Spitzer on The Historic Regulation of "Unusual" Weapons

Robert J Spitzer, SUNY Cortland; College of William & Mary School of Law, has published The Historic Regulation of “Unusual” Weapons. Here is the abstract.

Is the AR-15 assault-type rifle an “unusual” gun? This might seem an amorphous or subjective question, but considerable effort has been expended to address a question very similar to this: namely, whether assault weapons are in “common use” in America today. The prodigious debate over this otherwise arcane and indisputably ambiguous question has become central to court determinations of whether civilian possession and use of assault weapons and other guns is or is not protected under the Second Amendment’s right to bear arms. This “common use” standard appeared in the Supreme Court’s 2008 ruling in D.C. v. Heller, the case that established a right of citizens to have guns for personal self-defense under the Second Amendment. In overturning the District of Columbia’s then-strict law, the court concluded that handgun possession should be protected because such guns were in “common use” as they were “overwhelmingly chosen by American society” for self-protection. The Heller court plucked the “common use” phrase from a 1939 Supreme Court case, U.S. v. Miller. An examination of America’s history of weapons regulations reveals that efforts to restrict “unusual” weapons is nothing new. This paper explores a variety of old weapons laws that imposed an array of restrictions on certain unusual types or categories of weapons, precisely on the grounds that they posed a threat to public safety and good order, or were of little use for conventional weapons-related activities. The old types of weapons and related technologies examined here include trap guns, punt/pivot/swivel guns, consideration of ghost guns, and switchblades. This analysis will shed important light on the contemporary legal and political struggle over modern weapons restrictions.

Download the article from SSRN at the link.

Carbado on Can You Be Black and Teach That?

Devon W. Carbado, UCLA School of Law, is publishing Can you be Black and Teach that? in the New York University Law Review. Here is the abstract.

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets—and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

Download the article from SSRN at the link.

Murray on Liberalism, the Founding, and American Criminal Justice

Brian Murray, Seton Hall Law School, is publishing Liberalism, the Founding, and American Criminal Justice in volume 101 of the Notre Dame Law Review (2025-2026). Here is the abstract.

In the past decade, two groups have taken aim at the American political and legal experiment: critics of modern liberalism and contemporary criminal justice reformers. Liberal critics point to the corrosive effect of liberal ideas on governmental, legal, social, and private institutions. Criminal justice critics lament systemic racism and classism, power imbalances, over-criminalization, and mass incarceration. Broadly, both groups argue the American political and legal experiment was destined to fail, and has failed, given its ideological roots. This Article puts both into conversation and makes two arguments. First, it explores whether criticism of the liberal paradigm offers another explanatory horizon for the ills of American criminal justice. Second, it suggests there is strong evidence that these trends were not the original design of the Founders, who, while operating within the liberal tradition, sought to entrench certain pre-modern ideas into American criminal justice. Four developments in the modern American criminal legal system—relating to lawmaking, procedure, adjudication, and punishment—provide evidence of the critique of the excesses of modern liberalism. First, the system has become almost entirely positivist, leaving officials to exclusively determine the boundaries of criminal law and definitions of punishment. Over-criminalization and confusion about what punishment is has resulted. In the procedural realm, core doctrines are nominalist and utilitarian in how they attempt to protect privacy and liberty. Third, the liberal, social contractarian ethic that permits equating voluntary agreement with justice, however artificial or divorced from the truth, persists in plea-bargaining norms and practices, separating the legitimacy of criminal adjudication from reality. Finally, modern liberal premises manifest in a sentencing system primarily concerned with controlling risk—through quantified instrumentalization. While these trends align with the pathologies of modern liberalism identified by critics, Founding thinking directly contradicts these developments. The Founders were not legislative positivists, either generally or with respect to criminal law and punishment. Second, criminal procedure protections were tethered to the world of things, not sentiments about interests. Third, juries were tasked with adjudicating criminal matters, determining truth, and injecting their normative views into the legal system. Finally, the moral underpinnings of criminal law animated Founding thought on sentencing and punishment. Thus, while modern liberal premises and excesses help to explain some systemic developments lamented by criminal justice scholars, these trends contradict aspects of the original design, meaning they are paradigmatic rather than originally intended.

Download the article from SSRN at the link.

Logan on Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine @FSUCollegeofLaw @buffalolawrev

Wayne A. Logan, Florida State University College of Law, is publishing Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine in volume 77 of the Buffalo Law Review.

