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Anyone interested in the Pennsylvania Constitution should read the recent Duquesne Law Review Pennsylvania Issue honoring the late Chief Justice Ralph Cappy. Vol. 47, No. 3.
Christine O'Neill, Closing the Door on Positive Rights: State Court Use of the Political Question Doctrine to Deny Access to Educational Adequacy Claims, 42 Colum. J. L. & Soc. Probs. 545 (2009): discusses Pennsylvania caselaw along with that of other states.
Katrina C. Rowan, Anti-Exclusionary Zoning in Pennsylvania: A Weapon for Developers, a Loss for Low-Income Pennsylvanians, 80 Temp. L.
Rev. 1271 (2007)--comment argues that the great need for affordable housing is not being met under Pennsylvania's unique anti-exclusionary zoning case law because the law focuses on property rights and land uses rather than classes of people and because developers manipulate the curative amendment process.
Colette L. Keilman, State Versus Local Legislation: Legitimizing the Process of Locating Gaming Facilities in Pennsylvania Gaming Control Board v. City Council of Philadelphia, 18 Widener L. J. 609 (2009)--casenote
Jason George Gottesman, Society Hill Civic Ass'n. v. Pennsylvania Gaming Control Board and the Requirement of Administrative Intervention as a Prerequisite to Standing Under the Pennsylvania Gaming Act, 18 Widener L. J. 579 (2009)--casenote.
Carlton F.W. Larson, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, 61 Southern Methodist University Law Review, 1441 (2008) Between September 1778 and April 1779, twenty-three men were tried in Philadelphia for high treason against the state of Pennsylvania. These trials were aggressively prosecuted by the state in an atmosphere of widespread popular hostility to opponents of the American Revolution. Philadelphia juries, however, convicted only four of these men, a low conviction rate even in an age of widespread jury lenity; moreover, in three of these four cases, the juries petitioned Pennsylvania's executive authority for clemency. Since it is unlikely that most of the defendants were factually innocent, these low conviction rates are a
mystery that has never been adequately explained. The Article
demonstrates, for the first time, how eighteenth-century American defense counsel creatively used peremptory challenges, deployed along religious, political, and economic lines, to create favorable juries, composed almost entirely of men who had previously served in treason cases.
Lynn A. Marks and Shira J. Goodman, executive director and associate director, respectively, of Pennsylvanians for Modern Courts, wrote an article for the The Legal Intelligencer, in favor of a constitutional amendment establishing merit selection of at least some members of the Pennsylvania judiciary, People Should Decide on Change of Judicial Selection Process, 1/6/2009 Legal Intelligencer 7.
Carlton F.W. Larson, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, 61 SMU L. Rev 1441
(2008): recounts little known aspect of Pennsylvania legal history, the treason trials of Tories at the beginning of the Revolutionary War.
Dennis J. Buffone, Traffic Stops, Reasonable Suspicion, and the Commonwealth of Pennsylvania: A State Constitutional Analysis, 69 U.Pitt. L. Rev. 331 (2007), analyzes the constitutionality of statutory authority to conduct automobile stops in Pennsylvania and argues that "(1) article
I, section 8 of the state constitution affords more protection against unreasonable searches and seizures than does its federal counterpart; (2) in interpreting article
I, section 8, the Supreme Court of Pennsylvania has consistently required probable cause for routine traffic stops; (3) the requirement is based exclusively on state constitutional law (as opposed to statutory interpretation); (4) article
I, section 8 of the state constitution affords even more protection than that which would be required to invalidate the reasonable suspicion standard; and (5) numerous public policy considerations in the commonwealth support the retention of the probable cause standard. In sum, the Pennsylvania Constitution forbids any level of suspicion lower than traditional probable cause for traffic stops, and the state legislature's amendment of the standard was an unconstitutional legislative action."
Thomas M. Place, Ineffectiveness of Counsel and Short-Term Sentences in Pennsylvania: A Claim in Search of a Remedy, 17 Temple Political and Civil Rights Law Review 109 (2007): suggests remedies for the unfairness of deferring ineffective assistance of counsel claims to the post-conviction process when the sentence involved is too short to permit effective review of such a claim.
Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms, 38 Rutgers L.J. 1041 (2007)--an important contribution to the Second Amendment debate; the article examines the original meaning of the language of Art. I, Section 21 of the Pennsylvania Constitution, which has played an important role in litigation over the meaning of the Second Amendment. The article
concludes: "The language of the Pennsylvania Constitution fits neither the modern individual rights nor the collective rights models that have dominated modern Second Amendment scholarship. In every sense, the 1776 Pennsylvania Declaration of Rights affirmed the right to bear arms as part of civic duty to the community." See also Nathan Kozuskanich, Originalism, History, and the Second
Amendment: What Did Bearing Arms Really Mean to the Founders, 10 U.
Pa. J. of Constitutional Law 413 (2008)
and Saul Cornell, The Ironic Second Amendment, 1 Alb. Gov't L. Rev.
292 (2008).
Jeffrey D. Van Vokenburg, Asleep At
the Switch: The Pennsylvania Public Utility Acceptance of the Telecommunications
Act and the Resulting Elimination of State Court Review, 45 Duq. L. Rev. 615 (2007)--the author
argues that federal displacement of state court review of State Administrative
Agency raises federal and state constitutional issues.
Joel Fishman, Justice Michael A. Musmanno
and Obscenity (1956-1967), 44 Duq. L. Rev. 649 (2006)--the author illustrates Justice
Musmanno's attempts, through dissenting opinions, to limit the constitutional
protections for sexually oriented materials.
Note, Pennsylvania Supreme Court: The More
Things Change, the More They Stay the Same, 70 Alb. L. Rev. 1093
(2007)--attempts to analyze the effect of a change in Party control
on the Court on the outcome in criminal appeals.
James M. McElfish, Jr., New Paths
in Existing Law: Opportunities for Pennsylvania to Avoid Sprawl, 16 Widener L.J. 853 (2007).
Comment, Ncole E. Carter, Agriculture, Communities and Rural
Environment Initiative: Can Small Family Farms and Large Agribusiness Live Peacefully
in Pennsylvania?,
16 Widener L.J. 1023 (2007)
Richard Albert, The Constitutional
Imbalance, 37 New Mexico
L. Rev. 1 (2007), includes an account of Pennsylvania's pre-revolutionary
Constitution and the Council of Censors in the Pennsylvania Constitution
of 1776.
Emily Metzgar, Neither Seen Nor Heard:
Media in America's Juvenile Courts, 12 Comm. L. & Pol'y 177 (2007): the author notes
Pennsylvania caselaw, including references to the Pennsylvania Constitution,
supporting at least presumptive access of the media to juvenile court
proceedings.
Note, Michael Nardella, Knowing When to Stop: Is the Punctuation
of the Constitution Based on Sound or Sense, 59 Fla. L. Rev. 667 (2007),
noting in footnotes the change in punctuation in the Pennsylvania Constitution
in what is currently Art. I, section 9 between 1776 and 1790, from a
semicolon between the "compelled to give evidence" language
and "the law of the land" language in 1776 to a comma, without
explanation. [As the Note makes clear, the sense of Section 9 is
to treat the clauses as separate, as if the semicolon remained.]
Comment, Beth Dodson, 2007 Pennsylvania Retention Election:
An Objective Analysis of Justice Thomas G. Saylor's Judicial Philosophy,
Methodology and Jurisprudential Tendencies, 45 Duq. L. Rev. 293 (2007).
Note, Recent Decisions, Jeffrey Hantz reviews Pennsylvania
Turnpike Commission v. Commonwealth, 899 A.2d 1085 (Pa.
2006), 45 Duq. L. Rev. 97 (2006).
Michael D. Gilbert, Single Subject Rules and the Legislative
Process, 67 U. Pitt. L. Rev. 803 (2006), discusses the single subject
rule by history and policy, not just in Pennsylvania.
Kyu Ho Youm, Recent Rulings Weaken Neutral Reportage Defense,
27 Newspaper Research Journal 58, 2006 WLNR 22788574 (2006), discusses
denial of certiorari in, and doctrinal background of, Norton
v. Glenn,
860 A.2d 48 (Pa. 2004).
Robert Frankhouser, The Enforceability of Pre-Dispute Jury Waiver Agreements
in Employment Discrimination Cases, 8 Duq. Bus. L. J. 55 (2006): "reviews
the current federal and Pennsylvania case law and concludes that pre-dispute
jury waiver agreements under current federal and Pennsylvania Constitutional
and statutory law are enforceable in employment discrimination cases."
