John Calvin Jeffries

Defenses, Presumptions, and Burden of Proof in the Criminal Law

* This article is an elaboration of views first stated in Low & Jeffries, DICTA: Constitutionalizing the Criminal Law? Va. L. Weekly, Mar. 25, 1977, at 1. The authors would like to thank Thomas F. Bergin, Richard J. Bonnie, Ronald A. Cass, Thomas H. Jackson, Jerry L. Mashaw, Harvey S. Perlman, Stephen A. Saltzburg, and Peter Westen for their criticisms and comments. Thanks are also due to Jonathan Koch, Barbara Schilberg, and Douglas Sullivan for research assistance and to Andrew Brumby for preparation of the appendix. Most especially, the authors acknowledge their continuing intellectual indebtedness to Peter W. Low. Without his guidance and encouragement, this piece would not have been done. t Assistant Professor of Law, the University of Virginia.

The Right-Remedy Gap in Constitutional Law

J.D. 1977, the University of Virginia School of Law.

Reversing the Order of Battle in Constitutional Torts

generalizations that perpetually invite new wine to be poured into old bottles) should read no further. This article is grounded in a belief in both the inevitability and the desirability of constitutional evolution. Those who do not share the premise will necessarily find the argument

The trial of John W. Hinckley, Jr. : a case study in the insanity defense

Few Supreme Court decisions have been as completely unsurprising as Pearson v Callahan. Pearson overturned Saucier v Katz, which required courts to reach the merits of constitutional tort claims before addressing qualified immunity. Since qualified immunity precludes damages unless defendants violate “clearly established” rights, Saucier mandated some merits adjudications incapable of supporting damages judgments in those particular cases, because the rights violated had not been “clearly established” at the time of the defendants’ actions. These “unnecessary” merits adjudications had been criticized by sitting Justices and prominentFew Supreme Court decisions have been as completely unsurprising as Pearson v. Callahan. Pearson overruled Saucier v. Katz, which required courts to reach the merits of constitutional tort claims before addressing qualified immunity. Pearson held that merits-first adjudication, while often appropriate, “should no longer be regarded as mandatory.” The specific question in Pearson – whether the merits of constitutional tort claims should be adjudicated, even when they do not control immediate outcomes, in order to achieve “clearly established” rights capable of enforcement in the future – is important and interesting. This comment argues that there is more to be said for the merits-first order of battle and for a systemic approach to constitutional enforcement than the Court’s opinion in Pearson suggests. More broadly, the comment argues correct resolution of the issue in Pearson requires differentiation among rights. For some rights, money damages are relatively unimportant. When rights are defined and enforced in other venues, the costs of foreclosing merits-first adjudication in constitutional tort actions will be low. For other rights, money damages are crucial important. When that is true, refusal to reach the merits of constitutional tort claims will cut to the bone. Going directly to qualified immunity will not only inhibit the development of constitutional doctrine, but also will degrade existing rights to a least-common-denominator understanding of their meaning. Despite the Court’s reluctance to particularize remedial doctrine, effective enforcement of constitutional rights demands it. Pearson v. Callahan shows the need for reconceptualization of the law of constitutional torts to allow for differentiation among rights.