Capital-Sentencing Law and the New Conservative Court
Professor Scott Howe explores why both death-penalty abolitionists and proponents should defend most doctrines that limit the use of the death penalty.
The Constitutional Argument Against the Vice President Casting Tie-Breaking Votes on Judicial Nominees
Introduction Article I of the Constitution vests the Vice President with the power to vote in the Senate in the event of a tie. Textually, this power is not subject to any additional qualifications. However, there are reasons to believe that the Framers intended this tie-breaking power to have certain practical limits, specifically in the context of confirming Article III judges. This essay argues that concerns about the separation of powers, the differences between legislation and the confirmation of presidential… Read More
The Federal Arbitration Act and Independent Contractors
On October 3, 2018, the Supreme Court will hear oral arguments in a case deciding whether Independent Contractors in the Transportation Sector are exempt from Arbitration Clauses under Section 1 of the Federal Arbitration Act (FAA), a critical question for these workers and the entire economy. Professor Frankel argues that the legislative history of the FAA, and the social policy underlying the Act, strongly suggest that they should be.
What Kind of Judge is Brett Kavanaugh?
Kavanaugh is not your average judge. Compared to his circuit court colleagues, and to other recent Supreme Court Justices, Kavanaugh is an outlier on a range of margins. The Trump Administration, the U.S. Senate, and the American people should reckon with these facts and figures.
The Military Transgender Policy: The Realization of Madison’s Incompatible Powers Narrative
Last summer, President Trump purported to ban all transgender individuals from serving in the military via Twitter: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. military.” In August 2017, the President followed his series of tweets with a Presidential Memorandum that formally dismantled President Obama’s framework to permit transgender individuals to serve openly. These restrictions led to a… Read More