Research shows the mere presence if Blacks on capital juries-on the rare occasions they are seated-can mean the d!fference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal if jurors through racially motivated peremptory challenges. 111ese proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome ifcapital trials. This Article deconstructs the role ofthe Batson ritual in legitimating the removal ifAfrican Americanjurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors ciffer as race neutral motivationsfor peremptorily striking Blackjurors.
In my examination if "race neutral" removals in Texas courts, I demonstrate how the focus on form has jailed to solve the substantive problem of racially discriminatory IIses i f peremptory challenges. Cases from these courts have been critical in the Supreme Court jurisprudence that developed the process for deciphering racially motivated uses ifthis legal tool. Although Batson hearings have proven to be a weak legal instrument, they nevertheless repeatedly remind us i f the persistence if racially discriminatory uses oj peremptory challenges and the jailure if current measures to prevent such discrimination. Building 011 the suggestioll by Akhil Amar to "preempt peremptories," this Article callsfor the reexamillation ifthe use ifthis practice, particularly in capital trials, ill a justice system that purports illterest in protecting that system from racial discrimillation.

The cases of Karla Faye Tucker and Gary Graham represent two examples of the renewed public debate about the death penalty in the State of Texas, and how religion and race affect that debate. This article explores how the Tucker and Graham cases represent opposing possibilities for understanding contemporary narratives of the death penalty. Though the juxtaposition of these two cases is not completely symmetrical, if viewed as a kaleidoscope—a complex set of factors filtered through the shifting identities of the person who is at the center of the immediate case—the hidden operations of race and religion can be examined. Tucker and Graham, both prosecuted in Houston's Harris County and executed in relatively close proximity, demonstrate the function that race, religion and gender play in current death penalty politics. Thus, the death penalty cases of Karla Faye Tucker and Gary Graham inform an understanding of the intersection of race and gender in current death penalty narratives and the connection of those narratives to past tropes employed to justify the use of the death penalty, in spite of its discriminatory impact on blacks. In attempting to untangle the continuing impact of race and gender, the increased reliance on religious narrative can be understood in relation to the pro-death penalty arguments of the past. These simple syllogisms, constructed above in the words of Karla Faye Tucker and George W. Bush, logically demonstrate how individual opinions on the death penalty can work in different cases. However, the peculiarity of the supporters who came forward to ask for mercy in Tucker's case contradicts the idea that, at least for some, the identity of the defendant has no bearing on whether one supports or opposes the death penalty. Commentator Julie H. Patton objected to the emphasis on Karla Faye Tucker's gender instead of what she perceived to be the more important issue: the inherent evil of capital punishment. Patton predicted, “The protester who supported her [Tucker's] clemency because of her religious conversion will most likely not be there when the next inmate is walked to the death chamber.” The cases of Tucker and Graham broke rank and captured the attention of both individual citizens as well as political and religious elites. However, the citizens, political and religious elites were not the same in the two cases, race being the clearest distinction. This article compares the Tucker and Graham cases and attempts to position them as opposing ends of a spectrum of possibilities of how religion may extend historical race and gender narratives into the present. By setting these cases at odds and adopting narratives that overlap gender and racial narratives, this article attempts to illuminate ways in which these cases help us understand how death row inmates may be able to rehabilitate themselves and, in a sense, cleanse their personas as if they were innocent. The reliance that contemporary narratives place on religion actually obscures or reiterates the more obvious racial and gendered character of past narratives to justify the death penalty. Religion is the new language of the death penalty, but it is not divorced from the old.

The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide. One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice. This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic and international statutes articulate similar goals in prosecuting the perpetrators of genocide—eradicating a culture of impunity, and restoring law and order. This Article argues that the existence of conflicts over the propriety of the death penalty and the resulting punishment discrepancies provide continued opportunities for development of domestic and international responses to genocide. Part I summarizes the events in Rwanda that led to the establishment of the Tribunal and discusses the resulting statutes of the International Criminal Tribunal for Rwanda and the domestic criminal statues of Rwanda. This section also discusses the additional legal and political issues that have arisen from the discrepancy in punishment regimes. Part II offers two case studies to illustrate the types of actors and the extent of participation in the genocide tried under each regime. This section also outlines the goals of punishment articulated in each statute and how well these case studies reflect those goals. Part III questions the appropriateness of death as punishment for individual participation in international crimes. On the one hand, a majority of nations have moved toward the abolition of the death penalty; however, under Rwandan domestic laws, the death penalty remains a codified and utilized component of the penal code. There is sufficient political will in the international community to bar its use in international tribunals, but abolition has not yet reached the level of international norm. At the core of international law is a necessity for consensus, which promotes higher levels of compliance. Since Nuremberg, there is consensus that genocide is a crime, but the appropriate form of punishment is highly contested. There is also discussion of the employment of pre-colonial methods of adjudication as a way of expediting trials and providing real opportunities for reconciliation on the ground in Rwanda. The Article concludes with a discussion of the prospects for resolution of the punishment paradox in genocide prosecution created by opposing policies on punishment in domestic and international law. The resolution of this paradox may be too late to prevent the negative political consequences of differences in punishment in the Rwandan genocide, but the looming presence of genocide and possible tribunals in other parts of Africa, most specifically in the Sudan, continues to make analysis of this tension between international and domestic law on the death penalty important. The final section outlines concrete lessons that both the international community and domestic authorities can learn from the adjudication of the Rwandan genocide and apply to other prosecutions of participants in genocide.

