History Repeats Itself: The Post-Furman Return to Arbitrariness in Capital Punishment

Lindsey Vann

The 1972 landmark ruling in Furman v. Georgia appeared to be the end of the arbitrary imposition of the death penalty in the United States. Almost everyone around the country, including the Justices who decided Furman, believed the decision permanently invalidated America’s death penalty. Though each of the five Justices voting in the Furman majority authored individual opinions with differing reasoning, each relied on the arbitrary imposition of the death penalty in concluding the punishment was unconstitutional under the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Justices in the majority had little Eighth Amendment precedent to rely upon in declaring the death penalty unconstitutional, but Furman came to be known for condemning the arbitrary imposition of the penalty. The Court’s concern that the unique punishment of death not be imposed in an “arbitrary and capricious manner” seemed to indicate the Constitution would not tolerate a system where the penalty was “so wantonly and so freakishly imposed.”

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Sorry Seems To Be the Hardest Word: The Fair Sentencing Act of 2010, Crack, and Methamphetamine

Kyle Graham *

On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 into law. This measure eliminated the five-year mandatory minimum prison sentence that previously adhered under federal law upon a conviction for possession of five grams or more of crack cocaine. The Act also increased the amount, in weight, of crack that must be implicated for either a five- or a ten-year mandatory minimum sentence to apply upon conviction of any of several federal drug trafficking crimes. The latter provision significantly reduces the disparity between the amount of crack that will trigger these mandatory minimums and the amount of powder cocaine that will produce the same results. Whereas federal law previously treated one hundred grams of powder cocaine as the equivalent of one gram of crack for sentencing purposes, after the Fair Sentencing Act, the statutory ratio now stands at a mere 18:1.

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* Assistant Professor, Santa Clara University School of Law. The author thanks David Ball for his input, and Lauren Case and Valerie Perdue for their research assistance.

Recognition: A Case Study on the Original Understanding of Executive Power

Robert J. Reinstein *

Let’s fast-forward to a point in the near future. The President has given up on unsuccessful American mediation attempts to secure a peace treaty between Israel and the Palestinians. To resolve this longstanding impasse, the President offers his own peace plan for the Middle East, which includes the creation of the State of Palestine with defined borders, including the partition of Jerusalem, and the settlement of other outstanding issues that have divided the parties. The plan is accepted by the Palestinian Authority but not by Israel. The Palestinian Authority then declares the independent State of Palestine that has the borders and other conditions prescribed in the President’s proposal. The President quickly announces that the United States recognizes the State of Palestine with those borders and conditions. Does he have the constitutional power to so bind the United States? And suppose that Congress passes legislation to override the President’s decision. Is that legislation constitutional?

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* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. My thanks to my colleagues Jeffrey Dunoff, David Hoffman, and Gregory Mandel for their helpful suggestions, and to Michael Connett and Matthew Adler for their extraordinary research assistance.

Modeling the Congressional End-Run Constraint

Luke M. Milligan *


For over a century law professors and political scientists have shared a commitment to the study of how judges decide cases.  Today the subject of judicial decisionmaking continues to hold the focus of some of the most influential scholars in law schools and political science departments. Despite their common point of study, legal scholars and political scientists have traditionally held deep suspicions about the other‘s models, data, and ideas. Their mutual distrust is a function of contending assumptions about judicial values and goals. Within political science, scholars of “judicial politics” have tended to assume that judges use their office to maximize the implementation of a broad platform of individual policy preferences. This assumption has been resisted, and in most cases flatly rejected, by the constitutional theorists of the legal academy.

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* Assistant Professor of Law, University of Louisville School of Law. The author is grateful for comments received at the Criminal Procedure Discussion Forum at Emory University School of Law and the Faculty Workshop Series at Florida State University College of Law.

The Complexities of Judicial Takings

Benjamin Barros*

When (if ever) a judicial action can be an unconstitutional taking of private property has long been an open question in American constitutional law. Nested within this larger question are a host of detailed issues concerning both substance and procedure. Despite passing references in some cases, and a more direct discussion in one concurring opinion, the Supreme Court of the United States—until recently—had never squarely addressed the question of judicial takings or the detailed issues that a judicial takings doctrine would present.

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*   Associate Professor of Law, Widener University School of Law, Harrisburg Campus. Thanks to Nestor Davidson, John Dernbach, and David Spohr, and to participants in faculty workshops at Widener University School of Law and Lewis & Clark Law School, for helpful comments.

And Death Shall Have No Dominion: How To Achieve the Categorical Exemption of Mentally Retarded Defendants from Execution

J. Amy Dillard *

Shortly after the Supreme Court of the United States handed down its opinion in Atkins v. Virginia, exempting mentally retarded capital defendants from execution, the American Bar Association (“ABA”) issued two legislative options for states to adopt in order to comply with the directive of Atkins. Alternative A recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the trial judge should conduct a pretrial hearing to determine if the defendant is mentally retarded and, thus, not death-eligible. Alternative B recommended that, upon notice from defense counsel that she had a good faith belief that her capital client was mentally retarded, the judge should empanel a jury for the sole purpose of determining if the defendant is mentally retarded and, thus, not death-eligible. By adopting either option, the mental retardation assessment would be kept away from the death-qualified juror, who might be inclined to ignore the core values of the criminal justice system and, more narrowly, the rationale in Atkins. With either ABA-suggested procedure, the trial court could assure due process for the mentally retarded capital defendant.

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* Assistant Professor of Law, University of Baltimore School of Law. J.D., Washington and Lee University Law School; B.A., Wellesley College.