Category Archives: Constitutional Law

Adam M. Hapner, You Have the Right to Remain Silent, But Anything You Don’t Say May Be Used Against You: The Admissibility of Silence as Evidence After Salinas v. Texas

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel … Continue reading

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Marc B. Hernandez, Guilt Without Mens Rea: How Florida’s Elimination of Mens Rea for Drug Possession is Constitutional

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the … Continue reading

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Edward A. Purcell, Jr., Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist … Continue reading

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Emily S. Bremer, The Unwritten Administrative Constitution

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the … Continue reading

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Peter L. Markowitz & Lindsay C. Nash, Constitutional Venue

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such … Continue reading

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Rodney A. Smolla, Regulating the Speech of Judges and Lawyers: The First Amendment and the Soul of the Profession

The legal profession has historically asserted moral and legal authority to substantially control the speech of judges and lawyers. This impulse to control the speech of judges and lawyers is driven by many of the profession’s most strongly held interests … Continue reading

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