Note, Partisan Gerrymandering Challenges in Light of Vieth v Jubelirer:
A First Amendment Alternative, 15 Temp. Pol. & Civ. Rts. L. Rev.
287 (2005), by Timothy D. Caum II, discusses, in part, potential availability
of Pennsylvania Constitution challenge against partisan gerrymandering.
Comment, State of Secrecy: The Fall and Potential Re-emergence of Lobbying
Disclosure in Pennsylvania, 15 Temp. Pol. & Civ. Rts L. Rev. 199
(2005), by Danielle N. Rodier, discusses the prospects for lobbying regulation
in Pennsylvania in light of the constitutional authority of the Pennsylvania
Supreme Court.
Joseph W. Dellapenna, Developing a Suitable Water Allocation law for
Pennsylvania, 17 Vill. Envtl. L. J. 1 (2006) discusses water allocation
in a broad framework, including Pennsylvania constitutional implications.
Peter Asselin, Supporting the Home Team...In More Ways Than One: An
Analysis of the Public Financing of Philadelphia's New Sports Stadia,
3 Rutgers J. L. & Urb. Pol'y 389 (2006): student note examines the
financing of the stadia including questions of constitutionality.
Comment, Marcy L. McCullough, Prescribing Arbitration to Cure the Common
Crisis: Developing Legislation to Facilitate Arbitration as an Alternative
to Litigating Medical Malpractice Disputes in Pennsylvania, 110 Penn
St. L. Rev. 809 (2006): includes discussion of the implication of Pennsylvania
Constitution for limits on damages.
William Boak, Benedictine Sisters of Pittsburgh: the Continuing Development
of a Practical Approach to Property Tax Exemption, 15 Widener L.J. 477
(2006), discusses the Benedictine Sisters case, 844 A.2d 86 (2004).
Kathleen B. Foltz, Two Steps Forward and One Step Back: The Pennsylvania
Supreme Court Dances Around Equal Rights for "Life Partners," 15
Widener L.J. 409 (2006), discusses Devlin v. City of Philadelphia, 862
A.2d 1234 (Pa. 2004).
Joel Fishman, Justice Michael A. Musmano and Constitutional Dissents,
1967-68, 68 Alb. L. Rev. 349 (2005): Dr. Fishman presents an analysis
of Justice Musmanno's disagreements with majorities in the Pennsylvania
Supreme Court. Justice Musmanno had particular qualms concerning the
1967-1968 Pennsylvania Constitutional Convention.
Fred Kameny, Are Inseverability Clauses Constitutional?, 68 Alb. L.
Rev. 997 (2005): uses the 1987 legislative pay raise in Pennsylvania
as the jumping-off point for discussion of inseverability clauses. The
article has become unexpectedly poignant with respect to Pennsylvania's
most recent legislative pay raise.
Ken Gormley, The Forgotten Supreme Court Justices, 68 Alb. L. Rev. 295
(2005), sketches the biographies of the current Pennsylvania Supreme
Court Justices and makes the point that lawyers should be as familiar
with their own Supreme Court Justices as with the Justices of the United
States Supreme Court.
Ken Gormley, Jeffrey Bauman, Joel Fishman and Leslie Kozler, Editors, The
Pennsylvania Constitution -- A Treatise on Rights and Liberties,
the latest and best resource available in Pennsylvania Constitutional
Law, published by George T. Bisel Company, Inc., 2004. For positive
reviews see John Burkoff, The Pennsylvania Constitution: A Treatise
on Rights and Liberties, 6 No. 18 Lawyers J. 6, Michael E. Lobonati;"A
Tribute to a Unique Constitutional Tradition", 27-FEB Pa. Law. 50
(January/February 2005); Judge Phyllis W. Beck and Patricia Daly
in 29 PLW 317 (3/28/2005) and Shirley S. Abrahamson, 68 Alb. L. Rev.
403 (2005).
John G. Culhane and Stacey L. Sobel, The Gay Marriage Backlash and
Its Spillover Effects: Lessons From a (Slightly) "Blue State",
40 Tulsa L. Rev. 443 (Spring, 2005): describes hate crime legislation
efforts in Pennsylvania in light of the backlash against same-sex marriages.
NOTE, "Recent Cases -- Norton v. Glenn", 118 Harv. L. Rev.
2029 (April, 2005): the author believes that the Supreme Court of Pennsylvania
made an unwise decision in not recognizing a neutral reportage privilege.
