Periodical Summaries 2008-2017
Joel Fishman, Ph.D., M.L.S., The Pennsylvania Bar Association Quarterly Volumes 75-86 (2004-2015): A Twelve Year Update, 88 Pa. B.A. Q. 40 (2017), the author has published an updated index of law review articles published in the Pennsylvania Bar Association Quarterly, organized by topic and authors.
Nathan R. Kozuskanich, Rethinking Originalism: Bearing Arms and Armed Resistance in Pennsylvania, 56 Am. J. Legal Hist. 398 (2016): the author discusses the history of the right to bear arms and of militias in the Commonwealth.
Todd S. Aagaard, Environmental Regulation and Environmental Rights, 61 Vill. L. Rev. 385 (2016); The author discusses a law review article written in 1971 that discusses the legal framework used to effectuate environmental protection, in particular that constitution-based environmental rights can be used as that framework. He cites Robinson Township v. Commonwealth as an example of the court’s willingness to use constitutional law, in this case the state’s Environmental Rights Amendment, to protect environmental rights.
Peter Johnsen, Public Utility Zoning Post-Robinson Township: A Constitutional End-Around or Infrastructure Imperative?, 8 Drexel L. Rev. Online 41 (2016). The author discusses the 2012 Robinson Township v. Commonwealth decision with regards to infrastructure to deliver oil and gas supplies. He also states how oil and gas companies sought zoning exemptions as public utilities as a work-around around Robinson, and argues that this is an appropriate balance between the Commonwealth’s status as a trustee, and oil and gas development. However, this avenue would be closed after the court’s holding in the most recent Robinson Township decision in October 2016.
David N. Wecht, Miranda at 50, Pa. Law., November/December 2016; Pa. Supreme Court Justice David N. Wecht wrote an article discussing the landmark case Miranda v. Arizona, 384 U.S. 436 (1966). He described the process that the majority used to craft the decision, such as quoting an excerpting police manuals from around the country. The author also notes that in its opinion, the court averred that if the warnings are not given, statements would be inadmissible and suppressed, which Justice Wecht describes as a “revolution in the law of criminal law procedure.” He also noted that many current issues with Miranda include the ways a suspect can waive their rights, particularly those who are juveniles, language interpreters, and defining what an interrogation is.
Eugene Volokh, Originalism and State Constitutions, The Washington Post, September 12, 2016: The author quotes the introduction from Originalism: The Primary Canon of State Constitutional Interpretation by Jeremy M. Christiansen. In this article, Christiansen argues that when scholars talk about Originalism, they are often referring to federal Originalism. He argues that Originalism should be looked at in a bigger picture, one that includes state constitutional interpretation and not just federal. The author argues that Originalism has been consistently invoked in state courts for far longer than in federal courts.
Christian C. Hagen-Frederiksen, Beyond Fracking: How Robinson Township Alters Pennsylvania Municipal Zoning Rights, 34 J. L. & Com. 375 (2016): The author notes that with the election of three “Democrat” [sic] justices to the Supreme Court, and subsequent rehearing of Robinson in March 2016, a new framework and solid majority decision could be issued from the court. He suggests that the Court could reaffirm the individual environmental protection rights of citizens and the role of the state as a trustee for these rights, and implement Justice Baer’s emphasis of municipal zoning boards as a protector of due process. This would allow for expanding fracture mining in communities that desire to have it within their borders, and allow municipalities to ban fracking if they wish to do so.
Susan Kessler, Interpreting the Post-Robinson Township Environmental Protection Amendment, 77 U. Pitt. L. Rev. 579 (2016): The author describes the plurality decision in the Robinson Township case as interpreting the Environmental Protection Amendment to create two sets of rights. First, an individual right is created for “clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.” Second, the trustee duties of the Commonwealth to protect and maintain public natural resources for enjoyment of the citizens of the Commonwealth. The author also points out that the Commonwealth Court has rejected this framework and has continued to apply the test from Payne v. Kassab, 361 A.2d 263 (Pa. 1976), and that a more clearly defined rule is necessary from the Supreme Court. She also notes that despite the unclear precedent set by Robinson Township, the Court was correct to hold that the General Assembly cannot disregard the plain language of the Environmental Protection Amendment.
