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  • 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…

  • Legal Memorandum posted February 25, 2016 by Paul Larkin, John-Michael Seibler Time to Prune the Tree: The Need to Repeal Unnecessary Criminal Laws

    Flowers may die, and old soldiers may fade away, but statutes do neither. They live on indefinitely. That is true in the United States. Statutes may become obsolete or fall into desuetude, a legal term used to describe anachronistic and rarely (if ever) enforced laws, but they retain their force and effect until repealed by the legislature or held unconstitutional by the…

  • Legal Memorandum posted January 14, 2016 by Paul Larkin, Jordan Richardson, John-Michael Seibler The Supreme Court on Mens Rea: 2008–2015

    Oliver Wendell Holmes, Jr., was on to something when he said that even a dog knows the difference between “being stumbled over and being kicked.”[1] Anglo–American criminal law traditionally has marked a person as a criminal only if he or she[2] committed a morally blameworthy act, known as the actus reus, along with an “evil” frame of mind, known as mens rea or…

  • Legal Memorandum posted December 8, 2015 by Paul Larkin, John-Michael Seibler Agencies Not Coming Clean About the EPA’s Responsibility For Poisoning the Animas River

    Several months ago contractors and officials from the Environmental Protection Agency (EPA) caused millions of gallons of water contaminated with toxic metals to spill into a river that supplies drinking water to thousands of residents in three states. Three factors captured the media’s attention: (1) the dramatic nature of the catastrophe (the poisoning of a region’s…

  • Legal Memorandum posted November 17, 2015 by Paul Larkin, John-Michael Seibler Turning the Rule of Lenity Into a Rule of Lenity

    “Too many crimes, too much punishment”[1] has been a recurrent problem in our criminal justice system.[2] That concern gave rise to a canon of statutory construction known as the Rule of Lenity, which has evolved to ensure that criminal laws, if objectively ambiguous, are read in favor of the defendant and against the government. So wrote William Blackstone in 1765:…

  • Legal Memorandum posted September 10, 2015 by Paul Larkin, John-Michael Seibler “Sauce for the Goose Should Be Sauce for the Gander”: Should EPA Officials Be Criminally Liable for the Negligent Discharge of Toxic Waste into the Animas River?

    Favoritism is acceptable—even welcome—in sports. Not everyone, for example, must be a New York Yankees fan (although some might argue that everyone should). But favoritism becomes illegitimate cronyism when it is found in the law, particularly the criminal law. The government should not be free to use cronyism when making investigatory or charging decisions, prosecuting…

  • Testimony posted September 9, 2015 by Paul Larkin Accountability, Policies, and Tactics of Law Enforcement within the Department of the Interior and the U.S. Forest Service

    Testimony before the Committee on Natural Resources U.S. House of Representatives Subcommittee on Oversight and Investigations July 28, 2015 Written Statement of Paul J. Larkin, Jr. Mr. Chairman, Mr. Ranking Member, Members of the Subcommittee: My name is Paul J. Larkin, Jr. I am a Senior Legal Research Fellow at The Heritage Foundation. The views I express in this…

  • Legal Memorandum posted July 27, 2015 by Paul Larkin The Role for Magna Carta in America in 2015

    This year is the 800th anniversary of Magna Carta. Most Americans have heard of Magna Carta, but few know its history or the role it plays today in Anglo–American constitutional law. Fewer still know that Article 39 of Magna Carta was the parent of the Due Process Clause that is found in the Fifth and Fourteenth Amendments to the federal Constitution.[1] The phrase “due…

  • Legal Memorandum posted July 9, 2015 by Paul Larkin Regulatory Crimes and the Mistake of Law Defense

    In the summer of 2015, the accepted wisdom is that, for good or ill, the two major American political parties are generally incapable of agreeing on any major policy change for which new legislation is necessary or useful. One exception, however, can be seen in the area of criminal justice. Several bills with bipartisan support would reform the front or back end of the…

  • Legal Memorandum posted June 25, 2015 by Paul Larkin Liberalizing Marijuana Use and Improving Driving Safety: Two Contemporary Public Policies on a Collision Course

    For most of the 20th century, the nation’s policies regarding marijuana and highway safety travelled along different, nonintersecting planes. There was a national consensus that the cultivation, distribution, possession, and use of marijuana should be outlawed. That policy rested on scientific research showing that marijuana is physically damaging, can be addictive, and…

  • Legal Memorandum posted June 18, 2015 by Paul Larkin Revisiting Kelo

    Government uses its eminent domain power for a host of reasons. Classic examples are the need to construct a bridge, a port, a national park, or a government office building. More contemporary instances include the elimination of a public nuisance like an unprotected hazardous waste dumping site or a row of dilapidated crack houses overrun by vermin. The public generally…

  • Legal Memorandum posted April 21, 2015 by Paul Larkin The Constitutional Problems Raised by Domestic Convictions for Foreign Crimes

    Most federal criminal legislation is designed to regulate domestic affairs.[1] Over the past few decades, however, Congress has increasingly adopted several laws that apply beyond our shores. One example is the Foreign Corrupt Practices Act, which makes it a crime to bribe a foreign official, a crime that can occur overseas. In those cases, Congress has clearly defined…