Constitutional Law
Essay

ASYMMETRIC CONSTITUTIONAL HARDBALL

Joseph Fishkin* & David E. Pozen**

Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of consti­tutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican office­holders have been more likely[...]

Batson
Article

BATSON’S APPELLATE APPEAL AND TRIAL TRIBULATIONS

Jonathan Abel*

Batson v. Kentucky is widely regarded as a failure. In the thirty-plus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the dis­criminatory use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson’s appellate[...]

Character evidence
Article

CHARACTER ASSASSINATION: AMENDING FEDERAL RULE OF EVIDENCE 404(B) TO PROTECT CRIMINAL DEFENDANTS

Daniel J. Capra* & Liesa L. Richter**

There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal ju­ries, a few circuits are developing rigorous standards de­signed to fore­close prosecutorial use of such bad-acts evidence. This Article chronicles the[...]