(Mis)Trusting States to Run Elections

Joshua A. Douglas
Recent Supreme Court election law jurisprudence reflects an unspoken, pernicious trend. Without identifying a specific new rule, the Court has been unjustifiably deferring to state laws regarding election administration, thereby giving states tremendous power to regulate elections. At the same time, the Court has diminished Congress’s oversight role. That is a mistake. Placing too much power in states to administer elections is both constitutionally wrong and practically dangerous. During the…

Resolving Intrastate Conflicts of Laws: The Example of the Federal Arbitration Act

Andrew D. Bradt
Choice-of-law analysis is typically thought of as confined to the multistate setting. This is a mistake. To the contrary, conflicts often appear between statutes of a single state. Unfortunately, courts do not see these cases as “choice-of-law” cases. They see them only as problems of statutory interpretation and ignore conflicts of laws instead of resolving them, either by construing the conflicting statutes independently or applying a canon of construction. Here,…

Say on Pay Around the World

Randall S. Thomas and Christoph Van der Elst
Shareholders have long complained that top executives are overpaid by corporate boards irrespective of their performance. Investors have traditionally been powerless to prevent these perceived abuses and have sought a way to gain greater influence over directors’ compensation decisions. Many governments responded by increasing the level of corporate disclosures on compensation packages and policies, and occasionally tinkering with tax policies in efforts to reduce pay levels, but none of these…

Gayffirmative Action: The Constitutionality of Sexual Orientation-Based Affirmative Action Policies

Peter Nicolas
Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities—such as affirmative action policies—as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court’s established criteria for declaring a…

Throwing a Toy Wrench in the “Greatest Legal Engine”: Child Witnesses and the Confrontation Clause

Jonathan Clow
Cross-examination of witnesses has often been called the “greatest legal engine ever invented for the discovery of truth.” Enshrined in the Confrontation Clause of the Sixth Amendment, this most basic feature of an adversarial legal system guarantees criminal defendants the right to have the prosecution’s witnesses testify in open court and the opportunity to question said witnesses in front of the jury. The premise underlying this “greatest legal engine” is…

Moral Panics and Body Cameras

Howard M. Wasserman
This Commentary uses the lens of “moral panics” to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence…

Epilogue: Moral Panics and Body Cameras

Howard M. Wasserman
This brief follow-up to Moral Panics and Body Cameras comments on the weeks after that essay was published and what those events show about the efficacy of body cameras and video evidence as a response to police-public conflicts.