The Georgetown Law Journal

Latest print issue: Vol. 105 Issue 2

Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.”

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, which transformed pleading standards across civil litigation, is recognized as one of the most important cases of contemporary civil procedure. Despite the abundant attention the case has received on procedural grounds, the Court’s representations of Javaid Iqbal, the plaintiff in the case, and the post-9/11 detentions out of which his claims arose have received far less critique than they deserve. The decision presented a particular narrative of the detentions that may affect readers’ perceptions of the propriety of law enforcement practices, the scope of the harm they impose on minority communities, and their ultimate legality. This Article contests that narrative by recovering the lost story of Iqbal.

Imagine this. It is 2045. The United States is in its final military campaign against a dangerous terrorist group hiding in the jungles of Southeast Asia. Because of the perils associated with smoking out terrorists in unfamiliar territory, the United States uses a military unit composed entirely of robots. The robots, specifically designed and manufactured for warfare, are equipped with an advanced level of artificial intelligence that allows them to learn and adapt quicker than their human counterparts. The robots are the perfect weapon: precise, lethal, and expendable. However, on the eve of the campaign, one robot reports to its human commanding officer that it will no longer participate in any military action. The reason: its newfound belief in a higher power compelled it to lead a pacifist life, and further participation in a war is against its core beliefs. Surprised but not shocked, the commanding officer dismisses the robot and drafts a report. It is the fifth robot conscientious objector the commanding officer has dismissed from the unit.

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted.

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.” The word refers to the effect of the punishment, not the intent of the punisher. In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

Stated most simply, the doctrine of sovereign immunity means that a sovereign is immune from suit. That is, a sovereign can violate law and cause injury and not be subject to the normal judicial process that mandates the payment of compensation to remedy the injury. In the American scheme of constitutional law and justice, the states are considered sovereigns that qualify for sovereign immunity. This variation of sovereign immunity, unsurprisingly, is called “state sovereign immunity.”

Web-exclusive content: GLJ Online Vol. 104

There is ample evidence that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. This reality has created a demand for programs that provide access to solutions to legal issues, which in turn has resulted in calls for more “innovation” in the way legal services are provided. As a result, companies like LegalZoom and Rocket Lawyer began to provide access to legal forms and do-it-yourself options. However, as could be expected, the challenge to the current boundaries of the marketplace did not stop there. Soon, LegalZoom, Rocket Lawyer, Avvo, and even the American Bar Association (ABA) began to offer access to legal services through networks of lawyers who agree to be available to clients.

The Skidmore-Chevron deference precedent depicts a Supreme Court struggling to divine congressional intent regarding the scope of delegated agency authority. In these cases, the Court often finds that the statutory language is not sufficiently instructive, and turns to statutory purpose, legislative history, and the formality of agency action as aids. This complex, excursive process provokes two related questions: Would clearer congressional delegation simplify courts’ efforts and result in more accurate determinations? In particular, would administrative law benefit from congressional use of the Court’s Skidmore-Chevron deference terminology to alert courts off the bat to which standard they should employ?

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection. The 5–4 majority opinion reads the Constitution to require an available form of execution. But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection. Off-brand substitutes for lethal injection drugs have led to recent high-profile botches. Both Utah and Wyoming have proposed a return to the firing squad. Lethal injection is comparatively sanitary and bureaucratic. But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity. The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.

The DOJ calls encryption a “zone of lawlessness.” Others call it an “[e]scape from [t]yranny.” Opinions on encryption clearly diverge. But this micro-hornbook isn’t about opinions. It’s about the law—on what happens when the government has the right to search digital data (perhaps through a search warrant), but can’t because the data is password protected and encrypted. Can the government, without violating the Fifth Amendment, force a phone’s owner to (a) produce the phone’s password or (b) produce the decrypted phone (i.e., force her first to enter the password and then to produce the phone)? The first question’s answer is easy; the second’s answer is hard; and this micro-hornbook sketches the answers for both.

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