This article is the third in a series examining the continued
relevance and philosophical legitimacy of the United States
wealth transfer tax system from within a particular
philosophical perspective. The article examines the
utilitarianism of John Stuart Mill and his philosophical progeny
and distinguishes the philosophical approach of utilitarianism
from contemporary welfare economics, primarily on the basis of
the concept of “utility” in each approach. After explicating the
utilitarian criteria for ethical action, the article goes on to think
through what Mill’s utilitarianism says about the taxation of
wealth and wealth transfers, the United States federal wealth
transfer tax system as it stands today, and what structural
changes might improve the system under a utilitarian
framework.

Bilateral Investment Treaties, ("BITs"), are both a response to and likely at least partly responsible for the significant increase in international investments in the last fifty years. BITs provide potential private investors government assurances regarding a variety of factors relevant to their investments. Among these assurances, BITs regularly address the tax authority that the host government has with regard to the foreign investor, often protecting that foreign private investor against changes to the host country's tax system. If an investor believes the host country has violated the terms of the BIT, that investor can bring a claim against the country in front of an independent arbitration panel, whose decision will be final and binding. Because the power to tax is at the heart of what makes a sovereign authority a sovereign, restrictions on a sovereign's ability to tax foreign investors, which can be enforced by an external body, threaten that sovereign's very essence. As a result, tax provisions in BITs and the adju-dication of those provisions by arbitration bodies must be carefully examined and potentially reconsidered, to protect the sovereign rights of governments to assess tax, to evolve their tax policies, and administer the laws of their countries in the best interests of their people. This Article explains the background and use of BITs, explores theories of sovereignty, and then demonstrates that the current use of BITs to restrict governments' ability to assess and collect tax within their borders threatens sovereign rights. The Article concludes by suggesting ways that the regulation of the taxation of international investments could be modified to protect sovereign rights.

he Institute of Medicine (IOM) has returned the prob lem of medical error to the top of the health-care T agenda. Its report that 44,000 to 98,000 patients die each year as a result of medical errors in American hospitals has renewed scholarly interest in health system quality control.' In To Err Is Human, the IOM provides a vivid picture of a health-care system riven with serious quality problems. It calls for systems-based error-reduction methods borrowed from other high-risk industries and forcefully argues against the traditional tendency to assign accountability primarily to individual physicians. Most errors, the IOM argues, can be successfully addressed by engineering systemic fail-safe protections against the inevitable failings of human actors.

More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure funding statutes" and "conscience clause funding statutes." The third Part explores the contours of conditional spending jurisprudence in an effort to determine where individual protection may fit within the existing conditional spending jurisprudence. The Article concludes that the Supreme Court could protect the interests of individuals if its existing conditional spending test is applied in full, which has not been the Court's practice. The Article also concludes that, given the makeup of the Roberts Court and the balance of Congress, the better solution could be legislative constitutionalism. In other words, Congress should remove these funding limitations from legislation-not only because such limitations may be unconstitutional but also because they represent an ongoing disconnect in the law that aggrandizes the spending power. † Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 308 n.188 (1992) (describing the term compulsory maternity in historical context). Feminists in the mid-1800s railed against marriage as a form of legalized prostitution wherein women were subjected to the sexual whims of their husbands and were forced, by the ever-strengthening physician movement, to end access to midwives and to abortion, to bear children as a matter of "duty" in marriage. See id. at 308-10. The larger ideal of autonomy for women involved freeing women from the physical demands of marriage and childbearing as well as an overlapping desire for mental freedom through such rights as suffrage. See id.

Abstract: Justice John Marshall Harlan taught at Columbian University, which later became George Washington University from approximately 1891-1910. He primarily lectured in Constitutional Law, but also taught personal property law, torts, conflicts of law, ...