This Article commemorates the sesquicentennial of the Fourteenth Amendment by exploring the U.S. Supreme Court’s engagement with the memory of slavery and segregation. It examines major decisions not merely as jurisprudential landmarks, but as monuments of collective memory. This Article suggests that the Court has invoked the memory of slavery and segregation in two primary…
Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, thirty-nine states (and the District of Columbia) have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials. The underlying assumption…
Since its 1970 decision in Ashe v. Swenson, the U.S. Supreme Court has recognized issue preclusion as part of the constitutional guarantee against double jeopardy. Ashe held that where an acquittal necessarily involved deciding a factual issue in the defendant’s favor, the Double Jeopardy Clause of the Fifth Amendment prevents the prosecution from relitigating that…
Our criminal appeals system struggles to detect wrongful convictions, and its treatment of unreliable testimony deserves a share of the blame. An interconnected web of judicial dispositions makes convictions backed by testimony—no matter how marginal—largely impervious to review. When challenged, this imperviousness is explained away as deference to the jury’s role as lie detector. But…
