Recent Commentary from Inter Alia

YLPR’s online edition
Michael Ellement
Saturday, September 7, 2013 - 11:45am

In the wake of the Supreme Court’s decision in Shelby County, voting rights advocates should be cautiously optimistic that the Voting Rights Act’s “bail-in” process, left intact by that decision, can fill the void left open by the Court’s rejection of the preclearance coverage formula. Although statutory change may still be possible and desirable immediate attention should be paid to provisions currently in effect and capable of instant application. The bail-in provision satisfies the constitutional requirements laid out by the Shelby County Court, is immediately available, and, if utilized, represents the remedial option closest to the previously utilized § 5 preclearance structure.

Egon D. Cohen & Kristina M. Johnson
Wednesday, May 1, 2013 - 2:30pm

In the wake of the tragic shooting at Sandy Hook Elementary School in Newtown, CT, President Obama and others have called for legislative measures to combat gun violence. So far, most of these proposals have focused on three principal approaches: (1) making all firearms transfers subject to National Instant Criminal Background Check System (NICS) approval, (2) limiting firearm magazine capacity, and (3) banning models of semi-automatic firearms that possess certain “military purpose” features.

We strongly support the first of these approaches, which would eliminate the “gun show loophole” and require background checks for private party firearm sales. Instead of bans on magazine capacity and “military purpose” features, however—bans which together are commonly known as an “Assault Weapons Ban” (AWB)—we propose a five-year, renewable “Restricted Firearms License” program for the ownership of handguns, centerfire semi-automatic rifles, and semi-automatic shotguns.

Andrew Friedman
Friday, October 5, 2012 - 12:00pm

Ezra Ross and Martin Pritikin’s well-researched article regarding the collection of fines and penalties imposed on corporate offenders answers the question of what happens after the enforcement action ends—the government does not collect the vast majority of corporate enforcement penalties imposed. In this Essay, I address some of the practical realities of enforcing corporate penalties. First, I provide a different explanation than Ross and Pritikin for the “collection gap”—that prosecutors and other government enforcers are highly motivated to impose high penalties but far less motivated to collect them. Second, I address some significant practical reasons why the government appears to place a low priority on collecting penalties—reasons that Ross and Pritikin have arguably under-emphasized, such as the existence of alternative nongovernmental remedies. Third, I agree to some extent with Ross and Pritikin’s observation that procedures already in place could, if the government were so inclined, be used to conduct more robust and effective collection activity. Finally, I suggest that narrowing the “collection gap” might occur just as effectively through reforms in how the government and the courts assess financial penalties as opposed to developing alternative collection strategies.

Dylan O. Keenan
Saturday, September 15, 2012 - 4:00pm

In Crawford v. Washington, the Supreme Court radically transformed Confrontation Clause doctrine. Immediately after Crawford, commentators predicted dire consequences for criminal prosecutions. These predictions have been renewed after each refinement of Crawford’s doctrine. So far, however, the sky has not fallen, because prosecutors and courts have managed to reconcile Crawford’s robust confrontation rights with the practical imperatives of criminal prosecution.

This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases. DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time. DNA evidence has been particularly important for prosecuting rape cases, which historically have low conviction rates. Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.

I argue that state legislatures and Congress can ensure that DNA evidence is available in cold-case prosecutions while simultaneously respecting defen­dants’ post-Crawford confrontation rights. Specifically, both state and federal policy makers should alter rules of evidence to include decades-old DNA database evidence under ancient document exceptions to hearsay rules.

Jamin B. Raskin
Tuesday, March 20, 2012 - 1:15pm

People complain that gerrymandering ruins redistricting. But, in the real world, redistricting is gerrymandering. As we look for ways to transcend the glaring defects of single-member districts and the redistricting process, the dynamics of political self-interest make it likely that courts, along with third parties, independent voters, and civic reform movements like the League of Women Voters and Common Cause, will have to become the driving catalysts for change. If these outside actors fail to shock the system, the maps will grow ever more fanciful, the public will grow ever more disenchanted, and the processes of representation will remain stuck, antiquated, and profoundly demoralizing.

Mark I. Harrison
Monday, March 5, 2012 - 2:30pm

In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

Barry R. Schaller
Sunday, January 22, 2012 - 10:30am

Elected judges are not alone in having to deal with politics and politicians throughout their careers. This Essay discusses the ethical implications of judicial contacts with politics in states in which judges are appointed and reappointed for limited terms through the political process. A possible subtitle for this Essay might be: “Can appointed judges have a normal life while complying with the American Bar Association (ABA) Model Code of Judicial Conduct (Model Code) within the political universe where they work and live?” I write from the perspective of a judge who has run the gauntlet of multiple appointments, elevations, and confirmation processes in Connecticut over the course of more than thirty-seven years. I also offer the perspective of the chair of a judicial ethics advisory committee that, during the three years of its existence, has issued more than 130 ethics opinions, of which approximately ten percent related to political issues involving judges.