Posted by: Patrick Allen Foster | October 18, 2013

Articles of Interest

All emphases added.

1. Jeffrey Fisher, “A Clinic’s Place in the Supreme Court Bar,” Stanford Law Review: “The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by local counsel instead of Supreme Court specialists are generally at a distinct disadvantage. Finding that assumption to be accurate, the Article identifies and discusses opportunities that Supreme Court clinics have to serve the public interest. Most importantly, such clinics can level the representational playing field to the benefit of traditionally underserved litigants and bring balance to certain areas of the law that otherwise tend to be skewed by inequalities in lawyering. At the same time, operating a Supreme Court clinic presents special challenges and responsibilities. Unlike most other kinds of clinical work, Supreme Court cases generate reverberations far beyond the specific parties involved—indeed, sometimes beyond the courts themselves. Consequently, insofar as clinics have control over which cases they bring to the Court and can cause the Court to hear cases that it might not otherwise have heard, the clinics’ work can implicate sometimes-latent tensions between client-centered representation and cause-based advocacy. The Article is forthright that when it comes to selecting (and, to lesser extent, handling) cases in the Court, there are not always easy ways to navigate these competing approaches to public interest lawyering. But it explores the ethical, practical, and normative issues that operating a Supreme Court pro bono practice raises.” (H/T: Orin Kerr, Volokh Conspiracy.)

2. Scott Howe, “The Federal Death Penalty and the Constitutionality of Capital Punishment”: “The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Supreme Court in its development of ‘proportionality’ doctrine, the rules by which the Justices confine the use of capital punishment under the Eighth Amendment. In three cases rejecting capital punishment for mentally retarded offenders, juvenile offenders and child rapists, the Court noted that federal death-penalty statutes would have conferred protection against federal death prosecutions. These decisions, and current federal death-penalty law, suggest that the Court could resolve certain nuanced proportionality problems by restricting the death penalty in the states. However, for observers who hope to see the Court eventually use proportionality analysis to abolish the death penalty or greatly restrict its use, these developments seem to carry mostly negative implications. The relatively broad application of federal death-penalty law would weigh against sweeping proportionality restrictions on the death penalty for murder. However, the article explains why the Court’s proportionality analysis fails adequately to consider low execution rates and why the rarity of federal executions, if persistent, should undermine any notion that federal death-penalty law and practice supports a national consensus favoring capital punishment for ordinary murder.” (H/T: Douglas Berman, Sentencing Law and Policy.)

3. Jillian Blake & Aqsa Mahmud, “A Legal ‘Red Line’? Syria and the Use of Chemical Weapons in Civil Conflict,” UCLA Law Review Discourse: “This Essay examines the prohibition on the use of chemical weapons under relevant treaties and customary international law and applies this law to the ongoing Syrian civil war. We argue that while international humanitarian and criminal law provide a clear ban on the use of chemical weapons in international armed conflict, that ban is less clear in noninternational armed conflict. In addition, we find that mass atrocity crimes committed by the Assad regime could legally justify the military intervention that the United States and allies have suggested with their ‘red line’ policy. The use of chemical weapons, however, would not uniquely justify intervention, or strong international action, under current international law. Finally, focus on chemical weapons as the sole determinative factor for international action allows states like Syria to continue committing mass atrocity crimes using conventional weapons with impunity.” (H/T: Concurring Opinions.)


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