Burke and Jeb Barnes. Retrenching civil rights litigation: why the court succeeded where congress failed Stephen Burbank and Sean Farhang 9. The contours of the Supreme Court's civil rights counterrevolution Lynda G. Dodd Constraining aid, retrenching access: legal services after the rights revolution Sarah Staszak. Rationalizing rights: political control of litigation David Freeman Engstrom The future of private enforcement of civil rights Lynda G.
Portail universitaire du droit. Rechercher sur le site Introduction 1.
Reassessing the rights revolution Lynda G. Dodd Part II. Implementing the Rights Revolution 2. Rights and Retrenchment 8.
The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective
Together with Clinton nominees Ruth Bader Ginsburg and probably Stephen Breyer, they form the operational center of today's Court—a Court highly unlikely to favor major reversals. Thus all of the landmark decisions of the rights revolution will remain in force for the foreseeable future. Even so, change for the better is not only possible but likely: every year, the rights revolution's damaging effect on American society's ability to maintain public order becomes plainer, and public concern about it grows broader, deeper, more mainstream.
In response, without overruling any of the rights revolution precedents, the Court could accomplish a great deal by making modest retrenchments and modifying legal doctrines at the margins. What's more, such actions, which have an important, healthy impact on the real world, are likely to appeal to the "centrists" who control today's Court.
Let me suggest six lines of argument likely to sway these centrists. T he Court should treat more seriously the commonlaw misdemeanors that are the bedrock of traditional methods of maintaining civic order. The ability of the police to keep streets, transit systems, parks, and other public spaces livable rests on a legal foundation of about half a dozen ancient commonlaw offenses that have been, in various ways, codified by states and municipalities—crimes such as disturbing the peace, disorderly conduct, use of obscene and abusive language, vagrancy, and obstruction of public ways.
Over the past 30 years, the Supreme Court has struck down many such laws, making police and prosecutors reluctant to enforce those that remain on the books. The idea of vagueness derives from the due process clauses of the Fifth and Fourteenth Amendments, and it is an idea that the common law always took seriously. After all, the evil of a vague criminal statute is twofold: people receive inadequate notice that certain behavior is forbidden, and police have too much discretion in deciding how and when to apply the law. Laws have to be clear, of course; but it is not always possible or necessary for them to be specific' which is a quite different thing.
Legislatures can only address large areas of misbehavior in general terms. In other cases, legislatures could help matters by clarifying an old offense—for example, by changing a statute against "obstruction" to forbid "lying" in public ways. But even in this case, the Court should dismiss out of hand elaborate hypothetical arguments, smacking of medieval scholasticism, over whether sitting propped against a wall with legs extending onto the sidewalk really constitutes "lying.
The real issue, of course, is how much discretion police on the street should exercise, always a vexing question. But we have passed let us hope through an era in which, among the legal elites and intellectual classes, every hand has been turned to limiting police discretion.
It is realistic to urge the contemporary Court to seek finer balances. Overbreadth is an idea that rests on the First Amendment's protection of free speech.
The Court has used this concept to say that a statute that deals with utterance in broad, descriptive terms, such as "obscene and abusive language," is unconstitutional because it might conceivably be applied in ways that would limit constitutionally protected speech. By this approach, laws that can have both legitimate and illegitimate applications can never be applied at all because of the danger that someone somewhere might be intimidated "chilled" and refrain from engaging in what would be protected speech.
Unlike vagueness, overbreadth is not a doctrine deeply rooted in our legal history, and its pernicious effects can be countered by the Court's being encouraged to take more seriously than it has done in recent years the older doctrine of "fighting words" that the case of Chaplinksy v. New Hampshire established. There Justice Frank Murphy, one of the strongest proponents of free speech to sit on the Court in the twentieth century, wrote that "there are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. M uch of the disorder in America's cities is the result of deinstitutionalization of the mentally ill, a process that accelerated in the midsixties and filled the streets and the parks with seriously disturbed people who are sometimes, as in the infamous case of Larry Hogue, dangerous. The Supreme Court's contribution to deinstitutionalization was quite measured and sensible, in contrast with the utopian enthusiasm of professional civil libertarians and many mental health specialists.
O'Connor v. Donaldson, in , held that a young man who had been adjudged mentally incompetent but never dangerous, and who was receiving no treatment, could not be indefinitely confined against his will. Addington v.
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Texas, in , held that, given the magnitude of the "liberty interest" involved in civil commitment proceedings—since institutionalization amounted, in effect, to incarceration—due process required government to meet the standard of "clear and convincing evidence" rather than to meet the less demanding "preponderance of evidence" standard that is used in most civil lawsuits. The problem is the way in which this new constitutional law has trickled down in state laws and regulations that make it extremely difficult to commit the dangerously mentally ill.
