Vol. 122 No. 8 This Essay traces successive elaborations through to the most recent construction of presidential power, the conservative insurgency’s “unitary executive.” Work on this construction began in the 1970s and 1980s during the transition from progressive to conservative dominance of the national agenda. A budding conservative legal movement took up the doctrinal challenge as an adjunct to the larger cause, and in the 1990s, it emerged with a fully elaborated constitutional theory. After 2001, aggressive, self-conscious advocacy of the unitary theory in the Administration of George W. Bush put a fine point on its practical implications. Much has been written about this theory in recent years, but virtually all of the commentary is by legal scholars seeking to adjudicate the constitutional merits of the case.
Vol. 121 No. 7 In the current debate over the constitutionality of voter identification laws, both the Supreme Court and defenders of such laws have justified them, in part, as counteracting a widespread fear of vote fraud that leads citizens to disengage from the democracy. Because actual evidence of voter impersonation fraud is rare and difficult to come by if fraud is successful, reliance on public opinion as to the prevalence of fraud threatens to allow courts to evade the difficult task of balancing the actual constitutional risks involved. In this Essay we employ a unique survey to evaluate the causes and effects of public opinion regarding vote fraud. We find that perceptions of fraud have no relationship to an individual’s likelihood of turning out to vote. We also find that voters who were subject to stricter identification requirements believe fraud is just as widespread as do voters subject to less restrictive identification requirements.
Vol. 121 No. 5 There are currently more than two million people behind bars in the United States. Over five million people are on probation or some other form of supervised release. Prisoners are serving ever-longer sentences. Presidential and gubernatorial grants of clemency are rare events. The use of jury nullification to check harsh or overbroad laws is viewed by judges and other legal elites with suspicion. These are punitive, unforgiving times.
Vol. 121 No. 3 The effective delivery of scarce legal goods to disadvantaged clients
requires more than the provision of equal access, case-by-case representation,
and zealous advocacy. Scarcity requires that effective legal
change be measured not by the outcomes of individual cases, but
rather by the progress of social change: specifically, by the degree to
which individual clients are able to collaborate in local and national
alliances to enlarge civil rights and to alleviate poverty. This Essay
argues that, by incorporating the theory of “covering” into their work,
legal practitioners in civil rights and poor people’s movements can facilitate
such collective action. This Essay also makes the general claim
that forming links between theory and practice should be a principal
goal of clinical and nonclinical legal education.
Vol. 120 No. 7 Part I argues that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The lethal self-defense right has constitutional foundations in substantive due process, in state constitutional rights to defend life and to bear arms, and perhaps in the Second Amendment. But even setting aside those constitutional roots, the right has long been recognized by statute and common law. Even if the Supreme Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.
