Amendment Cases Research Articles

Bulk Telephony Metadata Collection and the Fourth Amendment: The Case for Revisiting the Third-Party Disclosure Doctrine the Digital Age

Thus far, two United States District Courts have considered the legality of the National Security Agency’s bulk data collection and have reached opposite conclusions. This Paper argues that federal courts should seize on the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment cases. Specifically, this Paper will argue that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age. Instead, this Paper argues that Smith should apply more narrowly in the digital age. In doing so, this Paper advocates that courts apply a modified, two-step test to third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith and United States v. Miller — i.e., if information is disclosed that information is unprotected. Specifically, this Paper suggests that courts ask first, what individuals reasonably expect the scope of their disclosure to be and, second, whether a particular surveillance program is capable of revealing information beyond what those individuals reasonably expected to reveal. If the technology reveals information beyond that which individuals reasonably expected to reveal, then the use of such technology implicates the Fourth Amendment.

Fourth Amendment Regulation of Information Processing

This Essay examines the Fourth Amendment implications of information processing by the government. It starts with an overview of the main challenge to regulating information processing under the Fourth Amendment: the conventional wisdom that the Fourth Amendment regulates the government’s initial access to physical evidence, but not the subsequent processing or analysis of that evidence. The distinction between “acquisition” and “analysis” of evidence underpins many familiar doctrines in Fourth Amendment jurisprudence, from plain view to the third party doctrine. The common thread in these doctrines is that the only privacy the Fourth Amendment protects is privacy at the point of collection. As one Fourth Amendment scholar has put it, once evidence is collected or exposed “the work of the Fourth Amendment is done,” regardless of whether further intrusions into privacy are possible. While it has some grounding in the case law, the conventional wisdom is wrong, at least as a categorical rule of Fourth Amendment jurisprudence. The Fourth Amendment reaches information processing, and for good reason. One need look no further than the Court’s classic Fourth Amendment cases to see the error in the conventional wisdom. In cases like Kyllo v. United States, Skinner v. Railway Executive Labor Association, U.S. v. Jones, United States v. Jacobsen, and even Katz v. United States, the Court has reached information processing, albeit without a guiding theory. Taken together, these cases belie the conventional distinction between “acquisition” and “analysis” of evidence. They demonstrate that in a world of enhanced police technologies, traditional spatial and temporal doctrinal categories are no longer effective proxies for protecting Fourth Amendment interests. Recognizing this fact, the Supreme Court in these cases has been willing to depart from those traditional categories in order to reach information processing conduct.If the conventional wisdom is flawed, what is the alternative? Building upon the trends already immanent in the Court’s Fourth Amendment jurisprudence, this Essay argues for reaching information processing where necessary to protect the practical privacy protected by the “right of the people to be secure in their persons, houses, papers, and effects” against enhanced police technologies. It proposes three guidelines for courts evaluating information processing under the Fourth Amendment. First, courts should adopt a contextual, rather than categorical, approach to Fourth Amendment analysis, to account for the way technology changes the meaning of government conduct. Considered in a vacuum, collecting a single piece of “exposed” evidence (Jones) is no harm to privacy, anymore than is standing in front of a house (Kyllo) or manipulating a discarded blood or urine sample (Skinner). It is only the added context of the government’s aggregation and analysis of that information that raises privacy — and Fourth Amendment — concerns. Second, Courts should use the “practical privacy” of the past as a key measure of the reasonableness of privacy expectations today. As the Supreme Court and legal scholars have recognized, the ‘right to be secure’ is a pre-existing right, and one that is informed, in part, by the practical privacy from government intrusion that existed at the time the Fourth Amendment was enacted. Courts should account for technology’s ability to peel back this practical privacy, and where possible should “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” While practical privacy is only the starting point of the Fourth Amendment analysis, it is an important one in the regulation of enhanced technologies. The third principle is one of judicial minimalism. Fourth Amendment regulation of enhanced technologies involves ever-changing facts and increased risks of error. Courts regulating information processing should therefore seek to apply flexible standards to draw narrow rules. This minimalist approach has two virtues: it reduces the risk of significant harm that can result from broad, categorical judgments about new surveillance technologies (see, e.g., Olmstead v. United States), while allowing judges the flexibility to make the nuanced distinctions required to solve the Fourth Amendment problems raised by a host of information processing conduct, from the imaging and analysis of smartphones to biometrics tracking and DNA analysis.

