Category: Archives
Article
Getting to Death: Race and the Paths of Capital Cases After Furman
Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law and Professor of Epidemiology, Columbia University; Garth Davies, Associate Professor of Criminal Justice, Simon Fraser University; and Raymond Paternoster, Professor of Criminology and Criminal Justice, University of Maryland
Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment…
Sep 2022
Article
Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era
John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School and Director of the Cornell Death Penalty Project
The protracted and (somewhat) ongoing debate over whether lethal injection—in some or all of its forms—is cruel and unusual punishment under the Eighth Amendment is the newest variation on the question of whether a particular form of capital punishment is inhumane and cruel. The history of capital punishment in the United States over the last…
Sep 2022
Article
Explaining the Invidious: How Race Influences Capital Punishment in America
Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School
This Article primarily focuses on how racial bias creates nearly ubiquitous racial disparities in the imposition of the death penalty; it does so both to amass further reasons McCleskey was wrongly decided, and to point the way forward. Part I provides the necessary foundation by summarizing the history of race and the death penalty in…
Sep 2022
Article
Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty
Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School & Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law.
In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased…
Sep 2022
Article
The Modern Federal Death Penalty: A Cruel and Unusual Penalty
Hannah Freedman, Staff Attorney and the Director of Juvenile Litigation, Justice 360 and adjunct clinical professor, Cornell Law School
The federal death penalty today would be unrecognizable to the founders, who saw the ultimate penalty as a means of protecting sovereign interests and who therefore carefully guarded the practice at English common law of yielding national interests to local ones. Over the course of time, the geographic distribution and substantive basis for the penalty…
Sep 2022
Article
AEDPA Repeal
Brandon L. Garrett, L. Neil Williams Jr. Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice & Kaitlin Phillips, J.D., 2021, Duke University School of Law
Given how pressing the problem has become, and the real interest in reforms to promote access to justice, this Article takes a different tack than prior habeas reform work: to restore habeas corpus to its pre-AEDPA and pre-Rehnquist court state, in which a federal court can review claims and reach their merits. The approach would…
Sep 2022
Article
Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals
Rachel Brown, Jade Ford, Sahrula Kubie, Katrin Marquez, Bennett Ostdiek & Abbe R. Gluck, Yale Law School Class of 2020
Federal judges resolved more than eighty-seven percent of appeals through unpublished opinions over the past five years. These dispositions are non-precedential and typically contain abbreviated reasoning. Such high rates of nonpublication may be difficult to reconcile with the core values of the federal judiciary—values grounded in precedent, reason-giving, and equal treatment. After intense attention to…
Apr 2022
Article
When Patients Are Their Own Doctors: Roe v. Wade in an Era of Self-Managed Care
Yvonne Lindgren, Associate Professor of Law, University of Missouri-Kansas City. J.S.D, LL.M., U.C. Berkeley School of Law; J.D., Hastings College of Law; B.A., U.C.L.A.
It is a critical time to re-examine the gatekeeper framing of the abortion right considering the dramatic conservative shift in the Supreme Court that threatens Roe, and in the midst of a pandemic, which—in a complete reversal of the Roe period—renders in-person care by a provider potentially dangerous. In January, the Supreme Court’s first abortion…
Apr 2022
Article
Protecting Dissent: The Freedom of Peaceful Assembly, Civil Disobedience, and Partial First Amendment Protection
Nick Robinson & Elly Page, Senior Legal Advisors at the International Center for Not-for-Profit Law
Protesters in the United States frequently engage in peaceful unlawful conduct, or civil disobedience, such as blocking traffic or trespass. Often citing to the First Amendment, authorities will routinely decline to arrest or prosecute this nonviolent conduct or do so for lesser offenses than they could. This treatment, though, can vary considerably by location, issue,…
Apr 2022
Note
Independence in the Interregnum: Delayed Presidential Transitions and the GSA Administrator’s Ascertainment Under the Presidential Transition Act of 1963
Christopher D. Johnson, Cornell Law Class of 2021; Articles Editor, Cornell Law Review, Volume 106
If presidential transitions are so important, should a political appointee whose performance is subject to the control and direction of the outgoing President have virtually unfettered discretion to determine whether they have the resources they need to succeed? This Note answers that question in thenegative. It argues that the ascertainment the PTA assigns to the…
Apr 2022
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