Brandon L. Garrett *
In Miranda v. Arizona, the Supreme Court discussed at length actual police policies, manuals, and training on interrogations to explain the need for the well-known warnings the Court required to precede custodial interrogations.[1] The Court noted: “A valuable source of information about present police practices . . . may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics.”[2] The Court cited to studies of police practices,[3] and focused on the Fred E. Inbau and John E. Reid manual on interrogations, first published in 1962, and still the authoritative treatise.[4] The Court described “tactics . . . designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty.”[5] Those tactics ranged from “Mutt and Jeff” routines to outright deception and trickery.[6]
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* © Brandon L. Garrett, 2014. Professor of Law, University of Virginia School of Law. Many thanks to Gregory DeClue, Richard Leo, Eve Brensike Primus, and James Trainum for their input, encouragement, and invaluable comments on earlier drafts. I particularly thank Christine Shu, Aurora Heller, and the students of the Virginia Innocence Project Student Group (VIPS), whose remarkable work and tireless efforts in obtaining policies from Virginia law enforcement made this research possible.
[1]. 384 U.S. 436, 444, 448–49 (1966); see Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 672 (1996) (“[T]he Miranda rights have been so entrenched in American popular folklore as to become an indelible part of our collective heritage and consciousness.”).
[2]. Miranda, 384 U.S. at 448; see Seth W. Stoughton, Policing Facts, 88 Tul. L. Rev. 847, 855 (2014) (discussing the manuals, reports, and texts on police interrogation practices relied upon by the Supreme Court in Miranda).
[3]. Miranda, 384 U.S. at 448 & n.8 (citing various studies of police practices, including Wayne R. LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L.Q. 331, 335 (1962)).
[4]. Id. at 448–49 & n.9 (“The methods described in Inbau & Reid, Criminal Interrogation and Confessions . . . have had rather extensive use among law enforcement agencies. . . .”); Barry C. Feld, Behind Closed Doors: What Really Happens When Cops Question Kids, 23 Cornell J.L. & Pub. Pol’y 395, 412 (2013) (“The Reid Method remains the leading training program in the United States and underlies most contemporary interrogation practice. . . .”). See generally Fred E. Inbau et al., Criminal Interrogation and Confessions (5th ed. 2013) (describing methods of interrogation).
[5]. Miranda, 384 U.S. at 450.
[6]. Id. at 452–55. The Supreme Court reexamined police interrogation policies in Missouri v. Seibert, 542 U.S. 600, 609–11 & n.2 (2004) (addressing police strategies for pre- and post-Miranda warning statements).
Richard C. Dieter *
Making predictions about the future is always a risky venture. There are, however, concrete reasons to believe that the story of the death penalty in the United States may be approaching its final chapter. In this essay I will identify strong trends that support this prognosis. I will also underscore the inherent problems with the death penalty that have placed it on a collision course with some of our country’s most cherished ideals. These conflicts will likely hasten the demise of the death penalty.
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* Executive Director of the Death Penalty Information Center, Washington, D.C. Adjunct Professor, Columbus School of Law, Catholic University of America.
Mary Kelly Tate *
This symposium essay is a thought experiment—a “back to the future” re-imagining of the capital murder trial of Tommy David Strickler, an indigent man deemed borderline mentally retarded.[1] In 1990, Strickler was convicted and sentenced to death for the robbery, abduction, and murder of a young African American woman.[2] On July 21, 1999, Strickler became the sixty-eighth person executed in Virginia in the death penalty’s modern era.[3]
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* Associate Clinical Professor of Law, Director of Institute for Actual Innocence. J.D., 1991, University of Virginia. I thank Professor Corinna Barrett Lain, my dear friend and colleague, for her generous spirit and invaluable assistance during the writing process. I also extend my appreciation to my research assistant Zachary MacDonald for his able research and editing support.
