note identifies a need for reform in the federal criminal justice system. The elimination of mandatory sentencing laws, the normalization of departure from the Guidelines, and the creation of the executive prosecutor role are reforms identified in this Note
A New (Republican) Litigation State?
Get PDFIt is a commonplace in American politics that Democrats are far more likely than Republicans to favor access to courts to enforce individual rights with lawsuits. In this Article we show that conventional wisdom, long true, no longer reflects party agendas in Congress. We report the results of an empirical examination of bills containing private rights of action with proplaintiff fee-shifting provisions that were introduced in Congress from 1989 through 2018. The last eight years of our data document escalating Republican Party support for proposals to create individual rights enforceable by private lawsuits, mobilized with attorney’s fee awards. By 2015–18, there was rough parity in levels of support for such bills by Democratic and Republican members of Congress.
This transformation was driven substantially by growing Republican support for private enforcement in bills that were anti-abortion, immigrant, and taxes, and pro-gun and religion. We demonstrate that this surge in Republican support for private lawsuits to implement rights was led by the conservative wing of the Republican party, fueled in part by an apparent belief during the Obama years that the President could not be relied upon to implement their anti-abortion, immigrant, and taxes, and pro-gun and religion agenda. We conclude that the contemporary Republican party’s position on civil lawsuits has become bifurcated, reflecting the distinctive preferences of core elements of their coalition. They are the party far more likely to oppose private enforcement when deployed to enforce business regulation, while embracing it when deployed in the service of rights for their social conservative base
Assessing America’s Access to Civil Justice Crisis
Get PDFMany strongly believe the United States faces a crisis in access to civil justice but differ starkly in what they believe that means. Some observers believe the key issue is unrepresented litigants in trials and hearings, while others point to the tens of millions of people facing justice problems outside of the courts with no assistance. We offer definitions of three concepts central to assessing the crisis—justiciable events, legal needs, and cases—and examine the availability of consistently collected, nationally representative data measuring these three phenomena. Such data are sparse. Some information about justice experiences is collected for those justiciable events—a bare minority—that become court cases, but these data are not collected in uniform ways, nor are they always made available to researchers for analysis. The past few years have seen a growth in the number of civil justice surveys of the public, which give insight into the prevalence of specific kinds of justiciable events and their impacts on those who experience them. The concept at the core of the dominant understanding of the access to justice crisis, legal need, is ironically the phenomenon about which we have the least information.
We draw on ideas from the field of public health to develop two measures of access to justice that shift analytic focus away from granular experience with problems, court processes, or legal services to summarize Americans’ justice experiences: Civil Justice Problem-Free Life Expectancy and Civil Justice Hardship-Free Life Expectancy. The measures report how many years of life people can expect to spend dealing with civil justice problems and experiencing health, economic, or relationship hardships as a result of those problems. Americans spend large proportions of their lives experiencing civil justice problems and suffering consequent hardships. For example, a typical woman in midlife can expect to be experiencing civil justice problems for over half of her remaining years, while a typical eighteen-year-old can look forward to spending thirteen years of their life experiencing health, economic, or interpersonal hardships as a result of civil justice problems. The new measures permit comparisons across groups, geography and time, and constitute new tools for assessing the impact of policy changes
Research Handbook on Modern Legal Realism
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Gender Regimes and the Politics of Privacy: A Feminist Re-Reading of Puttaswamy vs. Union of India
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