Constitutional Law. Criminal Law. A Federal Court Lacks Jurisdiction over a Criminal Defendant Brought into the District by Forcible Abduction; The Fourth Amendment Protects an Alien Residing Abroad against Unreasonable Searches and Seizures Conducted by American Agents. United States v. Toscanino, 500 F. 2d 267 (2d Cir. 1974)

Drawing on themes important in moral and political philosophy, much of the scholarship on the constitutional law of privacy in the United States distinguishes between privacy understood as a person's control over information and privacy understood as a person's ability to make autonomous decisions. For example, Katz v. United States (1967) established the framework for analyzing whether police activity constituted a “search” subject to the Fourth Amendment's requirement that the police either obtain a warrant before conducting a search or otherwise act reasonably. The defendant was a professional gambler who knew enough about police techniques to use a public telephone to make his business calls. Police agents attached a listening device to the outside of the phone booth, and sought to use the recordings against the defendant. The Supreme Court agreed with the defendant that the Fourth Amendment had been violated. Justice John Marshall Harlan's influential concurring opinion asserted that a person's privacy, in the sense of control over information, depended on two factors: “that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Fourth Amendment cases like Katz involve informational control; they define the circumstances under which the government may acquire information from or about a person without first obtaining the person's agreement. In contrast, cases like Griswold v. Connecticut (1965), which barred the state from making it a criminal offense to use contraceptives, and Roe v. Wade (1973), which restricted the state's power to prohibit or regulate abortions, used the language of privacy rights to protect a much broader interest in autonomous decision-making. Seeing these cases and related ones through lenseees provided by moral and political philosophy, scholars have attempted to describe what a morally sound constitutional law of privacy would be, and the broadest sense, dworkinian. That is, they seek to provide an account of privacy with two characteristics: it is broadly consistent with the relevant constitutional decisions, and it is the most morally attractive account possible that satisfies the requirement of consistency with the decisions.

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The Fourth Amendment as a Tool of Actuarial Justice: The “Special Needs” Exception to the Warrant and Probable Cause Requirements

Crime & Delinquency ◽

10.1177/0011128797043001005 ◽

1997 ◽

Vol 43 (1) ◽

pp. 78-103 ◽

Cited By ~ 6

Author(s):

Michael S. Vaughn ◽

Rolando V. del Carmen

Keyword(s):

United States ◽

Law Enforcement ◽

Special Needs ◽

Criminal Law ◽

Fourth Amendment ◽

United States Supreme Court ◽

The United States ◽

United States Supreme ◽

Managerial Efficiency ◽

Lower Courts

This article applies the concept of actuarial justice to the “special needs” exception to the Fourth Amendment warrant and probable cause requirements. According to the United States Supreme Court, the “special needs” exception should only apply when the routine interests of law enforcement are not implicated. Lower courts, however, have been instrumental in extending the administrative search doctrine of “special needs” into the realm of criminal law enforcement. The article concludes that as part of the broader movement in criminal justice toward managerial efficiency, the “special needs” exception serves as a tool of actuarial justice by diminishing Fourth Amendment rights.

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Scaled Punishments

New Criminal Law Review An International and Interdisciplinary Journal ◽

10.1525/nclr.2013.16.3.309 ◽

2013 ◽

Vol 16 (3) ◽

pp. 309-363 ◽

Cited By ~ 1

Author(s):

Matthew Wansley

Keyword(s):

United States ◽

Criminal Justice ◽

Criminal Justice System ◽

Criminal Law ◽

Confidence Level ◽

Justice System ◽

The United States ◽

Reasonable Doubt ◽

Collateral Consequences ◽

Criminal Defendant

This article challenges the principle that punishment is only justified after a defendant has been found guilty beyond a reasonable doubt. It proposes instead a system of scaled punishments in which a defendant’s sentence would be proportioned to the jury’s reported confidence level in the defendant’s guilt. The criminal justice system already implements a series of implicit scaled punishments in the form of plea bargains. This article defends the counterintuitive conclusion that a system of explicit scaled punishments would better satisfy the aims of retribution, incapacitation, and deterrence that we take to legitimate punishment. A system of scaled punishments would smooth out the moral discontinuity that our binary verdict structure creates. It would more precisely align the collateral consequences of criminal adjudications with the risk each criminal defendant poses. It would better distribute the costs of legal error. Paradoxically, a system of scaled punishments would likely reduce net incarceration in the United States. Factual uncertainty is pervasive in criminal law, and a system of scaled punishments would respond to uncertainty more rationally.

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Constitutional Law. Fourth Amendment. Eleventh Circuit Invalidates Search Because Officers Failed to Inform Bus Passengers That They Could Withhold Consent. United States v. Washington, 151 F.3d 1354 (11th Cir. 1998)

Harvard Law Review ◽

10.2307/1342279 ◽

1999 ◽

Vol 112 (5) ◽

pp. 1106

Keyword(s):

United States ◽

Constitutional Law ◽

Fourth Amendment

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James Bryce and the Australian Constitution

Federal Law Review ◽

10.22145/flr.43.2.1 ◽

2015 ◽

Vol 43 (2) ◽

pp. 177-200

Author(s):

Stephen Gageler

Keyword(s):

United States ◽

Judicial Review ◽

Constitutional Law ◽

The United States ◽

United States Constitution ◽

Constitutional Development ◽

Practical Operation ◽

Responsible Government ◽

Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

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The Grammar of Criminal Law

10.1093/oso/9780190903572.001.0001 ◽

2019 ◽

Author(s):

George P. Fletcher

Keyword(s):

United States ◽

International Cooperation ◽

Criminal Law ◽

International Criminal ◽

The United States ◽

International Order ◽

International Criminal Law ◽

Self Interest ◽

The Future

This book is an invitation to readers interested in the future of international cooperation to master the 12 basic dichotomies of international criminal law. The book foresees a growing interest in international order and cooperation following the current preoccupation, in Europe as well as the United States, with national self-interest. By emphasizing basic dichotomies, for example, acts vs. omissions and causation vs. background conditions, the book reinforces the jurisprudential foundations of international criminal law and also provides an easy way to master the details of the field.

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International Agreements and U.S. Foreign Relations Law

The Oxford Handbook of Comparative Foreign Relations Law ◽

10.1093/oxfordhb/9780190653330.013.9 ◽

2019 ◽

pp. 155-171

Author(s):

Jean Galbraith

Keyword(s):

United States ◽

Foreign Relations ◽

Constitutional Law ◽

Comparative Law ◽

The United States ◽

International Agreements ◽

Constitutional History ◽

Administrative Reforms ◽

Administrative Efficiency ◽

International Commitments

Over its constitutional history, the United States has developed multiple ways of joining, implementing, and terminating treaties and other international commitments. This chapter provides an overview of the law governing these pathways and considers the extent to which comparative law has influenced them or could do so in the future. Focusing in particular on the making of international commitments, the chapter describes how, over time, the United States came to develop alternatives to the process set out in the U.S. Constitution’s Treaty Clause, which requires the approval of two-thirds of the Senate. These alternatives arose partly from reasons of administrative efficiency and partly from presidential interest in making important international commitments in situations where two-thirds of the Senate would be unobtainable. These alternatives have had the effect of considerably increasing the president’s constitutional power to make international commitments. Nonetheless, considerable constraints remain on presidential power in this context, with some of these constraints stemming from constitutional law and others from statutory, administrative, and international law. With respect to comparative law, the chapter observes that U.S. practice historically has been largely but not entirely self-contained. Looking ahead, comparative practice is unlikely to affect U.S. constitutional law with respect to international agreements, but it might hold insights for legislative or administrative reforms.

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