By: Susannah W. Pollvogt
Windsor could be seen as a case primarily about federalism and the states’ traditional prerogative to regulate the meaning of marriage. It could be seen as a case attempting to revive a form of substantive due process based in individual dignity. Or it could be seen as a case that turns on the doctrine of unconstitutional animus. This Essay will concern itself with this last interpretation—that Windsor is a case about animus. But even within the confines of this single issue, there is much to argue over.
By: Jason A. Cade
A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally obtained evidence, typically by arguing that the Supreme Court should overrule its 1984 decision in INS v. Lopez-Mendoza not to enforce the exclusionary rule in civil immigration court. This Essay, in contrast, considers the role of Immigration and Customs Enforcement (ICE) attorneys in upholding the Fourth Amendment, taking as a launching point the recent exercise of prosecutorial discretion by ICE attorneys in Charlotte, North Carolina, in cases arising from systemic unlawful policing.
By: Courtney G. Joslin
On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor. In a 5-4 decision authored by Justice Kennedy, the Court held that section 3 of the Federal Defense of Marriage Act (DOMA) is unconstitutional. This Essay considers the extent to which the Court’s decision in Windsor turns on any of federalism-based arguments.
Applying Miranda’s Public Safety Exception to Dzhokhar Tsarnaev: Restricting Criminal Procedure Rights by Expanding Judicial Exceptions
By: Joanna Wright
While Dzhokhar Tsarnaev, the only surviving suspect in the April 15, 2013, Boston Marathon Bombing, was unconscious in the hospital after his arrest, the media vigorously debated his constitutional rights, specifically whether or not the FBI should Mirandize him or if it should invoke the public safety exception (PSE) to Miranda. The original application of the PSE would not permit the admission of Tsarnaev’s un-Mirandized testimony, but the expanded and evolved PSE that currently exists almost certainly can and will adapt to justify its admission. Using this situation as a backdrop, this Essay explores both the expansion of judicially created exceptions to criminal procedure rights and legislation eliminating criminal procedure rights for certain groups of people or for all people in certain situations.
By: Gil Seinfeld
The S&P litigation raises challenging questions of jurisdictional policy, but the law as it stands simply fails to engage them. It relies instead on a pair of mechanical rules for sorting cases between the state and federal courts that have only an attenuated relationship to considerations of sound jurisdictional policy.