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Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not share that motivating concern. But rather than overruling Miranda and Massiah, the Court is reanimating those doctrines according to the new principle of “fair play” in interrogations. This “fair play” rubric presupposes interrogation suspects who are autonomous agents, expected to know and protect their rights.Part I describes how the Roberts Court’s Fifth Amendment decisions are best explained by the new rubric of “fair play” in interrogations. Part II does the same for the Court’s Sixth Amendment decisions. Part III evaluates this new “fair play” rubric, concluding that it is not a fair and adequate principle for organizing constitutional interrogation doctrine. While the Warren Court’s specific rules and remedies for interrogation law have been criticized over the years from both the left and the right, its underlying premise—that suspects facing police interrogation are vulnerable to abuse and overreaching — has proven robust and continues to find support in decades of empirical work. The Roberts Court’s presumption that suspects in interrogation are autonomous agents capable of protecting their own interests is wrong. The resulting rules of “fair play” in interrogation fail to adequately protect the constitutional right against self-incrimination and the guarantee of the assistance of counsel in all criminal cases.

What is the foundation of consent in the criminal law? In his book, The Logic of Consent, Peter Westen claims neither of the two classic philosophical accounts of consent fully explains how consent is treated in the criminal law. Focusing on the doctrines of prospective consent and retrospective consent, Westen identifies this dilemma: J.S. Mill’s conception of consent (that individuals are the best judges of their own interests) explains how the criminal law treats prospective consent, but cannot explain its treatment of retrospective consent. In contrast, Joel Feinberg’s conception of consent (that individuals have a sovereign right to autonomy) suffers from the opposite problem: it explains how the criminal law treats retrospective consent, but cannot explain how it treats prospective consent. This article resolves Westen’s dilemma by identifying a third, distinct conception of consent, articulated by Joseph Raz. Raz argues that we value consent because the state of being autonomous is a constituent element of the good life. The doctrines of prospective and retrospective consent illustrate how Raz’s conception is distinct from either Mill’s or Feinberg’s conceptions of consent. Moreover, Raz’s theory of consent is consistent with, and thus can provide a foundation for, the way the criminal law treats prospective and retrospective consent. I also discuss some of the implications for the criminal law if one accepts Raz’s account of consent. For example, some paternalistic laws might be justified under Raz’s account.