New York provides a vivid example. In August , a Manhattan jury voted to release Ronald Crumpley, a confessed killer who was, concededly, still mentally ill and dangerous, from an institution for the criminally insane. The jury felt it had no other choice because a New York State law appears to make continued incarceration possible only if the state can give positive answers to all of five interlocking questions: Has the prosecution shown that Mr.
Crumpley suffers from a mental disease? Is psychiatric care or treatment essential to his welfare? Is inpatient care in a hospital necessary? Does he pose a physical danger to society? Have prosecutors shown that he does not recognize his own need for treatment? Only to the last question did the jury answer nothat is, the State of New York had persuaded it that Crumpley was insane, dangerous, and in need of treatment and hospitalization.
But the jury released Crumpley because the state had not persuaded it that Crumpley himself did not understand this. A misunderstanding of the statute? Perhaps, but the kind of mistake the highly formalistic laws governing commitment invite. As psychiatrist Sally Satel points out page 78 , most mental health experts now agree that existing laws make it too difficult to commit those with serious mental illness.
But skilled advocates resist reform, arguing that every legal jot and tittle put in place over the past 25 years is constitutionally required and therefore beyond the power of legislatures and judges to alter. Here the Supreme Court can help by making clear that the constitutional test for civil commitment must take into account what lawyers call the "totality of circumstances.
Under this standard, a patient who is no longer dangerous once he has taken psychotropic drugs might be kept in a hospital if there were clear and convincing evidence based, say, on past performance that he would be likely to go off his medicine if not confined.
Similarly, a dangerous patient would not be a candidate for release just because no effective treatment for him had been found beyond enforced custodial care. This would not involve overruling anythingonly reading the precedents sensibly. T he rights revolution also created obstacles to the enforcement of laws against serious crimes.
One doctrine that deserves reexamination is the "exclusionary rule," which the Warren Court established by the famous case of Mapp v. That decision required state courts to exclude from criminal trials evidence that police had improperly obtainedno matter how trustworthy the evidence or how small the officers' error. The Court reasoned that the only way to make police and prosecutors respect its interpretations of the Fourth Amendment's protection against unreasonable search and seizure was to punish them for violations by taking away the evidence.
The Rights Revolution Revisited - Portail Universitaire du droit
The exclusionary rule instantly created an inflexible national standard that replaced a multitude of statecrafted rules about the admissibility of evidence. And so today, to paraphrase justice Benjamin Cardozo, when the constable blunders, the criminal goes free. No matter how compelling the arguments against the exclusionary rule, there is virtually no chance that the Supreme Court will overturn Mapp.
But the rule need not remain quite so serious an obstacle to effective criminal prosecution as it has been. In , the Court recognized a limited exception to the rule, allowing prosecutors to introduce evidence that had been seized on the basis of a defective search warrant, if the police reasonably believed the warrant was valid.
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The reasoning was clear: if the purpose of the exclusionary rule is to discourage police misconduct, and if officers believe they are playing by the rules, then it accomplishes nothing to exclude evidence simply because the magistrate made an error in issuing the warrant. A similar argument could lead to a further exception, this time for searches without warrants. For warrantless searches to be constitutional at all, an investigator must have "probable cause" to believe that they will turn up evidence of a crime.
In addition, the investigator must show that "exigent circumstances" made it imperative that he act on the spot rather than take the time to obtain a warrant. Probable cause and exigent circumstances are blurry legal concepts. If an officer makes a close call on one or the other, only to be overruled by a judge, does that mean that the evidence must be lost?
The televised drama of 0. Simpson's trial is instructive here. Legal experts interviewed on television split about evenly as to whether the officers who arrived at Simpson's gate fresh from the murder scene were right in thinking that exigent circumstances justified their warrantless entry onto Simpson's premises.
Had Judge Lance Ito ruled that exigent circumstances did not exist, then under current Fourth Amendment doctrine the evidence would have been altogether lost.
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A more sensible approach would be to preserve the evidence unless the judge concludes that the officers acted in bad faiththat is, that reasonable, trained professionals could not have believed that exigent circumstances existed, and that the officers appeared to have resorted to such an argument only as a pretext to obscure their own carelessness or uncertainty about probable cause. There is a great difference between an officer making a judgment call and an officer cooking up a story to excuse his going where he knew he had no right to be.
Such an approach properly places the burden of demonstrating a goodfaith mistake on the police, but if their position proves plausible, the evidence need not be excluded. The exclusionary rule would remain in place for the truly lawless law enforcers who moved the Court to adopt the rule in the first place, without senselessly penalizing the community by sacrificing trustworthy evidence.
T he Court could similarly adopt a more reasonable view of what constitutes "reasonable suspicion. Wilson put forth in a recent New York Times Magazine essay.