Showing papers in "William and Mary Bill of Rights Journal in 2004"

Review of the Extent of Courtroom Technology in Australia

Abstract: The first stage of courtroom technology in Australia concentrated largely on theuse of technology in the hearing itself and the establishment of a technologicalinfrastructure in the courtroom to make that possible.' Courts also needed toestablish protocols and procedures to address the preparation of cases for trial inelectronic form and the use of the technology in the courtroom.The use of courtroom technology in Australia is now well established,particularly for larger and more complex litigation. However, there are stillchallenges associated with its more widespread use. These challenges include costissues (for both courts and law firms), the need for training, common standards, anda legal culture that is more supportive of the use of technology in the trial process.Courts are beginning to look to the university sector for assistance in comingto grips with training, research, and the development of policy and protocols. Thework being done at Queensland University of Technology (QUT) is a leadingexample of this type of partnership.

The Mandatory Death Penalty in the Commonwealth Caribbean and the Inter-American Human Rights System: An Evolution in the Development and Implementation of International Human Rights Protections

Abstract: INTRODUCTION On March 11, 2002, the Judicial Committee of the Privy Council issued its landmark judgments in a trilogy of cases involving defendants Peter Hughes, Berthill Fox, and Patrick Reyes.1 In these judgments, the Privy Council disposed of appeals from decisions of the Eastern Caribbean Court of Appeal and the Court of Appeal of Belize2 by concluding that the automatic imposition of the death penalty upon conviction for a crime without an opportunity for presenting and considering mitigating circumstances in the sentencing process - commonly referred to as the "mandatory death penalty" - contravened the right to humane treatment under the constitutions of St. Lucia, St. Christopher and Nevis, and Belize not to be subjected to inhuman or degrading punishment or other treatment. These judgments were issued subsequent to the adoption of a series of similar decisions by the human rights supervisory bodies of the inter-American system, the InterAmerican Court of Human Rights, and the Inter-American Commission on Human Rights, which found the mandatory death penalty in the Commonwealth Caribbean3 to be incompatible with the right to life, the right to humane treatment, and the right to due process under regional human rights instruments.4 Among the most significant and compelling aspects of the litigation surrounding the issue of the mandatory death penalty in the Caribbean region has been the interplay between the procedures and jurisprudence of the inter- American human rights system and those of relevant domestic courts. In particular, the supervisory bodies of the inter- American system have relied upon the decisions of appellate courts in certain states employing the death penalty,5 and have concluded that the practice of mandatory sentencing for the death penalty contravened applicable international human rights norms. Subsequently, appellate courts in the Caribbean region explicitly relied upon the jurisprudence of the Inter- American Commission on Human Rights and the Inter- American Court of Human Rights in interpreting and applying rights that are protected under national constitutions. Moreover, the Judicial Committee of the Privy Council found that the protection of due process of law under national constitutions extend to the procedures before the interAmerican human rights system,6 with the consequence that states were barred from executing capital defendants while their pending cases were before the InterAmerican Commission on Human Rights and, where available, the Inter- American Court of Human Rights.7 This article provides an account of the mandatory death penalty litigation before the inter-American human rights system and its interface with the judicial systems of Commonwealth Caribbean states. The discussion highlights several significant consequences that have flowed from this litigation. Contrary to the traditional experience of the inter-American system with capital petitions, the interaction between national and international proceedings permitted the human rights bodies of the inter- American system to process complaints filed on behalf of capital defendants while they were still alive through stays of execution granted by the respective national courts.8 The litigation of these issues before domestic and international tribunals also haqs prompted changes in the criminal legal procedures of several Caribbean countries where capital defendants are now being provided with individualized sentencing proceedings.9 Further, the proceedings involving the mandatory death penalty have contributed to the evolution of domestic and international standards governing the implementation of capital punishment,10 at a time when the application of the death penalty in retentionist states is coming under enhanced domestic and international scrutiny.11 Finally, the experience of the mandatory death penalty in the Caribbean illustrates the effective role that an enlightened judiciary can play in prompting states to abide by their international commitments, when the executive and legislative branches of government have failed to take the necessary steps to give effect to the international human rights instruments that they themselves have undertaken to uphold and respect. …

