"Double Jeopardy Law Made Simple," 106 Yale L.J. 1807 (1997)
Modern Supreme Court case law is full of double jeopardy double talk. Consider first the poetic phrase "life or limb." It seems sensible enough to read these words as a grim and graphic metaphor for criminal sanctions - and such an approach runs deep in American case law, to say nothing of English literature. This reading also makes the most sense of the precise location of the Fifth Amendment Double Jeopardy Clause, wedged as it is between two other provisions-the Grand Jury and Self-Incrimination Clauses-that apply only to criminal offenses. But can "life or limb" be stretched to encompass some civil suits involving only money? Today's Supreme Court seems to think so, but how can this be squared with the text and structure of the Fifth Amendment? The Fifth Amendment Due Process Clause clearly applies to civil cases, but isn't its "life, liberty, or property" language obviously contradistinguished from the more narrow "life or limb" language of the Fifth Amendment Double Jeopardy Clause?
Date of Authorship for this Version
Amar, Akhil Reed, "Double Jeopardy Law Made Simple" (1997). Faculty Scholarship Series. Paper 943.