The Supreme Courts: Did September 11th Accelerate Their Sanctioning the Constitutionality of Criminalizing Suspicion?

“This article evaluates whether the nation‘s highest appellate courts have, on balance, been more willing to acquiesce to criminalization based on suspicion since the attacks on the World Trade Center seven years ago. The article seeks to accomplish this evaluation by comparing decisions of the United States and state supreme courts in the six years prior to September 2001 with decisions in the six years following the terrorist attack— have the courts with the greatest authority to sanction the criminalization of suspicion been more willing to do just that? Such a post-September 11th trend would be significant because, despite the attacks, neither the national nor state governments have abolished or amended pertinent federal and state constitutional protections of individual rights. This article first defines criminalization, suspicion, and reasonable suspicion, based on policy and precedents from these supreme courts. This article next combines these definitions to define what it means to “criminalize suspicion.” The second section of the article begins with a comparative analysis of the opinion of the U.S. Supreme Court in Hiibel with the most pertinent of the Court‘s prior precedents. The section continues with surveys of reactions to Hiibel by the U.S. Supreme Court, commentators, and the states‘ legislatures and supreme courts. The third section of the article is its core: a comparative examination of the decisions of the states’ supreme courts in the six-year periods before and after September 11, 2001. This principal section of the article examines decisions of the state supreme courts that can be fairly characterized as implicating the constitutionality of criminalizing suspicion.

Culpability Evaluations in the State Supreme Courts from 1977 to 1999: A Model Assessment

A key premise of this article is that a fair assessment of the performance of state supreme court judges with regard to culpability evaluations must begin by differentiating among the states based upon the relative quality of statutory guidance available to each court on this crucial substantive criminal law issue. In light of the above discussion defining culpability evaluation and legislative action with regard thereto, this article categorizes states based on relative improvement in their statutory culpability evaluation scheme: first are those states with a set of hierarchical culpability concepts, which are specifically defined in relation to types of objective elements, provided that the legislature did not negate that improvement by enacting a conflicting mistake-of-fact provision. Second are those states with a mistake-of-fact statute that expressly subordinates that doctrine to culpability analysis. In an earlier article, the author found that half the states\u27 legislatures arguably satisfied one of these two standards

Federalism Gone Far Astray from Policy and Constitutional Concerns: The Admissions of Convictions to Impeach by State\u27s Rules-1990-2004

This is a micro study of federalism in action. This study identifies, ranks, and evaluates the current federal and state rules regulating the same issue-whether to admit prior convictions to impeach a witness and the appropriate standards for doing so. Over the last several decades, there has been an almost unanimous chorus of criticism regarding the wholesale admission of convictions, ostensibly only to impeach, especially when prosecutors are authorized by an evidence rule to use convictions to impeach the testimony of an accused in a criminal case. Despite this criticism, this study, and a companion study of how state supreme courts interpret these rules, provide a basis for concluding that this admission avenue persists and results in the admission of, in all probability, thousands of convictions against hundreds of witnesses in the United States each year

Critical Thinking and the Law

This article traces the origins, and discusses key features of the Critical Thinking and the Law Program. In addition, this article evaluates and projects the implications of the Critical Thinking and the Law Program for legal education. The first section of the article reviews the rich literature on the teaching of thinking movement, and focuses upon those elements of the movement which have had the greatest influence on the design and execution of the Critical Thinking and the Law Program. This section also reports the findings of a survey formulated to determine the current involvement of North American law schools with the teaching of thinking/critical thinking movement. The second section of the article describes the crucial elements of the program and the specific influences of the critical thinking movement on those elements. Section two concludes by discussing the program’s evaluation plan, including the results of the two types of empirical evaluation in the program

Judicial Anarchy: The Admission of Convictions to Impeach -State Supreme Court Interpretive Standards, 1990-2004

This is the second and sequential national study of an important evidence and criminal justice issue - the admission of convictions to impeach. It is a longitudinal national study of how state supreme courts have recently, over the last decade and one-half, evaluated this issue. The longitudinal study period of 1990-2004 mirros the study period of state rules on this issue which was undertaken in the first article. The study period was chosen for an explicit substantive rationale that was explained in that article and is repeated in this article. Because both articles are decade and one-half studies they will remain current for years to serve as a valuable resource for appellate courts, judges generally, legal academics, and the practicing bar. The first article established for the first time accurately and in detail how the evidence rules\u27 of the fifty states regulated this issue in comparison to each other and the federal rule\u27s standards on this important issue. That article\u27s core federalism finding was that as the country reached the mid-point of the first decade of the twenty-first century, there were twnety-eight different standards among the states\u27 rules regulating this issue. This article builds on that article by focusing on the next level of federalism - how state supreme courts have interpreted those rules, and how these interpretations have impacted the current national pattern of regulating the admission of convictions to impeach. As indicated by the title, this article\u27s most significant finding is that overall the state supreme courts\u27 decisions authorize and encourage the thousands of state trial judges to determine the admissibility of convictions to impeach on the basis of hunch and heuristics. Ultimately, this article provides detailed documentation of this pattern of judicial anarchy, identifies its significance, examines its possible causes, and concludes with both drastic procedural and substantive reform recommendations. The fifteen year performance of the state supreme courts collectively provides a basis for the article concluding that the only viable remedy is the banning of the use of conviction records as a basis for impeachment

Critical Thinking and the Law

This article traces the origins, and discusses key features of the Critical Thinking and the Law Program. In addition, this article evaluates and projects the implications of the Critical Thinking and the Law Program for legal education. The first section of the article reviews the rich literature on the teaching of thinking movement, and focuses upon those elements of the movement which have had the greatest influence on the design and execution of the Critical Thinking and the Law Program. This section also reports the findings of a survey formulated to determine the current involvement of North American law schools with the teaching of thinking/critical thinking movement. The second section of the article describes the crucial elements of the program and the specific influences of the critical thinking movement on those elements. Section two concludes by discussing the program’s evaluation plan, including the results of the two types of empirical evaluation in the program

Judicial Federalism and the Appropriate Role of the State Supreme Courts: A 20-year (2000–2020) Study of These Courts’ Interest Evaluations of the Fruits and the Attenuation Doctrines

The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people. This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused on the appropriate scope of the exclusionary rule by evaluating whether the fruits or attenuation doctrines should serve as the basis for decision. The Article evaluates how the state supreme courts have responded to the opportunity provided by these cases to strengthen judicial federalism by making their own interest evaluations of these doctrines, with the fruits doctrine, serving primarily as surrogate for the interest of the people, and the attenuation doctrine serving primarily as surrogate for the interest of the government. This Article documents that the state supreme courts during the last two decades were more likely than SCOTUS, overall, to assess the interest implicated by the doctrines in favor of finding that exclusion was justified. The Article advocates that the interest evaluation made under these doctrines be merged, and that the merger sets the stage for a more consistent and less subjective evaluation of the interests of the people and the government that are truly at stake