International Law, Politics, Diplomacy and the Abolition of the Death Penalty

Abstract: On June 10, 2003, L. Paul Bremer signed Coalition Provisional Authority Order Number 7 decreeing the suspension of capital punishment in Iraq.1 After "recognising that the former regime used certain provisions of the penal code as a tool of repression in violation of internationally recognized human rights standards," the order declared bluntly: "Capital punishment is suspended."2 There is, to be sure, no shortage of evidence for the abusive use of capital punishment in Iraq under Saddam Hussein's regime.3 But then, there is also no shortage of similar abuse within the United States. In fact, for many years, Iraq and the United States have been among the world's leaders in the field, reflecting some common values, a discussion of which is beyond the scope of this paper. The principal reason for the Bremer decree suspending the death penalty was concern in London that the United Kingdom would be accountable before the European Court of Human Rights for the practice of the death penalty in occupied Iraq, consistent with the settled jurisprudence of the Court.4 It is no coincidence that a few days after the decree, the United Kingdom deposited its instrument of ratification of Protocol No. 13 to the European Convention on Human Rights, which abolished the death penalty in wartime as well as in peacetime.5 If President Bush persists in his calls for the execution of Saddam Hussein, he is headed for a collision with his principal military and political ally. It is a direct and quite visible consequence of the increasing scope of the international human rights law norm that prohibits the death penalty. It is often said that international law does not prohibit the death penalty.6 This is an unfortunate and imprecise statement, however, because several international treaties, the most recent of them Protocol No. 13, now outlaw the death penalty. These treaties are, to be sure, still somewhat far from universally accepted. Nevertheless, approximately seventy states are now bound, as a question of international law and as a result of ratified treaties,7 not to impose the death penalty.8 In a recent decision, the European Court of Human Rights ruled that the practice of the Council of Europe's member states now means the death penalty is prohibited by the European Convention on Human Rights, despite the explicit recognition of capital punishment in Article 2(1) of the Convention.9 In other words, at this stage in the development of European law, Protocol No. 13 is largely symbolic and does no more than codify existing state practice and contemporary legal interpretation of the Convention itself. As for the suggestion that customary law prohibits capital punishment, such an affirmation is perhaps premature, although the growing trend towards abolition, and its reflection in international norms, would suggest that this is a probable development at some point in the not-too-distant future. Few more dramatic examples of the spread and success of human rights law can be found. This constant progress towards abolition provides us with benchmarks for the more general triumph of what might be called the "human rights ideal," proclaimed in Franklin D. Roosevelt's "Four Freedoms'" speech,10 in the Atlantic Charter,11 and in the preamble to the Universal Declaration of Human Rights (Universal Declaration): Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people . . . .12 This human rights ideal guided the establishment of the UN, and has animated regional organisations like the Council of Europe, the Organisation of American States, the African Union, the Organisation for Security and Cooperation in Europe and, increasingly, the European Union. Limitation and abolition of capital punishment has become a central theme in the standard-setting and monitoring by these key international organisations. …

