Law Commons^™

Originalism As An Anchor For The Sixth Amendment, Jeffrey L. Fisher

Jeffrey L Fisher

Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.

When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the …

The Exxon Valdez Case And Regularizing Punishment, Jeffrey L. Fisher

Jeffrey L Fisher

In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore …

Preface: Reclaiming Criminal Procedure, Jeffrey L. Fisher

Jeffrey L Fisher

The key to making sense of Crawford is to appreciate that the decision turned the right to confrontation from an evidentiary principle back into a criminal procedure right. As the Court ultimately put it, the Confrontation Clause "commands . . . that reliability be assessed in a particular manner by testing in the crucible of cross-examination. The Clause Thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

This way of conceptualizing a constitutional right is unique to criminal procedure. Instead …