[1]. See Strickler v. Greene, 57 F. Supp. 2d 313, 318 (E.D. Va. 1999) (granting Strickler’s counsel’s application for lawyer’s fees in post-conviction clemency proceedings in recognition of Strickler’s indigent status); see also Ian Record, Strickler Gets Death Sentence, Breeze, Sept. 20, 1990, at 2 (“Strickler has an IQ of 74, Warren testified. People with IQs of 70 can be considered mentally retarded, she said.”).
[2]. See Strickler v. Greene, 527 U.S. 263, 266 (1999).
[3]. Searchable Execution Database, Death Penalty Info. Ctr., http://www.deathpe naltyinfo.org/views-executions?exec_name_1=&sex=All&state%5B%5D=VA&sex_1=All& federal=All&foreigner=All&juvenile=All&volunteer=All (last visited Feb. 27, 2015) (listing Strickler as the sixty-eighth person executed in Virginia since 1976). Furman v. Georgia is a 1972 Supreme Court decision holding, through a fractured plurality opinion, that arbitrariness in imposing the death penalty rendered it unconstitutional in violation of the Eighth and Fourteenth Amendments. 408 U.S. 238, 240 (1972) (Douglas, J., concurring); id. at 295 (Brennan, J., concurring). In 1976, the Supreme Court overturned its Furman decision with Gregg v. Georgia, holding that new statutory schemes adding procedures for courts and juries in applying the death penalty limited its arbitrariness, which made it permissible under the Eighth and Fourteenth Amendments. 428 U.S. 153, 169, 204–07 (1976). Accordingly, the “modern era” refers to cases decided after the Supreme Court’s decision in Gregg v. Georgia.
Ann E. Reid *
Can we fix the American capital punishment system? Do we want to? Or should we simply abolish the death penalty altogether, as so many countries encourage us to do?[1] These were questions that many Americans asked themselves over the course of 2014 as botched execution followed botched execution, and as multiple innocent men were exonerated after sitting on death row for years.[2] Despite the best efforts of the members of the federal and state departments of justice, we continue to face serious constitutional questions when we look at death penalty-related issues, including the estimated rate of false convictions,[3] the disproportionately high exoneration rate for death penalty inmates,[4] racial, social, and geographical disparities in capital conviction rates,[5] and the complicated and messy process of execution itself.[6]
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* J.D. Candidate 2016, University of Richmond School of Law. B.A., 2013, University of Virginia. I would like to thank Kristina Ferris for her thoughtful comments and suggestions throughout the writing process, and the rest of the University of Richmond Law Review staff and editorial board for providing me with this opportunity.
[1]. Cap. Punishment Project, ACLU, How the Death Penalty Weakens U.S. International Interests 6–7 (2004), available at https://www.aclu.org/files/FilesPDFs/ idp_report.pdf.
[2]. See, e.g., Michael Biesecker, Innocent NC Inmate Free After 30 Years, WFLA.com, http://www.wfla.com/story/26444799/nc-inmate-to-adjust-to-life-outside-after-30-years (last updated Sept. 18, 2014); Mark Gillispie, Judge Dismisses Two Men Charged in 1975 Slaying, Ohio.com (Nov. 21, 2014, 10:00 AM), http://www.ohio.com/news/break-news/jud ge-dismisses-two-men-charged-in-1975-slaying-1.543007; Michael L. Radelet, Examples of Post-Furman Botched Executions, Death Penalty Info. Ctr. (July 24, 2014), http://www. deathpenaltyinfo.org/some-examples-post-furman-botched-executions.
[3]. Samuel R. Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proc. Nat’l Acad. Sci. 7230, 7234–35 (2014).
[4]. Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927, 942 (2008); Samuel R. Gross & Michael Shaffer, Nat’l Registry Exonerations, Exonerations in the United States, 1989–2012 19 (2012) (finding that between 1977 and 2004, fewer than 0.1% of prisoners had death sentences, yet 12% of all exonerations occurred in capital cases).
