Issues in Article III Courts

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public\u27s ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the direction of considering evidence and submissions from both adversaries in less than a fully adversarial and public way, threaten the courts\u27 essential character or even their constitutional role? Are Article III courts equipped to deal with terrorism-related cases that implicate national security information

Police, Community Caretaking, and the Fourth Amendment

The local police have multiple responsibilities, only one of which is the enforcement of criminal law. Police gather eyewitness accounts in the aftermath of a shooting, but they also assist lost children in locating their parents. Police identify and arrest those who have committed felonies, but they also respond to heart attack victims and help inebriates find their way home. Sometimes police check on the well-being of elderly citizens. As Professor Goldstein said some twenty years ago, The total range of police responsibilities is extraordinarily broad .... Anyone attempting to construct a workable definition of the police role will typically come away with old images shattered and with a new-found appreciation for the intricacies of police work. In the typical Fourth Amendment case, police have intruded on privacy in service of law enforcement objectives. Fourth Amendment intrusions by local police, however, are in no way limited to contexts implicating their law enforcement role. Thus, when police enter an apartment to render aid to a woman who is having a baby, they seek neither evidence nor suspects. Such intrusions instead involve what the Supreme Court in Cady v Dombrowski termed the community caretaking functions of local police – functions totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Of course, sometimes community caretaking and law enforcement are intertwined. When police respond to a burglary alarm late at night and arrive to find shattered glass around a broken window in an apparently violated home, officers may well go inside. They enter in order to apprehend a burglar and to find evidence of crime. They also enter to ensure that no one is injured within

A Personal Note

It\u27s a pleasure to introduce this issue honoring Columbia\u27s most lovable curmudgeon. What can I say about the Harlan Fiske Stone Professor of Law? I should acknowledge, at the start, Henry\u27s profound intellectual contribution to Columbia and to the law. There are not many of us who can say, with justification, that we\u27ve written the Greatest Hits of Public Law Scholarship over the course of our careers. And few of us have made individual contributions that equal Constitutional Common Law, Marbury and the Administrative State, We the People[s], Stare Decisis, or The Constitution Goes to Harvard. Henry is unusual among scholars in that you can pick a title from his CV at random and manage to name a chart-topper. Henry doesn\u27t repeat himself, and he doesn\u27t write filler. He just writes Greatest Hits

Gang Loitering, the Court, and Some Realism About Police Patrol

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago\u27s gang loitering ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer\u27s authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After all, communities today are experimenting with a broad variety of new policing styles. Some of these experiments have emphasized the importance of a neighborhood\u27s public spaces to the health of its community and have involved police in efforts to improve the quality of life in such spaces. Police have seen to the removal of trash and abandoned cars along streets where children play. There has been a revival of interest in the enforcement of statutes and ordinances aimed at low-level public disorder. In some places, this local experimentation has produced a new confidence among community residents in the ability of police to con- tribute to the well-being of the neighborhoods they serve. Elsewhere, however, police initiatives directed at crime and disorder have generated concern, anxiety, and outright anger about police intrusiveness, particularly as directed at minority populations

Racial Profiling Under Attack

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence – a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, its use in a variety of contexts, and its relationship to other police practices that take race or ethnicity into account

Racial Profiling Under Attack

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence – a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, its use in a variety of contexts, and its relationship to other police practices that take race or ethnicity into account

Conference on Best Practices for Managing \u3cem\u3eDaubert\u3c/em\u3e Questions

This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary

Police Reform and the Department of Justice: An Essay on Accountability

In 1994, Congress promulgated a significant piece of legislation that may prove to have an extremely important impact on the operation of local police departments. Section 14141 of Title 42, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, prohibits governmental authorities or those acting on their behalf from engaging in a pattern or practice of conduct by law enforcement officials that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Justice Department is authorized to sue for equitable and declaratory relief to eliminate the pattern or practice. At this writing, the Special Litigation Section of the Justice Department\u27s Civil Rights Division has brought two civil suits pursuant to Section 14141 – suits that have resulted in consent decrees with the police departments of Pittsburgh, Pennsylvania and Steubenville, Ohio. The Department, moreover, is reported to be investigating or monitoring at least nine other police agencies – in Los Angeles, California; Orange County, Florida; New Orleans, Louisiana; East Point, Michigan; Buffalo, New York; New York, New York; Washington, D.C.; Charleston, West Virginia; and Columbus, Ohio-in order to decide whether to seek judicial orders on respect for governing law. Section 14141 was an outgrowth of the beating of Rodney King by Los Angeles police and the Christopher Commission\u27s subsequent finding that the Los Angeles Police Department had in effect condoned brutal conduct by its officers through a pattern of lax supervision and inadequate investigation of complaints. Prior to this legislation, police abuse experts had frequently charged that the Justice Department plays virtually no active role in holding local police accountable for abiding by the Constitution. Section 14141 substantially enhances the Department\u27s authority with regard to local police affairs by affording the Civil Rights Division a statutory basis for intervening in police patterns and practices in ways analogous to statutes that have authorized federal government intervention in other spheres-like voting, housing, public accommodations, and access to public facilities. To many, such legislation is long overdue. At the same time, concern has also been expressed that the law at least potentially threatens dangerous intrusion into local police operations by federal civil rights attorneys who lack the capability and understanding to interfere in police administration-even for the laudatory goal of ending abusive practices. This essay does not purport to provide an empirical account of the effects – beneficial and deleterious, anticipated and unanticipated – that Section 14141 has already had on the affairs of local police. The law is too recent for such an assessment, and its future impact will very much depend on how it is enforced. The focus of this essay, then, is limited to a close examination of key provisions of the two consent decrees already in place. This inquiry, though narrow, is important for at least three reasons