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August 18, 2016

Conversation with Professor Laura H. Nirider on Brendan Dassey and Coerced Confessions

Haven't had time to read the opinion in the Dassey case? Listen to our podcast with Dassey's lawyer, Professor Laura H. Nirider. She tells you all you need to know. 

August 6, 2016

Police Stories

In this essay, Anderson explores how the police narrative is told in appellate opinions, in light of changing police stories seen in the media. In recent years, video recordings of police violence have upended the traditional narrative of police heroism. The videos have led to discussions of police accountability, yet the controversies surrounding these incidents have also served to highlight the strength of the traditional narrative. Anderson first discusses the prevailing cultural story of the dedicated police officer, as depicted in popular media. Next, Anderson examines how police narratives are conveyed in appellate opinions, through the use of police language, including “copspeak,” as well as narrative devices such as point of view, emphasis, and selective detail. Finally, Anderson discusses examples of counter-narratives in court opinions. Anderson’s conclusion is not that all police narratives are suspect, but that judicial writers need to be aware of how they tell the story of a police–citizen encounter, recognizing that the story is part of the argument.

July 15, 2016

The Death Penalty and the Fifth Amendment

In this essay, Blocher considers recent developments that have given new hope to those seeking constitutional abolition of the death penalty. Some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty is constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but Blocher argues that its strength is largely superficial and also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding-era assumption that capital punishment was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. Blocher concludes that there might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment Argument is not among them.

June 25, 2016

War by Legislation: The Constitutionality of Congressional Regulation of Detentions in Armed Conflicts

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.