[5]. See Scott Phillips, Status Disparities in the Capital of Capital Punishment, 43 L. & Soc’y Rev. 807, 830–31 (2009) (racial and social disparities); see also Scattered Justice: Geographic Disparities of the Death Penalty, ACLU (Mar. 5, 2004), https://www.aclu.org/ capital-punishment/scattered-justice-geographic-disparities-death-penalty (geographical disparities); The Clustering of the Death Penalty, Death Penalty Info. Ctr., http://www. deathpenaltyinfo.org/clustering-death-penalty (last updated Jan. 1, 2013) (geographical disparities).
[6]. See Radelet, supra note 2.
Interview with Gerald Dean Cruz *
The following interview was conducted through a series of written correspondences between Gerald Dean Cruz and Leah Stiegler, the Allen Chair Editor for Volume 49 of the University of Richmond Law Review. This exchange was reproduced, in excerpts, for the sole purpose of giving readers a rare glimpse into the perspective of a death row inmate. The views expressed below do not reflect those of the University of Richmond Law Review or its editors. Please note some answers were heavily redacted at the discretion of the Law Review.
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* Gerald Dean Cruz is a prisoner on death row at the San Quentin Prison in California. He was sentenced to death on October 26, 1992, as a result of being found guilty for his involvement in four murders committed on May 20, 1990, in Salida, California.
Helen A. Anderson*
Ask any lawyer what an “amicus curiae” is, and you will be told that the term means “friend of the court.”[1] The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.[2]
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*Professor of Law, University of Washington School of Law. The author wishes to thank her colleagues at the University of Washington School of Law who attended a presentation of this article, and especially Thomas Cobb, Lisa Manheim, Kate O’Neill, Kathy McGinnis, Zahr Said, and David Ziff for their excellent suggestions. Elizabeth Porter read a draft and provided much expertise and encouragement. The author also wishes to thank the participants at the West Coast Rhetoric Workshop at the William S. Boyd School of Law (2012), and, in particular, Linda Edwards and Jeanne Moreno for their helpful comments on an earlier draft.
[1]. See Black’s Law Dictionary 98 (9th ed. 2009) (defining “amicus curiae” and also noting “friend of the court” as an alternative term).
[2]. See, e.g., Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315, 319–20 (2008); Ryan Salzman, Christopher J. Williams & Bryan T. Calvin, The Determinants of the Number of Amicus Briefs Filed Before the U.S. Supreme Court, 1953–2001, 32 Just. Sys. J. 293, 294–95 (2011); Omari Scott Simmons, Picking Friends from the Crowd: Amicus Participation as Political Symbolism, 42 Conn. L. Rev. 185, 190 (2009).
Jeremy W. Bock*
“We don’t know exactly how often the presumption makes a difference to a case outcome.”[1]
In patent law, the presumption of validity[2] exerts a profound influence on litigation strategy.[3] It has attracted criticism—not only from academics but also from at least one federal judge[5]—for making weak patents difficult to invalidate. When mentioned to the jury, the presumption is perceived by litigants as exerting a powerful pro-patentee influence that overshadows its nominal procedural function of assigning the burden of proving invalidity.[6]
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* © 2015 Jeremy W. Bock. Assistant Professor of Law, University of Memphis Cecil C. Humphreys School of Law. The author thanks Bernard Chao, John Golden, Richard Gruner, Parisa Jorjani, Mark Lemley, Su Li, Evelyn Mak, Shawn Miller, Lisa Larrimore Ouellette, Efthimios Parasidis, Greg Reilly, David Schwartz, Ryan Vacca, Michelle Yang, his colleagues at Memphis Law, and the participants at the June 2013 Workshop on Research Design for Causal Inference at Northwestern University School of Law, the Fifth Annual Legal Scholars Conference at Arizona State University College of Law, PatCon4 at University of San Diego School of Law, the 2014 SEALS Conference, and the 14th Annual Intellectual Property Scholars Conference at Berkeley Law for helpful discussions and feedback. The author thanks the University of Memphis Cecil C. Humphreys School of Law for supporting this research. The survey experiment reported in this article was conducted pursuant to a protocol approved by the Institutional Review Board at the University of Memphis.
