Edward L. Imwinkelried, Rethinking the Limits of the Interpretive Maxim of Constitutional Avoidance: The Case Study of the Corroboration Requirement for Inculpatory Declarations Against Penal Interest (Federal Rule of Evidence 804(b)(3)).
44 Gonz. L. Rev. 187 (2009)
Federal Rule of Evidence 804(b)(3) codifies the hearsay exceptions for declarations against penal interest, requiring that when the defense offers a third party's declaration exculpating the accused, the defense must present corroboration for the declaration. The statutory language does not purport to impose a similar requirement when the prosecution offers a third party's declaration inculpating the accused.
This differential treatment of prosecution and defense hearsay seems at odds with the Federal justice system's commitment to evenhandedness, and may even be unconstitutional. In response to these criticisms, most courts have invoked the interpretive maxim of constitutional avoidance, and have read a corroboration requirement for prosecution hearsay into the Rule.
Two recent developments, however, necessitate a rethinking of these courts' interpretations. First, two recent Supreme Court cases have undermined the idea that a corroboration requirement is necessary to satisfy the Sixth Amendment's Confrontation Clause. Second, the emergence of textualism as the dominant modern approach to statutory interpretation eviscerates the decisions of those courts which read a corroboration requirement for prosecution into the Rule because a "plausible" reading of the Rule's language does not support such an interpretation.
Thus, Professor Imwinkelried criticizes the decisions of courts which have invoked the constitutional avoidance maxim in interpreting Rule 804(b)(3). Using this criticism as a launching pad, Professor Imwinkelried then explores the broader question of the impact of textualism on the constitutional avoidance maxim. Professor Imwinkelried then concludes that textualism should tighten the application of many other popular interpretive maxims.
Jack Van Doren, A Restatement of Jurisprudence: Why Not?
44 Gonz. L. Rev. 159 (2009)
In a thoroughly delightful postmodern work, Professor Emeritus Jack Van Doren tackles the origins of the Restatement Movement, their purpose, criticisms arising out of the movement, and proposes (perhaps facetiously) a Restatement of Jurisprudence.
After reviewing the early history of the Restatement movement, Professor Van Doren posits that the purpose of the Restatements was to bring an order out of the welter of cases that courts had decided. In short, the Restatement promoters sought to ward off legislation and preserve the common law in which they ruled supreme.
Professor Van Doren then highlights that once the Restatements were initially published, Realists criticized the project, calling it fantastic (in the sense that the Restatements were unrealistic and ill conceived), and pointing out that it was really window dressing for decisions made on policy grounds seldom articulated.
Professor Van Doren then tackles the mainstream acceptance of the Restatements, noting that some Realists were co-opted into the movement, e.g. Professor Karl Llewellyn. This move prefigured a shift from "law as rules" to "law as an instrument of reform." As a result of this revisionary process, the Restaters placed more conflicting cases and statutes, as well as commentary, into subsequent versions of the Restatements, and thereby devastated the clarity supposedly provided by their works. Moreover, as Professor Van Doren highlights, the putative "clarity" of the Restatements was further disfigured when lawyer representatives of powerful interests, such as banks, infiltrated the process. Professor Van Doren notes that, even after these experiences, the commentators (perhaps laughably) have proposed a new subject for a Restatement, one that would have an enormously sweeping effect: a Restatement of Canons of Statutory Interpretation.
Professor Van Doren then posits that the Restatement movement's attempt to create order out of chaos has been counterproductive- i.e., that the Restators have only added to the welter of possible sources of law. Nevertheless, the Restatement movement appears to be gaining steam.
Thus, as a tribute to this ill-conceived project, Professor Van Doren proposes the Restatement of Restatements: a Restatement of Jurisprudence! After a skeleton draft of a proposed Restatement of Jurisprudence, this article concludes with the question of whether a Restatement of Jurisprudence should be seriously proposed. Maybe even a Federal Rules of Jurisprudence? Why Not? Whatever reasons one might offer to undermine such a project, do those reasons not apply to the Restatement movement as a whole?
Bryan L. Page, State of Emergency: Washington's Use of Emergency Clauses and the People's Right to Referendum
44 Gonz. L. Rev. 44:219
Mr. Page's article examines the Washington State Legislature's use of emergency clauses in legislation, and the effect these clauses have on exempting laws from referendum. Every year, the use of emergency clauses is a hotly debated topic in the legislature and the public. However, no article dealing exclusively with this topic in Washington has been published since 1964.
Mr. Page's article is the first in Washington to trace the history of the referendum and the emergency clause in Washington, and to outline the historical and current jurisprudence concerning the intersection of emergency clauses and the referendum. Mr. Page argues that the overuse of emergency clauses depletes the benefits of the referendum and suggests ways to reduce the improper use of emergency clauses.
Darrel C. Menthe, Reconciling Speech and Structural Elements in Sign Regulation
44 Gonz. L. Rev. 283 (2009)
Mr. Menthe's article argues that there is a need for a new constitutional standard to evaluate sign regulations under the First Amendment. Signs are both speech acts and structures, so they simultaneously implicate First Amendment principles and land-use regulations. Constitutional analysis of sign regulations must begin to balance both the state's police power and the fundamental right to free speech.
The clash of free speech and police power has resulted in a flawed jurisprudence for signage. Continued application of the "vested rights" doctrine in sign cases is unacceptable where it treats signs as merely property. Other important principles, such as the prohibition on prior restraint of speech, are lacking in sign cases. Of equal concern is that where First Amendment principles are honored, they are tortured in their application. This treatment undermines the principles themselves.
Mr. Menthe's article seeks to explain how courts behave in sign cases and why. It explains how First Amendment principles and land-use regulations pull the courts in very different directions. The former accords broad freedom and is hostile to the state; the latter is deferential to state action, almost to a fault. Faced with applying what are viewed as overly permissive First Amendment precedents or ignoring speech rights altogether, courts too often do the latter.
As a solution, Mr. Menthe's article proposes that signs require distinct constitutional treatment in order to balance both legitimate state interests and free speech. Sign regulations should be evaluated as to whether they place and "undue burden" on the right to speak in light of the important governmental interests (including aesthetic interests) advanced to justify the regulation.
Sue Irion, Comment: The [Un]constitutionality of the N.L.R.A.'s Religious Accommodation Provision
44 Gonz. L. Rev. 325 (2009)
Section 19 of the National Labor Relations Act requires unions to accommodate employees on the basis of religion by permitting religious objectors to "opt out" of a union notwithstanding a union shop agreement. Section 19, however, violates the First Amendment in at least two ways. First, it defines religion by referring to specific denominations, thus creating a denominational preference. Second, it applies only to employees who belong to "bona fide" religion, thus creating a preference for established religions and entangling courts in religion by requiring courts to evaluate religious content.
Title VII similarly contains a religious accommodation clause which has been interpreted to permit religious objectors to opt out of a union. It does not, however, contain the same constitutional infirmities as Section 19, because Title VII defines religion broadly without referring to specific denominations and without requiring inquiry into whether a religion is "bona fide." Upon examining recent case law and building on a 1985 article by W. Roger Sherman, Ms. Irion argues that Congress should repeal Section 19 because Title VII offers employees at least as much religious protection as Section 19, without the constitutional infirmities.
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