Death, Dissent, and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations

Abstract: "This is barbaric and unworthy of a state based on the rule of law."1 INTRODUCTION: A HERITAGE OF PROTEST Widely believed to be the innocent victims of an unfair trial, two foreign nationals facing execution in the United States had captured the attention of the world. Rallies in their support attracted huge crowds in London and Paris, in Buenos Aires, Johannesburg, Bombay and Tokyo. Petitions for mercy flooded the governor's office, signed by half a million people worldwide. The Italian head of state, former Nobel prize winners, and the Vatican joined in the global appeal for clemency, all to no avail. The world watched as the final days ticked away, transfixed by the last-minute battle to obtain a new trial amid a mounting storm of domestic and international protest. Citing procedural default and deference to state law, the appellate courts refused to intervene. The news that Nicola Sacco and Bartolomeo Vanzetti had died in the Massachusetts electric chair sent hundreds of thousands of protesters pouring into the streets of cities on six continents. Tanks and troops cordoned off the United States Embassy in Paris to protect it from rioters; in Geneva, demonstrators roamed the city destroying everything American, even attacking theaters showing Hollywood films.2 Around the world, hundreds were injured or arrested in demonstrations that degenerated into riots. An editorial cartoon on the front page of one French newspaper portrayed the Statue of Liberty holding an electric chair aloft, while another showed Uncle Sam trying to remove bloodstains from the American flag.3 For millions of people at home and abroad, the Sacco-Vanzetti case had come to embody the perceived political failings of the United States: preaching freedom and democracy while indelibly stained by racism, class oppression and injustice. And for an entire generation of progressive writers, artists, and activists, those unstoppable executions in August of 1927 confirmed a growing sense of America as a reactionary power that had abandoned its founding principles. Writing fifty years later, novelist Katherine Anne Porter still saw "this event in Boston as one of the most portentous in the long death of the civilization made by Europeans in the Western world."4 Other death penalty cases in the United States would trigger outbursts of protest in the decades that followed; like Sacco and Vanzetti, most were emblematic of the radical politics of a turbulent era. After the International Labor Defense (the legal arm of the American Communist Party) intervened in Alabama to challenge the unfair death sentences imposed on a group of Black teenagers, the Scottsboro Trials of the 1930s became global symbols of American racism. The Rosenberg spy case generated a clemency campaign that galvanized millions of left-wing activists across Europe, with support from international celebrities like Albert Einstein, Jean-Paul Sartre, and Diego Rivera. One case gained prominence through the eloquence and publicity skills of the prisoner himself; when deathrow author Caryl Chessman faced execution in 1960, a support group presented California lawmakers with a clemency petition containing two million signatures gathered around the world.5 After Chessman's highly publicized death in the gas chamber, crowds attacked U.S. embassies in Lisbon, Stockholm, Montevideo, and dozens of other cities across Europe and South America.6 Thus, on one level, international opposition to the death penalty in America is nothing new. But much has changed since two otherwise obscure anarchists were executed in Massachusetts a lifetime ago, not least of all global perceptions of the death penalty itself. What began largely as politically motivated demonstrations against selected executions has evolved into something more complex and much more significant to the conduct of the United States' foreign relations. Today's demonstrators are united, not by ideology, but by a human rights ethos that sees all executions as equally repugnant, from beheadings in Saudi Arabia to lethal injections in Texas. …

Law School Education in the 21st Century: Adding Information Technology Instruction to the Curriculum

Abstract: Duke University School of Law. Wayne Miller is the Director of Educational Technologies, Duke University School of Law. 1 PEW INTERNET & AMERICAN LIFE PROJECT, TRACKING SURVEYS: DAILY INTERNET ACTIVITIES (2003), at http://www.pewinternet.org/reports/chart.asp?img=Daily_Activities_ 11.7.03.htm. 2 PEW INTERNET AND AMERICAN LIFE PROJECT, THE INTERNET GOES TO COLLEGE 2 (2002), at http://www.pewinternet.org/reports/pdfs/PIP_College_Report.pdf. 3 Id. at 3.

The Panda's Thumb: The Modest and Mercantilist Original Meaning of the Commerce Clause

Abstract: INTRODUCTION The third power listed in the Constitution's description of federal powers gives Congress the power to regulate commerce with foreign nations, with Indian tribes and among the states.1 In the original debates over adoption of the Constitution, "regulation of commerce" was used, almost exclusively, as a cover of words for specific mercantilist proposals related to deep-water shipping and foreign trade. The Constitution was written before Adam Smith, laissez faire, and free trade came to dominate economic thinking2 and the Commerce Clause draws its original meaning from the preceding mercantilist tradition. All of the concrete programs intended to be forwarded by giving Congress the power to regulate commerce were restrictions on international trade giving subsidy or protection to favored domestic merchants or punishing imports or foreign producers.3 Neither trade with the Indians nor interstate commerce shows up as a significant issue in the original debates. None of the nontax proposals covered by "regulation of commerce" ever amounted to much even once the ratified Constitution gave Congress the authority to adopt them. "Regulation of commerce" was used to describe a proposal to nationalize the state "imposts" or tariffs on imports and that was important. The federal government desperately needed revenue to pay the Revolutionary War debts. Indeed, giving the federal government power to tax for the national defense is a major purpose for the Constitution.4 But the Tax Clause5 gives Congress the power to tax for the common defense and general welfare and that seems adequate to justify the federal impost without the power to regulate commerce. If the impost is treated, reasonably, as a tax rather than a commerce power, then the other programs covered by "regulation of commerce" did not prove to have enough support for adoption by Congress, even once the Constitution authorized them. The failure of the proposals acts a referendum, as close to the Constitution as we can expect, that shows that the programs intended by "regulation of commerce" did not have majority support. Programs that a majority did not want even once allowed cannot be used as important causal weights in explaining why the Constitution was adopted. The power to regulate commerce was written to authorize specific mercantilist proposals that the country did not in fact want. The Commerce Clause has been aptly described as "a modest little power."6 Many of the things now said about the Commerce Clause are not viable descriptions of the original meaning. The Commerce Clause is now said to be a "strong impetus for calling the Constitutional Convention."7 That interpretation cannot stand in the face of the failure to adopt the concrete programs that "regulation of commerce" was originally meant to describe. It is not uncommon to find descriptions of the constitutional document as "a part of the Uberai, free trade tradition."8 The programs articulated under "regulation of commerce" in the original debates, however, were restrictions on trade under the mercantilist tradition that preceded free trade. It is often now stated that the major purpose of the Constitution was to prevent protectionist economic policies among the states and to establish a common market with free trade across state borders.9 Barriers on interstate commerce, however, were not a notable issue in the original debates. The Commerce Clause has evolved into a significantly greater and very different power. Commentators now describe the Commerce Clause as "plenary"10 and as "the single most important source of national power."11 In the 1930's, the Supreme Court turned from a narrow, restricting interpretation of "commerce" to a loose and permissive interpretation, and in that debate, and its current reiterations, the Commerce Clause has been treated as the broadest general power of the federal government and the frontier most likely to mark the outer boundaries of federal jurisdiction. …

