Publications

Scholarly

Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-conviction Proceedings, ___ Cornell L. R. ___ (forthcoming 2006).

"Leo M. Frank," in YALE BIOGRAPHICAL DICTIONARY OF AMERICAN LAW (Yale University Press, forthcoming 2006).

"Articles of Confederation," in OXFORD ENCYCLOPEDIA OF LEGAL HISTORY (Oxford University Press, forthcoming 2005).

Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines

as an Opportunity to Reconsider the Death Penalty, 2 Ohio St. J. Cr. L. 663 (2005).

A Rational Constitutional Faith (remarks on installation as Distinguished Professor), 33 Hof. L.R. 417 (2004).

The Revised ABA Guidelines and The Duties of Lawyers and Judges in Capital Post-conviction Proceedings, 5 J. App. Prac. & Proc. 325 (2003).

Add Resources and Apply Them Systemically: Governments' Responsibilities Under the Revised ABA Capital Defense Representation Guidelines, 31 Hof. L.R. 1097 (2003). "Federal Habeas Corpus in Capital Cases," in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT AND FUTURE OF THE ULTIMATE PENAL SANCTION (North Carolina Academic Press, 2d ed. 2003 & 1st ed. 1998) (James Acker et al., eds.).

"Habeas Corpus,"in DICTIONARY OF AMERICAN HISTORY (Charles Scribner's Sons, 2003).

Digitized Pornography Meets the First Amendment, 23 Cardozo L.R. 2011 (2002).

HABEAS CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY (New York University Press, 2002; published in paperback 2003).

Earl Washington's Ordeal, 29 Hof. L.R. 1089 (2001).
Just Because John Marshall Said it, Doesn't Make it So: Ex Parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 Alabama L.R. 531 (2000).

Leo Frank Lives: Untangling the Historical Roots of Meaningful Federal Habeas Corpus Review of State Convictions, 51 Alabama L.R. 1467 (2000).

Brown v. Allen: The Habeas Corpus Revolution That Wasn't, 51 Alabama L.R. 1541 (2000).

Book Review of Christopher N. May's PRESIDENTIAL DEFIANCE OF "UNCONSTITUTIONAL" LAWS, 44 Am. J. Legal Hist. 226 (2000).

On Protecting Accountability, 27 Hof. L.R. 677 (1999), an updated version of The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7 (1992) .

Remarks at Symposium on the Future of Legal Services, 25 Fordham Urb. L.J. 345 (1998).

"Open Legal Questions Remaining After Iran-Contra," in PRESIDENT REAGAN AND THE WORLD (Greenwood Press, 1997) (Eric J. Schmertz et al., eds.).

Book Review of David Thomas Konig's DEVISING LIBERTY, 16 Am. J. Legal Hist. 130 (1997).

A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment, 81 Iowa L.R. 883 (1996), partially reprinted as "The Old Problem of New Communications Technologies: Can We do Better This Time?", in LAW AND THE ARTS

(Greenwood Press, 1999) (Susan Tiefenbrun, ed.) and as "History and Decency: Overcoming the Threat of an Inside-Out Approach," in REAL LAW@VIRTUAL SPACE: COMMUNICATION

REGULATION IN CYBERSPACE (Hampton Press, 1998; revised for 2d ed. 2005) (Susan J. Drucker and Gary Gumpert, eds.).

The Suspension Clause in the Ratification Debates, 44 Buff. L.R. 451 (1996).

GROUP DEFAMATION AND FREEDOM OF SPEECH: THE RELATIONSHIP BETWEEN LANGUAGE AND VIOLENCE (Greenwood Press, 1995) (edited with Monroe H. Freedman).

Why Constitutional Lawyers and Historians Should Take a Fresh Look at the Emergence of the Constitution from the Confederation Period: The Case of the Drafting of the Articles of Confederation, 60 Tenn. L.R. 783 (1993).

Challenging Law Students Through the Pretrial Litigation Course: Integrating Learning by Taking a Simulation Approach, and Letting the Campus Computer Network Help (National Institute for Trial Advocacy, 1992) (with Andrew Schepard).

