Volume 52, Issue 4

Ending Death by Dangerousness: A Path to the De Facto Abolition of the Death Penalty

The use of the death penalty—both in number of new death sentences and actual executions—has been steadily decreasing during the past decade. Two phenomena largely explain this decrease: (1) the continued discovery of individuals on death row who are actually innocent of the crimes they allegedly committed, and (2) the increasing use of life without parole as a sentencing alternative to the death penalty. Abolitionists have successfully seized upon the first of these in raising continuing doubts about the use of the death penalty. This Article proposes a deeper exploration of the second—the availability of life without parole—to suggest a second line of attack on capital punishment in an effort to further de facto abolition. More

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Tying Arrangements and Antitrust Harm

A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary her purchases of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires her to purchase varying numbers of printer cartridges from the same manufacturer. Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial. More

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Taking the Good with the Bad: Recognizing the Negative Externalities Created by Charities and Their Implications for the Charitible Deduction

The tax code allows taxpayers to deduct amounts donated to an extremely broad variety of organizations deemed to create societal benefits—that is, positive externalities. But many organizations that may receive tax-deductible contributions also cause harms. Both the tax code and subsidy theory, one of the most utilized scholarly theories developed to analyze the deduction from an economic and morally neutral perspective, fail to properly account for these negative externalities. In order to do so, one needs to look beyond the economic models utilized by subsidy theorists. For instance, there should be some limit to the types of harms organizations can cause while retaining their subsidy (that is, their ability to receive deductible contributions), something not adequately provided by the tax laws or the Kaldor–Hicks model used by subsidy theorists. As a starting point, this Article suggests the government should not subsidize organizations that impinge on an individual’s ability to live a full and meaningful life as a fair and equal member of society. More

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Innocence Commissions and the Future of Post-Conviction Review

In 2006, North Carolina became the first state to establish an innocence commission—a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This Article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. More

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From 287(g) to SB 1070: The Decline of the Federal Immigration Partnership and the Rise of State-Level Immigration Enforcement

In July 2009, the Department of Homeland Security (DHS) dramatically altered the notorious 287(g) program, a program that cultivates partnerships between Immigration and Customs Enforcement and local law enforcement. Billed as an effort to standardize immigration enforcement while focusing efforts upon priority aliens, the policy shift instead managed to subvert the drafters’ intent, undermine local and federal enforcement goals, whittle the once broad and flexible 287(g) program down to impotent redundancy, and foster an environment that compels states and communities to take immigration enforcement into their own hands. More

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The Merits of Procedure vs. Substance: Erie, Iqbal, and Affidavits of Merit as MedMal Reform

Plausibility is much on the collective mind of the legal profession these days. The Supreme Court set the stage in *Twombly* and *Iqbal*, resetting federal civil pleading to a “plausibility standard.” Now, judges, practicing lawyers, and commentators have been struggling to predict the extent of change wrought by these cases and how far outside of their factual contexts they may apply. More

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Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy

This Essay provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by *Citizens United*, to stack state legislatures with senators and representatives who are sympathetic to their goals. More

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