Gabriella T. Soreth, “Cracks” in the Courts Analysis? Court Strikes Balancing Act Between Citizens’ Constitutional Rights and Government’s Exploitation of Natural Gas Reserves in Pennsylvania Environmental Defense Foundation v. Commonwealth, 27 Vill. Envtl. L. J. 329 (2016): The author argues that the Commonwealth Court’s broad interpretation of discretion inherently granted to the government in Pennsylvania Environmental Defense Foundation v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth. 2015), gives too much deference to the Commonwealth’s actions. The author also argues that although Payne v. Kassab, 361 A.2d 263 (Pa. 1976) has not been overruled, by returning to the “original meaning” of the Environmental Rights Act (ERA) in PEDF v. Com., the Commonwealth Court created a “powerful precedent for future interpretation of Art. 1, Sec. 27” of the Pennsylvania Constitution.
Stephen Elkind, Preemption and Home-Rule: The Power of Local Governments to Ban or Burden Hydraulic Fracturing, 11 Tex. J. Oil Gas & Energy L. 415 (2016); Ian S. Lamont, Contaminated Jurisprudence: Muddy Categories in Robinson Township v. Commonwealth, 10 Liberty U. L. Rev. 501 (2016): The authors of these two articles critique Robinson Township v. Commonwealth from the pro-oil and gas exploration perspective. Elkind describes Robinson as judicial second-guessing the state legislature in terms of weighing potential economic benefits of fracture mining compared to the economic havoc that “fracking” can cause. Further, the author states that it isn’t even clear that fracking causes substantial harm to the environment. Lamont describes the decision as straying from judicial reason and legislating from the bench.
Matthew E. Wyman, Strict Scrutiny and Improper Implementation: An Overview of Voter Identification Laws and Why Pennsylvania's Was Struck Down, 25 Widener L. J. 253 (2016): The author discussed the passage and subsequent overturning of Pennsylvania's Voter Identification Law by the Commonwealth Court. He argued that the reason the law was overturned was due to the strict level of scrutiny applied by the court, along with drafting and implementation errors. He suggested that when states implement voter identification laws, that the states should ensure that the law allows for adequate access to the ballot and increase public awareness so that voters do not feel disenfranchised.
Thomas M. Place, Commonwealth v. Holmes and the Rule of Deferral: Short Sentences, Long Sentences and the Illusory Nature of the Good Cause Exception, 25 Widener L. J. 49 (2016): The author made the claim that there is not a remedy for indigent defendants who receive minor sentences and claim ineffective assistance of counsel at trial because it requires the defendant, without assistance of counsel, to prepare and file a pro se motion within the requisite period following sentencing. He believes the best solution for this is the court providing defendants with short sentences with appointed counsel or allowing all ineffective assistance claims irrespective of the length of their sentences.
Bridget M. Hendrick, Pennsylvania Governmental Immunity & Public School Districts: A Call for Legislative Change, 25 Widener L. J. 223 (2016): The author discussed governmental immunity in Pennsylvania. Historically, governmental immunity existed in Pennsylvania until 1973, when the Supreme Court struck it down in Ayala v. Phila. Bd. of Pub. Educ., 305 A.2d 877 (Pa. 1973), on the grounds that the doctrine was both archaic and a violation of public policy considerations. In 1980, however, the legislature passed the Political Subdivision Torts Claim Act, reviving governmental immunity. There have been frequent constitutional challenges on the grounds of equal protection, open courts, and the right to a jury trial. These challenges have failed. The author then notes that the Act, which is designed to protect government entities from large judgments, can be unfair to legitimate claimants. She proposes that the legislature amend the act to include an insurance-waiver provision, to allow for higher claims against governmental entities, as the cap of $500,000 has not been increased since its inception in 1980.
