Recent Commentary from Inter Alia

YLPR’s online edition
Dylan O. Keenan
Saturday, September 15, 2012 - 4:00pm

In Crawford v. Washington, the Supreme Court radically transformed Confrontation Clause doctrine. Immediately after Crawford, commentators predicted dire consequences for criminal prosecutions. These predictions have been renewed after each refinement of Crawford’s doctrine. So far, however, the sky has not fallen, because prosecutors and courts have managed to reconcile Crawford’s robust confrontation rights with the practical imperatives of criminal prosecution.

This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases. DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time. DNA evidence has been particularly important for prosecuting rape cases, which historically have low conviction rates. Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.

I argue that state legislatures and Congress can ensure that DNA evidence is available in cold-case prosecutions while simultaneously respecting defen­dants’ post-Crawford confrontation rights. Specifically, both state and federal policy makers should alter rules of evidence to include decades-old DNA database evidence under ancient document exceptions to hearsay rules.

Jamin B. Raskin
Tuesday, March 20, 2012 - 1:15pm

People complain that gerrymandering ruins redistricting. But, in the real world, redistricting is gerrymandering. As we look for ways to transcend the glaring defects of single-member districts and the redistricting process, the dynamics of political self-interest make it likely that courts, along with third parties, independent voters, and civic reform movements like the League of Women Voters and Common Cause, will have to become the driving catalysts for change. If these outside actors fail to shock the system, the maps will grow ever more fanciful, the public will grow ever more disenchanted, and the processes of representation will remain stuck, antiquated, and profoundly demoralizing.

Mark I. Harrison
Monday, March 5, 2012 - 2:30pm

In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

Barry R. Schaller
Sunday, January 22, 2012 - 10:30am

Elected judges are not alone in having to deal with politics and politicians throughout their careers. This Essay discusses the ethical implications of judicial contacts with politics in states in which judges are appointed and reappointed for limited terms through the political process. A possible subtitle for this Essay might be: “Can appointed judges have a normal life while complying with the American Bar Association (ABA) Model Code of Judicial Conduct (Model Code) within the political universe where they work and live?” I write from the perspective of a judge who has run the gauntlet of multiple appointments, elevations, and confirmation processes in Connecticut over the course of more than thirty-seven years. I also offer the perspective of the chair of a judicial ethics advisory committee that, during the three years of its existence, has issued more than 130 ethics opinions, of which approximately ten percent related to political issues involving judges.

Ian Millhiser
Tuesday, November 15, 2011 - 4:45pm

There is an alternate universe where everything violates the Tenth Amendment—and much of Congress lives in it. Senator Tom Coburn believes that all federal education programs, from Pell Grants to Title I to student loans, violate the Constitution. Senator Rand Paul thinks that the federal ban on whites-only lunch counters is forbidden. Senator Mike Lee believes that child labor laws, federal disaster relief, food stamps, the Food and Drug Administration, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. And, of course, half Congress thinks that health reform is unconstitutional.

Surely it cannot be the case that nearly 100 years worth of major legislation violates the Constitution?

And yet, there is a growing movement on the American right that believes just that. Part I of this Essay begins in familiar territory: the battle over the Commerce Clause. It explains how the ubiquitous lawsuits challenging the Affordable Care Act (ACA) are animated by the same interpretative methodology that characterized the infamous Supreme Court decision concerning child labor laws, Hammer v. Dagenhart—a methodology which allows judges to impose novel and extra-textual limits upon Congress’s enumerated powers. As this Part makes clear, a legal theory that would strike down the ACA bears no resemblance to the much more modest limits on congressional power outlined by modern cases such as United States v. Lopez and United States v. Morrison. Unlike Lopez and Morrison, cases like Hammer and the two recent district court decisions striking down the ACA have no grounding in constitutional text.

Part II dives even further back into constitutional history. It explains that a growing number of prominent conservatives, including many current Members of Congress, want to revive a 230-year-old constitutional “ghoul” which would so completely eviscerate federal power that even the Lochner-era Supreme Court unanimously decided that it must remain buried. Under these conservatives’ vision of congressional power, cherished federal spending programs such as Social Security, Medicare, Medicaid, and Pell Grants would all cease to exist. The Essay concludes by briefly exploring why the emergence of these unusual constitutional views among elected lawmakers is sadly likely to influence judicial decisions in the future.

Michael Lee
Friday, September 9, 2011 - 9:15am

In the shadow of a Presidential veto, it will be impossible to repeal health care reform completely—despite the overwhelming number of additional seats Republicans won in the 2010 election. Congress could, however, strip implementation funding from the Patient Protection and Affordable Care Act (PPACA) and its companion bill, the Health Care and Education Reconciliation Act (HCERA), known jointly among detractors as “Obamacare,” and more properly as the Affordable Care Act (ACA). Defunding the health care bill has been advocated by Republican leaders such as Rep. John Boehner (R-OH) and Sen. John McCain (R-AZ), who view the ACA as simultaneously unpopular and counterproductive. The economics of the bill do appear unsustainable, and the ACA may unravel American health insurance entirely. This Essay, however, argues that because the bill functions as a single, coherent whole, even ardent opponents of the bill should avoid slashing funding. Stripping out certain provisions while leaving others intact would result in a vastly more destructive and incomprehensible package—and incalculable damage to the the party authoring the alterations.

Even if health care reform is viewed as a ticking time bomb, defunding would produce shrapnel that would be vastly more destructive than the bomb would have been on its own.

Susan P. Crawford
Tuesday, June 1, 2010 - 2:30pm

Labels are important in policy debates. The “broadcast flag” effort was very nearly successful in forcing all devices capable of receiving television broadcasts (including PCs) to be designed in order to protect “flagged” content. Who could be against a flag? By contrast, “net neutrality” advocates have had difficulty convincing anyone to care about something that sounds so, well, neutral.

One effective label that has often been used during the first two years of the Obama administration is the “looming spectrum crisis.” FCC Chairman Genachowski said in October 2009: “I believe that that the biggest threat to the future of mobile in America is the looming spectrum crisis.” As the crisis loomed, the administration—worried about the lack of spectrum allocated for high-speed Internet access—declared it would re-allocate 500 MHz of spectrum. There is a hunt on for spectrum: Every closet in every agency is being searched. Looming. Crisis.

It may be time for yet another label to enter the lists: “the looming cable monopoly.” It is gaining strength, and it is not terribly interested in the future of the Internet. This is the central crisis of our communications era.

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