Volume 113 FIRST IMPRESSIONS

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Commentaries

Crawford v. Washington: A Ten Year Retrospective

Introduction from the Editors

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation Clause jurisprudence. But ten years after the Supreme Court's landmark decision, scholars, practitioners, and judges still debate its logic and its consequences. This Symposium continues that debate, featuring essays written by Professors Richard D. Friedman and Jeffrey L. Fisher, who advocated in Crawford itself for the Supreme Court to adopt the "testimonial" approach to the Confrontation Clause; Professor George Fisher, one of the nation's premier scholars of criminal law and evidence; and Professor Deborah Tuerkheimer, who has written extensively on the Crawford regime's effect on domestic violence prosecutions.

The Symposium consists of five essays. Professors George Fisher and Tuerkheimer both wrote longer essays, while Professors Friedman and Jeff Fisher each wrote a shorter piece and collaborated on a joint response to George Fisher's essay.

We hope this Symposium fosters further debate about the merits of the Crawford regime and inspires the practitioners, scholars, and judges who will shape the contours of the Confrontation Clause over the next ten years.

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Come Back to the Boat, Justice Breyer!

Richard D. Friedman
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Crawford v. Washington: The Next Ten Years

Jeffrey L. Fisher
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The Crawford Debacle

George Fisher
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Confrontation and the Re-Privatization of Domestic Violence

Deborah Tuerkheimer
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RESPONSES

The Frame of Reference and Other Problems

Richard D. Friedman & Jeffrey L. Fisher

George argues that, centuries ago, jurists did not distinguish between testimonial and nontestimonial hearsay, and so the distinction cannot be a historically well-grounded basis for modern confrontation doctrine. The argument proceeds from an inaccurate frame of reference.

When the confrontation right developed, principally in the sixteenth and seventeenth centuries, and English defendants-Raleigh among them-demanded that adverse witnesses be brought face to face with them, they were making a procedural assertion as to how witnesses must give their testimony. (Giving testimony is what witnesses in litigation do.) Rarely did they phrase this claim in terms of hearsay, for the simple reason that there was no rule against hearsay in the modern sense. Similarly, numerous statutes protected the right of treason defendants to have witnesses brought face to face, and these statutes never mentioned hearsay.

True, Geoffrey Gilbert's treatise from the early eighteenth century said that "a mere hearsay is no Evidence," but that was a limp statement: neither he nor any other writer at the time elaborated on it. (Contrast the dense discussion of the law governing witnesses.) They did not offer a definition of hearsay, without which an exclusionary rule is indeterminate, nor did they catalogue exceptions, without which such a rule would be impractically broad. The fact is that lots of hearsay was admitted in the early- and mid-eighteenth century, in criminal as well as civil cases.

George certainly agrees that not all hearsay should be excluded. But the point appears to have escaped John Marshall; Marshall's broad-brush 1807 condemnation of all hearsay (and exclusion of a conspirator's statement) proves far too much and offers no support for George. Marshall's statement does suggest that by then-thirty years after the early state constitutions articulated the confrontation right, some using the "face-to-face" formula-lawyerly recognition of, and broad opposition to, hearsay had taken hold. Over succeeding decades, the wide scope of the hearsay rule tended to make it, rather than the confrontation right, the doctrinal focus, even as the rule was whittled and shaped by exceptions that made its scope more practical but obscured its rationale.

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What Does Social Equality Require of Employers? A Response to Professor Bagenstos

Brishen Rogers
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The Rule of Law and the Perils of Precedent

Randy J. Kozel
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Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

Gary Lawson
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Commerce in the Commerce Clause: A Response to Jack Balkin

Robert G. Natelson & David Kopel
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Response to "Snyder v. Louisiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges"

Bidish J. Sarma
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Freedom and Equality on the Installment Plan

Michael Halley
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Insufficient Activity and Tort Liability: A Rejoinder

David Gilo & Ehud Guttel
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Constitutional Interpretation and Judicial Review: A Case of the Tail Wagging the Dog

Michael Halley
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Insufficient Analysis of Insufficient Activity

Kenneth S. Abraham
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First Impressions, an online companion to the Michigan Law Review, publishes op-ed length articles by academics, judges, and practitioners in an online symposium format. This extension of our printed pages facilitates quick dissemination of the legal community’s initial impressions of important judicial decisions, legislative developments, and timely legal policy issues.

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Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...