Kayla L. Randall, Act 13 and Robinson Township: The Final Chapter in the Act 13 Battle?, 25 Widener L. J. 307 (2016): The author discussed the Commonwealth Court's ruling upon remand from the Supreme Court of Pennsylvania that certain chapters of Act 13 were unenforceable, but are still considered law and that it is up to the legislature to ultimately decide the fate of Act 13. The Commonwealth Court dismissed claims that Act 13 violates the Pennsylvania Constitution because it solely benefits the oil and gas industry, is an unconstitutional taking by eminent domain, is a special law that restricts health professionals' ability to disclose critical diagnostic information, and because it violates the single subject rule.
Peter Johnsen, Public Utility Zoning Post-Robinson Township: A Constitutional End-Around or Infrastructure Imperative?, 8 Drexel L. Rev. Online 41 (2016): The author discussed the ramifications of the plurality decision in Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013), on local zoning laws. The author painst Robinson as holding Act 13 unconstitutional due to the requirements on local governments to surrender regulatory authority with respect to fracking only, and not an overly broad reading into local regulatory authority. The author also described the decision as a requirement for the state and municipalities to exercise their regulatory authority in line with their role as environmental trustees.
Tracy Carbasho, Fishman Closes the Book on His Time at Law Library, 18 No. 12 Lawyers J. 3 (2016): The author reported that Joel Fishman retired on June 30, 2016 after thirty-nine years as director of the Allegheny County Law Library. He had assumed his post in March 1977. Fishman has also been a prolific author, having written, co-written, or compiled over 300 books, pamphlets, bibliographies, indexes, book chapters, book reviews, newsletters and articles on the topic of legal research. Fishman will remain a professor at Duquesne University School of Law, teaching courses on American legal history, research for law practice, legal research methods, and advanced legal research.
Kenneth T. Kristl, It Only Hurts When I Use It: The Payne Test and Pennsylvania's Environmental Rights Amendment, 46 Envtl. L. Rev. News & Analysis 10594 (2016): Author stated that the Payne test for § 27 compliance is fundamentally inconsistent with the text of § 27 and the Robinson decision. The author suggests retiring the Payne test and replacing it with something that is closer to the post-Robinson understanding of § 27.
Joshua P. Fershee, Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W. Va. L. Rev. 819 (2014): the author discusses "how assumed facts were used to justify the plurality opinion and concurrence" in the Pennsylvania Supreme Court's recent decision in Robinson Township v. Commonwealth. To the author, these facts include "sweeping . . . conclusions" about the negative effects and "inherently bad" nature of hydraulic fracturing along with the court's finding of no "minimal statewide protections" to regulate hydraulic fracturing. The author then discusses what the use of these facts means to the present and future of hydraulic fracturing in Pennsylvania and "suggests [a] narrow reading of the case" will produce a more "appropriate outcome" in state environmental regulation.
Katrina Liu, Reentering The City of Brotherly Love: Expanding Equal Protection For Ex-Offenders In Philadelphia, 22 Temp. Pol. & Civ. Rts. L. Rev. 175 (2012): the author discusses applying the standards of equal protection found within the Pennsylvania Constitution toward ex-offenders and allowing them to find employment after prison sentences.
W. Devin Wagstaff, Fractured Pennsylvania: An Analysis of Hydraulic Fracturing, Municipal Ordinances, and the Pennsylvania Oil and Gas Act, 20 N.Y.U. Envtl. L.J. 327 (2013): The author discusses whether the local ordinances of towns and municipalities effectively circumvent the Pennsylvania Oil and Gas Act. This article covers the law in Pennsylvania as of the time the complaint was filed for Robinson Township v. Commonwealth, which challenged the Oil and Gas Act of 2012.
Nathaniel I. Holland, Pennsylvania Oil and Gas Update, 19 Tex. Wesleyan L. Rev. 539 (2013): the author reviews the most recent caselaw relating to multiple areas of oil and gas law in Pennsylvania including preemption, ownership of mineral rights, "paying quantities," environmental issues, and lease termination.
