Constitutional Law

Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need To Reform the Fourth Amendment Special Needs Doctrine

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other special need, excusing non-law-enforcement searches and seizures from the warrant and probable cause requirements.  The United States Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not around those that threaten important noncriminal constitutional rights. Child protection investigations illustrate the problem:  millions of times each year, state child protection authorities search families’ homes and seize children for interviews about alleged maltreatment.  Only a minority of these investigations involve suspected crimes, so most fall on the special needs side of the line.  This result undervalues the consequences of child protection investigations on children (a severe infringement of their right to family integrity) and on parents (the loss of their children and the stigma of a child abuse or neglect charge).

This Article proposes a new approach to the special needs doctrine:  the doctrine should distinguish between searches and seizures that implicate fundamental constitutional rights and those that do not.  It breaks new ground in identifying a theoretical value to such a bright line:  it gives governments less incentive to interfere with liberty by seeking alternative means to achieve their goals.  To realize this value most effectively, the line must be drawn to value all fundamental constitutional rights, not only those connected to the criminal justice system.  In child protection, it would push states to choose less-liberty-infringing models of providing assistance to vulnerable families, which the empirical record shows would serve children and the child protection system’s goals more effectively.

Fisher v. University of Texas at Austin: The Fifth Circuit Questions Judicial Deference to Race-Conscious Admissions Policies in Higher Education

The Fifth Circuit held that as long as Grutter remained good law, UT's use of race-conscious measures in admissions decisions complied with the Equal Protection Clause of the Fourteenth Amendment because it was narrowly tailored to achieve a critical mass of minorities despite its simultaneous use of the Ten Percent Law. Fisher v. University of Texas at Austin, 631 F.3d 213, 246-47 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012).

Capitalism, Liberalism, and the Right to Privacy

The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or--more likely--is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it then applies to Supreme Court cases dealing with the right to privacy. As we shall see, the Court's failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.

Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Per curiam—literally translated from Latin to “by the court”—is defined by Black's Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts's tenure, almost nine percent of the Court's full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law. This Article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges' fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.