Michael S. Pardo (Georgetown University Law Center) has posted Constructing Confrontation: Between Constitutional and Evidence Theory (University of Michigan Journal of Law Reform, forthcoming) (21 pages) on SSRN. Here is the abstract:
The United States Supreme Court’s decision in Crawford v. Washington was significant as a matter of both constitutional law and evidence law. From a constitutional perspective, the opinion was significant because of its “original public meaning” approach to interpreting the text of the Sixth Amendment’s Confrontation Clause. From an evidentiary perspective, the opinion was significant in recognizing a doctrinal rule that potentially excludes evidence in criminal trials that would otherwise be admissible under the Federal Rules of Evidence as well as evidence law in the States. This Essay explores Crawford and the subsequent Confrontation Clause cases from these distinct perspectives—illuminated by constitutional theory and evidence theory—and the relationships between them. The interpretation-construction distinction in constitutional theory provides a useful analytical tool for understanding the Crawford line of cases. It also helps to clarify the different ways in which the normative values of evidence theory—which may be used to explain, evaluate, justify, or critique evidence rules more generally—interact with the Court’s decision-making and the confrontation doctrine it has constructed. The Essay concludes by exploring how these distinct perspectives may interact to determine future confrontation doctrine.
Via Larry Solum at Legal Theory Blog, who says "Wowza! Highly recommended! Download it while it's hot!"
(I don't recall that anyone has gotten a "Wowza" designation from Legal Theory Blog before.)
Posted at 7:05 AM