Constitutional Law

Ariel Spierer

Police interrogations in the United States are focused on one thing: getting a confession from the suspect. The Reid Technique, a guilt-presumptive nine-step method and the most common interrogation technique in the country, is integral to fulfilling this goal. With guidance from the Reid Technique, interrogators use coercion and deceit to extract confessions—regardless of the costs. When used with juvenile suspects, this method becomes all the more problematic. The coercion and deception inherent in the Reid Technique, coupled with the recognized vulnerabilities and susceptibilities of children as a group, has led to an unacceptably high rate of false confessions among juvenile suspects. And, when a juvenile falsely confesses as the result of coercive interrogation tactics, society ultimately suffers a net loss.

In the Eighth Amendment context, the Supreme Court has recognized that children are different from adults and must be treated differently in various areas of the criminal justice system. The Court’s recent Eighth Amendment logic must now be extended to the Fifth Amendment context to require that juveniles be treated differently in the interrogation room, as well. This Note suggests that the Reid Technique be categorically banned from juvenile interrogations through a constitutional ruling from the Court. Doing so would not foreclose juvenile interrogation; rather, a more cooperative and less coercive alternative could be utilized, such as the United Kingdom’s PEACE method. Nonetheless, only a categorical constitutional rule that prohibits the use of the Reid Technique in all juvenile interrogations will eliminate the heightened risk of juvenile false confessions and truly safeguard children’s Fifth Amendment rights. 

Russell Rennie

The Insular Cases have, since 1901, granted the political branches significant flexibility in governing U.S. territories like American Samoa and Puerto Rico—flexibility enough, indeed, to ignore certain constitutional provisions that are not “fundamental” or which would be “impractical” to enforce in the territories. Long maligned as judicial ratification of empire, predicated on racist assumptions about territorial peoples and a constitutional theory alien to the United States, the Insular Cases had a curious renaissance in the late twentieth-century. As local territorial governments began to exercise greater self-rule, newly-enacted local laws in the territories began to pose constitutional issues, but courts generally acquiesced in these constitutional deviations. This Note argues that this accommodationist turn in Insular doctrine complicates the legacy of the cases—that their use to enable local peoples to govern themselves as they desire, and to protect their cultures, means the Insular doctrine is not merely defensible but perhaps even necessary, and finds support in arguments from political theory. Moreover, the Note contends, such constitutional accommodation has a long pedigree in the American constitutional system.


William S. C. Goldstein

Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many “traditional” private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants assert that plaintiffs’ purely legal injuries are not injuries “in fact,” as required to establish an Article III case or controversy. “Injury in fact” emerges from the historical requirement of “special damages” to enforce public rights, adapted to a modern procedural world. The distinction between public and private rights is unstable, however, with the result that many novel statutory harms are treated as “public,” and thus subject to exacting justiciability analysis, when they could easily be treated as “private” rights for which legal injury without harm is sufficient for standing. Public and private act as rough proxies for “novel” and “traditional,” with the former subject to more judicial skepticism. Applying “injury in fact” this way is hard to defend as a constitutional necessity, but might make sense prudentially, depending on the novelty and legal source of value for the harm. Taxonomizing these aspects of “harm” suggests that, even with unfamiliar harms, judicial discretion over value lessens the need for exacting injury analysis.


Adam M. Samaha

Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Harold Leventhal, that citing legislative history is like “looking over a crowd and picking out your friends.” Participants in debates over interpretive method have applied the idea to the proliferation of other sources as well, including canons of construction and originalist history. But the logic of “more sources, more discretion” has escaped serious testing. And predicting the effect of source proliferation is not a matter of logic alone. The empirical study of how information loads affect behavior has grown dramatically in recent decades, though almost without notice in legal scholarship on interpretive method.

This Article tests the logic and evidence for “more sources, more discretion.” The idea turns out to be incorrect, without more, as a matter of logic. Adding sources tends to reduce the chance of discretion using a simple model of interpretation. This starter model depicts judges as aggregators of source implications, and it draws on basic probability theory and computer simulations to illustrate. The analysis does change if we allow judges to “spin” or “cherry pick” sources, but without much hope for limiting discretion by limiting sources. Of course, judges will not always behave like machines executing instructions or otherwise follow the logic of these models. Thus the Article goes on to spotlight provocative empirical studies of information-load effects, develop working theories of interpreter behavior, and present new evidence.

After emphasizing that interpreters might ignore additional information at some point, the Article tests three other theories. First, an extended dataset casts doubt on an earlier study that linked a growing stock of precedents to increased judicial discretion. Adding to the pile of precedents seems to have no simple pattern of effect on discretion. Second, existing studies indicate that increasing information loads might prompt judges to promote the status quo, and new data suggest that this effect depends on the type of information added. The number of sources cited in appellant briefs appears to have no effect on judges’ willingness to affirm—in contrast with the number of words and issues presented, which may have opposing effects. Third, an expanded dataset supports an earlier finding that judges who face a large number of doctrinal factors might weight those factors in a quasi-legal fashion. This time-saving prioritization does not seem to follow conventional ideological lines.

With simple intuitions in doubt, thoughtful work remains to be done on the effects of source proliferation. Observers interested in judicial discretion have good reason to look beyond source proliferation to find it. And observers interested in institutional design have good reason to rethink the range of consequences when information is added to our judicial systems. 

Richard Diggs

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

Trevor W. Morrison & Julie B. Ehrlich