Confidentiality and Juvenile Mental Health Records In Dependency Proceedings

Abstract: Providing children's disclosures to their mental health therapists requires greater protection in juvenile dependency cases and recognizes the importance of privacy in therapeutic communications. Numerous children are required by juvenile courts to divulge the most intimate details of their lives to mental health experts only to have those disclosures revealed in court proceedings. Reversing the presumption that children's mental health records may be discussed openly in dependency litigation and requiring courts to perform in camera reviews affords children the dignity and respect adults take for granted. Ensuring greater confidentiality for children's mental health records is one step the legal system should take to protect these fragile victims of abuse and neglect.

Constitutional Theory in a Nutshell

Abstract: I. WHY THEORY? 57 II. Who Interprets the Constitution? 60 III. WHAT IS THE CONSTITUTION? 68 IV. HOW TO INTERPRET THE CONSTITUTION? 93 V. LIBERAL THEORY 105 VI. CONSERVATIVE THEORY 108 VII. FEMINIST THEORY 112 VIII. CRITICAL RACE THEORY 114 IX. POSTMODERN THEORY 116 X. DOES THEORY MATTER? 118 The ubiquitous and popular West Nutshell Series promises to deliver in each and every volume "a succinct exposition ofthe law to which a student or lawyer can turn for reliable guidance" published in "a compact format for convenient reference."1 That is the purpose and function of this article: to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law. I. WHY THEORY? Why not? Sorry, it is a professor's habit to answer a question with a question. But then again, this article is all about trying to make some sense of a peculiar dialect of legalese that might be called "con law prof talk," which you will encounter in class discussions or out-of-class readings in treatises and law reviews. When your professor mentions or you read references to "neutral principles" or "originalism" or "constitutional moments" or "countermajoritarian difficulty" or "civic republicanism" or "hermeneutics" or "illegitimate hierarchies" or "social constructs" or "anti-essentialism" or "postmodern epistemology," do you have a clue? You definitely need to get one, if you go to a fancy law school or if your professor did - and that would include just about every law student in the United States. This article will help.2 Constitutional law is a challenging subject to master for several reasons.3 First, it is so important, and has been so instrumental in shaping our nation's history. Second, while it is an American invention, as a nation we have been reinventing constitutional law over the last two centuries. Third, the Supreme Court of the United States is an inscrutably fascinating institution made up of an odd cast of characters. Fourth, there is so much material when we contemplate over five hundred Talmudic volumes of United States Reports filled with majority, concurring, and dissenting opinions, which are augmented by an endless scholarly commentary. Fifth, each October Term there are new decisions that elaborate, revise, and sometimes overrule our past understandings. Sixth, constitutional law resembles a kind of civic religion that has transcendent and immanent qualities for our national political life. This is tough law, tough to teach, tough to learn, and tough to master.4 Constitutional theory helps us to overcome this difficulty and master our subject. It helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. It allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. It helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. It is the patois that constitutional law professors write and speak to other professors and to their students. Thus, if we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. …