Innocence, Federalism, and the Capital Jury, 18 N.Y.U. Rev. Law & Soc. Change 315 (1990-91).

Freedom of Information and the First Amendment in a Bureaucratic Age, 49 Brooklyn L.R. 829 (1983).

American Libel Law 1825 - 1896: A Qualified Privilege for Public Affairs?, 30 Chitty's L.J. 113 (1982).

Libel Law and the Preservation of the Republic 1787 - 1825, 30 Chitty's L.J. 176 (1982).

Book Review of John Hart Ely's DEMOCRACY AND DISTRUST, 48 Brooklyn L.R. 391 (1982).
Note, The United States and the Articles of Confederation: Drifting Toward Anarchy or Inching Toward Commonwealth?, 88 Yale L.J. 142 (1978).
Complementarity versus Similarity of Traits Operating in the Choice of Marriage and Dating Partners, 105 J. Social. Psyc. 147 (1978) (with Amnon Till).

General

Senate Must Shed Light on Detainees' Rights Bill, Newsday, November 18, 2005.

Justice Imperiled: The Anti-Nazi Lawyer Max Hirschberg in Weimar Germany (Book Review), The Champion, November 2005.

No New York Execution is in Sight, Newsday, December 30, 2003.

The Constitutional Archipelago, Hofstra Chronicle, November 20, 2003.

Peace Pact: The Lost World of the American Founding (Book Review), N.Y. L.J., June 20, 2003.

Hamdi and the Case of the Five Knights, Legal Times, February 3, 2003.

A Weakening Judiciary, Natl. L.J., November 11, 2002.

The Bush Military Tribunals: Where Have We Been? Where Are We Going?, Criminal Justice, Summer 2002.

Pixelized Pixies: Chasing Virtual Smut, Natl. L.J., October 8, 2001, a revision of Pondering Pixelized Pixies, Communications of the Association for Computing Machinery, August 2001.

Black-Jewish Relations on Trial (Book Review), N.Y. L.J., July 10, 2001.
A Tough Call Made Openly and Honestly, Newsday, December 10, 2000.

Legal Argument Alone Won't Suffice, Newsday, November 21, 2000.

Wait a Few Months to Judge Senate, Newsday, January 29, 1999.

The House Botched Impeachment Hearings, Newsday, November 24, 1998.

House Should Consider Censure Option, Newsday, September 14, 1998.

Clinton and the Irresistible Urge of History, Legal Times, August 3, 1998.

Achieving Political Adulthood, Nexus, Spring, 1997.

The Case Against the Death Penalty, USA Today Magazine, March, 1997, reprinted in TAKING SIDES (McGraw-Hill 2001) (George McKenna and Stanley Feingold, eds.).

To Catch a King, Legal Times, March 10, 1997.

The First Amendment Also Applies to Lawyers, Natl. L.J., September 11, 1995.

Tinkering With the Machinery in Capital Cases, Natl. L.J., August 23, 1993.

Vertical and Horizontal Separation of Powers in the Constitution of the United States of America, Europske a Mezinarodni Pravo ("European and International Law"), Winter, 1992.

Can Justice be Served by Appeals of the Dead?, Natl. L.J., October 19, 1992.

Habeas Corpus Cases Re-Wrote the Doctrine, Natl. L.J., August 19, 1991.

Presidential Paradox, Natl. L.J., August 12, 1991.
Controlling the Capital Jury: How Much Rationality is Too Much?, ABA Preview, December, 1989.

Press Clippings

No Threat Seen to NY's Laws, Newsday, June 27, 2008

Lessons from Past Guide Future, Newsday, June 17, 2008

Justices, 5-4, Back Detainee Appeals for Guantanamo, The New York Times, June 13, 2008

Standards of Obscenity Are Murky, Tampa Tribune, June 6, 2008

La. Supreme Court Considers Parish Rape Case, The Journal of Jefferson Parish, April 25, 2008

ACLU to Back Up Defense of 9/11 Detainees, The Wall Street Journal, April 4, 2008

A Mall's Rights, Newsday, March 31, 2008

Supreme Court Overturns Murder Conviction in La. Prosecutor's 'O.J. Simpson Case', The Associated Press, March 19, 2008