[1]. Doug Lichtman & Mark A. Lemley, Rethinking Patent Law’s Presumption of Validity, 60 Stan. L. Rev. 45, 70 (2007).
[2]. 35 U.S.C. § 282(a) (2012) (“A patent shall be presumed valid.”).
[3]. For example, accused infringers may prioritize noninfringement defenses over invalidity defenses because of the heightened burden associated with proving invalidity. See, e.g., Roger Allan Ford, Patent Invalidity Versus Noninfringement, 99 Cornell L. Rev. 71, 118 (2013) (observing that “the elevated burden of proof that applies to invalidity, . . . which stems from the statutory presumption that a patent is valid unless proved otherwise, makes it relatively more difficult to win an invalidity defense than a noninfringement defense even if the two defenses would otherwise have similar merits”).
[4]. See, e.g., F. Scott Kieff, The Case for Preferring Patent-Validity Litigation Over Second-Window Review and Gold-Plated Patents: When One Size Doesn’t Fit All, How Could Two Do the Trick?, 157 U. Pa. L. Rev. 1937, 1955 (2009) (“[A] weakening of the presumption of validity would be particularly good for the ‘Davids’ of the system who face off against the ‘Goliaths.’ It directly protects them from the in terrorem effect of junk patents . . . .”); Lichtman & Lemley, supra note 1, at 47 (“[T]he law makes [patent] issuance mistakes hard to reverse. The culprit is a legal doctrine known as the presumption of validity.”).
[5]. See William Alsup, Memo to Congress, A District Judge’s Proposal for Patent Reform: Revisiting the Clear and Convincing Standard and Calibrating Deference to the Strength of the Examination, 24 Berkeley Tech. L.J. 1647, 1648 (2009) (“A central reason for the litigation boom is the presumption of validity and the ‘clear and convincing’ standard. . . . This presumption of validity applies equally to all patents—even those that are almost certainly invalid. This is a huge advantage for the patent holder—and it is often an unfair advantage . . . .”).
[6]. See, e.g., William G. Childs, The Implementation of FDA Determinations in Litigation: Why Do We Defer to the PTO but Not to the FDA?, 5 Minn. Intell. Prop. Rev. 155, 172 (2004) (“The psychological impact of this presumption of validity is difficult to measure. However, it is not insignificant that a jury is instructed by the one nominally neutral person in the courtroom that it must begin deliberations with the belief that the patent is valid.” (emphasis omitted)).
Margot E. Kaminski*
Shane Witnov**
Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.[1]
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*Assistant Professor of Law, Ohio State University Moritz College of Law. J.D., Yale University; B.A., Harvard University.
**Practicing attorney in California. J.D., U.C. Berkeley School of Law; B.A., Stanford University; M.S., Stanford University. The authors wish to thank Chris Wolf of Hogan Lovells for workshopping a draft of this paper at the Privacy Law Scholars Conference. Many thanks also go to Marc J. Blitz, Yan Fang, Anne Klinefelter, Ron Lee, William McGeveran, Neil Richards, Lior Strahilevitz, and other participants at PLSC. Thank you also to Matthew Cushing, Mike Frank, and Rachel Mackenzie.
[1]. BJ Ard, Confidentiality and the Problem of Third Parties: Protecting Reader Privacy in the Age of Intermediaries, 16 Yale J.L. & Tech. 1, 3 (2013); see Harry Surden, Structural Rights in Privacy, 60 SMU L. Rev. 1605, 1617 (2007).
