114 Yale L.J. 781 (2005)

Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy, with recent scholarship calling for further restrictions on owners' rights to destroy cultural property. Yet this property right has received little systematic attention. The Article therefore examines owners' rights to destroy various forms of property, including buildings, jewelry, transplantable organs, frozen human embryos, patents, personal papers, and works of art.

A systematic treatment of the subject helps support a qualified defense of the right to destroy one's own property. For example, an examination of American laws and customs regarding the disposition of cadaveric organs helps one understand and weigh the expressive interests that prompt people to try to destroy jewelry via will. Similarly, an examination of patent suppression case law points toward a form of ex ante analysis that has been deemphasized in opinions involving the destruction of buildings and other structures. And an analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. In advocating a more unified treatment of destruction rights, the Article argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests.

The Article also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of testators' valuable property. Courts and commentators have not given persuasive justifications for restricting testamentary destruction. The Article proposes a safe harbor provision whereby sincere testators who market future interests in their property during their lifetimes and forgo the market prices for those future interests can have their destructive wishes enforced.

114 Yale L.J. 905 (2005)

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and expanded in Blakely v. Washington ), states have been called upon to ensure that trial judges do not usurp the jury's exclusive fact-finding power and thereby violate criminal defendants' Sixth Amendment guaranty of a trial by jury. While the legal framework that protected this Sixth Amendment right has been developing for decades, Apprendi formulated a bright-line rule that prohibits a judge from finding by herself during sentencing, instead of submitting to a jury for determination at trial, any fact that increases a defendant's sentence beyond the prescribed statutory maximum absent that fact. Under Apprendi, scores of factual determinations were taken from judges and placed back in the hands of juries.
 
But while courts have continued to occupy themselves with defining the scope of Apprendi and its progeny, they have remained blind to a more fundamental, and increasingly prevalent, problem. By mechanically examining the effect a factor has on the length of a defendant's sentence in determining whether it must be submitted to a jury, courts have permitted the Apprendi bright-line rule to eviscerate the preexisting substantive method for making that determination.
 
Long before Apprendi, the Court applied a less mechanical, more substantive analysis to determine whether a fact must be submitted to a jury. In Mullaney v. Wilbur, the Court analyzed how the presence or absence of a particular fact related to the underlying crime in order to determine whether or not that fact was indeed an essential element of that crime. Apprendi did not replace or eliminate the need for this Mullaney inquiry; it merely short-circuited the inquiry in cases where the finding at issue increased the sentence beyond the otherwise available maximum sentence.
 
The current widespread misapplication of the Apprendi doctrine threatens the very Sixth Amendment and due process protections Apprendi was designed to safeguard. A recent Connecticut Appellate Court case, State v. Kirk R., illustrates this problem. The Kirk R. court, relying primarily on the Apprendi doctrine, failed to conduct a Mullaney analysis and thereby permitted the finding of a particular element of a crime to be removed from the jury's purview, allowing the trial judge to make his own unilateral determination at sentencing.
 
Part I presents the relevant doctrinal background, describing the continuum between "element of a crime" and "sentencing factor" and demonstrating how Apprendi and its progeny do not--and were never intended to--displace the preexisting and entirely discrete element-of-a-crime analysis. Part II discusses the facts and holding of Kirk R. Part III argues that the Connecticut court improperly relied on the Apprendi doctrine as relevant to, and even dispositive of, this issue; in truth, all Apprendi could have done was remove a special protection from the Kirk R. court's arsenal, forcing the court to then apply Mullaney's more basic element-of-a-crime test. Part IV closes by addressing the impact of Blakely on this Comment's thesis.

114 Yale L.J. 921 (2005)

The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda for war crimes. The commissions are non-Article III courts (although they adhere to many aspects of conventional criminal procedure) and are empowered to try persons designated by the President as eligible for trial by commission for offenses against the laws of war. No trials have yet taken place, although commissions for four detainees have been convened, and fifteen detainees have been designated for trial. Second, combatant status review tribunals (CSRTs) were created in the wake of Hamdi v. Rumsfeld to determine if detainees at Guantánamo Bay are being properly held as enemy combatants. A plurality of the Supreme Court held in Hamdi that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The CSRTs aim to provide that "fair opportunity" to individuals who the government alleges are enemy combatants and hence subject to detention until the end of hostilities.

This Comment's principal goal is to explore the interplay between the military commissions and the CSRTs. A plethora of law review articles have dealt with military commissions, and the CSRTs have been covered at length in the press. There has been almost no effort, however, to analyze how the two institutions fit together or how the lessons of one could be used to solve the potential constitutional problems of the other. This Comment seeks to fill that gap. In particular, it argues that there is a serious constitutional flaw in the military commissions' procedure for establishing personal jurisdiction and that, in an ironic twist, this flaw can be mended through a modest broadening of the scope of the CSRTs' fact-finding powers.

Part I describes the looming due process problem with the military commissions: that there is currently no mechanism by which individuals who dispute their eligibility to be tried by commission can resolve this jurisdictional issue. This Part argues that this aspect of the commissions' procedure is unconstitutional under case law on both Article III personal jurisdiction and unilateral executive designations. Part II contends that this due process problem can best be solved by expanding the decisionmaking range of the CSRTs. Rather than merely determining whether a detainee is an enemy combatant, the CSRTs should also decide whether a detainee found to be an enemy combatant is a lawful combatant, immune from trial by military commission, or an unlawful combatant, subject to such trial. Part II also argues that the CSRTs are better positioned to make this determination than either conventional courts or the military commissions themselves. Part III concludes.