Introduction: Death Penalty and International Law

Abstract: In 2004, the United States celebrated the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education in which the Court declared de jure segregated schools unconstitutional.1 In recent years, many legal historians have noted the influence of international attitudes towards America's persistent embrace of racial segregation on the Court's deliberations in Brown.2 Indeed, the brief of the United States in the Brown case was devoted in significant measure to the harm to America's foreign policy interests that resulted from the country's retention of de jure racial segregation.3 Will international attitudes have a similar impact on this country's use of the death penalty? This symposium does not address that question. But the articles that comprise this symposium do argue that there is a non-trivial relationship between international legal norms and the operation of the death penalty in the United States. These articles explore the various ways in which international norms do affect the use of the death penalty in this country. Mark Warren, in his article Death, Dissent and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, explores in part the impact of America's retention of the death penalty on American foreign policy.4 Warren notes that some former U.S. diplomats have cited America's retention of the death penalty as a hindrance to the nation's interests. In 2003, for example, Harold Koh and Thomas Pickering wrote: "For a country that aspires to be a world leader on human rights, the death penalty has become our Achilles' heel."5 Nine former diplomats filed an amicus brief with the United States Supreme Court in McCarver v. North Carolina, a 2001 case involving the execution of mentally retarded defendants, arguing that such executions: strain diplomatic relations with close American allies, provide diplomatic ammunition to countries with demonstrably worse human rights records, increase U.S. diplomatic isolation, and impair other United States foreign policy interests. . . . . . . . . . The degree to which this issue has strained our diplomatic relations can be measured by the extent to which important bilateral meetings with our closest allies are now consumed with answering diplomatic demarches challenging these practices. The persistence of this practice has caused our allies and adversaries alike to challenge our claim of moral leadership in international human rights. If this Court were again to sustain the practice of executing people with mental retardation, it would provide fresh anti-American diplomatic ammunition to countries who have exhibited far worse human rights records.6 Warren discusses other incidents as well, such as the cancellation of a visit between Mexican President Vincente Fox and American President George W. Bush in protest of the American execution of a Mexican citizen in violation of his consular rights.7 In fact, one important issue involving the interplay of international legal norms and the death penalty in the United States has been the question of compliance with the Vienna Convention on Consular Relations that requires consular notice when a foreign national is facing criminal charges.8 Both John Quigley, in his article Suppressing the Incriminating Statements of Foreigners,9 and Linda Malone, in her article From Breard to Malvo: Incompetency and Human Rights on the Fringes of the Death Penalty, (10 explore the operation of the Vienna Convention in American death penalty cases. The Convention requires that foreign nationals arrested on criminal charges be granted access to their home-state consul and notified by the detaining authorities of their right to such access. But in several death penalty cases, this consular notice requirement has not been met, provoking intense international displeasure. Quigley's article explores "whether consular access involves a judicially cognizable right, whether the information about consular access must be provided prior to interrogating, and whether principles of international law call for the suppression of a statement made by a foreign national who was not informed about consular access. …

Disability Civil Rights Law and Policy: Accessible Courtroom Technology

Abstract: Public Health and of Psychology, and Director of the Law, Health Policy, and Disability Center (LHPDC) at the University of Iowa; Ph.D., Harvard University; J.D., Stanford University. Ann Wilichowski is Research Assistant, Law, Health Policy & Disability Center; J.D., University of Iowa College of Law (expected 2005). James Schmeling is Associate Director, Law, Health Policy & Disability Center; J.D., University of Iowa College of Law. This research was in part funded by grants to the first author from the U.S. Department of Education, National Institute on Disability and Rehabilitation Research, for (1) the Rehabilitation Research and Training Center (RRTC) on Workforce Investment and Employment Policy for Persons with Disabilities, Grant No. H133B980042-99, (2) “IT Works,” Grant No. H133A011803, (3) “Technology for Independence: A Community-Based Resource Center,” Grant No. H133A021801, and (4) “Asset Accumulation and Tax Policy for People with Disabilities,” Grant No. H133A031732; and by the Great Plains ADA and IT Center, the Nellie Ball Trust Research Fund, and a generous gift by Stan and Gail Richards to the LHPDC. The views herein reflect those of the authors and not of any funding agency. For most helpful comments on this Article, we thank the participants of the symposium, Helen Schartz, William Myhill, and LeeAnn McCoy.

