The year 2019 marks the 50th anniversary of the historic Warren Court. The breadth of decisions by this Court is both noteworthy and extensive. It was the Warrant Court that decided pivotal cases, such as Brown v. Board of Education and Gideon v. Wainwright, to name a few. In this Symposium, criminal justice scholars, and a Stetson Law student, explore ten opinions from the Warren Court. This Symposium is presented in two issues of the Stetson Law Review, with this Introduction providing an overview to both.
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This Article discusses the magnitude of the Warren Court’s doctrinal legacy, specifically focusing on what the Author deems to be the most important doctrine to come from the Warrant Court—incorporation. The Author first explains that incorporation is not the first obvious choice for the most important doctrine from the Warren Court due to the overwhelming amount of different doctrines the Court addressed, as well as the nature in which the Warren Court brought incorporation into being. The Author then proceeds to explain the positive and negative aspects of incorporation. The debate between whether incorporation is a boon or burden is analyzed by the Author, specifically discussing the recent Supreme Court decision in Timbs v. Indiana.
The Author transitions from the big-picture discussion of incorporation to consider some of the other important legacies of the Warrant Court on a smaller scale. The three legacies discussed are not holdings or specific doctrines, but rather “moves” or specific reasoning utilized by the Court. These “moves” include (1) the Warren Court’s efforts to understand police practices under the constitution; (2) the Court’s movement away from formalism that previously dominated the Fourth Amendment’s proscription of “unreasonable” searches and seizures; and (3) the resurrection of Justice Louis Brandeis reasoning in his dissent in Olmstead v. United States. The Article ends with a discussion on substantial unfinished business left by the Warren Court. The Author states that the most important failure by the Warren Court was the lack of pursuing racial justice in the enforcement of criminal law. The Author notes that the Court did not seek to condone race discrimination, but that Chief Justice Warren sought to keep race out of the Court’s attempt to regulate criminal justice generally.
In the seven years before launching its criminal procedure “revolution,” the Warren Court protected federal criminal defendants’ rights through decisions exercising its supervisory authority. The first of these, United States v. Offutt, 348 U.S. 11 (1954), overturned a lawyer’s criminal contempt conviction based in part on the Court’s “supervisory authority over the administration of criminal justice in the federal courts.” Justice Frankfurter’s Offutt opinion referred to his earlier one in McNabb v. United States, 318 U.S. 332 (1943), which is credited as the first to invoke the Court’s “supervisory authority” over the administration of federal criminal justice, a power that is not limited by the Constitution’s “minimal historic safeguards.” In the succeeding years, the Warren Court used this power in a range of federal criminal cases involving, among other things, a defendant’s right to elicit an informant’s identity, the inadmissibility of inferences from a witness’s invocation of the self-incrimination right, excessive publicity, and improper investigative methods. Although the early Warren Court was vague about the source and parameters of its supervisory authority, it was nonetheless confident in its possession of this power, in the breadth of this power, and in the obligation to employ it. This Article briefly describes the Court’s “supervisory authority” decisions leading up to Offutt, then discusses Offutt and its aftermath. It describes the initial significance of supervisory authority following Offutt, its declining role once the Warren Court turned its attention to the Bill of Rights provisions, and then its erosion by later Courts. It asks whether supervisory authority might have sustained a more important role in federal criminal procedure if it had been more firmly entrenched during the Warren Court era.
Numerous Warren Court decisions have had substantial impacts on criminal procedure. Lambert v. California was one case that had the potential to make such an impact—but never did. This article will explain the case, as well as the differing interpretations associated with it. It will further explain how the narrow application of Lambert by the courts prevented it from having any farreaching effects. Finally, it will describe how it could have limited criminal liability enough to perhaps have mitigated the mass incarceration wave that would follow in its wake.
The Warren Court had a complex relationship with policing. On the one hand, it appeared to act as a regulator of police practice, but on the other hand, the Warren Court supported discretionary police practices in opinions that, now 50 years later, reveal themselves as the starting point for the Supreme Court’s ultimate deregulation of policing. Two opinions in particular, Pierson v. Ray, studied in conjunction with Terry v. Ohio, offer a window into the birth of the “reasonably unreasonable” officer who operates with relative impunity on the streets today.
In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation.
African-American consumers continually experience the threat of police intervention or actual arrest as they shop in stores and sit in coffee shops. The Article argues that state enforcement of discriminatory trespass claims against African Americans results in unequal access to commercial establishments open to the public. Trespass allegations can result in lifelong concerns—legal and psychological consequences. The continued enforcement of discriminatory trespass claims cause significant harms, including demonstrative public health effects on African Americans. In recounting Boynton, the Article draws from its legacy forms of action to address discriminatory trespass enforcement.
The Fourth Amendment protects the rights of American citizens to secure their persons, houses, papers, and effects against unreasonable search and seizure. Modern Supreme Court jurisprudence, however, has inadvertently undermined these protections as the challenges of modern technology rapidly outpace the Court’s ability to anticipate the unique difficulties presented by sophisticated surveillance. This problem began with the Warren Court’s decision in Katz v. United States, which held that the “touchstone” of the Fourth Amendment is whether an individual has a reasonable expectation of privacy in the actions they are undertaking.
This Article argues that the Supreme Court should abandon the Katz doctrine and return to the property interests embedded in the original meaning of the Fourth Amendment. Specifically, that the Supreme Court should evaluate government actions in terms of digital trespass. First, this Article examines the Katz doctrine’s history and lays out salient criticisms and defenses of the Katz doctrine. Next, this Article evaluates two recent proposals for re-imagining the Fourth Amendment and synthesizes previous case law and existing commentary, ultimately proposing an alternative digital trespass doctrine. Finally, this Article explores how the digital trespass doctrine would function, how it solves the issues Katz created, and what potential challenges this new doctrine could present.
The American Bar Association requires law schools to move beyond the traditional, single final exam and incorporate more assessment. One method of assessment law professors may want to use is live critique. Through live critique, the professor examines students’ work for the first time in front of students and reacts to it live. This article details the benefits of live critique for law students, which include enhanced learning, increased confidence, and practice-ready skills. It also describes how professors can boost the effectiveness and efficiency of their feedback by delivering it live. Finally, the article provides suggestions for professors in overcoming potential challenges and provides step-by-step guidance on how to integrate live critique into any law school course.
Sports gambling is inherently a states’ rights issue, as recognized by the United States Supreme Court in recent pivotal cases, such as the 2018 seminal case, Murphy v. NCAA. In Murphy, the Court found that a provision in Professional and Amateur Sports Protection Act (PASPA), a federal law regulating state sports gambling, that restricted a state’s ability to repeal its own sports betting legislation unconstitutionally commandeered state legislatures. Following this 2018 ruling, and the addition of President Trump appointed justices, the Court has consistently reaffirmed state’s rights, from employment contracts to sports gambling. As states, voters, and sports organizations, like the NCAA and the NFL, push to legalize sports betting, especially with the rise of Daily Fantasy Sports, more legal challenges to PASPA will inevitably arise. So, with President Trump’s states’ rights bias and its reflection in his appointments to the Supreme Court, the end of PASPA is near and states’ rights will ultimately win.
For statists, the government is not only conceptualized independently of and/or before experience, but also apart from experience, or a priori. When problems are not solved through the state, then more government intervention is logically required, because it is understood by statists as the solution. Since the state is not blamed for the failures (because it is said to be the solution for the failures), statism results in a logical fallacy. We intend to present and refute such fallacy in the present work.