Keith B. Hall, When do State Oil and Gas or Mining Statutes Preempt Local Regulations?, 27-WTR Nat. Resources & Env't 13 (2013): the author discusses the three different kinds of preemption in the context of the debate over how much control localities should have in protecting their local environment from natural resource extraction. He discusses the preemption of local ordinances in several states including Pennsylvania, and highlights the recent developments in Pennsylvania relating to the changes to the Oil and Gas Act and the subsequent lawsuit.
Joseph Iole, May Two Laws Occupy the Same Space at the Same Time? Understanding Pennsylvania Preemption Law in the Marcellus Shale Context, 6 Appalachian Nat. Resources L.J. 39 (2011): the author discusses the changes in Pennsylvania zoning laws that have taken place as drilling the Marcellus Shale has become a viable industry in Pennsylvania. He covers the developments in preemption law up to the most recent amendments to the Oil and Gas Act, but this article was published before the challenge to the law in Robinson Township v. Commonwealth.
John S. Summers, Rebecca S. Melly, The Court of Judicial Discipline: A Review of the the first Twenty Years, 84 Pa. B.A. Q. 1 (January 2013): the authors review the jurisprudence which has developed since the inception of the Court of Judicial Discipline as well as the role of the Judicial Conduct Board and the Court in judicial discipline in Pennsylvania.
Thomas G. Saylor, Fourth Amendment Departures and Sustainability in State Constitutionalism, 22 Widener L.J. 1 (2012): Justice Saylor discusses the sustainability of state constitutional departures in judicial federalism. As an example of the difficulties that can arise for state courts seeking to interpret their own constitution's parallel provision of a Federal Constitutional Right, he looks at the interpretation of Article I, Section 8 of the Pennsylvania Constitution, which has language substantially similar to that of the Fourth Amendment.
Matthew J Curran, A River Runs Through It, But Can You? Expanding Pennsylvania's Public Trust Doctrine to Encompass the Modern Trend of Recreational Navigability, 22 Widener L.J. 183 (2012): the author proposes an new navigability test to be used by Pennsylvania Courts in order to expand the definition of public water ways to be more consistent with how people use water ways. The Pennsylvania Constitution gives the public the right to enjoy public water ways, but it is not always clear which water ways are public and which are private.
George A. Huber and A. Everette James, The Intersection between Pike County and America's Healthcare Reform, 35-FEB Pa. Law 38 (Jan./Feb. 2013): after reviewing the history and up holding of the HUP test in Mesivtah Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 44 A.3d 3 (Pa. 2012), the authors discuss the issues that Pennsylvania Courts will have to asses when provisions of the Affordable Care Act will become effective, which require nonprofit hospitals to conduct a community health needs assessment. The authors argue that these assessments will transition the nonprofit hospitals from "traditional individual patient treatment roles to additional public, population health role, usually in the domain of government agencies," and this change will need to be addressed by the courts as it relates to relieving the government of some of its burden.
Dan Raichel, Between Huntley and Salem: The Current State of Municipal Authority in Pennsylvania to Affect Gas Drilling Through Zoning, 19 Buff. Envtl. L.J. (2011-2012): the author discusses limits on municipal regulation of zoning laws, specifically the extent to which municipalities can regulate gas drilling. The author explores the pre-emption risks for certain kinds of zoning controls. (This article does not deal with Act 13 and the subsequent litigation because the talk was given at a symposium that happened before Act 13 was passed on February 14. 2012.)
