Article

In Search of a Theory of Deference: The Eighth Amendment, Democratic Pedigree, and Constitutional Decision Making

The Supreme Court’s recent Eighth Amendment death penalty case law is in disarray, and the confusion is symptomatic of a larger problem in constitutional doctrine. In Baze v. Rees and Kennedy v. Louisiana, the Court approached the challenged state policies with vastly different levels of deference. Though the Court purported to apply longstanding Eighth Amendment tests in both cases, Baze was highly deferential to state policy, and Kennedy was not…
Article

The Scope of Congress’s Thirteenth Amendment Enforcement Power After City of Boerne v. Flores

Jennifer Mason McAward
Section 2 of the Thirteenth Amendment grants Congress power to enforce this article by appropriate legislation. In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section 2 permits Congress to define the badges and incidents of slavery and pass all laws necessary and proper for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section 2 power. Several commentators have…
Article

Measuring the True Cost of Government Bailout

Cheryl D. Block
Government intervention to assist individual businesses and industries during the 2008–2009 economic crisis was extraordinary in variety and scope. Despite official protestations of no more bailout‖ in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, future government interventions are inevitable, should economic circumstances become sufficiently dire. Moreover, even if Congress eliminates overt bailout-type interventions, indirect forms of public bailout are likely to continue. Understandably, taxpayers have been…
Note

New Twists on an Old Plot: Investors Look to Avoid the Wash Sale Rule by Harvesting Tax Losses with Exchange-Traded Funds

Garrett M. Fischer
Note

Tremendous Upside Potential: How a High-School Basketball Player Might Challenge the National Basketball Association’s Eligibility Requirements

Joseph A. Litman
Commentary

Justice Souter and the Civil Rules

Scott Dodson
On April 30, 2009, after almost twenty years on the U.S. Supreme Court, Justice David Hackett Souter announced his retirement. A quiet personality never comfortable in the D.C. spotlight (except, perhaps,during his confirmation hearings), Justice Souter was rarely characterized as a force on the Court. No doubt his legacy will be marked in large part — and perhaps unfairly — by his membership in the Planned Parenthood of Southeastern Pennsylv…