October 2014 Vol. 113 No. 1 THE REVIEW
ARTICLES

Rethinking the Timing of Capital Clemency

Adam M. Gershowitz

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm the victims' families by delaying closure for years. And reserving clemency determinations for the very end of the process creates an information cascade that makes it harder for governors to grant clemency in meritorious cases. This Article therefore argues for a threshold clemency determination in capital cases at the conclusion of direct review, before any state or federal habeas litigation has begun.

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The Political Safeguards of Horizontal Federalism

Heather K. Gerken & Ari Holtzblatt
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NOTES

Protecting Whistleblower Protections in the Dodd-Frank Act

Samuel C. Leifer

In 2008, the United States fell into its worst economic recession in over seventy years. In response, Congress enacted the near-comprehensive Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 922 of Dodd-Frank, in particular, includes specific provisions designed to incentivize and protect corporate whistleblowers. These provisions demonstrated Congress's belief that a comprehensive and robust whistleblower protection scheme was essential to preventing many of the abuses that caused the financial crisis. Unfortunately, this section's inconsistent language has produced conflicting decisions within the federal judiciary. In accordance with the Securities and Exchange Commission ("SEC")'s own reading of Section 922, several district courts have held that individuals engaging in "whistleblower activities" are entitled to Dodd-Frank's antiretaliation protections, irrespective of whether these individuals report directly to the SEC or report through internal channels in their own companies. In contrast, the U.S. Court of Appeals for the Fifth Circuit has limited Dodd-Frank's whistleblowing protections to individuals who report directly to the SEC. This Note contends that remedial legislation like Dodd-Frank should be broadly interpreted to further its purpose, that a broad interpretation of Section 922 is consistent with the text, structure, and legislative history of Dodd-Frank, and that courts unable to resolve the apparent conflict in this section should defer to the SEC's administrative expertise and interpretation.

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A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

Avi M. Kupfer
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& Other Current Events

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...

A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum...

Rethinking the Timing of Capital Clemency

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority...

The Political Safeguards of Horizontal Federalism

For decades, we have debated whether "political safeguards" preserve healthy relations between the states...

A Solution to Michigan's Child Shackling Problem

Detained children routinely appear before Michigan's juvenile courts shackled with handcuffs, leg irons,...
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