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Constitutional Default Rules and Interbranch Cooperation

Tara Leigh Grove

This Note explores whether “constitutional default rules,” or judicially crafted constitutional rules designed to spur legislative action, can generate interbranch cooperation in the area of criminal procedure. The Note looks at two types of constitutional default rules—the “model” default rule and the “penalty” default rule—in theory and in practice, examining how the Court has employed such rules to generate a dialogue with Congress in order to implement constitutional rights. The Note argues that while there have been notable failures by the Court in using the default rule to elicit a rights-protective legislative reaction (namely, in the case of Miranda v. Arizona) under the right conditions, the constitutional default rule may still be a viable tool for spurring progressive legislative policy and reform of the criminal justice system.

Disenfranchisement and the Constitution: Finding a Standard that Works

Demian A. Ordway

Since the presidential election of 2000, a host of new claims has arisen alleging unlawful denial of the right to vote. Litigants have challenged the use of error-prone voting machines, misleading registration forms, and the highly controversial photo identification requirements for in-person voting. The law protecting the right to vote, however, is in disarray, leaving courts confused and unsure of how to proceed with these challenges. In particular, courts have disagreed sharply over the content of the relevant constitutional standard and how to apply it. Some courts have adopted the standard articulated by the Supreme Court in its 1992 decision, Burdick v. Takushi, while others have applied strict scrutiny. This Note criticizes the Burdick standard for being incapable of producing consistent results and advocates for a modified version of strict scrutiny motivated by structural concerns inherent in the democratic process.

Judge Henry Friendly and the Mirror of Constitutional Law

Michael Boudin

Madison Lecture

Henry J. Friendly was one of the nation’s preeminent appellate judges. Judge Michael Boudin, once a law clerk to Judge Friendly, describes Judge Friendly’s career and judicial outlook in the New York University School of Law’s annual James Madison Lecture. Drawing upon Judge Friendly’s constitutional writings and decisions, the lecture touches upon Friendly’s gifts of mind, energy, and writing ability, and certain of his judicial characteristics: his attitude toward precedent and other constraints, his practical judgment, his intellectual rigor, and his essential moderation.

DNA Databases, Universality, and the Fourth Amendment

Paul M. Monteleoni

DNA databases enable extremely accurate criminal identification, and a database with appropriate privacy safeguards could be a boon not only for law enforcement but for civil libertarians as well. Unfortunately, current DNA databases lack important precautions and expose DNA donors to serious risks of abuse. The courts that have heard Fourth Amendment challenges to these databases have uniformly upheld them using one of two different rationales. Some courts have held that DNA databases serve a special need, and others have held that the convicted offenders targeted by current statutes have diminished privacy interests in their DNA. However, neither rationale provides a convincing justification for compelling individuals to provide DNA for a database, with or without safeguards. The problem is not with the substantive reasonableness of DNA collection for an ideal database, but with crafting a judicial decision procedure that allows only reasonable databases and not unreasonable ones. The solution proposed by this Note, accordingly, is an alternative decisionmaking procedure that enlists the assistance of the political process. Under the “universality exception” to the warrant requirement proposed by this Note, a search is reasonable if it is authorized by a statute that truly applies equally to every member of the population. The political process leading to the enactment of a universal DNA database, which this exception would require, would ensure that any such database had appropriate safeguards.

The “Special Needs” of Prison, Probation, and Parole

Antoine McNamara

Although government searches generally must be supported by warrant and probable cause, the Supreme Court rarely has applied this requirement in penal contexts such as prison, probation, and parole. In order to justify the government’s broad search authority in those contexts, the Court has created a patchwork of categorical rules and skewed balancing tests based on search targets’ diminished expectations of privacy. This Note argues that the Court’s current approach is unsound: Broad government search authority is justified in certain penal settings, but only because those settings create compelling government needs, not because the search targets have diminished privacy interests. Penal searches should therefore be analyzed under the “special needs” doctrine, which was designed for just this type of situation—where the government has compelling interests above and beyond those found in typical law enforcement contexts. A special needs analysis would allow courts to address the government’s unique interests without devaluing the strong privacy interests at stake. Most importantly, it would impose an additional safeguard to cabin discretion and protect against harassment: Warrantless penal searches could be performed only with individualized suspicion of wrongdoing or through a neutral, nondiscretionary plan.

Rejecting the Return to Blight in Post-Kelo State Legislation

Amanda W. Goodin

This Note examines state legislative responses to Kelo v. City of New London, the recent U.S. Supreme Court case that held that the exercise of eminent domain for private development does not violate the public use requirement of the Takings Clause. In response to Kelo, many states are legislatively prohibiting the use of eminent domain for development generally, but continuing to allow its use for development in blighted areas. This Note discusses the problems with such legislation and concludes that states should avoid crafting rules that allow the use of eminent domain for development solely in blighted areas. Such rules would improperly burden poor and minority communities and imbalance the political process by which rules on eminent domain for development are established.

The First Amendment as Criminal Procedure

Daniel J. Solove

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people’s private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls “First Amendment criminal procedure.” Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

Against Preemption: How Federalism Can Improve the National Legislative Process

Roderick M. Hills, Jr.

How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a “clear statement” rule by arguing that state control over preemptable topics is often presumptively inefficient, because common law juries lack expertise and because states are prone to imposing external costs on their neighbors.

This Article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national lawmaking process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution and instead concentrating on constituency service. Nonfederal politicians can disrupt this tendency to ignore or suppress political controversy by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress’s agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress’s agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote a more highly visible, vigorous style of public debate in Congress.

Things Better Left Unwritten?: Constitutional Text and the Rule of Law

Jane Pek

The written nature of America’s Constitution has been traditionally regarded as a constitutional virtue, and more recently dismissed as an irrelevancy of form. However, the concept of “writtenness” itself, in the constitutional context, remains vague and undefined. Through a comparison of the United States and United Kingdom constitutions, this Note identifies the essential characteristics of a written constitution and examines how such writtenness affects the achievement of the rule of law in a society. The Note argues that an unwritten constitution may prove as conducive to important rule-of-law values as a written constitution, if not more so, and challenges the general perception of writtenness as an unequivocally desirable aspect of our Constitution.

An Unfree Trade in Ideas: How OFAC’s Regulations Restrain First Amendment Rights

Tracy J. Chin

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s pub- lishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.

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