Methodological Pluralism and Constitutional Interpretation

This article takes up a significant yet surprisingly overlooked question: What accounts for the Supreme Court’s lack of methodological uniformity in constitutional interpretation? The question can be phrased in other ways: Why do strong methodological pronouncements in one case go unfollowed and unacknowledged in the next? Why, to use an example, does the originalist analysis of District of Columbia v. Heller not create a presumption that subsequent Second Amendment cases must also be analyzed via an originalist approach?An easy answer suggests itself — the justices simply do not want to bind themselves to someone else’s preferred methodology. They hold strongly divergent views, and advocate on behalf of those views in their opinions. Each justice might be willing to adhere to a single approach, but only so long as it is the one he or she favors. This easy answer turns out to be, at best, incomplete. There are many respects in which the Court does adhere to its past methodological choices, such as with Chevron deference or the tiered-scrutiny framework. This adherence is both unremarkable and, more generally, consistent with the application of stare decisis, which, properly understood, entails being bound by some past court’s preferences. Given that, we might imagine that stare decisis ought to apply to broader interpretive commitments. Indeed, a recent wave of scholarship has argued in favor of the application of stare decisis to the process of statutory interpretation, while at the same time demonstrating that a number of state courts have achieved methodological uniformity in that domain. Along the way, several of these scholars have suggested that their arguments might apply to constitutional interpretation as well. In attacking these questions, this article attempts, first, to unpack the relationship between stare decisis and interpretive methodology, and to understand when stare decisis will apply to methodology and when it will not. It concludes that, at least at the broad level of determining constitutional meaning, stare decisis and interpretive methodology are an inherently unstable combination. The attainment of methodological uniformity, it turns out, is better analyzed and understood in terms of consensus. Simply put, large-scale methodological uniformity results not from the doctrinal pressure of stare decisis, but rather as a product of a settled understanding that a given method is the appropriate way to engage in legal reasoning. Second, the article explores explanations for the methodological pluralism that characterizes the Court’s decision making. That pluralism may be a product of a tacit consensus that pluralism is the most legitimate approach to constitutional interpretation. But it may also be a default position reached due to the lack of any mechanism for forcing consensus, or the product of external, political limitations on the Court’s ability to consistently follow the logic of any single methodology. More likely still is the possibility that each of these explanations is at least partially correct.

Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases

This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression. The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013. Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts. Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion. In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests. The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government. This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process. The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation. To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

The Law is a White Dog: How Legal Rituals Make and Unmake Persons. By Colin Dayan. Princeton: Princeton University Press, 2011. 343 pp. $24.95 paper.

The Law is a White Dog: How Legal Rituals Make and Unmake Persons. By Colin Dayan. Princeton: Princeton University Press, 2011. 343 pp. $24.95 paper.Colin Dayan's The Law is a White Dog: How Legal Rituals Make and Unmake Persons is a tour de force of interdisciplinary legal scholar- ship. The book's main objective is, as Dayan puts it, ask how law encapsulates, sustains, and invigorates philosophies of person- hood (p. xii). She approaches this question with sensibilities of a humanist interested in understanding law's negotiations with those at edge of category human-slaves, felons, and animals-and with what she describes as the obscene made lawful: slavery, torture, indefinite solitary confinement, preventive deten- tion (p. xii). Given that focus, book makes a forceful set of moral claims about both injustices done in these legal negotia- tions and, less sanguinely, about their inevitability.At dark heart of this critical genealogy and at center of The Law is a White Dog lies a four-year engagement Dayan under- took with Arizona's prison system: its supermax facilities, its chain gangs, its administrative policies. Witnessing psychological deci- mation of inmates in such a context provokes Dayan into an analy- sis of way Eighth Amendment jurisprudence, particularly Supreme Court's recent interpretations of and unusual, has left behind concerns of effects of incarceration on inmates' souls in attempt to discern and judge officials' states of mind. In those cases, cruel comes to be equated not with a felt sense of pain but with malicious intent. Such an emptying out of inmates' identity in that setting provokes Dayan toward a more general investigation of legal production of negative personhood. Employing an interdisciplinary approach that emphasizes constitutive power of legal rhetoric, inevitable persistence of modes of categorizing entities on margins, and magical thinking that conjures and parries otherness when it comes into contact with law, Dayan gives us, through close and careful readings of texts, a history replete with stunningly fresh insights into transformational violence law inflicts and legitimizes on those it regulates and controls.Ghosts run throughout this book: real ghosts in haunted houses, recognized by courts; sacred apparitions like white dog that make strange our presumptions about meaning of identity and threat; ancient legal ideas that haunt contemporary legal logics. Dayan hones in particular on medieval concepts of civil death, corruption of blood, and deodand-a thing without consciousness (whether object or animal) to which evil will is imputed and liability imposed.1 This primitive model of imposing guilt without assessing individual responsibility persists, Dayan argues, in antebellum decisions concerning incapacity of slaves to be choosing agents, in gilded age analogies between animals and racialized others, in Eighth Amendment cases concerning state- imposed violence in prisons, and in U. …