Karen M. Balaban, Keystones of Election Law: How a Stealth Candidate Remains Under the Radar, 21 Widener L.J. 161 (2011): highlights Commonwealth Court's interpretation of provisions of the Pennsylvania Election Code, including cases involving the constitutionality of law governing the election of judges to the Commonwealth Court.Tara M. Franklin, Done with Distracted Driving: Implications of Pennsylvania's Ban on Text-Based Communication While Driving Under the State Constitution, 117 Penn. St. L. Rev. 171 (Summer 2012): the author does an analysis of search and seizure law under Article I, Section 8 of the Pennsylvania Constitution and its possible application to likely scenarios under the new ban on text-based communication while driving. She highlights privacy concern inherent in a cell phone search, and proposes possible solutions that would be consistent with Pennsylvania case law balancing privacy and public safety.
Patricia Sweeney and Ryan Joyce, Gubernatorial Emergency Management Powers: Testing the Limits in Pennsylvania, 6 Pitt. J. Entvl. Pub. Health L. J. 149 (Spring 2012): the authors examine the scope of the powers of the governor to declare a state of emergency and what powers the executive has during the state of emergency. After examining the constitutional and statutory sources for this power, the authors conclude that, although the emergency powers of the governor are "extensive and wide-ranging," there are meaningful checks on that power. The checks on emergency management powers are the separation of powers doctrine, the power of the legislature to overturn a gubernatorial emergency declaration, the prospect of judicial review, and the limitation of suspension authority to "regulatory statutes" based in the text of the Emergency management Services Code.
Thomas G. Saylor, Power and Prerogative: Reflections on Judicial Suspension of Laws, 21 Widener L.J. 259 (2012): Justice Saylor reflects on the use of judicial suspension of laws by the Pennsylvania Supreme Court. He focuses on the wide area of overlap between matters of procedure and matters of substance. The Supreme Court has jurisdiction under the state constitution over procedural rules, regulation of the practice of law, and administration of the judicial system. The Supreme Court has treated this as an exclusive power even though the constitution does not make that explicit. Saylor examines how the judiciary branch could best protect their core functions while respecting the prerogatives of the other branches. He offers some broad guidelines for considering when judicial suspension of laws is appropriate: while the courts must always vigorously defend their core constitutional powers against actual threats, they should avoid being reflexive about the exclusivity of procedural powers; consider the interests and motivations of other branches of government; consider whether a challenged legislative measure actually impinges on a core judicial prerogative; and he encourages a more measured approach to the constitutional text itself.
Ashley Oakey, A Cautionary Tale for Municipalities Considering Chapter 9, 31-MAY Am. Bankr Inst. J. 44 (2012): The author uses the attempt by the City of Harrisburg to file for municipal bankruptcy in 2011 to show how difficult it is for a municipality to overcome the power a state has in determining how its cities are able to address their financial distress. The city raised both federal and state constitutional law claims, but failed with all claims to show that the municipality was eligible to file for bankruptcy. Relevant to state constitutional law was the finding of the United States Bankruptcy Court, Middle District of Pennsylvania that Act 26, which prevented third class cites from filing for bankruptcy even if they were "financially distressed" under Act 47, did not the violate Article III, Section 32 prohibition of special laws because Act 26 applied to all third class cities, not just Harrisburg.
Mary Whisner, Fifty More Constitutions, 104 Law Libr. J. 331 (Spring 2012): The author emphasizes the importance of researching state constitutional law for the practicing lawyer. She gives the example of how advocates for same-sex couples based their cases on distinctive provisions with in state constitutions. State supreme courts decides more cases each year based on state constitutional provisions than the Supreme Court of the Unites States does on the federal constitution, so it is essential for the practitioner to be aware of what is going on. She discusses some of the difficulties in researching this area of law as well as how libraries can help to develop resources.
The Pennsylvania Bar Association Quarterly, January, 2012, presents a Symposium Issue entitled, "Justice Unfunded--Justice Undone? Assuring Sustainable Funding for Our Courts". 83 Pa.B.A.Q.3 & 10.
