Issue 2

Of Guns, Abortions, and the Unraveling Rule of Law

Conservatives across the nation are celebrating. This past Term, in District of Columbia v. Heller, the Supreme Court held for the first time in the nation’s history that the Second Amendment protects an individual right, unrelated to military service, to keep and bear arms. 

I am unable to join in the jubilation. Heller represents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts. 

In this Essay, I compare Heller to another Supreme Court opinion, Roe v. Wade. The analogy seems unlikely; Roe is the opinion perhaps most disliked by conservatives, while many of those same critics are roundly praising Heller. And yet the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.

The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception

The Miranda decision requires that police read suspects a set of warnings to ensure that the suspect knows his rights and only waives those rights “voluntarily” and “knowingly.” This Note proposes a “prior criminal experience” exception to Miranda, by which an incriminating statement made outside Miranda may be admissible at trial in certain circumstances. Under the new view of the law, just as today, law enforcement agents would be required to administer Miranda warnings to every suspect before custodial interrogation. However, should a law enforcement officer negligently fail to give the warnings, use of an incriminating statement against a suspect in court would not be barred absolutely. Rather, the statement might be admissible depending on the suspect’s knowledge of his rights, gained through prior criminal experience.

Essentially, the trial court would use a totality-of-circumstances test to determine if the suspect knew his rights at the time of his most recent statement to police. Compulsion still would be presumed in the absence of Miranda warnings, so the burden would fall on the government to show that the defendant had the constitutionally required knowledge. If the court finds the suspect had the requisite knowledge, a police officer’s negligence in not Mirandizing him is immaterial, and the court will allow the confession into evidence. If the court finds that the suspect does not have knowledge of his rights, the prong is not met, and the court will exclude the incriminating statement. The “prior criminal experience” exception only applies to the “knowledge” prong of Miranda; the voluntariness inquiry would not change. The exception ensures that courts do not allow the constitutionally required Miranda warnings to give an advantage to criminal suspects where none is needed.

Modernizing the Critique of Per Diem Pain and Suffering Damages

Outside the legal academy, the debate over tort reform rages on. In the political arena, advocates on both sides of the aisle often use empty rhetoric in an attempt to persuade voters that tort reform as a whole is “good” or “bad.” Of course, this over-simplistic view of tort reform does not take into account the multifaceted nature of tort law. This Note examines one method of calculating noneconomic damages and attempts to provide a theoretical justification for why a plaintiff’s use of the per diem (or time-unit) method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem method to calculate these damages has largely stagnated in the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the per diem discussion. This Note analyzes and introduces the “cognitive-behavioral treatment” (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that allow such a method. The basic flaw of the time-unit perspective is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual’s future and likely ability to psychologically and physically cope with chronic pain. 

©Virginia Law Review Association. All rights reserved.