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.
By: Lee Anne Fennell
Response to: Brian Angelo Lee, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).
Fair market value compensation is not full compensation. Lee’s analysis does not undercut that basic fact, though it does helpfully push us to examine the nature and extent of the undercompensation a fair market value standard generates. Nonetheless, the constitutional standard for just compensation may well be “just enough.”
By: Glenn Harlan Reynolds
Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. Two recent events, one involving NBC anchor David Gregory and one involving Reddit founder Aaron Swartz, have brought more attention to this problem. This piece analyzes the circumstances of these two contrasting situations and the role prosecutorial discretion played in each.