***
Law Review Survey prepared by Jeffrey Mansell
The most recent issue of the Widener Law Journal, Vol. 14 No.2, is mostly
devoted to the Journal's Annual Survey of Pennsylvania Administrative
Law. Many of the articles in the survey contain some discussion
of provisions in the Pennsylvania Constitution.
1. Administrative Process and Administrative Agencies
Andrew J. Gonzalez, "Lehman v. Pennsylvania State Police: Establishing
Which Constitutional Claims must be Raised and Considered before a Commonwealth
Agency to be Preserved for Appeal," 14 Widener L.J. 491 (2005).
Gonzalez discusses an agency's jurisdiction to consider constitutional
issues raised by the parties in a quasi-judicial proceeding. Some constitutional
issues must be considered by the ALJ in order to be preserved on appeal.
2. Educational Law
Adam T. Wolfe, "Theodore v. Delaware Valley School District: School Drug
Testing and its Limitations under the Pennsylvania Constitution," 14
Widener L.J. 505 (2005).
The policies put in place by school districts are scrutinized under
Article I, Section 8 of the Pennsylvania Constitution.
3. Ethics
Amanda Irene Figgs, "Shaulis v. Pennsylvania State Ethics Commission:
The Supreme Court of Pennsylvania Continues to Wield its Exclusive Power
to Regulate the Manner in Which an Attorney Practices Law," 14
Widener L.J. 553.
Figgs criticizes the Supreme Court of Pennsylvania's interpretation
of Article V, Section 10(c) of the Pennsylvania Constitution. She believes
the Court has given itself too broad and exclusive a power in regulating
the conduct of attorneys.
4. Governmental Process
Kelly L. Bonanno, "City of Philadelphia v. Commonwealth: A Cynic's View
of the Single-Subject Requirement and Germaneness Test," 14
Widener L.J. 605 (2005).
The author approves a strict application of Article III, Section 3
of the Pennsylvania Constitution, which requires term legislation have
a single subject.
Jose R. Legaspi, "Harrisburg School District v. Zogby: The Supreme
Court of Pennsylvania Concludes it Cannot Countenance a "Closed
Class" Created by the Education Empowerment Act," 14
Widener L.J. 619 (2005).
This survey analyzes special legislation empowering a mayoral takeover
of certain school districts. Various constitutional provisions are relevant
to the inquiry, but the author of the survey, as well as the Zogby opinion,
support the conclusion that such legislation is an appropriate use of
the general assembly's authority.
Sean J. Vanek, "Uniontown Newspapers v. Roberts: The Pennsylvania Right-to-Know
Act and a State Legislator's Right to Prevent you from Knowing," 14 Widener
L.J. 637 (2005).
The author criticizes the Supreme Court of Pennsylvania's approach
to the claim that a reporter should have access to a legislator's phone
records under the Pennsylvania Constitution. .
5. Labor and Employment
Jill M. Smith, "Nixon v. Commonwealth: Providing Protection to the Elderly
and Disabled by Conducting Criminal Background Checks on Their Caretakers," 14
Widener L.J. 679 (2005).
The author of this survey finds much merit in the goal of the legislation
struck down by the Supreme Court of Pennsylvania, but agrees with the
Court's conclusion that the way the legislation was applied against people
with a wide range of criminal convictions was simply too disparate. As
applied, the author agreed that the statute violated the Pennsylvania
Constitution.
* * *
Nancy P. Spyke, Heeding the Call: Making Sustainability a Matter
of Pennsylvania Law, 109 Penn St. L. Rev. 729 (2005): Professor
Spyke shares her vision of how Pennsylvania can achieve sustainability
gradually. There is a brief discussion of Article I, section 27, which
she observes has yet to fulfill its promise.
John Gedid, "Pennsylvania's Declaration of Rights. ..", 10/11/2004
PLW 5: focuses on Pennsylvania Constitution's influence on the federal
Bill of Rights and the various sources of change in the Pennsylvania
Constitution.
Jack Burns, Are Nonprofit Hospitals Really Charitable? Taking the
Question to the State and Local Level, 29 J. Corp. L. 665: discusses
tax exempt status under state law, including Pennsylvania State Constitutional
Law.
Geoff Yuda, New to the Court, 26-JUN Pa. Law. 40: "Justice
Max Baer, the newest member of Pennsylvania's Supreme Court, discusses
the electoral process, what he hopes to accomplish and life off the bench".
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