Good Enough for Government Work: Two Cheers for Content Neutrality

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine - a doctrine subject to a sustained barrage of judicial and academic criticism.Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses of content neutrality, this Article seeks illumination by shifting to a more grounded focus. I compare the 614 reported cases in which the lower federal courts deployed the doctrine between September 2009 and February 2013 with the First Amendment cases decided by the Roberts Court. I analyze what political science and behavioral psychology tell us about the way that the content neutrality doctrine is likely to function in setting the terms of interaction between the private actors and government officials who actually populate and seek guidance from the case law.Unlike the recent Supreme Court docket, contemporary content neutrality cases in the lower courts center on contests between potential “village tyrants” - local officials and street level bureaucrats who will often find it difficult to hold fast to tolerant ideals - and local dissenters who are likely to provoke them. In these struggles, there are important reasons to prefer a strong doctrine of content neutrality to its proposed doctrinal competitors. Content neutrality is important not as a first best rule to assure that the Supreme Court properly implements a theory of the First Amendment, but as a usable norm for the government actors who make decisions before court proceedings commence and for the polity to which those actors answer.Content neutrality frames the terms of engagement between the governed and the governors of the United States in ways that incline the “general spirit of the people and the government” to the protection of rights of free expression. Its flamboyant protection of speech repugnant to a variety of constituencies means that the lived reality of free expression will mobilize support from an array of political factions. Content neutrality is, as the Court maintained in laying the doctrine’s foundations, an important practical element of constitutional architecture that preserves a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”.

Florida v. Jardines: The Supreme Court Curbs Drug-Sniffing Dogs

In Florida v. Jardines, the United States Supreme Court addressed the issue of whether law enforcement is permitted to use drug-sniffing dogs to investigate areas on private property surrounding homes for drugs without a search warrant. In a 5-4 decision, the Court limited law enforcement’s ability to search a home via drug-sniffing dogs without a warrant, classifying such a search as a trespass. Jardines extended the recent line of Fourth Amendment cases limiting law enforcement by expanding the definition of unreasonable searches and seizures and focusing on the original meaning of the Amendment. By continuing this trend, the Court signaled that law enforcement must still respect the spirit of the Fourth Amendment in spite of rapidly developing technology making it easier for police to gain information from citizens. Part II of this Note describes the facts surrounding the case and the lower court decisions that led to Supreme Court review. Part III provides an overview of Fourth Amendment jurisprudence, focusing specifically on the meaning of the word search, and offers a historical review of the law regarding police use of drug-sniffing dogs. Part IV discusses the majority decision as well as the concurring and dissenting opinions. Part V analyzes the majority opinion and the likelihood of future litigation as a result of the Court’s limited holding.

Democracy under Fire: Voter Confusion and Influences in Colorado's Anti-Affirmative Action Initiative

In this article, Amy N. Farley, Matthew N. Gaertner, and Michele S. Moses examine the use of ballot initiatives as a particularly attractive form of direct democracy for opponents of affirmative action in higher education. Building on previous scholarship, the authors question whether anti-affirmative ballot initiatives validly reflect voters’ attitudes toward affirmative action. The authors examine the case of Colorado's Amendment 46, an anti-affirmative action ballot initiative. They investigate the language of the initiative itself, as well as voters’ perceptions of and confusion around its intent, and the factors that influenced voting behavior. They employ item response theory to estimate voters’ attitudes toward affirmative action. The authors then describe the prevalence of voter confusion around the initiative's intent. Finally, employing a binary logistic regression model, they analyze survey data to determine which factors influenced voting behavior. They find that the initiative's language was successful at confusing voters who intended to support affirmative action. Following the U.S. Supreme Court's recent decision in Fisher v. University of Texas and in anticipation of its decision in Schuette v. Coalition to Defend Affirmative Action, the authors call for greater scrutiny with regard to the use of initiatives to craft education policies that have a disproportionately negative impact on members of disadvantaged populations.

