• Selected
• Entire List

Abstract:
For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment "incorporated" the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed "privileges" and "immunities" gave no hint of a connection with the Bill of Rights.

newspaper, Fourteenth Amendment, public

Abstract:
Professor Bryan Wildenthal makes an impressive contribution to the debate about whether ratification of the Fourteenth Amendment acted to "incorporate" the Bill of Rights so that its protections are enforceable against the states. His signal achievement is to develop a metric that facilitates making a judgment about whether the states had sufficient notice of the intent of at least some in Congress to incorporate the Bill of Rights into Section 1. He concludes that the states ratified with adequate notice of incorporation. In George Thomas's reply to Wildenthal, he reviews the evidence and concludes that it is insufficient to meet Wildenthal's metric and thus is insufficient to show that the states knew of congressional intent to incorporate. This does not, for Thomas, end the debate because the evidence is also insufficient to show that the states were not aware of the intent to incorporate. For Thomas, the historical question remains a riddle.

incorporation, Fourteenth Amendment, Bill of Rights

Abstract:
Abstract: Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court's lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury reach a verdict without pressure from the judge, but giving voice to that principle has resulted in a bewildering array of approved instructions. This article argues that the law of 1824, manifested in Justice Story's opinion in United States v. Perez, was superior to today's morass. In 1824, judges had virtually uncontrolled discretion to decide when to declare a hung jury. We argue for a return to 1824 with one twist: that judges give deadlocked juries the instruction: "Please continue to deliberate." This simple change will result in fewer hung juries and far fewer appeals about whether the instructions were too coercive.

Courts, Criminal Law and Procedure, Legal History

Abstract:
Miranda v. Arizona required that police inform suspects, prior to custodial interrogation, of their constitutional rights to silence and appointed counsel. It also required that suspects voluntarily, knowingly, and intelligently waive these rights in order for any resulting confession to be admitted into evidence at trial. The rationale of Miranda as elaborated by the Supreme Court has evolved from encouraging suspects to resist police interrogation to informing suspects that they have a right to resist. Reflecting a fundamental tenet in American culture and law, Miranda today seeks to protect the free choice of a suspect to decide whether to answer police questions during interrogation. Two generations of empirical scholarship on Miranda suggest that the Miranda requirements have exerted a negligible effect on the ability of the police to elicit confessions and on the ability of prosecutors to win convictions. There is no good evidence that Miranda has substantially depressed confession rates or imposed significant costs on the American criminal justice system. The practical benefits of Miranda to custodial suspects may also be negligible. Police have developed multiple strategies to avoid, circumvent, nullify, or simply violate Miranda and its invocation rules.

Criminal procedure, Miranda v. Arizona, criminal justice, interrogation techniques

Abstract:
For a dying medical patient whose suffering and/or indignity have passed tolerable limits, a variety of modes of hastening death might seem appealing. These include cessation of life-sustaining medical intervention (once the patient is machine dependent), stopping of eating and drinking, use of pain relievers that might hasten death, terminal sedation, suicide, and euthanasia. The legal status of some of these modes is well established. Physicians may cooperate with rejection of medical intervention and may not assist a suicide or administer euthanasia no matter how dismal the patient's condition. The legal status of the remaining modes of hastening death is less examined and less well understood.

Popular wisdom says that risky analgesics and terminal sedation are lawful so long as the cooperating physician intends to relieve suffering rather than to cause the patient's death. That wisdom relies on the principle of double effect. This article vigorously contests the thesis that the physician's specific intent is the key determinant in shaping the legal status of risky analgesics and terminal sedation. Rather, principles of recklessness -- grounded in degree of mortal risk, nature of the palliative justification, and professional palliative care practices -- govern the legality of these disputed means of hastening death.

This article also discusses the implications of the recklessness framework for the crimes of assistance to suicide and euthanasia. In contrast to some commentary that finds the distinctions among various modes of hastening death to be utterly arbitrary, this article argues that plausible theoretical distinctions separate the currently licit from the illicit modes of hastening death. Nonetheless, the article finds tensions and anomalies within the existing legal structure and suggests that the impetus for death with dignity will eventually impel legal acceptance of currently prohibited modes of hastening death. At the same time, the article acknowledges that the bounds will not stop at physician-assisted suicide for competent dying patients. Expansion of the legal limits will ultimately encompass both euthanasia and non-voluntary euthanasia for some fatally stricken patients.