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Articles 1 - 30 of 78
Full-Text Articles in Law
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
Articles & Chapters
One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.
It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Articles & Chapters
This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …
Access Denied: How 28 U.S.C. Sec. 1915(G) Violates The First Amendment Rights Of Indigent Prisoners, Molly Guptill Manning
Access Denied: How 28 U.S.C. Sec. 1915(G) Violates The First Amendment Rights Of Indigent Prisoners, Molly Guptill Manning
Articles & Chapters
No abstract provided.
United Nations Free Speech Standards As The Global Benchmark For Online Platforms' Hate Speech Policies, Nadine Strossen
United Nations Free Speech Standards As The Global Benchmark For Online Platforms' Hate Speech Policies, Nadine Strossen
Articles & Chapters
No abstract provided.
Power And Possibility In The Era Of Right To Counsel, Robust Rent Laws & Covid-19, Erica Braudy, Kim Hawkins
Power And Possibility In The Era Of Right To Counsel, Robust Rent Laws & Covid-19, Erica Braudy, Kim Hawkins
Articles & Chapters
New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York's rent laws. The unparalleled COVID-19 pandemic, the influx of …
Consent Of The Governed: A Constitutional Norm That The Court Should Substantially Enforce, David Schoenbrod
Consent Of The Governed: A Constitutional Norm That The Court Should Substantially Enforce, David Schoenbrod
Articles & Chapters
Available at https://www.harvard-jlpp.com/
Prejudice-Based Rights In Criminal Procedure, Justin Murray
Prejudice-Based Rights In Criminal Procedure, Justin Murray
Articles & Chapters
This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice- based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these …
Justice Anthony Kennedy's Free Speech Legacy [Comments], Nadine Strossen
Justice Anthony Kennedy's Free Speech Legacy [Comments], Nadine Strossen
Articles & Chapters
Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech claims, but they also have maintained that Justice Kennedy specifically declined to protect speech that was at odds with his conservative political and religious views. It is certainly true that Justice Kennedy did not uphold freedom of speech in some important contexts, including when the Government asserted countervailing national security or "War on Drugs" concerns. However, in other important cases, Justice Kennedy showed courage in defending …
Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe
Can The President Control The Department Of Justice?, Bruce Green, Rebecca Roiphe
Articles & Chapters
As the investigation into President Trump's campaign ties to Russia grows increasingly intense, it is critical to understand how much control the President has over the Attorney General and the Department of Justice. Some critics claim that the President has absolute power to direct federal prosecutors and control their decisions. The President and his lawyers, joined by several scholars, take this claim one step further by arguing that the chief executive could not be guilty of obstruction of justice because his control over all prosecutorial decisions is absolute. This issue last arose during the Nixon Administration. The Department of Justice …
What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.
What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.
Articles & Chapters
No abstract provided.
Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman
Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman
Articles & Chapters
This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.
A Contextual Approach To Harmless Error Review, Justin Murray
A Contextual Approach To Harmless Error Review, Justin Murray
Articles & Chapters
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …
Immigration Adjudication: The Missing Rule Of Law, Lenni B. Benson
Immigration Adjudication: The Missing Rule Of Law, Lenni B. Benson
Articles & Chapters
No abstract provided.
How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod
How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod
Articles & Chapters
No abstract provided.
Unraveling The Law Of War, Stephen J. Ellmann
Unraveling The Law Of War, Stephen J. Ellmann
Articles & Chapters
No abstract provided.
Can Prosecutors Be Both Coach And Referee?, Rebecca Roiphe
Can Prosecutors Be Both Coach And Referee?, Rebecca Roiphe
Articles & Chapters
No abstract provided.
The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann
Articles & Chapters
No abstract provided.
Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen
Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen
Articles & Chapters
The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.
Complex Experimental Federalism, Doni Gewirtzman
Complex Experimental Federalism, Doni Gewirtzman
Articles & Chapters
Federalism has long been celebrated as a structure for policy experimentation. Yet judges, scholars, and politicians have often treated experimentation as an automatic consequence of decentralization and policy devolution, instead of examining the down and dirty mechanics that drive systems to explore new solutions and generate a steady stream of useful policy innovations.
This Article addresses this gap in the literature by using complexity theory to better understand how experimental federalism works. It argues that federalism’s ability to produce meaningful policy experiments is heavily dependent on two dynamics — heterogeneity and interdependence — that are prominent in the research on …
Confrontation Clause Curiosities: When Logic And Proportion Have Fallen Sloppy Dead, Randolph N. Jonakait
Confrontation Clause Curiosities: When Logic And Proportion Have Fallen Sloppy Dead, Randolph N. Jonakait
Articles & Chapters
No abstract provided.
Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman
Lower Court Constitutionalism: Circuit Court Discretion In A Complex Adaptive System, Doni Gewirtzman
Articles & Chapters
While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions when circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda. Both approaches would homogenize the way circuit courts …
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Articles & Chapters
This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …
Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard
Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard
Articles & Chapters
In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest …
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
Articles & Chapters
Traditionally, scholars and judges have treated emotion as a destructive force within constitutional culture. This Article uses recent developments in social psychology, neurobiology, and political psychology to challenge this dominant account and reposition emotion as central to our collective constitutional endeavor. It argues that emotion is critical to commitment and imagination, two features of human behavior that are essential to constitutional legitimacy and innovation. Further, emotions shape our perceptions and preferences about constitutional values through their impact on attitude development and moral decision-making. Finally, our increased understanding of emotion's impact on human behavior has the potential to alter the way …
Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin
Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin
Articles & Chapters
No abstract provided.
Introduction: International Review Of Constitutionalism Special Issue On Law, Poverty And Economic Inequality, Penelope Andrews, Frank W. Munger
Introduction: International Review Of Constitutionalism Special Issue On Law, Poverty And Economic Inequality, Penelope Andrews, Frank W. Munger
Articles & Chapters
Editors introduction: This collection of articles by noted scholars examines what law and legal institutions can do to alleviate poverty and economic inequality in the new economic and political environment. The articles explore the contours of many struggles for distributive justice. They describe contemporary constitutional strategies, such as the incorporation of economic, social and cultural rights in constitutions in relation to grassroots anti-poverty campaigns in many parts of the world, including campaigns for rights in South Africa, and poor people's economic and human rights campaigns in the United States. Such campaigns face well-known disadvantages in contending with entrenched, powerful, and …
The Rise Of The American Adversary System: America Before England, Randolph N. Jonakait
The Rise Of The American Adversary System: America Before England, Randolph N. Jonakait
Articles & Chapters
The standard versions of the adversary system's development show that as more lawyers participated in English criminal trials in eighteenth century England criminal procedure became increasingly adversary. Those versions largely ignore American history which shows that the colonies and early America did not simply adopt the English adversary system but moved to an adversary system in advance of England. This article discusses data and developments indicating America's early adoption of an adversary system, including the American guarantee of a right of counsel, the routine presence of counsel in criminal cases in the colonies and the new United States, the American …
Global Funder, Grassroots Litigator—Judicialization Of The Environmental Movement In Thailand, Frank W. Munger
Global Funder, Grassroots Litigator—Judicialization Of The Environmental Movement In Thailand, Frank W. Munger
Articles & Chapters
No abstract provided.
Constitutional Law And Values - Version '08 (Not Necessarily And Upgrade), Nadine Strossen
Constitutional Law And Values - Version '08 (Not Necessarily And Upgrade), Nadine Strossen
Articles & Chapters
No abstract provided.
Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen
Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen
Articles & Chapters
No abstract provided.