The Conspiracy Origin of the First Amendment

Contemporary emerging scholarship on the First Amendment right of assembly is based primarily on either normative arguments arising from post-World War Two cases or constitutional originalism that looks to the Framers’ intent. This scholarship continues to treat the advent of substantive First Amendment rights in the World War One era as isolated to the speech right. That is an incomplete picture because the formative First Amendment cases were assembly cases just as much as they were speech cases. This Article fills that historical gap and, from it, generates a doctrinal argument in favor of the assembly right.Historically, it shows that the seminal WWI cases were part of a milieu that entailed the socio-political control primarily of groups, not individuals’ speech. The mechanism was membership crime — criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article recovers assembly as a core First Amendment right, not secondary to speech. Doctrinally, the Article shows that at the advent of the substantive First Amendment it was assembly, rather than speech, that was often the primary right at issue. Indeed, even Brandenburg v. Ohio was an assembly case before it was a speech case. The Article therefore presents what it calls the “Brandenburg for groups” test, which would protect groups — even some criminal conspiracies — if they pose no imminent likelihood of substantive crime. This test responds to emerging scholarship on the assembly right, most notably the debate between John D. Inazu and Ashutosh Bhagwat on the utility of Brandenburg v. Ohio to protect that right. It traces a constitutionally and normatively appropriate line between protected and unprotected assembly that is currently lacking but is necessary to protect the democratic function of groups while continuing to ensure public safety.

Living with guns: a liberal's case for the Second Amendment

Newtown. Columbine. Virginia Tech. Tucson. Aurora. Gun violence on a massive scale has become a plague in our society, yet politicians seem more afraid of having a serious conversation about guns than they are of the next horrific shooting. Any attempt to change the status quo, whether to strengthen gun regulations or weaken them, is sure to degenerate into a hysteria that changes nothing. Our attitudes toward guns are utterly polarized, leaving basic questions unasked: How can we reconcile the individual right to own and use firearms with the right to be safe from gun violence? Is keeping guns out of the hands of as many law-abiding Americans as possible really the best way to keep them out of the hands of criminals? And do 30,000 of us really have to die by gunfire every year as the price of a freedom protected by the Constitution? In Living with Guns, Craig R. Whitney, former foreign correspondent and editor at the New York Times, seeks out answers. He re-examines why the right to bear arms was enshrined in the Bill of Rights, and how it came to be misunderstood. He looks to colonial times, surveying the degree to which guns were a part of everyday life. Finally, blending history and reportage, Whitney explores how twentieth-century turmoil and culture war led to today's climate of activism, partisanship, and stalemate, in a nation that contains an estimated 300 million guns----and probably at least 60 million gun owners. In the end, Whitney proposes a new way forward through our gun rights stalemate, showing how we can live with guns----and why, with so many of them around, we have no other choice.

Attorney Advertising and the Contingency Fee Cost Paradox

It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of Arizona. And, in the decades following Bates, courts, commentators, the ABA, and the FTC have followed suit, frequently touting advertising’s ability to cut consumer costs. The price effect of attorney advertising is thus both seemingly settled and also deeply embedded in its judicial justification.But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared. This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled” attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.

Buried Alive: The Constitutional Question of Life Without Parole for Juvenile Offenders Convicted of Homicide

In a string of recent cases, the Supreme Court has recognized the legal effect of juvenile defendants’ diminished culpability. This has led to a shift towards a jurisprudence that protects juvenile offenders from the most severe penalties. This Note argues that, since Graham v. Florida, juvenile life without parole is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, regardless of the offense. It first traces the development of contemporary juvenile justice, looking to the first system in New York and to early Supreme Court decisions regarding procedural due process rights for juvenile defendants. Next, the Note looks to the distinction that Eighth Amendment case law has made between capital and noncapital offenses and the abandonment of this distinction in Graham. It analyzes the two mandates from Graham and argues that the first mandate, that the court must consider youth as a mitigating factor in handing down a sentence, applies beyond sentencing considerations. The second mandate requires lower courts to guarantee the possibility of release of juvenile defendants, regardless of the severity of the offense or sentence. In the final Part, this Note applies the logic of Graham to State v. Ninham, a recent Wisconsin Supreme Court case. The author finds that juvenile life without parole is a violation of the Eighth Amendment’s bar on cruel and unusual punishment in all circumstances, and this conclusion must inevitably disturb the current sentencing structure of the entire criminal justice system.

