Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith

Norman C. Bay
Under the law of lost evidence, absent a showing of bad faith, no due process violation occurs when the police lose potentially exculpatory evidence. This is so even though the evidence may be critical to the defense and even though post-conviction DNA testing has exonerated more than 200 individuals. Ironically, the case that developed that rule of law, Arizona v. Youngblood, is founded on the conviction of an innocent man.…

Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?

Todd E. Pettys
A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from…

Reconsidering Gobitis: An Exercise in Presidential Leadership

Robert L. Tsai
In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school-age Jehovah’s Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in…

Lost in Interpretation: The Problem of Plea Bargains and Court Interpretation for Non-English-Speaking Defendants

Annabel R. Chang