- Online Edition
- Print Edition
- Donahue Lecture Series
- Archived Mastheads
The habeas corpus writ offers a last resort for petitioners seeking to raise their right to be free from wrongful restraints upon their liberty. To avoid dismissal, the petitioner must not only file a habeas petition in the appropriate jurisdiction, but also name the proper respondent—two selections that are not always clear from the outset of the case. In Rumsfeld v. Padilla, the Supreme Court of the United States considered whether an enemy combatant, Jose Padilla, properly filed a habeas corpus writ pursuant to 28 U.S.C. § 2241, and whether the President of the United States possesses authority to detain Padilla. The Supreme Court held in a 5-4 decision that the United States District Court for the Southern District of New York (SDNY) did not have jurisdiction over Padilla’s habeas petition, and therefore the Court did not reach the merits of Padilla’s challenge to the lawfulness of his detention. . . .
Corporate law is generally a function of state law. While the Federal Government has the power to trump state corporate law, it has historically refrained from intruding upon internal corporate affairs unless the issue rose to a level of national importance. In the rare instances where national corporate governance legislation has been enacted, Congress did so only after extensive hearings and debate. For over two hundred years, states had sole authority to determine whether corporations could make loans to their executives.
State views on the propriety of executive loans have evolved over time. Early state law strictly prohibited companies from lending money to officers and directors unless the company was in the business of making loans. Beginning in the 1930s, however, a majority of states enacted laws permitting loans to executives. Though some states imposed significant restrictions, the majority granted boards wide discretion to make loans, provided the loans benefited the company. . . .
Congress’ enactment of the Clean Air Act (CAA) granted the United States Environmental Protection Agency (EPA) authority to develop and implement programs for air pollution prevention. Although the traditional route to ensure compliance with an environmental law is judicial enforcement, the EPA can target alleged violators of the CAA with any one of four enforcement tools. The EPA may request that the Attorney General commence a criminal action against the alleged violator, file a civil action in district court, assess civil penalties against the alleged violator after a formal adjudication, or direct an alleged violator to comply with statutory requirements by issuing an administrative compliance order. Administrative compliance orders are the most common mechanism for enforcement because they promote early reconciliation of violations and avoid litigation. . . .
Human fallibility has long necessitated quality control measures in most professions. In the sensitized health care context, such measures bear heavy scrutiny and conjure up zealous advocacy. Medical error seized a national spotlight in the 1970s and 1980s as medical malpractice claims increased exponentially, grabbing the attention of health care professionals and lawmakers, and increasing efforts to improve the quality of health care along with the legislation and regulation surrounding medical treatment. Internally conducted reporting mechanisms within the medical community emerged as a common means of improving service quality and reducing medical error. Hospitals and other health care providers increasingly utilized peer review reporting as a method of reducing medical error, while state legislatures almost unanimously enacted statutory protections strengthening the efficacy of peer review committees. . . .
Today we step into an important and often heated debate about the role of law schools in legal education. Some say that law professors should impart less knowledge about doctrine and more about policy and broader social issues, while others decry the declining place that doctrine and issues of importance to the profession hold in law school. One part of that broader debate is the role of legal scholarship: should law professors write for lawyers and judges, or should lawyers and judges—but not law professors—address the concerns of the profession?
These are important issues that divide the legal academy and evoke strong feelings and beliefs on all sides. This Article addresses the question of legal scholarship and the role that law professors should play in publishing articles that matter to judges, lawyers, and other legal decision-makers. Much of the pertinent literature incorrectly assumes that law professors are in no better position than lawyers or judges to write “engaged scholarship” (a term defined with care below). Instead, not only do law professors have a unique capacity to provide this form of scholarship, they have an obligation to do so. . . .
The United States Constitution’s Sixth Amendment protects a criminal defendant’s right to a jury trial. Although the Fourteenth Amendment’s Due Process Clause demands that the state prove to a jury each element of the crime charged beyond a reasonable doubt, facts that bear exclusively on sentencing have historically not been subject to such a requirement. This raises the inevitable question of whether any constitutional principle distinguishes an element of a crime from a sentencing factor. Four years after the Supreme Court’s landmark decision in Apprendi v. New Jersey, in which the Court held that any fact that increases a criminal penalty beyond the prescribed statutory maximum is effectively an element and subject to the requirements of due process, the Court considered Blakely v. Washington and faced the narrower issue of what, for Apprendi purposes, constitutes a “prescribed statutory maximum” for a given crime. The Court concluded that the statutory maximum is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” . . . .
The First Amendment to the Constitution of the United States guarantees that the Government will neither establish a religion, nor prohibit its citizens from the free exercise of their chosen religion. The Establishment and Free Exercise Clauses prohibitions apply to state governments through the Fourteenth Amendment. In Locke v. Davey, the Supreme Court considered whether the State of Washington may prohibit the distribution of a state-funded scholarship to a student enrolled in a devotional theology degree program. The Court held that the statute codifying the scholarship did not violate the Free Exercise Clause of the First Amendment. . . .
The title of this Essay comes from a case decided in the Massachusetts Supreme Judicial Court that was appealed to the United States Supreme Court. In Snyder v. Massachusetts, Massachusetts’ highest court held that preventing a criminal defendant from traveling with the jury to view the scene of a crime did not violate the Fourteenth Amendment’s Due Process Clause.
In an opinion authored by Justice Cardozo, the Supreme Court affirmed the Massachusetts Supreme Judicial Court’s decision, holding that a jury could view the scene of a crime outside the presence of the defendant without violating a defendant’s right to confront his accusers and be present at his trial. Justice Cardozo noted that “[t]o transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history” under the English common law. He pointed out that the purpose of the defendant’s presence during the trial would not necessarily support a defendant’s presence at a jury view of the scene. Thus, the Court rejected the argument that the concept of “fairness” under the Due Process Clause, which requires a defendant’s presence at trial, would also require a defendant’s presence at a view. . . .
For more information about Judge Barkett’s Donahue Lecture (which served as the basis for this article) please click here.
To ensure uniformity in dealing with foreign nations, the United States Constitution allocates responsibility for foreign affairs to the National Government. Although states may enact legislation that touches on foreign relations, at some point state power must yield to the policy of the National Government. In American Insurance Ass’n v. Garamendi, the United States Supreme Court considered whether a California statute, the Holocaust Victims Insurance Recovery Act (HVIRA), unconstitutionally interfered with the National Government’s foreign policy by requiring local insurers to disclose policy information held by their foreign affiliates. The Court held that the Executive Branch had its own policy for dealing with the settlement of Holocaust-era claims, that the California law conflicted with it, and that HVIRA was therefore preempted. . . .
Following World War II, the nations of the world determined to avoid the devastation of a total world war. The nations, in pursuit of that end, formed the United Nations and signed a pact to renounce the use of force and solve their problems through dialogue. The nations sought not only to facilitate world peace, but also to advance justice and protect the rights of individual human beings. Nonetheless, since the founding of the United Nations, much of the import of international law has been directed toward the preservation of peace without regard for justice or human rights.
Despite the primary focus of international law on peacekeeping, there have always been theorists interested in advancing justice through international law. Their theories of international justice seek to advance and protect the rights of the individual, but often conflict with the goal of peace. One such theory is the doctrine of humanitarian intervention. This doctrine justifies military action against regimes whose treatment of their own people is so arbitrary and inhumane that it shocks the conscience of the world community. . . .