US Food and Drug Administration–Approved Laboratory Tests After Caronia

In the January 2013 edition of the ARCHIVES, I described, in ‘‘Food and Drug Administration Approval of Laboratory Tests,’’ 1 the US Food and Drug Administration’s (FDA’s) off-label drug conundrum, and how it might apply (or chaos it might cause) were the FDA to begin approving laboratory tests. The month before the article’s January publication, the United States Court of Appeals for the Second Circuit handed down its opinion in United States versus Caronia, a case directly addressing the off-label issue, and for which a brief discussion as to its potential effect on FDA-approved laboratory tests is appropriate. In Caronia, a physician who had been convicted of health care fraud cut a deal to lighten his sentence and joined a Department of Justice (DoJ) sting operation during which he recorded pharmaceutical representative Alfred Caronia making ‘‘truthful, nonmisleading’’ statements about the uses of a narcolepsy drug, Zyrem. Caronia’s statements contained information pertaining to the use of the drug ‘‘that had been studied in clinical trials but were not approved [by the FDA].’’ 3 Caronia was tried and convicted of the crime of ‘‘conspiring to introduce a misbranded drug into interstate commerce.’’ 3 Caronia received a criminal sentence, which he appealed. Many legal experts have been concerned for some time that the FDA’s schizophrenic stance on off-label speech violates free speech protected by the First Amendment. Criminalizing truthful, nonmisleading speech by pharmaceutical representatives—speech that essentially anybody else is able to say—has produced an unsustainable tension, finally addressed by the Second Circuit in Caronia’s appeal. The Second Circuit concluded that ‘‘the government clearly prosecuted Caronia for his words—for his speech’’ and ‘‘slapped down [the] FDA’s and DoJ’s long-standing contention that the Food, Drug & Cosmetic Act (FDCA) makes it illegal for drug companies and their employees to communicate about an off-label use.’’ 3 Indeed, the Second Circuit went even further, asserting that ‘‘it is in the public interest for drug companies to discuss off-label uses with physicians.’’ 3 The Second Circuit’s Caronia decision has the potential to significantly change the FDA’s stance on approving laboratory tests. The court’s decision, dealing with First Amendment free speech rights, does not directly address laboratory tests. The FDA’s strained designation of laboratory tests as ‘‘medical devices,’’ a designation used entirely to assert control over them, remains intact. The FDA’s ability to grant approval of laboratory tests, including the promotion of so-called companion tests, also remains intact; this is so even as one struggles to determine just exactly how a molecular test could be ‘‘configured to work specifically in [non-small cell lung cancer] patients.’’ 1 Caronia changed the paradigm, freeing drug vendors to speak openly, with First Amendment protection, about FDA-approved and FDA-nonapproved (‘‘off-label’’) uses for drugs and medical devices. The success of ‘‘companion tests’’ has depended on the pre-Caronia environment allowing the FDA to restrict speech about alternative, offlabel tests; however, now that Caronia allows truthful, nonmisleading speech about these other tests, the marketing appeal of the companion test may rapidly wane. Taken in full, the holding could eliminate the newly minted companion test entirely, by eliminating the FDA-produced monopoly incentives that come with a test being labeled a companion test. Because Caronia is the ninth straight First Amendment case the FDA has brought and lost, and only applies to 3 states, it is unlikely the Obama administration will attempt Supreme Court review. For the FDA, the Caronia ‘‘decision was the Nightmare Before Christmas.’’ 4 Robert Temple, deputy director for clinical science at the FDA’s Center for Drug Evaluation and Research was ‘‘horrified’’ that the Second Circuit has held that a drug vendor’s truthful, nonmisleading speech is protected speech under the First Amendment. Other stakeholders in FDA litigation have generally had a ‘‘subdued’’ response to Caronia, noting that ‘‘it will be a long time before we figure out the true meaning of the case.’’ 3 Some stakeholders termed Judge Debra Ann Livingston’s Caronia’s dissent, referencing the famous Arsenic and Old Lace, ‘‘well-reasoned;’’ however, Richard Epstein demolishes it, noting, ‘‘[s]he is surely correct to write that, even if there is no law forbidding the consumption of arsenic, ‘this would not endow Abby and Martha with a First AmendAccepted for publication February 12, 2013. Published as an Early Online Release March 15, 2013. From the Department of Pathology and Laboratory Medicine, The University of Texas Health Science Center at Tyler. The author has no relevant financial interest in the products or companies described in this article. doi: 10.5858/arpa.2013-0020-ED Reprints: Timothy Craig Allen, MD, JD, Department of Pathology and Laboratory Medicine, The University of Texas Health Science Center at Tyler, 11937 Hwy 271, Tyler, Texas 75708-3154 (e-mail: timallenmdjd@gmail.com/timothy.allen@uthct.edu).

