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The Miranda Warning In Popular Culture

Posted: 16 May 2011 11:18 AM PDT

Ronald L. Steiner, Chapman University School of Law, Rebecca Bauer, and Rohit Talwar have published The Rise and Fall of the Miranda Warnings in Popular Culture in volume 59 of the Cleveland State Law Review (2011). Here is the abstract.


The U.S. Supreme Court's June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings' well-established place in popular culture, the editorial acknowledged that, "[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV." Professors Richard Leo and George Thomas have similarly observed "suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring," and that "it is because of these shows and the mass media more generally - not the police, the legal system, or Supreme Court doctrine - that Miranda has become so much a part of our national culture." Critical to the Dickerson Court's reaffirmation of Miranda was the fact of the public's overwhelming awareness of Miranda and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.

However, it may be that most people writing about the ubiquitous nature of Miranda in popular culture are describing a popular culture they remember rather than popular culture as it now exists. Judges and scholars may remember Miranda warnings used as prominent script elements in the television of their youth - the generation that came of age in the era of "Dragnet" and "Adam-12" heard Miranda warnings more times than they could count. But, as Broadcast & Cable noted, "[w]e've not heard a TV Miranda read in a while." Following up on that observation, a look at several iconic cop shows from the years since Miranda demonstrates a sharply diminished role for Miranda in popular culture. What happens to the Dickerson rationale if there isn't the repeated popular culture representations of Miranda that created a public familiar with and expecting of a caution that they have the right to remain silent? Can Miranda survive in law once its television role has been left on the cutting room floor?
Download the article from SSRN at the link.

Are Judges Political Actors?

Posted: 16 May 2011 10:55 AM PDT

William P. Marshall, University of North Carolina, Chapel Hill, School of Law, has published Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor in volume 6 of the Duke Journal of Constitutional Law & Public Policy (2011). Here is the abstract.


The criticism that a judge has injected her policy preferences into her judicial decision making is just that - a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges' policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge's ideology (usually determined by referencing the political party of the judge's appointing president) significantly explains patterns of judicial votes.

Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases.
Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates' views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges-as-political-actors critique-- judges, like legislators, bring political agendas to their service.

In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of 'judicial takings,' meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.

The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions.Download the article from SSRN at the link.

Things Are Looking Up: The US Supreme Court's Use of Dictionaries

Posted: 16 May 2011 10:47 AM PDT

Jeffrey L. Kirchmeier, CUNY School of Law, and Samuel Thumma, Perkins Coie, have published Scaling the Lexicon Fortress: The United States Supreme Court's Use of Dictionaries in the Twenty-First Century, in volume 94 of the Marquette Law Review (2010). Here is the abstract.


This Article examines the Court's use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court's history of using dictionaries: Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 BUFF. L. REV. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001).

During Supreme Court Terms 2000-2001 through 2009-2010, the Justices have referenced dictionary definitions to define nearly 300 words or phrases. Yet the Court has never expressly explained the proper role and use of the dictionary in American jurisprudence. The Article studies the frequency and the approach the Justices have taken to citing dictionaries in the new century, and it considers the Court's lack of a reasoned process for selecting or using dictionaries.

Part I examines the frequency of dictionary use in the new century as compared to past use, comparing the different Justices with respect to their dictionary usage and the dictionaries most frequently cited by the Court. Part II addresses the stages of dictionary use, from the initial decision to use a dictionary to define a word to the selection of the dictionary and the choice of definitions. Part III examines some recent cases that illustrate the approaches taken in using dictionaries to define terms from various sources, including the United States Constitution, statutes, and prior cases. The Article includes three comprehensive appendices that compile information from the twenty-first century cases listing: (1) the terms defined by the Court with references to the cases; (2) the Justices who have used a dictionary in opinions (along with their frequency of use and which dictionaries are used); and (3) the dictionaries used by the Court. These appendices, when combined with the authors' previous articles examining the Supreme Court's dictionary use through the twentieth century, provide a comprehensive compilation of the use of dictionaries since the Court began.

The Article concludes that, in the twenty-first century, the Court continues to use dictionaries at a high rate with little guidance for parties, lawyers or others regarding when to turn to dictionaries, which dictionaries to use, and how to use dictionaries. Although the authors are able to deduce several principles from the Court's history, to date, the United States Supreme Court has issued no definitive decision squarely addressing the proper use of the dictionary. The ongoing usage of dictionaries by the United States Supreme Court and other courts continues to demonstrate the need for such guidance.
Download the article from SSRN at the link.
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