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  • 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 20, 2016 by Elizabeth Slattery, Tiffany Bates Overview of the Supreme Court’s October 2016 Term

    October 3, 2016, marks the beginning of a new Supreme Court term. The 2015 term included challenges to the use of racial preferences in college admissions, the Obama Administration’s immigration “executive action,” Texas’s law requiring abortion doctors to have admitting privileges at a local hospital, the Obamacare contraception mandate, and former Virginia Governor Bob…

  • 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…

  • Special Report posted August 30, 2016 by Elizabeth Slattery, Stephanos Bibas, Josh Blackman, Richard W. Garnett The Legacy of Justice Antonin Scalia: Remembering a Conservative Legal Titan’s Impact on the Law

    Introduction Elizabeth H. Slattery In February 2016, Americans lost a legal titan with the passing of Justice Antonin Scalia. Conservatives mourn the loss of a standard-bearer, and liberals remember a worthy opponent. You may recognize the names of a handful of Supreme Court justices: the Great Chief Justice John Marshall, whose leadership of the Supreme Court in its…

  • Commentary posted August 29, 2016 by Alden Abbott Two Helpful Developments Aimed at Curbing Anticompetitive Protectionist Occupational Licensing Restrictions – Harbingers of Reform?

    Background Recently, an increasing amount of scholarship has focused on the excessive costs of occupational licensing, which too frequently serves merely as a protectionist state-created barrier to entry that arbitrarily prevents individuals (and, in particular, low-income individuals) from earning a living in their chosen field.  A 2015 White House report explains that…

  • Commentary posted August 29, 2016 by Hans A. von Spakovsky, John Fund Voter ID and the Real Threat to Democracy

    The Supreme Court concluded in 2008that voter ID is constitutional and doesn’t impose an unreasonable burden on voters. But the recent decisions of three federal courts throwing out voter-ID laws in North Carolina, Texas and Wisconsin as discriminatory have put opponents of common-sense election reforms in raptures. These erroneous rulings twist the Voting Rights Act from…

  • Commentary posted August 29, 2016 by Jason Snead, John-Michael Seibler Give States the Freedom to Regulate Drones

    In late June, a drone nearly collided with an aircraft carrying 500-gallon buckets of water to douse a wildfire in southern Utah. Incidents like this have been used to feed the narrative that drones are so dangerous that they must be regulated by the feds, leaving no room for states to act on their own. Utah has disproved that claim. Within weeks of the near collision,…

  • Backgrounder posted August 23, 2016 by Jason Snead An Overview of Recent State-Level Forfeiture Reforms

    Civil asset forfeiture is a law enforcement tool that enables the seizure and eventual forfeiture of real and personal property that may have been involved in criminal activity. States are beginning to scale back their civil forfeiture laws, and with good reason. Today’s expansive forfeiture laws, rather than relieving drug kingpins and criminal organizations of their…

  • 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…

  • Lecture posted August 12, 2016 by Lee Edwards, Ph.D., Edwin Meese III, Alan Charles Kors, George Weigel Pursuing Freedom and Democracy: Lessons from the Fall of the Berlin Wall

    Introduction The Cold War was the most protracted and unconventional conflict of the 20th century. World War I and World War II were great sweeping wars that shaped our history and our world, but they didn’t match the length or the complexity of the ideological and strategic struggle that occupied superpowers and lesser powers on every continent for more than four…

  • 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…

  • Testimony posted July 27, 2016 by John Malcolm Civil Asset Forfeiture: When Good Intentions Go Awry

    Testimony before the Mississippi Asset Forfeiture Transparency Task Force  July 20, 2016 Thank you for inviting me to testify today on Mississippi efforts to examine and reform its civil asset forfeiture laws. My name is John Malcolm. I am the Director and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and…

  • Commentary posted July 25, 2016 by Elizabeth Slattery The Scalia Election

    The just-concluded Supreme Court term starkly makes the case for why the Court should be at the forefront of every voter’s mind this November. The sudden passing of Justice Antonin Scalia in February led to deadlocks and compromises in some of the biggest cases of the term, highlighting the importance of every seat on the Court. Whomever the next president selects as…