Prophylactic Rules Research Articles

Right To Remain Silent and Not to Incriminate Oneself in the European Union System

The paper examines the issue of the right to silence and not to self-incriminate in the European Union system. Appeared for the first time more than 30 years ago, in a case not concerning criminal matters, the right to remain silent has been implicitly, though unequivocally, enshrined in the basic texts of the EU, the Treaty of the European Union and the Charter of Fundamental Rights. Furthermore, while implementing the Stockholm Program, the Union adopted, in 2012 and 2013, the Directives on information and on the access to a lawyer , that reinforce what are, as well known, the main prophylactic rules protecting the privilege against self-incrimination Eventually, the EU legislator passed in 2016 the Directive on (certain aspects of) the presumption of innocence, that takes explicitly position on the defendant’s entitlement to keep the silence throughout the entire criminal proceeding. The normative set of principles and rules gives therefore to the protection of the right to silence a great potential, certainly higher than that resulting from ECtHR jurisprudence, especially in the light of the recent interpretative trend concerning the so-called ‘compensative measures’. However, reality appears rather different from the idyllic framework depicted. Great part of comments emphasizes primarily the limits and contradictions of the EU set of principles and rules, wondering if, and how, the future development of the defendants’ safeguards, especially the most crucial ones - such as the right of access to counsel and the right to remain silent - will live up to the promises and expectations borne in the legislative framework adopted after Lisbon and Stockholm. This sense of disappointment and uncertainty has more than one ground. The first is the global scenario, that has tended, in the last decades - the ones during which the normative EU framework on individual rights has evolved - to undermine or restrict due process rights, even in deep-rooted democracies. The second concerns the uncertain bases on which the right to silence and the privilege against self-incrimination is built. The question is if this tendency toward a ‘perversely, uniform mediocrity’ is inevitable, or if it could be avoided. After all, thanks to the legislative reforms passed in the last years, all the seeds for a new defendant’s rights blossoming are already there. The problem is then how to reverse such status quo, finding the way to make the most of the legal sources of the EU with regard to the right to silence.

Eyewitness Identification and the Problematics of Blackstonian Reform of the Criminal Law

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court. Commentators have universally condemned this state of affairs. This article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason for their reluctance to embrace rules excluding evidence thought to present unduly high risks of convicting the innocent. The case for reform is rooted in Blackstone’s admonition that the law should be wary of admitting evidence of guilt, preferring the acquittal of the guilty to the conviction of the innocent. It is difficult, however, to construct a Blackstonian case for exclusion of evidence thought unduly likely to produce wrongful convictions. Given our limited knowledge about the error rates that inhere in most types of evidence, Blackstonian reform has no ascertainable stopping point; excluding evidence that poses what is thought to be an undue risk of wrongful conviction could result in the exclusion of virtually all evidence of guilt. To illustrate the point, this article considers an issue on which the lower courts have split—the role of corroborative evidence in assessing the admissibility of an eyewitness’s identification. Although Blackstonian prophylactic rules reject consideration of corroborative evidence, the reliability of most evidence cannot be assessed in isolation. Reliability can usually be assessed only in the context of all pertinent evidence. Thus, totality-of-the-circumstances tests, such as the approach reflected in the Supreme Court’s decisions on eyewitness identification, are about the best we can do. Prophylactic evidentiary rules designed to reduce rates of wrongful conviction turn out to be deeply problematic.

The Inefficiency of Quasi–Per Se Rules: Regulating Information Exchange in EU and U.S. Antitrust Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under the EU competition regime. Using economic theories of harm concerning information exchange to understand the imposition of liability in relation to “stand‐alone” instances of information exchange, we argue that such liability must be grounded on the conception of a prophylactic rule. We characterize this rule as a form of ex ante regulation and explain why it has no ex post counterpart in antitrust law. In contrast to the U.S. antitrust regime, we argue that the implementation of such a rule pursuant to EU competition law leads to higher error costs without a significant reduction in regulatory costs. As a majority of jurisdictions have competition law regimes that resemble EU competition law more closely than U.S. antitrust law, our thesis has important implications for competition regimes around the world.