From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty

Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes. Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future. If the Connecticut Supreme Court upholds Connecticut’s repeal in Santiago, the way will be clear for other courts to uphold legislation abolishing the death penalty prospective-only. This Article is the second of two articles examining the emergence of this new trend of “gradual abolition” of the death penalty, by which state legislatures eliminate the death penalty for future crimes only and the executive retains it for those on death row. It begins with a discussion of the legislature’s strategic decision to abolish the death penalty prospective-only — a time-tested strategy that helped to end another infamous American institution: slavery. This Article next turns from the legislature to the courts, concluding, that prospective-only repeal does not violate the Fourteenth Amendment; rational reasons abound for repealing the death penalty for some but not all, and due process is not offended by retaining death row intact. Lastly, this Article points the way forward — to the future of those who remain on death row and capital offenders who await sentencing post-repeal. It argues that, post-repeal, the executive should grant clemency and capital sentencing juries should return life sentences — not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order. Indeed, there is no record of a death row prisoner ever being executed after prospective-only repeal of the death penalty; hopefully, there never will be.

The Story of Kedroff v. St. Nicholas Cathedral

The Story of Kedroff v. St. Nicholas Cathedral RICHARD W. GARNETT On February 1, 1952, a self-described “twenty-seven-year-old bachelor” recently graduated from the Stanford Law School, having just completed the long drive from Wisconsin in his 1941 Studebaker, reported for duty in Washington, D.C. as a law clerk to Justice Robert H. Jackson. It was, as the young man would later put it, “a highly prized position; I was surprised to have been chosen for it, and I did not want to be late for the start of my work.” His clerkship for Justice Jackson was, William H. Rehnquist wrote, his “first job as an honest-to-goodness ... lawyer.” Not too shabby.1 Orientation was apparently a no-nonsense business for new law clerks at the Supreme Court in 1952: After walking around the building to admire its construction and design, he reported to the Marshal’s Office, and was then escorted to Justice Jackson’s chambers and to the small office that he would share with his co-clerk, George Niebank. Rehnquist recalled having spent the morning ofhis first day on thejob working on a petition for certiorari in a federal drug case, and worrying a bit both about his “lack of any systematic typing skill” and about the fact that he had never studied “federal jurisdiction” in law school. Around lunchtime, though, at the invitation of his co-clerk, he made a brief appearance in the courtroom and was duly “impressed ... by the magnificence of [the] surroundings.” After describing in his memoir the scene and ceremony, and providing thumbnail biographical sketches of the thensitting Justices, the future Chief Justice interrupted himselfwith the memory ofbeing told it was “time to go to lunch” and dutifully departing the courtroom for the cafeteria.2 It is striking and, given the interests of those who write and comment about the Court and its work, perhaps even amusing that Rehnquist said nothing about the case that was actually argued on his first day on job. That argument, it turns out, resulted in a nowfamous religious-liberty ruling, Zorach v. Clauson, in which the Court rejected a constitutional challenge to a New York statute providing for the “release” of public-school pupils to attend off-site religious-education KEDROFF V. ST. NICHOLAS CATHEDRAL 81 classes. “We are a religious people,” Justice Douglas memorably wrote for the Court, “whose institutions presuppose a Supreme Being.” Accordingly, he reasoned, “[w]hen the state encourages religious instruction or cooperates with religious authorities by ad­ justing the schedule of public events to sectarian needs, it follows the best of our traditions.”3 No small part ofthe Court’s First Amendment work during the last half-century —including, of course, Rehnquist’s own contributions—has involved the delicate and divisive question ofreligion’s place in public schools and, in a way, the meaning and implications ofJustice Douglas’s assertion in Zorach about our national character. And yet, Rehnquist’s otherwise meticulous account of his first day as a law clerk (he even records his afternoon snack of cherry pie a la mode) includes nothing—not a word—about the case. Another First Amendment case was also on the docket that day, though only for some housekeeping matters, so it is easier to understand why it (unlike the “mysterious” maple syrup in the Wooster, Ohio diner where he had nervously eaten breakfast the day before)4 escaped Rehnquist’s mention. That case would eventually be argued and reported, later in the year, as Kedroff v. St. Nicholas Cathedral.5 And while it would probably not be accurate to include Kedroff among the sleeper cases of the kind that Justice Re­ hnquist would later enjoy comparing to Thomas Gray’s “flowers which are bom to blush unseen,”6 few would disagree with the judgment that, First Amendment-wise, Kedroff is no Zorach. I want to offer, however, a different view. Strictly speaking, the Kedroff case emerged from a land-use dispute, an eject­ ment action, involving the “right to possess and use certain church property known as Saint Nicholas Cathedral of the Russian Orthodox Church located on East 97th Street in the city of New York.”7...