Symbolic Counter-Speech

Abstract: In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two free expression concepts: the right and opportunity to communicate through symbols and the Brandeisian imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message. Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has fallen back into to what Vincent Blasi labeled a pathological period, a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression. Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech illustrate the inconsistency between principles and traditions of freedom of speech and the movement for flag preservation, which logically would eliminate all symbolic counter-speech directed against the flag and its complements.

From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty

Abstract: In Republic of Paraguay v. Allen,1 the LaGrand Case,2 and Avena and Other Mexican Nationals,2 nations pressed their claims in U.S. courts and the World Court that the United States is violating its treaty obligations and human rights obligations under customary international law by failing to provide consular notice before imposing the death penalty on their nationals. These claims proceeded while three seemingly unrelated, but significant, developments occurred in United States Supreme Court jurisprudence with potential importance for future cases concerning the lack of consular notification. The first such development is the 2003 Supreme Court decision in Atkins v. Virginia, in which the Court concluded that the execution of mentally retarded individuals is cruel and unusual punishment prohibited by the Eighth Amendment.4 The second development was the growing receptiveness and acceptance by a majority of the Court of international law norms in interpretation of the Bill of Rights, most notably and recently in Lawrence v. Texas.5 Even more recently, a jury in Virginia refused to impose the death penalty on Lee Malvo, although Virginia is one of fifteen states which still allow the death penalty for juveniles between the ages of sixteen and eighteen.6 The United States is one of only two countries (the other being Somalia) which has not ratified the Convention on the Rights of the Child,7 which prohibits imposition of the death penalty on anyone under the age of eighteen, and the constitutionality of the death penalty for juveniles is pending before the Court.8 Crucial to the Court's decision in Atkins was the Court's concern that mentally retarded defendants could not fully comprehend the process or the punishment in death penalty cases,9 and lacked the moral culpability of other perpetrators.10 Many of the same concerns are at the heart of the consular notice requirement. The jury verdict in the Malvo case suggests that growing public rejection of the death penalty for juveniles has outpaced the Court's decision-making, and that international norms prohibiting the death penalty for juveniles are more reflective of public opinion within the United States than either domestic legislation or the Court's decisions would suggest. Atkins and Lawrence provide an evident jurisprudential framework for abolition of the death penalty for juveniles, as well as renewed justification for Supreme Court consideration of the necessary remedy for the failure to provide consular notice. Finally, in light of international decisions binding on the United States indicating that the failure to provide consular notice violates fundamental notions of due process and necessitates judicial review, U.S. courts can no longer deny review and reconsideration of death penalty sentences obtained without the required consular notice. I. BEGINNING WITH BREARD The factual and procedural background of the Breard and Paraguay cases has never been fully delineated. This background continues to be important for several reasons, and merits a detailed examination. To date, these companion cases represent the fullest examination of the issue of consular notification in U.S. federal courts, including the Supreme Court. In addition, these early cases provide a comprehensive overview of every major legal issue related to providing or compelling consular notification. Angel Francisco Breard was a Paraguayan and Argentinian dual-national who was convicted, sentenced to the death penalty, and executed by the state of Virginia for the crimes of rape and murder.11 Although his conviction was obtained on sufficient evidence and he testified to committing the murder,12 the trial procedure was flawed. Breard was not provided with the opportunity to obtain consular assistance as required by treaties between the United States and Paraguay.13 Such assistance would have provided him with fundamental protections essential to due process because foreign consular officials ensure that their nationals are provided a fair process and that their nationals understand the mechanisms of the judicial process that they face. …

Challenging the Wisdom of Solomon: The First Amendment and Military Recruitment on Campus