Prophylactic Rules for Newborns, Babies, Children and Adults in problems of Hip, Knee, Shank, Feet and Spine

Orthopedic Research Online Journal Prophylactic Rules for Newborns, Babies, Children and Adults in problems of Hip, Knee, Shank, Feet and Spine Tomasz Karski1*, Jacek Karski2, Katarzyna Karska2, Klaudia Karska2 and Honorata Menet3 1Vincent Pol University, Lublin, Poland 2Medical University in Lublin, Poland 3The University of Normandy in Caen, France *Corresponding author: Tomasz Karski, Vincent Pol University, Poland Submission: January 17, 2018; Published: March 12, 2018 DOI: 10.31031/OPROJ.2018.02.000530 ISSN : 2576-8875Volume2 Issue1

FTC v. Lundbeck: Is Anything in Antitrust Obvious, Like, Ever?

In FTC v. Lundbeck, the Eighth Circuit affirmed a bench verdict finding a merger to monopoly, followed by a 1400% price increase, not only legal, but effectively not even subject to antitrust. The result followed from the district court's view that peculiarities in the market for hospital-administered drugs rendered it essentially immune from price competition. That being the case, the court found that even products very plainly substitutable on any traditional “functional interchangeability” analysis are not in the same “relevant market” for purposes of rules governing horizontal mergers. We think the court's analysis was incorrect for a number of factual reasons, but stress that, much more importantly, a case like Lundbeck calls for return to traditionally broad, prophylactic rules.

Should Evidence of Settlement Negotiations Affect Attorneys' Fees Awards?

In October 2012, the U.S. Court of Appeals for the First Circuit held that a district court erred by reducing a prevailing plaintiff’s requested attorney’s fees based on evidence of settlement negotiations in which the plaintiff rejected a settlement offer that far exceeded what the plaintiff was awarded at trial. This created a circuit split, breaking from the precedent established by the Third Circuit, Fourth Circuit, Seventh Circuit, Eighth Circuit, and Ninth Circuit, all of which have approved a district court’s consideration of such evidence as part of its assessment of the degree of success obtained, which informs whether to adjust an award of attorneys’ fees calculated under the lodestar method.The article identifies and discusses the strengths and weaknesses of these courts’ analyses, assessing whether evidence of settlement negotiations is inadmissible pursuant to Rule 408 of the Federal Rules of Evidence, the extent to which such evidence is reasonably probative of the amount truly sought by the plaintiff, and the policy ramifications related to either permitting or prohibiting district courts from considering such evidence. The article argues that the First Circuit’s position is problematic because it relies heavily on a non-obvious negative implication of Rule 68 and ignores the empirical research that reveals endemic agency issues in the attorney-client relationship. But the article also contends that, to the extent that the other circuits have adopted a prophylactic rule aimed at discouraging lawyers from counseling their clients against settling in the hopes of accruing additional fees, the better path is to use either monetary sanctions or referrals to state bar agencies upon a procedurally-sound finding of misconduct in specific cases.

The corporate opportunity doctrine – An inflexible or flexible rule

The corporate opportunity doctrine is often seen as a prophylactic rule of strict ethic which is inflexibly applied in enforcing the fiduciary duties owed by directors to their companies. A close examination of some of the cases in which the rule has been applied, however, reveals that apart from the general restatement of the rule by the courts, the actual application of the rule in those cases are reflections of the peculiarities of the individual cases. The paper argues that a flexible approach is more realistic and enjoins the courts in interpreting and applying the various provisions of the statute that have codified this rule, to lean more on those decisions that reflect sensitivity to the peculiarities of the cases.

Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell

Prophylactic rules are judge-made rules promulgated by the Supreme Court to help protect underlying Constitutional rights when the Court believes that the right cannot otherwise be adequately protected. It has been said that a rule is prophylactic only when it can be violated without violating the Constitution. Over the course of the last fifty years, prophylactic rules of criminal procedure-and claims based on alleged violations of these rules- have proliferated. At the same time habeas petitions in the federal courts have also proliferated.Numerous commentators have argued in recent years that “federal habeas review of state criminal convictions is desperately in need of reform.” See Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Cal. L. Rev 1 (2010). Thirty-two years ago, in Rose v. Mitchell, 443 U.S. 545, 581 (1979), Justices Powell and Rehnquist, in a concurring opinion, said “In expanding the scope of habeas corpus...the Court seems to have lost sight entirely of the historical purpose of the writ. It has come to accept review by federal district courts of state-court judgments in criminal cases as the rule, rather than the exception that it should be.” This statement remains true today even though in Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court suggested a partial, and principled, solution to the problem. In Stone the Court held that a state prisoner who had a full and fair opportunity to litigate a Fourth Amendment claim in state court, at trial and on appeal, may not be granted federal habeas corpus relief on the ground that evidence obtained in violation of the Fourth Amendment was introduced at his trial. This article argues that Stone should be revived and extended. More specifically, this article argues that the Supreme Court should rule that federal habeas courts lack jurisdiction over state prisoner claims based on alleged violations of prophylactic rules because persons in custody as a result of such violations are not “in custody in violation of the Constitution or laws...of the United States.” Alternatively, the Court should limit habeas review of such claims by using the equitable considerations that it noted in Stone and that it has long used to raise and lower procedural barriers to habeas relief.

