http://www.akronconlawjournal.com/This is the Online Akron Journal of Constitutional Law and PolicyFri, 24 Jun 2011 11:57:00 ESTen-us http://www.akronconlawjournal.com/articles/Aynes_ConLaw_6-21-11.pdf http://www.akronconlawjournal.com/articles/Aynes_ConLaw_6-21-11.pdf Fri, 24 Jun 2011 09:23:57 EST 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. by Richard L. Aynes http://www.akronconlawjournal.com/articles/Park_ConLaw_2010-2011.pdf http://www.akronconlawjournal.com/articles/Park_ConLaw_2010-2011.pdf Fri, 03 Jun 2011 09:24:53 EST 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. by Jack Park http://www.akronconlawjournal.com/articles/Belsky_ConLaw_2010-2011.pdf http://www.akronconlawjournal.com/articles/Belsky_ConLaw_2010-2011.pdf Fri, 27 May 2011 09:30:34 EST 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. by Martin H. Belsky http://www.akronconlawjournal.com/articles/Stevens_ConLaw_2010-2011.pdf http://www.akronconlawjournal.com/articles/Stevens_ConLaw_2010-2011.pdf Sat, 07 May 2011 09:31:02 EST 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. by Elizabeth Stevens http://www.akronconlawjournal.com/articles/patrick-charles.pdf http://www.akronconlawjournal.com/articles/patrick-charles.pdf Tue, 12 Apr 2011 09:31:22 EST 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. by Patrick J. Charles http://www.akronconlawjournal.com/articles/citizens-united-correct-modest-and-overdue.pdf http://www.akronconlawjournal.com/articles/citizens-united-correct-modest-and-overdue.pdf Tue, 15 Mar 2011 09:31:49 EST 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.   by Allison R. Hayward http://www.akronconlawjournal.com/articles/the-roberts-court-takes-a-sledge-hammer-to-ashwander-and-cautious-constitional-jurisdprudence-citizens-united-v-federal-election-commission.pdf http://www.akronconlawjournal.com/articles/the-roberts-court-takes-a-sledge-hammer-to-ashwander-and-cautious-constitional-jurisdprudence-citizens-united-v-federal-election-commission.pdf Mon, 20 Sep 2010 09:40:14 EST In this January's decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hillary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial! by Alan Shoenberger http://www.akronconlawjournal.com/articles/chief-justice-roberts-and-the-forty-thieves.pdf http://www.akronconlawjournal.com/articles/chief-justice-roberts-and-the-forty-thieves.pdf Sun, 19 Sep 2010 09:41:07 EST "What's in a name? That which we call a rose/ By any other name would smell as sweet." Whether or not one agrees with the young Shakespeare about names-and many decidedly do not -numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible-whether in days, months, or years and whether in the books of the Old or New Testament-that features the number forty is most often a time of trial, testing, punishment, or probation; however, the number forty in blockedure also symbolized periods of peace and reward.Thus one cannot help but remark at the rather prominent instantiation of the number forty in a Supreme Court opinion, even a dissent. This occurred in the Supreme Court's June 8, 2009 decision in Caperton v. A. T. Massey Coal Co., a case that has attracted considerable publicity and public interest. The dissenting opinion of Chief Justice Roberts prominently featured forty questions about the scope of, ramifications of, and limitations on the majority's decision. by Keith R. Fisher and Konstantina Vagenas http://www.akronconlawjournal.com/articles/originalism-and-its-tools-a-few-caveats.pdf http://www.akronconlawjournal.com/articles/originalism-and-its-tools-a-few-caveats.pdf Sat, 18 Sep 2010 09:42:22 EST In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court's personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a "debunker," at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent in Heller. Second, new research methodologies can have serious and inherent errors. The interface of law and history can be difficult enough, but the interface of law, history, and optical character recognition software can pose some unique risks. by David T. Hardy http://www.akronconlawjournal.com/articles/on-marriage-religious-freedom-equality-and-homosexuality-a-reply-to-professor-huhn.pdf http://www.akronconlawjournal.com/articles/on-marriage-religious-freedom-equality-and-homosexuality-a-reply-to-professor-huhn.pdf Fri, 17 Sep 2010 09:43:15 EST As Professor Huhn says, there is much on which we agree. I concur that the Free Exercise Clause gives citizens no power to override an Equal Protection decision by the Supreme Court (his answer to his Question 1), or a decision of a state supreme court to compel legal recognition of same-sex "marriage" (SSM) (his answer to his Question 2).We part company, though, over the meaning of equality and its application to marriage. by George W. Dent, Jr. http://www.akronconlawjournal.com/articles/ten-questions-on-gay-rights-and-freedom-of-religion.pdf http://www.akronconlawjournal.com/articles/ten-questions-on-gay-rights-and-freedom-of-religion.pdf Wed, 15 Sep 2010 09:44:08 EST I have prepared a series of ten questions that will progressively narrow the issues concerning gay rights and free exercise rights until we come to the principal point upon which Professor Dent and I disagree - the definition and application of the principle of equality. by Wilson R. Huhn