“Nothing Else but Mad”: The Hidden Costs of Preventive Detention
It is a bedrock principle of criminal law that the state must prove all elements of a crime beyond a reasonable doubt to obtain a conviction and deprive an individual of his liberty. This high burden of proof is generally considered to be a reflection of the famous Blackstone formulation that it is better for [...]
Grounding U.S. Commercial Space Regulation in the Constitution
Outer space is cold, hot, and dangerous. It is where we conduct scientific research, land probes on asteroids, and cooperate with (and spy on) other nations. It is where communications satellites, space stations, and other man- made things fly around earth at thousands of miles per hour. But most importantly, space is useful and beckons [...]
Self-Incrimination and Separation of Powers
The Fifth Amendment’s Self-Incrimination Clause serves two purposes. First, and most obviously, it protects the rights of individuals in criminal proceedings. But the Clause also serves less obvious, though immensely important, separation of powers concerns. The Clause is limited by its own terms: “No person . . . shall be compelled in any criminal case [...]
In Praise of Realism (and Against “Nonsense” Jurisprudence)
Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a “Chicago School of anti- theoretical, no-nonsense jurisprudence.” Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin’s own [...]
Mental Torture: A Critique of Erasures in U.S. Law
Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering—one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. [...]
The Shadow Rules of Joinder
The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same “transaction or occurrence” or a “common question of law or fact.” Both phrases have proved to be [...]
The Alien Tort Statute, Federalism, and the Next Wave of Transnational Litigation
This Article examines, through the lens of the Alien Tort Statute (ATS), the question of what role international and transnational law should play in domestic courts and points to the next battlegrounds for transnational litigation under state and foreign law when transnational cases are filed in state courts. After surveying recent developments in federal case [...]
The Jury’s Second Coming
This Article explores the controversial issue of jury nullification by reconceptualizing nullification through the lens of the Supreme Court’s recent decisions, beginning with Apprendi v. New Jersey. Apprendi’s embrace of the jury’s historical powers requires a rejection of the formalized and static paradigm of nullification in favor of a more fluid vision of the law. [...]
Commitment Bonds
This Article introduces compensating commitment bonds, which make it more affordable for a government, entity, or individual to commit to some course of action. These bonds, like traditional government or corporate bonds, can generate revenue for committing parties. A bond seller makes a commitment and promises to pay a forfeit if the seller fails to [...]