Trial Could Put Focus on Interrogation Administration Practice may be Key in 9/11 Cases, The Boston Globe, February 12, 2008

U.S. Said To Seek Execution For 6 In Sept. 11 Case, The New York Times, February 11, 2008

Death Penalty Sought for 'Brains' of 9/11, Newsday, February 11, 2008

Justices To Review a Key Habeus Corpus Case do Detainees Get Judicial Review?, The National Law Journal, December 3, 2007

What's a Fair Sentence for Jose Padilla?, Christian Science Monitor, December 3, 2007

U.S. Mulls New Status Hearings for Guantanamo Inmates, The New York Times, October 15, 2007

A Justice's Scribbles on Journalists' Rights, The New York Times, October 7, 2007

Judge Upholds Tough Sentence in Murder Case, Newsday, September 22, 2007

Greasing the Wheels On the Machinery of Death, The New York Times, August 20, 2007

Tough Sentence in Killing Thrown Out, Newsday, August 8, 2007

The Well Qualified Juror, Trial, August 1, 2007

Trashing the Truth Destruction of Evidence, The Denver Post, July 22, 2007

Execution of Ga. Man Near Despite Recantations, The Washington Post, July 16, 2007

U.S.: Supreme Court Ruling Paves Way for Death Sentences, Inter Press Service, July 3, 2007

U.S. Supreme Court to Review Legitimacy of Guantanamo Detainees' Captivity, Canadian Press NewsWire, June 29, 2007

Good News or Bad News? Supreme Court Agrees to Hear Gitmo Detainee Case, In This Moment, June 29, 2007

US Supreme Court Agrees to Hear Guantanamo Detainee Appeal, Voice of America News, June 29, 2007

Supreme Court Justices Grant Guantanamo Bay Detainee Cases, The Associated Press, June 29, 2007

When 'Enemy Combatants' Aren't, St. Petersburg Times, June 17, 2007

U.S. Detainee Policy Comes Under Fire, US Fed News, June 14, 2007

The Line Between Civilian and Soldier, The New York Times, June 13, 2007

Bush Comes Up Empty, Washingtonpost.com, June 13, 2007

Court Ruling Expected to Spur Convictions in Capital Cases, The New York Times, June 9, 2007

University at Albany's Capital Punishment Research Initiative Adds Distinguished Scholars to Advisory Board, US States News, June 5, 2007

Guantanamo Detainees' Suit Challenges Fairness of Military's Repeat Hearings, The New York Times, May 15, 2007

Court Looks at Detainee 'Do-Overs', UPI, May 15, 2007

Grasping at a Tape in 1963 Bombing Case Convicted Bomber Seeks Appeal; Points to Tape Enhanced, The National Law Journal, April 30, 2007

Legal Community Tackles Question of Due Process Rights for Detainees, New York Law Journal, March 30, 2007

Pols Try to Ban Camera; 3 Smithtown Board Members Send Letter to Resident That Says His Taping of Public Meetings is 'Obtrusive', Newsday, March 29, 2007

Trial Could be a Spellbinder, Newsday, March 6, 2007

Defense Bids to Avert Death Penalty in Bonistall Slaying, The Journal News, February 5, 2007

The Nation; Habeas Corpus and an Era of Limits; Constitution Says Those in Custody Can Seek Liberty in Court, But What of Guantanamo?, Los Angeles Times, January 30, 2007

Report from Governmental Affairs, ABA Journal, January, 2006

Supreme Court may be Headed Toward Raising Standards, Austin American-Statesman, October 29, 2006

Sloppy Lawyers Failing Clients on Death Row, Austin American-Statesman, October 29, 2006

Justices Signal Dismay at Texas: Decision to Hear Capital Cases May Suggest High Court Questions Handling, The Dallas Morning News, October 26, 2006

West Virginia U. Experts Weigh in on Habeas Corpus Decision, University Wire, October 23, 2006

Law's Reach Extends to Jails in U.S., Los Angeles Times, October 18, 2006

Defendant's Disadvantage; Some say Forcing Juries to Deliberate After Stalemate Puts Power in Hands of Majority Over Holdouts, Newsday, October 17, 2006

