Posts from the ‘General Essays’ Category

What Do Lawyers Know About Lethal Injection?

Posted 1540 days ago by HLPRonline editorial staff

BY TY ALPER

In this Essay, I make the radical suggestion that various states’ lethal injection protocols should be developed with input from relevant experts in full view of the people in whose name they will be implemented. I further suggest that, in the wake of a number of court challenges that have forced states to go back to the drawing board with respect to lethal injection, these execution procedures should not be tinkered with, in secret, by lawyers and prison officials whose expertise in subjects like anesthesiology and pharmacokinetics is just as limited as one would expect it to be. Yet that is exactly what has been happening, and it is an under-reported aspect of the lethal injection debate that deserves a little sunlight.

Click here to read more

Taking the Gloves off of Homeland Security: Rethinking the Federalism Framework for Responding to Domestic Emergencies

Posted 1602 days ago by HLPRonline editorial staff

BY E. L. GASTON

The Bush Administration often asserts that the rules changed after September 11. As Cofer Black, the onetime director of the CIA’s counterterrorism unit, testified to Congress in early 2002, “There was a before- 9/11 and an after-9/11 . . . . After 9/11 the gloves came off.”1 While this has certainly been true on the law enforcement and intelligence side of the war on terror, the federal government has failed to reexamine the role it should play in responding to terrorist attacks and other public health and safety crises. On the contrary, despite increased funding and new institutional resources (including the Department of Homeland Security), the federal government continues to work within the pre–September 11 statecentered legal framework, preventing it from implementing the ambitious post–September 11 agenda it developed. Restrictions on federal involvement have contributed to systematic weaknesses including uneven implementation of national priorities, “unfunded mandates,” poor information flows between the different levels of government, and poor coordination during actual crisis periods. It is time for the gloves to come off on homeland security. Federalism preferences must take a backseat to the country’s immediate need for a functional preparedness and response system.

Click here to read more.

Popular Metadoctrinalism: The Next Frontier?

Posted 1602 days ago by HLPRonline editorial staff

BY MICHAH J. W. SMITH

Three years ago, Professor Mitchell Berman observed that constitutional scholars have recently begun to turn their attention away from constitutional “meaning” to what he loosely called “constitutional doctrine”— that is, the rules courts craft in order to implement constitutional meaning.  This increasingly popular genre of “doctrinal” scholarship—which has its modern roots in the work of Henry Monaghan and Larry Sager— is not directly concerned with developing and critiquing methods of constitutional interpretation, but rather with “the potentialities and challenges that arise from the existence of doctrine, conceived as a category of judicial work product . . . .” And given that works of this type concern themselves “with the fact of doctrine but not with its particular content,” Professor Berman felicitously labeled the genre “metadoctrinalism.”

Click here to read more.

When Public Defenders Strike: Exploring How Public Defenders Can Utilize the Lessons of Public Choice Theory To Become Effective Political Actors

Posted 1602 days ago by HLPRonline editorial staff

BY BRANDON BUSKEY

Our public defense systems are slowly rotting away. Since the Supreme Court’s 1963 decision in Gideon v. Wainwright, which required the states to provide counsel for indigent defendants, organizations like the National Legal Aid and Defender Association and the American Bar Association have issued major independent reports about once every five years, each concluding that systematic deficiencies plague public defense.

The clear theme of all of these studies is that the problems of indigent defense are primarily problems of money. Indeed, grossly insufficient funding is the most fundamental factor keeping indigent defense in shambles. Unfortunately, state policy makers tend to believe they can get away with such negligence, since few citizens are likely to shed a tear over the travails of criminal defendants.

Chief defenders, then, find themselves in a remarkable bind. Their position charges them with ensuring that their offices represent clients competently; yet legislative neglect has crippled their ability to do so. According to the guidelines promulgated by the American Bar Association, public defenders should only handle 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health cases, or 25 appeals per year. However, in the nation’s largest 100 counties, indigent defenders handle an average of 530 cases annually.

Click here to read more.