Category: Volume 49 (2017) Issue 1 (Spring)

Sherod Thaxton. Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago. According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty. The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty. This has led to the growing disjunction between the…

Harlan Grant Cohen. The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny in many future ones. A return to the old political question doctrine, with its obsequious deference to political branch decisions, is not the answer. Instead, what is…

Michael T. Maerowitz. Beginning in 1878 with Wilkerson v. Utah, the Supreme Court has heard over forty cases where plaintiffs alleged that a method of execution violated the Eighth Amendment’s ban on cruel and unusual punishment. Though methods of execution have drastically changed over the years, the Supreme Court has never once held that a state’s chosen procedure for executing a prisoner constituted cruel and unusual punishment in violation of the Eighth Amendment. This statistic is particularly alarming in light of the fact that The Death Penalty Information Center shows there are over forty-eight well-known “seriously” botched executions. This Note will argue that, following Glossip v. Gross, the burden of proof for method-of-execution claims alleging a violation of the Eighth Amendment has become overwhelmingly heavy so as to circumvent the…

Justin Caresia. This Comment argues that administrative agencies and courts that have extended the statutory language of ERISA’s church plan exemption to religiously affiliated hospitals have violated the unambiguous intent of Congress. It calls for special attention to be given to the analytical framework courts use in their analysis of the issue because courts that have ruled on the issue since 2013 have used a narrow analytical framework that has proven incomplete and caused some courts to reach the wrong result. Ideally, Congress would do away with the present chaos surrounding the church plan exemption by finally revisiting its language, scope, and policy implications. It is Congress’ duty to consider the policy implications of legislation it passes, and it is past time for Congress to adequately consider whether extending ERISA’s…

John F. Coyle & Jason W. Yackee. In an earlier era, treaties of Friendship, Commerce, and Navigation (FCNs) were the primary international law mechanism through which the U.S. government sought to promote and protect foreign investment. Conventional wisdom holds that FCNs are of only limited historical interest, having been replaced by more ambitious bilateral investment treaties (BITs). In this Article we provide a partial challenge to the conventional wisdom. Our aim is to revive interest in the FCNs by arguing that these treaties, most of which remain in force, provide foreign investors with domestically enforceable rights in the courts of the United States. Many FCNs contain promises of favorable substantive treatment that are quite similar, if not identical, to the rights commonly extended to investors through BITs and investment chapters…

Lance Morgan. This Article will question some of the fundamental principles of federal Indian law—because it is still grounded in the biases of the past—and explain how the growing economic power of tribes is empowering the rapid growth of tribal law. I have stopped and started this Article and others like it several times. I have struggled to approach it like an academic article or as a good story. I decided to try to blend the styles. I will lay out the basic legal framework in a more traditional way and then switch to simply trying to tell the story of what tribes are doing to bypass the restrictions of federal Indian law. I hope that by telling the story, it will help the reader understand the natural progression of…

Laurence Winer & Nina J. Crimm. How should we balance claims of religious liberty against demands for maintaining separation of church and state? Are privately held secular corporations, whose owners have sincere religious beliefs regarding contraception, entitled to disregard legal requirements that they provide health care insurance coverage for their employees that includes certain contraceptives? To what extent are some religious organizations exempt from such requirements? May a government official, a county clerk, assert her own religious objections as a basis for her office to refuse to issue a marriage license to a same-sex couple after Obergefell v. Hodges? May a private individual in a service industry—a wedding photographer or baker, for example—refuse out of religious conviction to provide that service at a same-sex wedding? Falling somewhere between the private…

Tracy Alice Olson. Specifically, this Comment considers reconciling the level of scrutiny and deference due to campaign contributions and disclosure requirements with campaign expenditures. Part I traces the historical legal basis of campaign finance. Beginning with the Constitution, the background establishes the standards applied to free speech and campaign finance, including: anonymous speakers in the campaign finance context; recent congressional campaign finance legislation; and current challenges to campaign finance regulation. Part II proposes a reevaluation and elevation of the intermediate scrutiny standard to the strict scrutiny standard to better align campaign contributions and disclosure requirements as free speech. Full Article