Frequent Flyers at the Court: The Supreme Court Begins to Take the Experience of Criminal Defendants into Account in Miranda Cases

Frequent fliers in the criminal justice context are a very active group of offenders. Between May 2009 and the end of the October 2009 term, the Supreme Court decided four cases interpreting Miranda that featured frequent fliers: Montejo v. Louisiana, Florida v. Powell, Maryland v. Shatzer, and Berghuis v. Thompkins. The original purpose underlying the Miranda decision was to reduce the likelihood that suspects would fall victim to constitutionally impermissible practices of police interrogation in an intimidating atmosphere by focusing on law enforcement actions. The defendants in these four cases were familiar with interrogation procedures employed by the police and, thus, were presumably less susceptible to be coerced by the hostile and intimidating environments of a custodial interrogation. The result in individual cases is a growing acceptance by courts – implicit in the Supreme Court, but explicit in state and lower federal courts -- that a waiver of Miranda rights by a suspect with an extensive criminal history is more likely to be knowing, intelligent, and voluntary. The result in more general terms signals a potential shift in Miranda doctrine by the Supreme Court: instead of relying on a prophylactic rule to prevent abusive police tactics, the Supreme Court is starting to focus on whether a particular defendant was coerced by the tactics used by the police. The practical implications of this focus appears to be a willingness to allow greater leeway to police, and greater use of aggressive police tactics when dealing with suspects with criminal experience. While it seems unlikely that Miranda will be directly overruled, the recent decisions and an increased focus on the criminal background of suspects suggests that the existing Miranda rules will continue to be subtly abandoned in favor of a more subjective test focusing on whether a statement is the result of coercion.

Prophylactic surgery and ovarian cancer treatment of women carriers of BRCA 1 gene mutation

e22139 Backgrounds. Tree BRCA 1 mutations commonly present in Polish population (5382 insC, C61G, 4153 delA) have been implicated in familial clustering of mammary-ovarian cancer. Prophylactic bilateral adnexectomy reduce the risk of ovarian cancer of more then 80% and the risk of brest cancer to 53%. Methods. It is retrospective study. We enrolled 193 women carriers of BRCA 1 mutation. 161 had prophylactic adnexectomy and 32 were treated because of diagnosed ovarian cancer. All were treated at our Department of Gynecological Surgery and Gynecological Oncology of Adults and Adolescents between 1999–2008. We analysed the frequency of brest cancer in patients who were admitted to the hospital for prophylactic surgery and number of ovarian cancer diagnosed during prophylactic surgery. We analysed the response on standard treatment based on platinum analogs in carriers of BRCA 1 with ovarian cancer. It was also evaluated the incidence of primary peritoneal cancer in patients after prophylactic treatment. Results. The age of women at the time of prophylactic operation were between 41–60 y.o (mean 45 years old). We found, that 61 of patients had already diagnosed and were treated because of breast cancer (37.9%). During prophylactic surgery we diagnosed 10 cases of ovarian cancer, 2 cases of primary peritoneal cancer and 2 fallopian tubes cancer. These patients had no symptoms and were qualified to prophylactic adnexectomy. 32 women with ovarian cancer diagnosis had typical response to standard treatment, 70% were platinum sensitive and DFS was more then 12 months, 25 % had DFS between 6–12 months and 5% were platinum resistant. There were diagnosed only 2 cases of primary peritoneal cancer in patients after 31 and 61 months from prophylactic treatment. Conclusions. Separation the risk group - patients carriers BRCA 1 mutation let us to introduce effective prophylactic rules of conduct. No significant financial relationships to disclose.