Abstract: INTRODUCTION Times of war and First Amendment1 controversies - the two invariably and inevitably go hand in hand. Whether it is Paul Robert Cohen's anti-draft jacket2 and the publication of the so-called Pentagon Papers3 during the conflict in Vietnam, or Charles T. Schenck's anti-draft leaflets4 and the publication of the Staats Zeitung5 during World War I, the confluence of conflict and communication creates litigation. The situation today, with fighting in both Iraq and Afghanistan, is no exception. For instance, several access-related disputes already have arisen. Notably, publisher Larry C. Flynt6 lost a legal fight before a federal appellate court in February 2004, in which he claimed a First Amendment right of news media access to United States troops in combat operations in the Middle East.7 The press lost an earlier battle for access to special-interest deportation hearings of individuals with knowledge of the September 11, 2001 terrorist attacks when the Supreme Court declined to review a federal appellate court's decision in North Jersey Media Group, Inc. v. Ashcroft.8 While these First Amendment access battles are now complete, another fight involving a very different type of access - access sought by the military, not by the press or private individuals - is now hitting full stride, and it is the subject of this article. In particular, a number of prominent law school professors, as well as a collection of anonymous law schools,9 are challenging the constitutionality of a federal statute known as the Solomon Amendment.10 This law allows the government to deny federal funding to institutions of higher education that prevent on-campus military recruiting.11 The professors in Forum for Academic and Institutional Rights, Inc. v. Rumsfeld,12 as well as those involved in three other cases simultaneously challenging the federal law,13 are using the First Amendment not to gain access for themselves but, instead, to deny it to the military. More precisely, the plaintiffs in Forum for Academic and Institutional Rights contend that the Solomon Amendment "conditions a benefit - federal funding - on the surrendering of law schools' First Amendment rights of academic freedom, free speech, and freedom of expressive association," and is unconstitutional.14 The case thus represents a radical departure from the access disputes described above involving Larry Flynt and the North Jersey Media Group in which the First Amendment was used as a tool to try to gain access, not as a weapon to try to prevent it.15 The professors and law schools involved, however, are using the First Amendment to promote positive Fourteenth Amendment-based principles of equality under the law.16 As Kent Greenfield,17 a professor of law at Boston College and the president of the lead plaintiff organization in Forum for Academic and Institutional Rights, put it in a Washington Post commentary in November 2003: Imagine if the government took away the driver's license of anyone who opposed pay raises for government bureaucrats. Imagine it cut off Social Security benefits to retirees who protested the Iraq war. Suppose it withheld a university's cancer research funds because the school refused to support the military's policy of discrimination against gays and lesbians. That last example isn't imaginary - it's the law of the land. The law is called the Solomon Amendment, and it gives the Department of Defense the power to cut federal funds to universities unless they give up deeply held beliefs about the equality of students. The statute is pockmarked with constitutional flaws. Primary among them is the government's attempt to use the power of the purse to reshape the academic environment and suppress educational messages in ways it could never accomplish by direct command.18 Despite such impassioned pleas, Judge John C. Lifland denied the plaintiffs' motion for a preliminary injunction in November 2003 "on the basis that Plaintiffs [did] not establish a likelihood of success on the merits of their constitutional challenges to the Solomon Amendment. …

Technology in a War Crimes Tribunal: Recent Experience at the ICTY

Abstract: David Pimentel"INTRODUCTIONThe International Criminal Tribunal for the former Yugoslavia (ICTY) is acourt that upon its creation in 1993 was virtually unique in the world.' Notsurprisingly, it faced and continues to face challenges that are particular to itsidiosyncratic structure and mission. The experience of the ICTY in addressingthose challenges, however, has significance for other courts and judicial systems.The ICTY is no longer unique, as other international war crimes tribunals have beencreated in a variety of locations.

"Democratic Despotism" and Constitutional Constraint: An Empirical Analysis of Ex Post Factor Claims in State Courts

Abstract: This Article explores the history of the Ex Post Facto Clause, including the Supreme Court's seminal 1798 decision in Calder v. Bull, and analyzes the results of a survey of ex post facto claims decided in state courts from 1992-2002, the first study to catalog the types of claims generated among the states, and the institutional response of state courts to them. The author provides an overview of the claims resolved in state courts, examining the nature of the laws challenged, how the challenges fared, and the rationales used by courts in their dispositions. Discussion focuses on two abiding sources of confusion in ex post facto jurisprudence: the interpretation of the categories of laws the Calder decision prescribed as being ex post facto, and the ongoing uncertainty over the definition and treatment of laws deemed procedural (as opposed to substantive) in nature. These areas of uncertainty, it is argued, not only inspire confusion among the courts, but also serve to undermine the crucial structural role of the Ex Post Facto Clause itself - intended by the Framers to guard against the potent political forces motivating state legislatures to adopt criminal laws with retroactive effect.