Abstract

In this article, Professor Richard L. Aynes, who was cited for his research by the majority in McDonald, delivers his critique on the opinion, the concurrence, and the dissent.  Professor Aynes provides an in-depth analysis of Justice Thomas’ concurrence, which asserts the proper vehicle for incorporation to be the Fourteenth Amendment’s Privileges and Immunities Clause, as opposed to the traditional method employed by the court – the Due Process Clause. With contemporary legal scholarship in agreement with Justice Thomas, Professor Aynes asserts that just as the Privileges and Immunities Clause commanded the support of a ratifying nation, "it will yet command a majority of the Supreme Court" Examining the dissenting opinions of Justice Stevens and Justice Breyer, Professor Aynes posits that that because their reasoning is devoid of any historical analysis of the original intent of the Fourteenth Amendment, the dissenters’ conclusion is fundamentally flawed. Lastly, Professor Aynes hypothesizes what McDonald will mean for the future of Second Amendment application against the states.

Abstract

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

Abstract

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, explicit statements as to their positions on issues; (2) the First Amendment right of entities to support with unlimited resources, judicial candidates, and often without disclosure of the real source of this campaign support; and (3) that any restrictive rules on judicial behavior are enforced by the involved judges themselves, or by the limited oversight that courts will exercise over their colleagues.

Abstract

The Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts heralds a dramatic change for Confrontation Clause jurisprudence and for most criminal trials. Crawford v. Washington held that “testimonial” statements were admissible only if the accused had a prior opportunity to cross-examine the witness. Melendez-Diaz applied this rule to forensic evidence, holding that certificates of analysis—used in a drug trial to prove the nature and weight of the proscribed substances, and sworn to and signed by the analysts who performed the tests—are testimonial.

This article analyzes Melendez-Diaz’s implications for the Court’s Confrontation Clause jurisprudence and for the criminal justice system. In Part II, Stevens focuses on doctrine, analyzing the decision and exploring what the dueling opinions tell us about the meaning of the Confrontation Clause and the future of Crawford. Stevens concludes her analysis by discussing the decision’s real-world impact, outlining its costs and benefits as predicted by the majority and dissent, and explaining why neither opinion gets its cost-benefit analysis quite right.

Abstract

In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges - whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth Amendment would do is at odds with the decision reached in McDonald.

Abstract

In this article, Professor Allison Hayward seeks to refute the criticisms leveled at the outcome in Citizens United. Professor Hayward maintains that the “long-standing precedent” overturned by the majority was not firmly rooted, having only been around for a mere 20 years. She further argues that Citizens United is a proper application of First Amendment doctrine. Lastly, Professor Hayward argues that corporations play an important role in our society, most especially those non-profit entities which so often are associated with political advocacy.