A Dissent from the Miranda Dissents: Some Comments on the \u27New\u27 Fifth Amendment and the Old \u27Voluntariness\u27 Test

If the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer are any indication, Miranda v. Arizona has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention

Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case

Now that the U.S. Supreme Court has upheld New York and Washington state laws prohibiting the aiding of another to commit suicide,2 the spotlight will shift to the state courts, the state legislatures and state referenda. And once again proponents of physician-assisted suicide (PAS) will point to a heartwrenching case, perhaps the relatively rare case where a dying person is experiencing unavoidable pain (i.e., pain that not even the most skilled palliative care experts are able to mitigate), and ask: What would you want done to you if you were in this person\u27s shoes

The Fourth Amendment: The Right of the People to Be Secure in Their Persons, Homes, Papers, and Effects

Three quarters of a century ago, the Supreme Court expressed some thoughts on constitutional interpretation that bear repeating today (Weems v. United States): Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions .... [In interpreting] a constitution, therefore, our contemplation cannot be only of what has been but what may be. Under any other rule a constitution would indeed be as easyof application as it would be deficient in efficacy and power. The Fourth Amendment protects the right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures and bans the issuance of warrants except upon probable cause and certain other conditions. The wording of the amendment is succinct and majestic. But it is also vague and general. Thus, whether, and how, to apply it to new conditions has generated great controversy-and none greater than the current agitation over mass drug testing

Congress\u27 Arrogance

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to overrule Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its judicial arrogance in peremptorily rejecting Congress\u27 test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda\u27s adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, in an article published six weeks before the decision in Dickerson, Can (Did) Congress \u27Overrule\u27 Miranda? 85 Cornell Law Review 8833 (2000), Professor Yale Kamisar discussed the legislative history of § 3501 at length. He concluded, in effect, that Congress - not the Supreme Court - should be awarded the prize for arrogance. According to Kamisar, proponents of § 3501 were determined to overrule Miranda by simple legislation; they hoped to bypass the prescribed process for amending the Constitution and to persuade the Court to retreat from Miranda. Extracts from the article appear here with permission of Cornell Law Review

Why Did Voters Reject Michigan\u27s Physician-Assisted Suicide Initiative?

In November 1997, when Oregon voters reaffirmed their support for doctor-assisted suicide, some commentators called it a turning point for the right to die movement. But the lopsided defeat of a similar proposal in Michigan is a better barometer: in general, assisted suicide continues to fare badly in the political arena

Has the Court Left the Attorney General Behind?--The Bazelon-Katzenbach Letters on Poverty, Equality and the Administration of Criminal Justice

Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon\u27s criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked, are surely among the most widely read and discussed confidential documents of our time.

Edward L. Barrett, Jr.: The Critic with \u27that Quality of Judiciousness Demanded of the Court Itself\u27

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett\u27s concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.\u27 But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was probably the most formidable skeptic in criminal law teaching ranks when the so-called revolution in criminal procedure unfolded

The Reasons So Many People Support Physician-Assisted Suicide - and Why These Reasons Are Not Convincing

It would be hard to deny that there is a great deal of support in this country-and ever-growing support-for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. In this article, I shall discuss five common reasons and explain why I do not find any of them convincing