Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement

The use of solitary confinement in U.S. prisons and jails has come under increasing scrutiny. Over the past few months, Supreme Court Justice Anthony Kennedy all but invited constitutional challenges to the use of solitary confinement, while President Obama asked, “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day for months, sometime for years at a time?” Even some of the most notorious prisons and jails, including California’s Pelican Bay State Prison and New York’s Rikers Island, are reforming their use of solitary confinement because of successful litigation and public outcry. Rovner suggests that in light of these developments and “the Supreme Court’s increasing reliance on human dignity as a substantive value underlying and animating constitutional rights,” there is a strong case to make that long-term solitary confinement violates the constitutional right to freedom from cruel and unusual punishment.

Brief of Amici Curiae Scholars of the Constitutional Rights of Children in Support of Petitioners in Obergefell v. Hodges

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage. This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because they: 1) foreclose their central legal route to family formation; 2) categorically void their existing legal parent-child relationships incident to out-of-state marriages; 3) deny them economic rights and benefits; and 4) inflict psychological and stigmatic harm. States cannot justify marriage bans as good for children and then exclude children of same-sex couples based on moral disapproval of their same-sex parents’ relationships or to incentivize opposite-sex couples to “procreate” within the bounds of marriage. To do so, severs the connection between legal burdens and individual responsibility and creates a permanent class or caste distinction.

High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Notes about cases heard as Justice of the Peace, 1784-1795

This small paper-bound notebook contains notes Winthrop made concerning the cases he heard between 1784 and 1795 as a Justice of the Peace for Middlesex County. These notes provide insight into the nature of crimes being committed in Cambridge in the post-Revolutionary period, as well as the names and occupations of those accused and their victims. The cases involved the following individuals, among others: Samuel Bridge, Benjamin Estabrook, Joseph Jeffords, Cato Bordman, John Kidder, Spenser Goddin, Jacob Cromwell, Benjamin Stratton, Mary Flood, Bender Temple, John Willett, Joseph Hartwell, Nathaniel Stratton, Amos Washburn, Francis Moore, Thomas Malone, Thomas Cook, and Amboy Brown. The cases involved a range of offenses, and occasionally Winthrop decided that a case exceeded his jurisdiction and forwarded it to the General Court or the Supreme Judicial Court.

Opinions filed by the commissioners acting under the VII. article of the Treaty of Amity Commerce and Navigation between Great Britain and the United States of America : manuscript, 1797-1799

Opinions concerning the 7th article of the treaty.

Notice of trial in the case of Jonathan Fish [et al.] v. William Betts, 12 April 1774

Document addressed to Thomas Hicks (attorney for the defendant) informing him that Scott (attorney for the plaintiff) intends to bring the case to trial "at the next Supreme Court of Judicature to be held for the Province of New York." Signed by Scott.

Lawyer's case book containing notes of cases adjudged and determined in the courts of Delaware, 1793-1796

Lawyer's case book containing notes on cases before the Delaware Supreme Court and Delaware Court of Common Pleas. Contains information on the cases and judgements.

Proceedings in the Court of Chancery of Grenada: during the government of his excellency Lord Macartney, 1776-1778

Contains summaries of cases before the Chancery Court of Grenada arranged chronologically and preceded by an index.

Rules of practice for the courts of equity of the United States /

Mode of access: Internet.

The constitution, congress, and the courts : speech of Hon. David J. Lewis, of Maryland, in the House of Representatives, Monday, March 8, 1937.

"(Not printed at government expense.)"

Rules of civil procedure for the United States District Courts. : Hearing[s] Seventy-fifth Congress, third session, on S.J. Res. 281, a joint resolution to postpone the effective date of the Rules of civil procedure.

[pt.1] Hearing, April 18, 1938.--pt.2. Hearing, May 19, 1938.

Amended rules of practice for the courts of equity of the United States /

Mode of access: Internet.

In defense of the independence of the judiciary : speech of Hon. Josiah W. Bailey of North Carolina in the Senate of the United States, July 12 and 13, 1937.

"Not printed at government expense."

The American Print Works vs. Cornelius W. Lawrence.

"Action [was] brought...to recover damages for the destruction of goods contained in two stores...in the city of New York. These buildings were destroyed on the morning of December 17, 1835, by gunpowder exploded therein by order of Cornelius W. Lawrence, then mayor of the city of New York, for the purpose of stopping the great conflagration then raging in that city.

The Law reports.

Edited by G.W. Hemming.