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  • Commentary posted January 13, 2017 by Paul Larkin Bill of Rights at 225: Fundamental Elements of a Fair Trial

    If you ever suffer the misfortune of being charged with a serious crime, you will be glad that the Sixth Amendment exists. It contains the minimal requirements necessary to prevent the federal and state governments from convicting and punishing an innocent person or from railroading a defendant, whether guilty or innocent, by using a Soviet-era "show trial" as the…

  • Commentary posted December 16, 2016 by Paul Larkin The Demise of Capital Clemency

    Over the last four decades, numerous commentators have criticized the institution of executive clemency. Opponents of capital punishment have been particularly vocal. Their principal complaint has been that, with a few isolated exceptions, far too many chief executives have granted condemned prisoners clemency far too infrequently. This is an unfortunate…

  • Legal Memorandum posted December 15, 2016 by Paul Larkin, David Rosenthal, John-Michael Seibler Time to Prune the Tree, Part 3: The Need to Reassess the Federal False Statements Laws

    Which number is larger, (1) the number of “tall tales” told monthly by fishermen, used-car salesmen, Santa Claus impersonators, and stand-up comedians[2] or (2) the number of federal statutes making it a crime to tell a fib? You might reflexively choose number 1, and you might be right, but there is no guarantee. The reason is that over the past century-plus, Congress has…

  • Legal Memorandum posted November 30, 2016 by Paul Larkin, John-Michael Seibler The Ongoing Lack of EPA Accountability for the Gold King Mine Spill: The EPA’s New “Responder” Theory

    One year ago, Environmental Protection Agency (EPA) employees caused the discharge of approximately 3 million gallons of toxic waste into the Animas River surrounding the Gold King Mine in Colorado.[1] Shortly thereafter, EPA Administrator Gina McCarthy publicly stated that the EPA took complete responsibility for the incident.[2] “Yet, nothing has happened” within the…

  • Legal Memorandum posted October 19, 2016 by Paul Larkin, John-Michael Seibler Time to Prune the Tree, Part 2: The Need to Reassess the Federal Fraud Laws

    It has been said that you can’t be too rich, you can’t have too many friends, and you can’t be too thin. Today, it also seems that you can’t have too many federal fraud statutes. Congress has enacted plenty of them[2] even though the two basic fraud statutes—the acts criminalizing mail fraud and wire fraud[3]—would cover every crime that the federal government should…

  • Legal Memorandum posted September 21, 2016 by Paul Larkin Miranda at 50

    Some people are born into fame or notoriety. Others just get lucky. Ernesto Miranda belongs in the second category. Miranda v. Arizona In 1963, Phoenix, Arizona, police officers arrested Miranda for kidnapping and rape and took him to a local police station. After the complaining witness identified him, two officers questioned Miranda for two hours without informing him…

  • Legal Memorandum posted September 9, 2016 by Paul Larkin, Nicolas Loris The Regulation of Hydraulic Fracturing on Federal and Indian Land: Wyoming v. Department of the Interior

    The Controversy Over Hydraulic Fracturing Over the past two decades, vast deposits of oil and gas have been unlocked in the United States by a late-20th-century extraction-process innovation known as hydraulic fracturing (also known as hydrofracking or fracking). That process has enabled industry to recover oil and natural gas resources from shale buried deep…

  • Legal Memorandum posted September 8, 2016 by Paul Larkin The World After Chevron

    Administrative law has been a greenfield for scholars for quite some time because it stands at the confluence of American constitutional law and political theory regarding the proper structure of American government.[1] Most administrative law is made not by Congress, but by the federal courts, particularly the Supreme Court of the United States. The last major statute…

  • Backgrounder posted August 17, 2016 by Katie Tubb, Nicolas Loris, Paul Larkin The Energy Efficiency Free Market Act: A Step Toward Real Energy Efficiency

    The federal government has embarked on a troubling regulatory path, with the goal of making energy use and lifestyle choices on behalf of American families and businesses. Since the 1970s, Congress has empowered agencies to micromanage Americans’ energy use and override personal preferences through energy-efficiency mandates. With ever-shifting goals to forestall…

  • Legal Memorandum posted August 4, 2016 by Paul Larkin The Mistaken Belief That All Strict Liability Crimes Are Morally Objectionable

    Traditionally, the criminal law has distinguished sharply between actions committed with and without an evil intent. Both were necessary for conduct to amount to a crime. The rule was “actus non facit reum nisi mens sit rea”[1]—a crime consists of “a vicious will” and “an unlawful act consequent upon such vicious will.”[2] The criminal law required the government to prove…

  • Testimony posted August 1, 2016 by Paul Larkin Settling the Question: Did the Bank Settlement Agreements Subvert Congressional Appropriations Power?

    Mr. Chairman, Mr. Ranking Member, Members of the Subcommittee: My name is Paul J. Larkin Jr. I currently am a Senior Legal Research Fellow at The Heritage Foundation. Most of my career has involved working in the criminal justice system in one capacity or another. For example, I worked at the Department of Justice in the Organized Crime and Racketeering Section of the…

  • Legal Memorandum posted April 15, 2016 by Paul Larkin A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II

    The Four Horsemen of the Apocalypse is a well-known image. The Book of Revelation identifies them as Famine, Pestilence, Destruction, and Death.[1] Used in Revelation as a harbinger of the end of days, the imagery has been reused in other contexts as a metaphor to herald the end of a political state, such as the Roman Empire. The same metaphor can be used to signify the…

  • Legal Memorandum posted April 4, 2016 by Paul Larkin, Charles "Cully" Stimson The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

    In the federal and state criminal justice systems, “the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.”[1] Through the provisions of the Uniform Code of Military Justice (UCMJ), Congress has indicated that the military shares that goal. To achieve it, Congress has concluded that the military justice system, to…

  • Commentary posted March 9, 2016 by Paul Larkin Spring Cleaning for Needless Criminal Laws

    Millions of people throw out old, useless items every spring. But the 535 members of Congress are not among those people. The last 40 years have witnessed a prodigious growth in the number of federal criminal statutes, and our federal criminal code now contains more than 4,000 criminal laws. Some of them are as useless as the old English statute that bans the wearing of…

  • Testimony posted March 3, 2016 by Paul Larkin Geolocation Technology and Privacy

    Hearing Before the House Committee on Oversight and Government Reform United States House of Representatives March 2, 2016 Paul J. Larkin, Jr. Senior Legal Research Fellow Mr. Chairman, Mr. Ranking Member, Members of the Committee: My name is Paul J. Larkin, Jr. I currently am a Senior Legal Research Fellow at The Heritage Foundation. Most of my career has involved…