Law Commons^™

Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent

Kristen Nugent

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …

The Genetic Information Nondiscrimination Act Of 2008: A Case Study Of The Need For Better Congressional Responses To Federalism Jurisprudence, Harper Jean Tobin

Harper Jean Tobin

The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the “federalism revolution” of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA’s limited legislative history makes it vulnerable to attack – potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its …

Original Popular Understanding Of The 14th Amendment As Reflected In The Print Media Of 1866-1868, David T. Hardy

David T. Hardy

The controversy between 14th Amendment total incorporation under the privileges or immunities clause, and selective incorporation under its due process clause, has remained quiescent in recent years. Now, two cases pending in the lower Federal courts are making bids to revive the controversy that once generated a feud between Justice Black and Justice Frankfurter. Both the 7th and the 9th Circuits have ordered expedited review of these appeals; one is being argued in January, the other in April.

In the last Term, a majority of the Supreme Court accepted a variant of original public meaning as the key to ascertaining …

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How “Attrition Of Parliamentary Processes” Begat Accidental Ambiguity; How Ambiguity Begat Slaughterhouse, Michael Anthony Lawrence

Michael Anthony Lawrence

This essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Privileges or Immunities Clause, which has lain dormant since the Court’s erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The essay makes the unique argument that the textual basis for the SlaughterHouse Court’s holding regarding the clause - i.e., the lack of parallel textual construction in the Fourteenth Amendment Section One’s first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call “attrition of parliamentary …