Rachel Rebouché*
A revolution has happened in prenatal testing. Ushering in this change is a new prenatal test that relies on a simple blood sample collected from a pregnant woman.[1] From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses.[2] Potential parents can test that DNA for chromosomal abnormalities and for fetal sex after ten weeks of gestation, which is several weeks before a reliable ultrasound and seven weeks before an amniocentesis can be performed.[3] As numerous newspaper and popular media articles report, what women can discover during their pregnancies will continue to evolve dramatically over the next ten years.[4] This new non-invasive prenatal test (“NIPT”), coupled with advances in gene sequencing, could give parents information about all manner of traits, disorders, and propensities—from susceptibility to serious diseases, such as cancer and heart disease, to superficial traits, such as hair and eye color.[5] The test is easy to perform, close to 100% accurate for fetal sex, and currently in clinical and commercial use.[6]
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*Associate Professor of Law, Temple University Beasley School of Law. Many thanks to Jane Baron, Nancy Dowd, Mark Fenster, Paul Gugliuzza, Janet Halley, Meredith Harbach, Dave Hoffman, Prabha Kotiswaran, Tom Lin, Laura Little, Greg Mandel, Muriel Morisey, Danielle Piñol, Mark Rahdert, Brishen Rogers, Hila Shamir, and Chantal Thomas for their comments. This article benefited from the remarks of participants at the Emory Law Workshop on Reproduction and Sexuality, Northeastern Law Workshop on Sexuality and Reproduction, Emerging Family Law Scholars Workshop, Harvard Institute on Global Law and Policy, Wisconsin Law Class Crits Conference, Tel Aviv University Governance Without a State Conference, Case Western Law & Medicine Conference, and Temple Law 10/10 Workshop.
[1]. See Henry T. Greely, Get Ready for the Flood of Fetal Gene Screening, 469 Nature 289, 289 (2011).
[2]. Id. at 290.
[3]. Stephanie A. Devaney et al., Non-Invasive Fetal Sex Determination Using Cell-Free Fetal DNA, 306 J. Am. Med. Ass’n 627, 634 (2011) (stating that fetal DNA can be tested accurately between seven and twelve weeks of gestation while ultrasound is unreliable before eleven weeks); 105 Am. Jur. 3d, Proof of Facts § 3 (3d ed. 2009) (indicating that amniocentesis is performed at about sixteen weeks gestation). In amniocentesis, a long spinal needle is inserted through the abdomen and the wall of the uterus into the amniotic sac surrounding the fetus. Id. Another form of prenatal testing is Chorionic Villus Sampling (“CVS”), in which a thin catheter, inserted through the cervix, gathers cells from the placenta. Id. CVS can occur earlier than amniocentesis, at ten to twelve weeks. Id. However, CVS has a slightly higher risk of causing miscarriages than amniocentesis. Lynn B. Jorde et al., Medical Genetics 269 (4th ed. 2010).
[4]. See, e.g., Lindsay Abrams, Prenatal Testing: Earlier and More Accurate Than Ever, Atlantic (Nov. 5, 2012, 9:30 AM), http://www.theatlantic.com/health/archive/2012/11 /prenatal-testing-earlier-and-more-accurate-than-ever/264472/2/; Erin Biba, This Simple Blood Test Reveals Birth Defects—And the Future of Pregnancy, Wired (Dec. 24, 2012, 6:30 AM), http://www.wired.com/2012/12/ff-prenatal-testing/all/; Carolyn Y. Johnson, DNA Blood Test Can Detect Prenatal Problems, Bos. Globe (Feb. 26, 2014), http://www.bos tonglobe.com/lifestyle/health-wellness/2014/02/26/new-study-suggests-prenatal-genetic-tes ts-could-offered-all-pregnant-women/V1GQuRL4jkr1M6Oe1XcQCK/story.html; Jonathan Lapook, New DNA Test Could Revolutionize Prenatal Screening, CBS News (Feb. 26, 2014, 7:20 PM), http://www.cbsnews.com/news/new-dna-test-could-revolutionize-pre-natal-screening/; Marilynn Marchione, The Big Story: DNA Blood Tests Show Prenatal Screening Promise, Associated Press (Feb. 26, 2014, 6:07 PM), http://bigstory.ap.org/article/ dna-blood-tests-show-prenatal-screening-promise; Steven Salzberg, A DNA Sequencing Breakthrough That Many Expectant Moms Will Want, Forbes (Mar. 9, 2014, 8:00 AM), http://www.forbes.com/sites/stevensalzberg/2014/03/09/a-dna-sequencing-breathrough-th at-many-expectant-moms-will-want/; Michael Specter, The Gene Factory, New Yorker Jan. 6, 2014, at 34, 40, available at http://www.newyorker.com/magazine/2014/01/06/the-gene-factory; Rob Stein, Blood Test Provides More Accurate Prenatal Testing for Down Syndrome, Nat’l Pub. Radio (Feb. 26, 2014, 5:01 PM), http://www.npr.org/blogs/health /2014/02/26/282095202/blood-test-provides-more-accurate-prenatal-testing-for-down-syndr ome; Christopher Weaver, Tough Calls on Prenatal Tests: Companies Race to Promote New Genetic Screen for Down Syndrome; Worries About Patient Confusion, Wall St. J., Apr. 4, 2013, at B1, available at http://online.wsj.com/news/articles/SB1000142412788732 4883604578398791568615644.
