an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
First, I thank Professor Mazzone for his completely courteous reply to my critique of his earlier post. We do have a disagreement about the best interpretation of Miranda. Although he is certainly correct that the case involved the question of the exclusionary rule, it would make no sense if there weren't a preceding constitutional norm against potentially abusive police interrogation. I agree with him that Miranda is a prophyactic rule, and that it therefore prevents, through the exclusionary rule, non-abusive interrogation as well. But adoption of that prophyactic rule presumably rests on an inference that police interrogation is sufficiently likely to be abusive that it's worth the cost to "handcuff the police" more generally.
I suspect that most of the critics of the "read him his MIranda rights" position--I have no reason to think this is true of Professor Mazzone, incidentally--are not all that fastidious in how they would limit the police interrogation. I would not be surprised if some of the "Fox News crowd"--and I am happy to withdraw my own snark with regard to linking Prof. Mazzone with such crowd--would be amenable, say, to threatening the withdrawal of pain-killing drugs in the absence of testimony about the planning of the event and so on. As a practical matter, as Marty Lederman has suggested elsewhere, it is quite unlikely that Dzhokhar Tsarnaev is unaware that he has a right to remain silent, either because of his knowledge of American culture or because his alleged terrorism-masters in Chechnya would surely have had the wit to say (something like) "if you're captured, remember that those wimp Americans will accord you a right to remain silent." Also, as Marty has suggested, it is almost certainly the fact that a smart defense lawyer would not necessarily advise taking the fifth, precisely because there is so much evidence against him and the smart thing to do would be to strike a deal for, say, life imprisonment in return for singing like a canary (and verifying what he says by tracking down his leads).
Finally, with regard to Prof. Hyman's article, I certainly agree it is an interesting question in the sociology of the legal profession why so many trained adepts in constitutional law believed (and, for that matter, continue to believe) that the argument against the mandate is frivolous (unlike the argument re Medicaid). Perhaps one has to be a political liberal to believe the argument is frivolous, but there were certainly many others, including, say, Charles Fried, who thought that it was a losing argument as well. (OK, he's at Harvard, but the fact is that there were astonishingly few "leading law professors" who joined Randy Barnett's attack and/or predicted its near-success (or, if one adds Roberts and the Scalia 4 votes, success in stating radical new dicta). They might have wished him well, but I think that most thought the New Deal cases and their successors had really settled the question.
The predictions re Sibelius can hardly be said to have failed. After all, the Court did uphold the law.
It's true that the vote was closer than expected, and the grounds on which Roberts relied were different, but those features are pretty easily explained by politics rather than by precedent. Obviously the professoriat needs to give greater heed to legal realism. :)
I have never understood why the mere recitation of Miranda rights causes apoplexy in right-wing politicians. A suspect who, in the absence of warnings about his right to remain silent and/or to have a lawyer present during questioning, will sing like a canary but who will clam up when warned is exceedingly rare.
Someone with enough fortitude to remain silent in the face of police interrogation is likely to do so whether warned or unwarned.
A coerced statement which is preceded by Miranda warnings is every bit as inadmissible as a coerced statement which is not preceded by Miranda warnings.
The posturing by politicians has a lot more to do with wanting to seem hairy-chested than with actual law enforcement procedures. Perhaps such a right-winger should emulate the late Doug Marlette's Kudzu DuBose character, and buy a chest wig.