No Good Deed Goes Unpublished: Precedent-Stripping and the Need for a New Prophylactic Rule

This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right - that is, to create a presumption of constitutional injury without proof of it - when such is the only effective way of protecting the core right to any meaningful extent. The author couples this case law with sobering empirical data and entrenched theories of judicial power to argue that a new prophylactic rule forbidding “precedent-stripping” is necessary to ensure that appellate courts do not deny appellants full and fair adjudication of their appeals.

Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases

Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery results in a highly limited flow of information. This is particularly true in the dozen or so states that follow the restrictive federal rule, which is premised in part on the idea that a defendant is not entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. In these jurisdictions, defense counsel gets almost no information about the state's case. Yet pre-trial investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel, one that is necessary to the testing of the facts in our adversarial system. Indeed, counsel's Sixth Amendment duty to provide effective assistance of counsel encompasses the duty to reasonable investigations or . . .make a reasonable decision that makes particular investigations unnecessary. The right to effective assistance rings hollow when restrictive discovery rules render an attorney unable to investigate the facts of the case. The situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share. How can counsel investigate enough to make informed choices about trial defenses when the client can say no more than know nothing about these charges? An assumption that a defendant has enough information about the case to allow for investigation flies in the face of the constitutional right to a presumption of innocence. There are clear connections among the effective assistance of counsel, the duty to investigate and discovery. It is the aim of this article to both explore those connections and to urge a Sixth Amendment analysis of restrictive discovery rules. The Supreme Court has considered discovery almost exclusively through the lens of due process under the Fourteenth Amendment. Scholarship on discovery also largely fails to explore the validity of restrictive discovery under such a Sixth Amendment analysis. Reconsideration of the discovery framework is timely for two reasons. First, the Supreme Court has injected new life into defense counsel's constitutional duty to investigate in two recent decisions which reversed death sentences. In Williams v. Taylor, for the first time the Supreme Court found ineffective assistance of counsel based on defense counsel's inadequate investigation. In Wiggins v. Smith, the Court found that defense counsel's paltry investigation into mitigation evidence for Wiggins's capital sentencing hearing did not comport with prevailing professional norms.The second reason that reconsideration of the analytic framework is timely is that the recent debate over fairness in the death penalty has led to a greater understanding of the causes of wrongful convictions and to the identification of inadequate investigation as a core cause. This is perhaps the driving force behind the Court's renewed attention, in Williams and Wiggins, to failures to investigate. If adequate investigation can help protect against wrongful conviction, then courts must give the constitutional duty to investigate real meaning by giving defense counsel the discovery they need in order to investigate. In Parts I and II, this Article explores counsel's duty to investigate in the context of the Sixth Amendment and links the duty to the discovery process. Part III summarizes the purpose of pretrial discovery in criminal cases and discusses why the three major contentions in support of restrictive discovery--likely perjury by the defendant, lack of reciprocity in the discovery process, and potential witness intimidation - lack validity. The Article concludes by suggesting that the prophylactic rule of open file discovery is an appropriate remedy for the constitutional conflict between the duty to investigate and state barriers to the information necessary to carry out that duty.

Against Orthodoxy: Miranda is Not Prophylactic and the Constitution is Not Perfect

