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  • Legal Memorandum posted December 8, 2014 by Paul Larkin, Jordan Richardson True Threats and the Limits of First Amendment Protection

    The First Amendment guarantees every person the right of free speech, but that right is not absolute. Some words “by their very utterance” cause injury or incite an immediate breach of peace, and they do not receive constitutional protection.[2] Among the category of unprotected speech are “true threats,” statements in which a speaker expresses a “serious” intent “to…

  • Legal Memorandum posted October 23, 2014 by Paul Larkin The Problematic Use of Nonprosecution and Deferred Prosecution Agreements to Benefit Third Parties

    Unlike what King John thought[1] or what Judge Dredd proclaimed,[2] the President of the United States is not “the law.” The Constitution is the nation’s fundamental law,[3] and the power to supplement it by legislation resides with Congress under Article I.[4] The President enjoys only whatever authority the Constitution or Congress grants him.[5] His principal domestic…

  • Special Report posted October 1, 2014 by Paul Larkin, David E Bernstein, Randy E Barnett, Clark M Neily, III Economic Liberty and the Constitution: An Introduction

    Contributors Paul J. Larkin, Jr., is a Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. David E. Bernstein is George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia. Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory at the…

  • Commentary posted September 3, 2014 by Paul Larkin Co-opting the criminal justice system for anti-competitive purposes

    Most people assume that legislatures pass criminal laws to benefit the public, and most of the time, they are right. Statutes outlawing murder, rape, robbery, and the like protect all of us against a small number of ruffians who would do us harm. But not every statute has that goal. Some protect favored sons and daughters at the expense of the public. When that happens,…

  • Legal Memorandum posted August 21, 2014 by Paul Larkin Co-opting the Criminal Justice System to Prevent Competition or Serve Noncompetitive Interests

    Harmfulness of Agreements Between the Government and Private Parties to Prevent Competition by Fixing Prices or Output In a recent paper, Mario Loyola argues persuasively that for 80 years, Congress and the Executive have conspired with the sugar producer lobby to artificially reduce the quantity of sugar available in the market and to raise its price to consumers.[1]…

  • Legal Memorandum posted August 12, 2014 by Evan Bernick, Paul Larkin, Jordan Richardson Is Congress Addressing Our Overcriminalization Problem? Reviewing the Progress of the Overcriminalization Task Force

    There is widespread agreement across the political spectrum that the criminal justice system needs to be reformed in several respects. One of the areas in need of correction is the overuse and misuse of substantive criminal law, a problem known by the neologism “overcriminalization.”[1] In May 2013, the bipartisan Overcriminalization Task Force, authorized by the House…

  • Legal Memorandum posted June 12, 2014 by Evan Bernick, Paul Larkin Filming the Watchmen: Why the First Amendment Protects Your Right to Film the Police in Public Places

    Brandy Berning spent the night in a Florida jail because she used a cell phone to film a traffic stop on I-95.[1] George Thompson of Fall River, Massachusetts, claimed that he was verbally abused, arrested, and locked up overnight for filming a profane police officer with a cell phone from his front porch. The officer was across the street in full view and within earshot…

  • Legal Memorandum posted June 9, 2014 by Paul Larkin Closing the Door to Foreign Lawsuits: Daimler AG v. Bauman

    Midway through its October 2013 term, on January 14, 2014, the Supreme Court of the United States decided a case that will make its way into every civil procedure casebook, Daimler AG v. Bauman.[1] The plaintiffs, residents and citizens of Argentina and Chile without any connection to the United States, initiated a federal court lawsuit in California against Daimler AG, a…

  • Legal Memorandum posted May 9, 2014 by Paul Larkin The Extent of America’s Overcriminalization Problem

    The Heritage Foundation and others have criticized the modern-day phenomenon known as “overcriminalization,”[1] the neologism given to the overuse and misuse of the criminal law.[2] Those criticisms have taken several forms: Legislatures pass too many statutes creating crimes (especially federal offenses); legislatures too frequently empower administrative agencies to…

  • Commentary posted March 24, 2014 by Paul Larkin Program offers HOPE for repeat drug offenders

    American prisons hold more than 1.5 million convicts. Ninety-five percent of them will return to the community at some point, and few will be better off than when they have left it. One of the holy grails of correctional policy has been to find an alternative to imprisonment that has teeth but doesn’t bite off a leg. Probation has been the traditional alternative, but…

  • Commentary posted March 24, 2014 by Paul Larkin Reviewing the Rationale for Stop-and-Frisk

    Any angler will tell you: “If you want to catch fish, you have to go where the fish are.” The same is true when fishing for street crime. In the case of crack cocaine, you need to focus on urban, poor, African-American neighborhoods, because trafficking is primarily the work of dealers in those communities. The U.S. Sentencing Commission, Harvard Law School Professor…

  • Legal Memorandum posted February 28, 2014 by Paul Larkin The Hawaii Opportunity Probation with Enforcement Project: A Potentially Worthwhile Correctional Reform

    Over the past 40 years, America has sent an increasingly large number of offenders to prison.[1] Approximately 95 percent of them will eventually return to the community.[2] Some will be released early via parole, an accumulation of good-time or earned-time credits, or executive clemency.[3] The truly lucky offenders, however, are the ones who are placed on probation, a…

  • Commentary posted February 26, 2014 by Paul Larkin There’s a clear need to re-examine sentencing policies

    The law, like a pendulum, sometimes moves from one extreme to another. For most of the 20th century, Congress gave federal judges wide discretion to select the punishment to be given to a particular defendant in a case. Typically, lawmakers set a maximum on the range of applicable penalties, such as “no more than five years’ imprisonment.” Beginning in the 1980s,…

  • Legal Memorandum posted February 19, 2014 by Paul Larkin Domestic Abuse on Indian Reservations: How Congress Failed to Protect Women Against Violence

    Congress passed the Violence Against Women Act (VAWA) [2] in 1994 in part to authorize various federally funded anti-violence programs.[3] Last year, Congress passed a VAWA reauthorization bill. A provision in the statute, Section 904, grants Indian tribal courts concurrent jurisdiction over certain criminal charges of domestic abuse filed against non-Indians.[4] While…

  • Issue Brief posted February 10, 2014 by Paul Larkin Supplying the Information Required by Law: Directing the Federal Government to Identify All Federal Criminal Laws

    The Heritage Foundation has been concerned about the problem of overcriminalization for years. Most (but not all) of the papers that it has published on that subject have criticized Congress for passing unnecessary or unsatisfactory criminal laws. But Heritage also has given credit where credit was due.[1] Recently, Heritage witnessed another creditworthy event. Two…