Emerging Technology’s Unfamiliarity with Commercial Law

Abortion and the Extremism of Bright Line Rules

The Unwritten Norms of Civil Procedure

The Second Founding and Self-Incrimination

Constitutional Clash: Labor, Capital, and Democracy

Data Is What Data Does: Regulating Based on Harm and Risk Instead of Sensitive Data

Hung Out to Try: A Rule 29 Revision to Stop Hung Jury Retrials

By: Elijah N. Gelman | January 21, 2024

How many times can a defendant be retried? For those facing hung jury retrials, it’s as many times as the government pleases. Double jeopardy prohibitions do not apply when juries fail to reach a verdict.

There is, theoretically, a built-in procedural solution to stop the government from endlessly retrying defendants. Rule 29 of the Federal Rules of Criminal Procedure allows judges to acquit defendants when “the evidence is insufficient to sustain a conviction.” Considering that a hung jury indicates the jurors could not agree on the sufficiency of the evidence, defendants facing hung jury retrials are prime candidates for this Rule’s application. Yet Rule 29 has not been applied to prevent hung jury retrials. Instead, the Supreme Court has given a government-biased standard for deciding whether there is insufficient evidence to convict, stating that a judge must consider the evidence in the “light most favorable” to the government. This standard, which can force judges to nonsensically conduct the same analysis in perpetuity when juries repeatedly indicate that evidence is insufficient to convict, is not a functional standard.

This Note proposes a new post-hung jury Rule 29 standard. Rather than viewing the evidence in the light most favorable to the government, a judge should view the evidence in the light it was actually viewed by the hung jury, with no bias toward the government. Doing so allows a judge to consider a jury’s inability to reach a verdict as proof that the evidence is insufficient, preventing the government from unduly retrying cases where multiple juries have failed to convict. Moreover, a Rule 29 acquittal cannot be appealed, meaning this new standard can be applied today even without the approval of appellate courts.

Sentence Served and No Place to Go: An Eighth Amendment Analysis of “Dead Time” Incarceration

By: Christopher B. Scheren | January 21, 2024

Although the state typically releases incarcerated people to reintegrate into society after completing their terms, indigent people convicted of sex offenses in Illinois and New York have been forced to remain behind bars for months, or even years, past their scheduled release dates. A wide range of residency restrictions limit the ability of people convicted of sex offenses to live near schools and other public areas. Few addresses are available for them, especially in high-density cities such as Chicago or New York City, where schools and other public locations are especially difficult to avoid. At the intersection of sex offenses and indigency lies a sharper injustice. Indigent people convicted of sex offenses with no family or friends who are willing and able to house them face extended imprisonment, referred by them as “dead time” incarceration, while wealthier people convicted of sex offenses roam freely.

Such a system violates the Eighth Amendment’s prohibition against cruel and unusual punishment. In Robinson v. California, the Supreme Court held that it is cruel and unusual to punish an individual on the basis of “status.” Subsequently, federal circuit court decisions applied this principle to invalidate laws that punish individuals for being homeless. Then, federal district courts in Illinois and New York considered invalidating interpretations of residency laws and policies that caused the consequential reality of dead time incarceration in cases brought by indigent people convicted of sex offenses, but they reached very different conclusions. This Note argues that continued incarceration for indigent people convicted of sex offenses because they cannot secure approved housing constitutes a punishment based on their indigent status, thereby violating the Eighth Amendment’s prohibition.

The Second Founding and Self-Incrimination

By: William M. Carter Jr. | January 21, 2024

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the long history of coerced and involuntary confessions extracted from enslaved persons by both governmental and private actors.

The Article sheds new light upon this history by examining the privilege against self-incrimination from the perspective of enslaved persons and through the lens of the nation’s Second Founding following the Civil War. Enslaved persons’ understandings and experiences informed the Second Founding, which was intended to have a transformative effect upon the Constitution as a whole. This Article is the first to extensively examine first-person slave narratives in order to draw upon enslaved persons’ experiences for insights into self-incrimination doctrine.

This Article first provides an overview of the theories underlying the privilege against self-incrimination, the background of the Self-Incrimination Clause, and the Supreme Court’s self-incrimination jurisprudence. The Article next discusses the nation’s Second Founding and the ways in which it changed our constitutional regime, both substantively and in principles of constitutional interpretation. The Article then examines enslaved persons’ views and experiences regarding self-incrimination, both through antebellum judicial decisions involving enslaved persons and through enslaved persons’ own first-person narratives. This evidence reveals that the Supreme Court’s cramped and formalistic approach to self-incrimination is inconsistent with the post-Civil War Constitution’s purposes and values. The Article concludes that our constitutional jurisprudence misses a great deal by failing to include in constitutional analysis evidence from the Second Founding and the experiences of enslaved persons and calls upon courts to take such evidence into account in interpreting the privilege against self-incrimination.

Nw. U. L. Rᴇᴠ.