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Levine on Dickerson v. United States

By Lawrence Solum

Samuel J. Levine (Pepperdine University School of Law) has posted Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework (Maryland Law Review, Vol. 69, No. 1, 2009) on SSRN. Here is the abstract:

In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and status of a ?constitutional rule.? This Essay finds a similar debate among medieval legal authorities over the status of a rule in the Jewish legal system that appears to function in a manner ordinarily reserved for legislation. Some authorities categorize the rule as rabbinic legislation, while others understand the rule as a biblical law with quasi-legislative characteristics. Taking the conceptual comparison a step further, Levine considers ways in which Jewish legal theory might elucidate the nature of the ?constitutional rule? delineated in Miranda.

Full post as published by Legal Theory Blog on January 07, 2010 (boomark / email).