Letting the President Say, Time, October 9, 2006

A Last Hurdle for Bill on Detainees: Access to US Court, Christian Science Monitor, September 27, 2006

Terror Politics; Intraparty Dispute? What Intraparty Dispute?, The Hotline, September 25, 2006

Letters, Newsday, September 25, 2006

Detainee Deal Comes With Contradictions, The New York Times, September 23, 2006

The Limits of Presidential Power, The New York Times, September 19, 2006

Retired Federal Judges Weigh in Against Bush on Detainees, The Associated Press, September 14, 2006

Death-Row Lawyers Hail Supreme Court's Ruling, Daily Record, June 13, 2006

High Court Scrutinizing Capital Cases, Los Angeles Times, June 13, 2006

Inmates Given a Chance to Dispute Lethal Injection: Ruling in a Florida Case, the U.S. Supreme Court gave Convicted Killers on Death Row the Chance to Claim that Lethal Injection Violates Their Civil Rights, The Miami Herald, June 13, 2006

Death Penalty Rulings; Caution on Capital Punishment, ABC World News Tonight, June 12, 2006

Supreme Court Allows Lethal Injection Challenge, The Miami Herald, June 12, 2006

Supreme Court Won't Consider Direct Challenge to Lethal Injection, The Associated Press State & Local Wire, May 22, 2006

Corps of Engineers Called Dysfunctional, The Bismarck Tribune, May 23, 2006

Judge Chipped Away at Lisker Evidence, Los Angeles Times, May 6, 2006

Moussaoui Verdict Highlights Where Juries Fear to Tread, The New York Times, May 5, 2006

Trouble Finding Inmate's Vein Slows Lethal Injection in Ohio, The New York Times, May 3, 2006

Federal Victory in Terror Case May Prove Brief, The New York Times, April 27, 2006

Gauging Effects of a Death-Penalty Change, National Public Radio: All Things Considered, April 24, 2006

U.S. Suffers Setback in Case Of Alleged Enemy Combatant, The Washington Post, April 21, 2006

Moussaoui Arguments, Newsday, April 6, 2006

Moussaoui Trial - Deciding his Fate, Newsday, April 4, 2006

One Life Inside Gitmo, Time, March 13, 2006

Judge to Lawyer: Disclose Information on Wiretapping, The New York Sun, March 8, 2006

U.S. Man Held in Iraq Fights Move to Iraqi Custody, National Public Radio: All Things Considered, February 8, 2006

U.S. Supreme Court Considering Florida Death Cases, The Associated Press State & Local Wire, February 1, 2006

Awaiting Next Word in 17-Year-Old Murder Case, The New York Times, January 3, 2006

Little Help From Justices on Spy Program, The New York Times, December 23, 2005

In Terror Cases, Administration Sets Own Rules, The New York Times, November 27, 2005

Factors Vary in Naming Enemy Combatants, Saint Paul Pioneer Press, November 27, 2005

Still Searching For a Strategy, The New York Times, November 23, 2005

Terror Suspect Jose Padilla Indicted, Getting his Day in Court, The Associated Press, November 23, 2005

Padilla Indicted as Terror Plotter, The Star-Ledger, November 23, 2005

Terror Suspect Padilla Indicted - Accused of Overseas Plot, The Associated Press, November 22, 2005

Senate Must Shed Light on Detainees' Rights Bill, Newsday, November 18, 2005

The Senate Speaks Out on Torture, The New York Times, October 11, 2005

Wrongfully Convicted Get Ally on Bench; La. High Court Judge Sponsors Measure, Times-Picayune, August 21, 2005

Congress Looks at More Limits on Habeas Quiet Push Alarms Writ Supporters, The National Law Journal July 25, 2005

A Chance for Bush to Tilt Court to Right, Newsday, July 3, 2005

Justices Overturn a Death Sentence, Citing an Inadequate Defense Counsel, The New York Times, June 21, 2005

A Possible Conflict for DeLay?, Newsday, June 17, 2005

Inside a Gitmo Review, Newsday, June 17, 2005

We Couldn't Deliver; No Clarity Found on Death Penalty; Session Ends Without Guidance on Defendants Who May be Retarded, The Dallas Morning News, May 31, 2005