[5]. See Bernard M. Dickens, Ethical and Legal Aspects of Non-Invasive Prenatal Genetic Diagnosis, 124 Int’l J. Gynecology & Obstetrics 181, 181–82 (2014) (“What was once a cavernous divide between the outer reaches of imaginative science fiction and the reality of the limited capacity of prevailing biotechnology is becoming progressively narrowed, making it foreseeable to achieve complete gene sequencing of an early fetus in utero by resort to cffDNA testing.”); Jaime S. King, And Genetic Testing for All . . . The Coming Revolution in Non-Invasive Prenatal Genetic Testing, 42 Rutgers L.J. 599, 599–600, 656 (2011) (noting that non-invasive prenatal tests relying on cffDNA can detect Down syndrome, trisomy 13, fetal sex, and other genetic characteristics); John A. Robertson, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L. 327, 370–73 (2011) [hereinafter Robertson, Abortion and Technology].
[6]. Ashwin Agarwal et al., Commercial Landscape of Non-Invasive Prenatal Testing in the United States, 33 Prenatal Diagnosis 521, 521–23 (2013) (“Several applications of NIPT . . . are already in use, and testing for common chromosomal aneuploidies such as trisomies 13, 18, and 21 became commercially available in 2011.”); Antina de Jong et al., Non-Invasive Prenatal Testing: Ethical Issues Explored, 18 Eur. J. Hum. Genetics 272, 272 (2010) (noting that testing can be easy and safe); Abrams, supra note 4 (noting that the test can be completed with 99.92% accuracy).
Ronald Turner*
The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments shall not deprive persons of life, liberty, or property without due process of law.[1] More than a guarantee of procedural due process, it is now well settled that a “substantive component” of the clauses protects “individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’”[2] Government cannot “infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”[3] Substantive due process[4] law and doctrine are thus established (but, for some, controversial) features of constitutional law.[5] In a recent ruling, the Sixth Circuit rejected a challenge to anti-same-sex marriage laws and held, among other things, that the Due Process Clause did not provide or protect a fundamental right to marry a person of the same sex.[6]
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*Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., 1984, University of Pennsylvania Law School; B.A., 1980, Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation.
[1]. See U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”); id., amend. XIV § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law”).
[2]. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
[3]. Reno v. Flores, 507 U.S. 292, 302 (1993).
[4]. “Substantive due process” is a phrase “that borders on oxymoron.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents And Principles We Live By 119 (2012); see also John Hart Ely, Democracy And Distrust: A Theory of Judicial Review 18 (1980) (“‘[S]ubstantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’”).
[5]. See McDonald v. City of Chicago, 561 U.S. 742, 811, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”); see also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 147 (1982) (“Substantive due process is not a function of politically aggressive judges who have lost their heads and are acting as would-be legislators, abandoning any sense of judicial self-restraint. Rather, the doctrine is the necessary product of the superimposition onto a state system of plenary authority, of a federal court system committed to preserving those individual liberties that animated the limited federal Constitution.”).
[6]. Deboer v. Snyder, 2014 U.S. App. LEXIS 21191, at *55 (6th Cir. Nov. 6, 2014).