Pilloried in the Press: Rethinking the Constitutional Status of the American Perp Walk

The perp walk is the practice, common among some American law enforcement agencies, of “walking” a criminal suspect before the press to be filmed. Perp walks have been challenged under the Fourth Amendment as unreasonable seizures of the person, but with limited success. This article examines the governing Fourth Amendment case law on perp walks. It finds the cases have deviated from conventional Fourth Amendment doctrine, instead establishing a bright-line rule based on an overstated distinction between different types of perp walks. The cases also overestimate the perp walk’s informative value while overlooking its punitive effects. Drawing on media studies, the article questions the claim that perp walks increase public access to the criminal justice system, arguing that they are necessarily distortionary media events. Drawing on both legal and anthropological sources, it goes on to suggest that perp walks are also inherently punitive events, akin to traditional shaming sanctions. Finally, the article offers a prescriptive analysis of how the perp walk cases can be brought back into line with Fourth Amendment doctrine and made to account for the perp walk’s distortionary and punitive effects.

Unintended Consequences: The Impact of the Court’s Recent Cases on Structural Ineffective Assistance of Counsel Claims

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will help those seeking indigent defense reform to establish the likelihood of future injury, a necessary element of successful structural challenges.

Police GPS Surveillance on Vehicles and the Warrant Requirement: “For a While I’ve Been Watching You Steady”

The global positioning system (GPS) has become ubiquitous to modern American life. The system supplies direction for travel through navigation systems as well as employee monitoring capabilities (Rosenberg Washington Journal of Law, Technology, and Arts 6:143–154, 2010). Law Enforcement has also found GPS to be a valuable tool. The technology provides a relatively cheap and highly effective way to monitor a suspect’s movement. Depending on the device, travel data can be reported in real time or be retrieved from the implanted device at intervals (Shah Journal of Law, Technology, and Policy 2009:281–294, 2009). This paper will first explore the core foundational Fourth Amendment cases that shape the use of GPS devices by law enforcement. Next, the federal circuits and state supreme courts’ decisions that have addressed the use of GPS will be reviewed. Third, the case of U.S. v. Jones (2012), which was recently decided by the United States Supreme Court, will be examined. Last, the policy implications of the current legal landscape regarding the use of GPS by police will be discussed.

Presidential Influence on Police Practices: The U.S. President’s Indirect Impact on Fourth Amendment Case Outcome Through Supreme Court Appointments

Utilizing presidential influence theory as a conceptual framework, this study examines the extent to which U.S. presidents effect police practice case outcome through the Supreme Court justices they nominate. Through their confirmed nominees, presidents can have an enduring political impact long after they have left office. Results from a sample of 253 Fourth Amendment police practice cases from 1953–1997 demonstrate that presidents do have an indirect influence on police search and seizure practices. While presidents do not vote in Supreme Court cases, they still have an effect on case outcome because their appointees generally vote along similar ideological lines. Specific results, study limitations, and policy implications for law enforcement agencies are discussed.

The First Amendment Originalism of Justices Brennan, Scalia and Thomas

Originalism holds that the U.S. Constitution should be interpreted based on the original intent or original meaning of the Constitution, that original intent is not only relevant but authoritative, and that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism's merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes that all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers perspectives on originalism's influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.