In the four decades since the decision in Miranda v. Arizona, two areas of consensus have emerged about that decision. The first is that Miranda's rationale for requiring its famous warnings prior to custodial interrogation is wrong, or at least dramatically overstated. In Miranda, the Supreme Court characterized custodial interrogation as involving inherent compulsion within the meaning of the Fifth Amendment. The Court has subsequently, however, come to characterize Miranda as prophylactic. On this view, custodial interrogation creates a risk of compulsion, but unwarned custodial interrogation is not itself a violation of the Fifth Amendment's prohibition on compelled self-incrimination. Even Miranda's advocates accept this characterization, while defending the propriety of prophylactic rules of constitutional law. The second point of agreement is that Miranda has turned out to be a failure. 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. In this article, which appears in a symposium on Miranda's fortieth anniversary, I mean to take on both areas of agreement. On the first point of agreement, I argue that the Court was correct to conclude that an inherent feature of custodial interrogation is compulsion within the meaning of the Fifth Amendment. The original meaning of compulsion for purposes of the Fifth Amendment is the fear of criminal sanctions if one does not submit to interrogation. It was the threat of such sanctions that made compelled oaths mandatory, and led to the creation of the privilege against compelled oaths. When a suspect is subjected to custodial interrogation, however, he cannot help but consider the possibility of criminal prosecution and its ensuing sanctions should he refuse to submit to questioning and therefore risk displeasing his captor. Thus, Miranda correctly concluded that some measure of compulsion inheres in all custodial interrogation. Constitutional rights, however, can be waived, and this is no less true of the right to be free from compelled self-incrimination than any other constitutional right. The Miranda warnings, in turn, provide the ingredients for a valid waiver of the right to be free from compelled self-incrimination. On this understanding, Miranda is not prophylactic - the warnings are essential if a confession obtained during custodial interrogation is to be received in evidence. On the second point of agreement, Miranda critics rely on the incidence of false confessions to make their case for additional regulation. I argue, however, that judicial regulation of interrogations can only be expected to be effective if the judiciary develops relatively clear and administrable rules. Most Miranda critics, however, advance no clear rules, but instead advocate a form of ad hoc regulation that is likely to accomplish no more than the unsatisfactory due process test that Miranda abandoned. Other Miranda critics correctly perceive the problem with ad hoc regulation, and take an expressly prophylactic approach to regulation - they claim that additional regulation is warranted for interrogations likely to lead to Fifth Amendment violations. The critics, however, fail to make the necessary empirical case for their reforms. They cannot show that the tactics they would target for additional regulation create disproportionate rates of false confessions. Instead, they advocate a form of what Henry Monaghan once called constitutional perfectionism - the critics argue that any system that fails to minimize the risk of convicting the innocent should be condemned as unconstitutional. The Constitution, however, does not contain a no-conviction-of-the-innocent clause, nor does it mandate perfection in the administration of justice. Any effective system of law enforcement will have a risk of error; and the critics have developed no principled means for identifying risks of error that can be considered constitutionally undue - indeed, they have not even identified the pertinent error rates. Even if we could identify error rates, it is the political process that should determine what error rates should be considered undue. For purposes of constitutional adjudication, requiring the police to obtain a valid waiver of Fifth Amendment rights under Miranda is all that we can reasonably ask from law enforcement.

Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda's constitutional status has become less and less meaningful. In this paper I want to focus on the Court's characterization of statements elicited in violation of the Miranda warnings as not actually coerced or compelled but obtained merely in violation of Miranda's prophylactic rules. This terminology has plagued the Miranda doctrine and puzzled and provoked many commentators since then - Justice Rehnquist utilized this label to describe and to diminish Miranda - and he was the first Justice ever to do so - thirty-one years ago.

Human trichinellosis due to Trichinella britovi in southern France after consumption of frozen wild boar meat

Six patients were infected with Trichinella britovi in southern France following consumption of frozen wild boar meat, which had been frozen at -35 degrees C for 7 days. Microscopic examination of a sample of frozen wild boar muscle revealed the presence of rare encapsulated Trichinella larvae, identified as T. britovi. People eating wild boar must follow individual prophylactic rules such as efficient cooking of meat (at least 65 degrees C at the core for 1 minute) as recommended by the International Commission on Trichinellosis, or freezing exceeding four weeks at -20 degrees C.

Constitutional Decision Rules

Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a conceptualization bearing a family resemblance to Monaghan's work on constitutional common law, Sager's exploration of underenforced constitutional norms, Strauss's defense of prophylactic rules, and Fallon's focus on constitutional implementation, yet reducible to none of them. This novel conceptualization makes better sense of much of contemporary constitutional scholarship and of many of the Supreme Court's most significant decisions. No doubt considerable distance toward a complete and precise taxonomy remains. But even incremental advances in detailing the conceptual map of constitutional adjudication can purchase large improvements in our ability to negotiate the terrain.

