Volumen 12 (2023): Heft 1 (July 2023)

Over the last decade, many death penalty states in the United States have enacted secrecy laws shielding the identity of lethal injection drug suppliers and executioners. Death penalty defense lawyers, legislators, and scholars have examined the constitutionality and efficacy of these laws. However, little attention has been paid to the history of death penalty secrecy and its relationship to existing secrecy statutes. This article analyzes that history and relationship. It describes a surprising pattern of openness and transparency about the identities of executioners and others involved in America's capital punishment process. Current lethal injection secrecy laws break with that pattern and cast a virtually unprecedented shadow over the execution process. This article concludes by assessing the consequences of the recent intensification and expansion of execution secrecy.

This article discusses environmental conflict resolution in Brazil in both the administrative and judicial spheres, with the aim of analyzing the configuration of the bodies in charge of such adjudication, the procedural instruments at their disposal, and the main types, grounds and effects of environmental claims. An overview of the Brazilian system is evaluated based on the criteria of judicial and extrajudicial due process in order to point out certain dysfunctions of environmental adjudication that compromise its effectiveness, such as the inadequacy of the procedural legislation and the poor quality of the resulting decisions; ways of strengthening the rights and guarantees provided to litigants by the administrative and judicial authorities are also proposed as a means of improving the performance of environmental adjudication.

This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge the precise contours of each institution's powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary's decried inability to clarify the limits of its own power is justified by Hunton's obscure explanation that separation of powers can only function so long as murkiness shrouds questions of ultimate institutional authority.

This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a “great synthesizer” of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of “We the People” as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form “a more perfect union.” And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutcheson, he made clear that the “blessings of liberty” were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787.

The legal construction of race has assumed considerable importance for affirmative action and other purposes. But buffeted by racist tropes from an earlier day and simple self interest, the construct has become a nest of irrationalities and inconsistencies.

The aftershocks of the riot at the United States Capitol on January 6, 2021, continue to ripple through the American public square. The United States Department of Justice brought over 750 criminal charges against the assailants. The United States House of Representatives appointed a Select Committee to investigate the riot. And the public continues to discuss the meaning of January 6 as these criminal prosecutions continue and the House's investigation concludes. Although this is the first time in American history that a mob actually breached the Capitol, riots and insurrections attempting to overawe parliamentary bodies on their own grounds are well precedented in the Anglo-American legal tradition.

The purpose of this article is to provide historical context for affrays like the Trump Riot of January 6 and provide a framework for how legislatures should respond. Parliamentary precedents on both sides of the Atlantic prove that anyone who riots at the legislature is in contempt of parliamentary privilege. The legislature can refer such contempt to the executive for criminal prosecution. In egregious cases, however, the legislature should not hesitate to vindicate itself by using its own contempt power. The legislature should appoint a joint select committee or independent commission to investigate and hold those politically responsible to account.

There may be cases when an officer or an agent of the executive provokes or incites a riot at the Capitol. The legislature must prevail in its efforts to bring them in for a hearing and compel them to produce discovery. Of the three coordinate branches of the federal government the legislature is first among equals. Parliamentary privilege must therefore trump executive privilege during an investigation of an assault on the national assembly. Any member of the executive who contemptuously incites a mob at the seat of government is liable for discipline under the inherent power of Congress.