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Criminal Procedure Without Consent
Get PDFScholars and advocates have long argued that a person’s consent to a warrantless police search is often so inherently coerced, uninformed, and shaped by race, class, gender, citizenship status, and disability that to call it a “choice” is fiction. This critique is not limited to police searches based on consent. Waiving rights and consenting to otherwise unconstitutional state action permeates criminal procedure. The definition of a seizure, the third-party doctrine, custodial confessions, plea bargains, and agreements to alternatives to incarceration (such as GPS ankle monitoring) all hinge on the idea of voluntary choices—choices that are often just as coerced and uninformed as the choice to consent to a search.
Given these concerns, this Article asks: What would happen if consent were eliminated from criminal procedure doctrines? This question is not merely academic. In recent years, a number of jurisdictions have substantially limited or eliminated traditional police searches based on consent. These reform efforts allow us to consider if there is something uniquely coercive or inequitable about consent searches that makes them especially amenable to reform or if we should consider eliminating consent in other criminal procedure doctrines as well.
This Article takes on these questions. Drawing on both an original national survey of recent consent-search reforms and a transsubstantive analysis of consent and waiver in a range of criminal procedure doctrines, this Article analyzes the potential ramifications of eliminating (or limiting) consent. In doing so, this Article reveals the extent to which consent plays a pivotal role in upholding—and justifying—the entire operation of the criminal justice system
The Role of Procedural Due Process in Equal Protection and Affirmative Action Analysis: the Narrowly Tailored Prong
No full textThe Supreme Court’s decision in Students for Fair Admissions v. Harvard College marked the end of affirmative action as traditionally practiced in higher education admissions, forcing universities to seek alternative legal pathways for fostering diversity. At the same time, the Trump administration’s executive orders targeting DEI initiatives have exacerbated the legal uncertainty, raising critical questions about how institutions can preserve fairness in admissions while withstanding both judicial and political scrutiny.
This article argues that Procedural Due Process—when read in conjunction with Equal Protection—provides a constitutionally sound and structurally fair framework for admissions policies that align with strict scrutiny while preserving diversity. Specifically, it explores the narrowly tailored component of the Equal Protection analysis, assessing how universities can design transparent, neutral, and procedurally robust admissions programs that enhance legitimacy and resilience against constitutional challenges.
The strength of this approach is confirmed by some recent lower federal courts’ opinions, granting equitable relief against such orders on Procedural Due Process and First Amendment grounds, showing how fairness, neutrality, and structured decision-making can provide a constitutionally viable means for universities to sustain diversity efforts.
This article is closely connected to my companion piece, The Role of First Amendment in Equal Protection and Affirmative Action Analysis: The Compelling Governmental Interest, arguing that academic freedom and free speech offer additional constitutional grounding for race-conscious admissions and legitimate DEI initiatives. Together, these works provide a forward- looking constitutional roadmap to help universities navigate the post- Students for Fair Admissions era and resist new government efforts to dismantle DEI programs