Gatekeeper Failure and Reform: The Challenge of Fashioning Relevant Reforms

Securities markets have long employed gatekeepers - independent professions who pledge their reputational capital - to protect dispersed investors. This strategy of relying on reputational intermediaries to assess, verify and certify the corporate issuer's disclosures appears to have failed during the late 1990s, as accounting irregularities increased exponentially. Part I of this paper assesses the reasons for this failure, emphasizing both a shortfall in deterrence and the sudden shift from a cash-based to an equity-based system of executive compensation during the 1990s. Part II and III then survey the realistic regulatory options and the incomplete steps taken by the Sarbanes-Oxley Act. Breaking down these options into four categories - structural rules, prophylactic rules, procedural rules, and liability-enhancing rules, - Part III concludes that simply increasing the threat of liability could cause the market for gatekeeping services to fail. Instead, it proposes a shift towards stricter liability standards coupled with a ceiling on gatekeeper liability set at a level adequate to deter misconduct, but not to compensate investors. Finally, Part III proposes that the role of a new gatekeeper needs to be recognized and formalized: namely, the attorney who prepares a disclosure document, who should, it argues, be forced to provide a functionally parallel certification with regard to this issuer's non-financial disclosures to the certification provided by the auditor with respect to financial disclosures. The feasibility and scope of such a certification requirement, along with its impact on the attorney's other obligations to its client, are explored in Part III.

Attacking Brandenburg with History: Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing it?

Racist has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, hate speech lays the foundation for harmful social movements that ultimately result in the oppression and persecution of outgroups. From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize hate speech based on the long-term such can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the imminent harm requirement in Brandenburg. Rather than being premised on a view that cannot cause long-term harm, Brandenburg's imminent harm requirement is designed primarily as a prophylactic rule to prevent government from using a long-term rationale to suppress based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term that the can cause.

Miranda's Exceptions in a Post-Dickerson World

Can holding in Miranda v. Arizona, as well as numerous exceptions to its dictates, be adequately justified after Supreme Court's latest pronouncement in Dickerson v. United States? Chief Justice Warren in Miranda held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of defendant unless it demonstrates use of procedural safeguard effective to secure privilege against self-incrimination. While this holding appeared to enshrine four warnings into Fifth Amendment itself, this interpretation was short-lived. Chief Justice Burger, in crafting an impeachment exception in Harris v. New York, began a series of exceptions based upon premise that a Miranda violation does not necessarily violate violation. Conservative legal scholars responded to deconstitutionalization of Miranda by suggesting that Court had no authority, pursuant to Article III of federal Constitution, to reverse state criminal convictions absent an actual violation. A rogue Assistant United States Attorney and a conservative law professor convinced Fourth Circuit that a largely ignored statute Congress enacted in 1968 to overrule Miranda had done just that. Finally, Chief Justice Rehnquist, in terribly disappointing Dickerson case reversing Fourth Circuit, opined that Miranda has constitutional underpinnings, yet its exceptions remain in force. Professor George Thomas and I, in a symposium issue at 99 Michigan Law Rev. 1030 (2001), reach same general conclusions regarding both justification of Miranda (it can be satisfactorily explained), and fate of pre-Dickerson exceptions to Miranda (they healthily survive). However, we reach these conclusions by radically different routes: Professor Thomas utilizes malleable due process clause, while I rely upon flexibility of prophylactic rules. While this difference may not seem striking when focusing solely upon Miranda warnings, it is stark when attempting to justify Warren Court revolution as a whole. In this brief commentary, I respond to Professor Thomas' thoughtful and creative but, in my opinion, ultimately unpersuasive attempt to relocate Miranda warnings from Fifth Amendment's self-incrimination clause to Fourteenth Amendment's due process clause. The warnings do not fit comfortably in either substantive or procedural due process, nor does relocation fully resolve what he calls Miranda's mysteries. On other hand, my more conceptually pleasing proposal not only resolves all aspects of Miranda, but also accounts for many similar doctrinal devices (what I call prophylactic rules and incidental rights) throughout criminal procedure. It does this by sharing power with other branches of federal and state governments, and by stimulating social science research that may general alternative improved procedures.

Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure

INTROD U CTION .. 1030 I. IDENTIFYING AND JUSTIFYING PROPHYLACTIC RULES, SAFE HARBORS, AND INCIDENTAL RIGHTS 1032 A. Constitutional Prophylactic Rules 1037 B. Constitutional Safe Harbor Rules 1044 C. Constitutional Incidental Rights 1047 II. (RE)FORMULATING PROPHYLACTIC RULES, SAFE HARBORS, AND INCIDENTAL RIGHTS . 1051 A. Fostering a Dialogue Between the Supreme Court and Other Federal and State Actors 1052