Past Issues

This article analyzes the behavior of Justice David Souter in criminal justice cases and concludes that, based upon a qualitative analysis of his written opinions as well as an empirical analysis of his voting record, Justice Souter has recently exhibited a strong shift to the liberal end of the ideological continuum.  Most significantly, however, the conservative counterrevolution that began with President Richard Nixon's appointments to the Supreme Court in the early 1970s has failed, in large part, due to Justice Souter's judicial record of supporting the rights of criminal defendants in the last decade.

This article evaluates whether or not, in the six-and-a-half years since the bombing of the World Trade Towers and the Pentagon, the nation's courts have been more willing to acquiesce in criminalization based on only suspicion.  The article seeks to accomplish this evaluation by comparing decisions of the United States Supreme Court and the high courts of the states in the six years before and after 9/11/2001.

The article begins by providing definitions of criminalization, suspicion, and reasonable suspicion, based on policy and precedent. Based on the composite of these definitions it next provides a definition of what this article means by criminalizing suspicion.  The second section of the article begins with a comparative analysis of the opinion of the United States Supreme Court in Hiibel with the most pertinent of the Court's precedents that preceded that decision.  The section continues with surveys of reactions to Hiibel by the U.S. Supreme Court, commentators, and the states' legislatures and supreme courts.

The third section of the article is its core - a comparative examination of the decisions of the states' supreme courts in the six- year periods before and after 9/11/2001.  This principal section of the article examines decisions of the state supreme courts that substantively are fairly characterized as implicating the issue of whether to sanction the constitutionality of criminalizing suspicion.  The article concludes with perspectives, including exploring future implications of its key findings and reforms.

Disclaimers are a common feature of public and commercial life.  Disclaimers arise, for example, in establishment clause cases in general, and of late, in public school evolution textbook disclaimer cases in particular.  Disclaimers may also be thought of as a remedy for compelled speech, or as themselves an instance of compelled speech.  In addition, commercial speech is a fertile source of disclaimer problems, as in commercial advertising by professionals, in the marketing of securities, and in the making of health claims on behalf of dietary food supplements.

The law should rebuttably presume that disclaimers - their text or terms - should not be given significant legal weight in their own right, apart from the relevant surrounding circumstances, social conflicts, power relationships, independent rules, and other considerations of public policy.  Legal disclaimers arise as a consciously strategized move - often an attempt to exonerate, to reassure or allay suspicion, or to shift the burdens of a risk - in a "game" between perhaps unequal players.  Normally, a disclaimer implies some sort of pre-existing tension that it is meant to address.  Disclaimers arise in the context of power relationships, varied conflicts of interest, and strategic purposes, all of which may implicate questions of public policy and legal values.  These underlying questions cannot be meaningfully addressed by any judicial reading of the text or terms of the disclaimer itself.  We should instead ask the courts to treat the litigated disclaimer merely as an invitation to consider the underlying relevant circumstances, values, conflicts, power relationships, rules, and public policy considerations apart from the disclaimer itself.

In copyright infringement litigation, the difficulty of determining substantial similarity has led to many proposed models in academic writing, and many commentators argue that the judicial development of the substantial similarity analyses has led to continued uncertainty and poor frameworks for litigation.  This article argues that courts should continue to employ the judicially-developed substantial similarity analyses.  The academic articles on this topic have confused the jury with the "lay listener" and have failed to identify a cognizable problem with the current tests beyond their desire to easily predict outcomes.  Without a defined problem, the lay listener test should be accepted along with the non-specialized jury's involvement in that determination.  This approach conceptually agrees with the idea that an important element of musical composition is the audience's perception.

The United States Federal Sentencing Guidelines of 1984 were created to essentially eliminate disparities that had existed in the sentences of similarly situated offenders, particularly in white-collar cases.  These Guidelines created maximum and minimum sentences which resulted in stiffer sentences to white-collar criminals.  However, in 2005 the Supreme Court in United States v. Booker, reduced the Guidelines to merely advisory.  This resulted in reduced sentences for white-collar criminals by allowing judges to deviate from the Guidelines and use subjective factors that were more beneficial to white-collar criminals.  Then, in December of 2007, the Court effectively eliminated the Guidelines entirely in Gall v. United States.  Although the Guidelines were drafted to increase the likelihood of imprisonment and the length of sentences in white-collar cases, the Gall decision should generally weaken the power of the Guidelines, resulting in shorter sentences for white-collar criminals.

THE ORIGINAL UNDERSTANDING OF THE NEW HAMPSHIRE CONSTITUTION'S EDUCATION CLAUSE

CIVIL DISOBEDIENCE AND THE NECESSITY DEFENSE