Police officers, like the citizens they serve, often believe that they can accurately and reliably discern emotions from the faces of individuals they encounter on street patrol. An officer, for instance, might interpret a facial expression to infer that an individual is surprised by the officer’s presence, which can serve as a factor justifying a seizure based on reasonable articulable suspicion of criminal activity. Judges, for their part, often defer to the facial emotion recognition (FER) wherewithal of police when assessing the sufficiency of police assertions of reasonable suspicion. There is a major problem, however, with the accepted wisdom: it lacks empirical support. As a growing body of research shows, human faces are not like emojis or emoticons; not only is the purported connection between particular emotions and facial expressions weak, but facial expressions themselves are variously interpreted. Moreover, FER depends on multiple individualized factors such as the viewer’s age, gender, personality traits, life experiences, and emotional intelligence, and whether the viewer and viewed are of the same racial or ethnic background. Worse yet, conventional experimental studies advanced in support of FER suffer from major methodological problems, undercutting its averred accuracy and reliability. This essay aims to explode the myth of FER and urges its judicial disregard in the assessment of whether police have reasonable suspicion to detain an individual. The intervention is as timely as it is important. In the immediate term, allowing continued judicial reliance on an empirically unfounded data point raises obvious constitutional concern. Longer term, reliance on FER is problematic because it is now being combined with artificial intelligence technology, soon to likely include roboticized policing and “emotiveillance” efforts more generally. To neutralize these threats, the essay urges that, like similar pseudo-sciences of the past, such as phrenology and physiognomy, FER should be relegated to the dustbin of history, rather than serving as an accepted basis for police seizures, with all the significant personal and social harms they impose.

Download the article from SSRN at the link.

Yeager on A History of Fruit of the Poisonous Tree (1916-1942) @CWSL_News

Daniel B. Yeager, California Western School of Law, has published A History of Fruit of the Poisonous Tree (1916-1942). Here is the abstract.

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.

Download the article from SSRN at the link.

Mannheimer on Fugitives From Slavery and the Lost History of the Fourth Amendment @nkuedu @NKUChaseLaw

Michael Mannheimer, Northern Kentucky University College of Law, has published Fugitives from Slavery and the Lost History of the Fourth Amendment. Here is the abstract.

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment cases during this lengthy period. But just because the Court did not make any Fourth Amendment law does not mean that the Amendment lay dormant. The Amendment was, in fact, very much alive in the hands of Northern lawyers and state legislators resisting the seizure of people of color in their States as alleged fugitives from slavery, whether under the auspices of the Fugitive Slave Acts of 1793 and 1850 or under the so-called common-law “right of recaption.” Lawyers representing alleged fugitives from slavery and state legislators trying to protect free persons of color from being kidnapped into slavery mobilized the Fourth Amendment as a preservation of state control of seizures within each respective State. According to this theory, while the Constitution’s Fugitive Slave Clause required that enslaved persons escaping bondage be “delivered up,” the Fourth Amendment demanded that any claim that a person was a fugitive from slavery would have to be adjudicated by the procedures established by the State where the claim was made. Seizing an allegedly enslaved person without heeding those procedures could subject the slave catcher to civil and criminal liability under state law. In the infamous case of Prigg v. Pennsylvania, the Supreme Court, rather than tackle this Fourth Amendment argument, simply ignored it and broadly rejected States’ attempts to regulate the seizure of allegedly enslaved persons within their borders. Ultimately, this view of the Fourth Amendment as a preservation of state control was forever lost.

Download the article from SSRN at the link.

Hu on Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test

Margaret Hu, Washington and Lee University School of Law, is publishing Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test in the Washington Law Review. Here is the abstract.

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. A cybersurveillance nonintrusion test implicitly suggested by the Supreme Court in United States v. Jones first shifts the vantage point of the Fourth Amendment analysis from an individual-based tangible harm inquiry to an inquiry of a society-wide intangible harm — whether the modern surveillance method creates a “1984 problem” for society. A cybersurveillance nonintrusion test requires the government to justify the intrusion of the surveillance on society. A new test would remediate increasingly ineffective Fourth Amendment jurisprudence currently grounded in property and tort law. The Article argues that the adoption of a cybersurveillance nonintrusion test and the abandonment of the current privacy test is not only required; but, in practice, is already used by the federal courts.

Download the article from SSRN at the link.

Law Library of Congress Video from the Depiction of Law in Film and Television Now Available

The Law Library of Congress has made video from its event The Depiction of Law in Film and Television available here.

The Law Library held the event July 20, 2016.

"You Have the Right To Remain Silent": In the U.S. and Canada

Allan Levine discusses the history of Miranda v. Arizona, the difference between such constitutional rights in the U.S. and Canada, and (briefly) how Canadian viewers of U.S. law and order shows might take away the wrong message about their rights. Here, for the National Post.

Bandes on Ferguson and Changes in Legal Education

Susan A. Bandes, DePaul University College of Law, has published Moral Shock and Legal Education at 65 Journal of Legal Education 298 (2015). Here is the abstract.

This essay is part of a Journal of Legal Education symposium issue on how recent high profile revelations about racially discriminatory policing in Ferguson and elsewhere have affected the way law professors teach, think, write and talk about criminal justice, civil rights, and law in general.

Download the essay from SSRN at the link.

The Open Road and the Traffic Stop

Nancy Leong, University of Denver College of Law, has published The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream. Here is the abstract.

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop - a judicially-authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. This paper examines the cultural texts - books, movies, songs - celebrating the open road and juxtaposes them against those documenting the traffic stop. The traffic stop, I conclude, interrupts the open road narrative closely associated with the American dream. Those stopped most frequently - in particular, racial minorities - are consequently denied full participation in an abiding national fantasy.

Download the paper from SSRN at the link.