Rehnquist to Keep Working at Home, Los Angeles Times, February 19, 2005

Outsourcing Torture; The Secret History of America's "Extraordinary Rendition" Program, The New Yorker, February 14, 2005

Federal Judge in Washington Rules in Favor of Detainees Held at Guantanamo Bay, National Public Radio: All Things Considered, January 31, 2005

Travel Logistics Delay Detainee's Repatriation; Australian Not Being Allowed to Use U.S. Airspace, The Washington Post, January 20, 2005

Supreme Court Sidesteps Guantanamo Bay Terror Suspect Case, The Associated Press, January 18, 2005

When Life Takes Unexpected Twists, New York Law Journal, January 14, 2005

Death Case With New York Defenders Sent Back to Florida, New York Law Journal, December 14, 2004

Death Sentences in Texas Cases Try Supreme Court's Patience, The New York Times, December 5, 2004

This Week's News, New York Law Journal, November 16, 2004

Guantanamo Trial Is Ruled Unlawful, Los Angeles Times, November 9, 2004

News in Brief, "Court Considers Attorney Standards in Death Penalty Case," New York Law Journal, November 4, 2004

Who's Held at Guantanamo? --- Detainees Tell Their Stories; Some Cite Mistaken Identity, Others, Altruism Gone Awry. The Wall Street Journal, November 1, 2004

Appeals Court Turns State Down/Full Panel Won't Hear Case to Keep Records Sealed in 1982 Murder, Richmond Times Dispatch, October 27, 2004

Execution May Occur Despite Votes of 7 Judges, The New York Times, October 7, 2004

A 'Smashing Victory' for Washington/Appeals Panel: State Police Must Release Most Papers; Kilgore Seeks a Rehearing, Richmond Times Dispatch, October 2, 2004

In First Rulings, Military Tribunals Uphold Detentions of 4, The New York Times, August 14, 2004

Eyes on Tankleff Case, Newsday, July 25, 2004

Times Square Billboard Battle Ends in a Compromise, Inter Press Service, July 21, 2004

Lone Star State Executions may be Under Microscope, San Antonio Express-News, July 8, 2004

Lawyers File Suits To Set Categories In Detainee Cases, The Wall Street Journal, July 6, 2004

Death Penalty: Court Roster May Be Key To Its Future, The New York Times, June 26, 2004

Justices Say Death Row Inmate With Low IQ Deserves Appeal, Los Angeles Times, June 25, 2004

They Can't be Put to Death; In 4-3 Decision, State's Highest Court Rules that 'Deadlock' Instructions to Jury in Capital Punishment Cases Violate the Constitution, Newsday, June 25, 2004

Bowing to an Extradition Deal, U.S. Will Forgo Death Penalty, The New York Times, June 19, 2004

Confusing Regulations Concerning Massachusetts' Same-Sex Marriage Law, National Public Radio: Day to Day, May 14, 2004

Foes Sue Justices of SJC in US Court Seek Federal Order to Halt Gay Nuptials, The Boston Globe, May 11, 2004

Gay Marriage: Last Minute Lawsuit Filed to Stop Same-Sex Marriage The Hotline, May 11, 2004

New Tests For Law, Newsday, April 25, 2004

Executives on Trial: Tyco Executives May Not Benefit From a Mistrial, The Wall Street Journal, March 29, 2004

Death Row Appeal Challenges Rule Limiting Filings, The Boston Globe, February 17, 2004

A Fickle High Court is Causing Confusion; Varied Death Penalty Cases Have Experts Wondering What's Next, Austin American-Statesman, January 27, 2004

Debating Death, The News & Observer, January 27, 2004

Supreme Court Clashes Over New Frontier in Death Row Appeals, The Associated Press, January 22, 2004

Killer's Lawyers Seek to Raise Standard of Proof for Death Penalty, The New York Times, January 11, 2004

ABA Death Penalty Guidelines Languish Opponents Point to the Cost as Supporters Argue for Better Representation, The National Law Journal, January 5, 2004