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Periodical Summaries 2007

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).