The following articles deal primarily with issues parallel to those that arise in Pennsylvania:
Ann Kaluzavich, Police Officers' Exercise of Discretion in the Operation of Sobriety Checkpoints: The Need for Predetermined, Objective Guidelines for a Safe, Effective, and Constitutional Checkpoint: Commonwealth v. Worthy, 49 Duq. L. Rev. 545, 567 (2011): the author argues that the Pennsylvania Supreme Court's decision to uphold a roadblock subject to unfettered discretion by on-site police officers in Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008) prevented an opportunity to establish objective guidelines for Pennsylvania law enforcement and courts to use in setting up future roadblocks.
Jeffrey A. Parness, American State Constitutional Equalities, Gonzaga Law Review, Vol. 45, p. 773 (2009): the author argues that the Illinois Constitution's equal rights provision is superior to other states' equal rights provisions; specifically, it provides for self-executing rights, limited General Assembly authority, and regulations of private and public discrimination.
Jeffrey A. Parness, State Damage Caps and Separation of Powers, Penn State Law Review, Vol. 116 (2011): the article calls for a judicial rule-making approach (as opposed to a separation of powers approach) to issues involving state statutory damage caps.
Jeffrey A. Parness, Judicial Versus Legislative Authority after Lebron, Illinois Bar Journal, Vol. 98, p. 324 (2010): the article proposes that there will be heightened judicial scrutiny of statutes on attorney conduct, appellate practice, and jury decision-making after the Illinois Supreme Court invalidated statutory caps on noneconomic damages in medical negligence cases in Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (2010), rehearing denied (May 24, 2010).
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.
For those interested in the current state of oil and gas law in Pennsylvania, a recent article written by John M. Smith, entitled “The Prodigal Son Returns: Oil and Gas Drillers Return to Pennsylvania with a Vengeance”, examines the current relationship between state and local regulation of the oil and gas industry and the need for increased local regulatory powers for purposes of Marcellus Shale production and development. 49 Duq. L. Rev. 1 (2011).
For a thorough summary of the environmental rights case law in Pennsylvania and other states with constitutions similar to Pennsylvania’s Constitution, see Michelle B. Mudd, A “Constant and Difficult Task”: Making Local Land Use Decisions in States with a Constitutional Right to a Healthful Environment, 38 Ecology L.Q. 1 (2011).
Darren M. Breslin, Judicial Merit-Retention Elections in Pennsylvania, 48 Duq. L. Rev. 891 (2010): the article tracks the history of retention election in Pennsylvania in light of the current debates over judicial selection.
Clifford E. Haines, Judicial Independence and Judicial Accountability: How Judicial Evaluations Can Support and Enhance Both, 48 Duq. L. Rev. 909 (2010): the article discusses the contribution that evaluations of judges by lawyers and other participants in the legal system can make to the quality and even independence of the judiciary.
Evelyn Brody, All Charities are Property-Tax Exempt, But Some Charities are More Exempt than Others, 44 New Eng. L. Rev. 621 (2010): the article discusses property tax exemption issues around the country and contains in an Appendix a fifty-one-jurisdiction review of state constitutions and caselaw relating to property tax exemption.
Nicole M. Santo, Delineating the Power of the Governor and the General Assembly with Respect to Appropriations in Pennsylania: an Analysis of Jubelirer v. Rendell, 19 Widener L. J. 421 (2010) examines the line item veto power of the Governor in the context deleting portions of an appropriation bill that define funding terms without vetoing the actual monetary figure that accompanies the language; Jubelirer limited the veto to monetary values and prohibited so-called "language only" disapprovals.
The Widener Law Journal has recently published an exchange on the history of the Pennsylvania Constitution's gun rights provision between Nathan Kozuskanich and co-authors David B. Kopel and Clayton E. Cramer. See 19 Widener L.J. 277, 321 and 343 (2010).
Jill Ambrose, Note. A Fourth Wave of Education Funding Litigation: How Education Standards and Costing-Out Studies Can Aid Plaintiffs in Pennsylvania and Beyond, 19 B.U. Pub. Int. L.J. 107 (2009): the author outlines a new possible litigation strategy to enforce Art. III, Section 14 of the Pennsylvania Constitution and analogous provisions in other states.
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).
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).
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.