Prophylactic rule

Prophylactic rule

A prophylactic rule is a judicially-crafted rule that overprotects a constitutional right, and gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right. [Caminker, Evan. “ [http://web.archive.org/web/20040730133655/http://www.law.uc.edu/lawreview/uclaw70pdf/0001caminker.pdf Miranda and Some Puzzles of ‘Prophylactc’ Rules] ,” "University of Cincinnati Law Review" (2001).] An example is the case of "Miranda v. Arizona" which adopted a prophylactic rule (i.e. “Miranda warnings") to protect the Fifth Amendment right against self-incrimination. The exclusionary rule, which restricts admissibility of evidence in court, is also sometimes considered to be a prophylactic rule. ["United States v. Herrera", [http://www.kscourts.org/ca10/cases/2006/04/05-3057.htm 444 F.3d 1238] (10th Cir. 2006).]

The notion of prophylactic rules is controversial. U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas have argued against them, writing that the ability of judges to create these rules "is an immense and frightening antidemocratic power, and it does not exist." ["Dickerson v. United States", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=530&page=428 530 U.S. 428] (2000) (dissenting opinion).]

Footnotes

ee also

* Implied powers


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