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Quinnipiac Law Review


Some individuals innocently lose constitutional rights, both substantive and procedural, both enumerated and unenumerated, both fundamental and nonfundamental. One can also innocently lose non-constitutional rights. Innocent losses occur when individuals lose rights though they have not acted in any way to prompt such losses as by acting through direct or implicit waivers, in apparent ways, or through agents. Findings of compelling state interests, rationality, or other sufficient government justifications do not accompany innocent losses

This Article begins by demonstrating how the courts have sanctioned innocent losses of varying rights. It reviews, by way of example, the common authority doctrine in Fourth Amendment search cases; the presumed consent doctrine in intentional tort cases involving infringements on bodily integrity; the quasi-contract doctrine in property cases; lawyer agency in both jury trial and nonjury trial right cases; de facto parentage cases; childcare opportunities for genetic donors in formal adoption cases; and childcare opportunities in Safe Haven cases. This Article posits that the rationales supporting innocent losses of constitutional rights are often weak, especially when the losses involve fundamental rights. It ends by urging that innocent losses of all rights should be mitigated, illustrated by a focus on losses of constitutional childcare rights.

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College of Law

Suggested Citation

Jeffrey A. Parness, Innocent Losses of Constitutional Rights, 39 Quinnipiac L. Rev. 275 (2021).

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