More reactions to and analysis of Cunningham
For a lot more reaction and insight on Cunningham, check out all the media pieces that Howard Bashman has assembled here. In addition, my terrific OSU colleague Alan Michaels sent me a lengthy e-mail with a seven-point dissection of aspects of Cunningham. He has permitted me to post his full e-mail (which can be downloaded below). For a taste, here is one of his thought-provoking points:
The Court was at least reasonably tough here in not allowing a state to do an end run around the Court’s earlier decisions by federalism-tinged arguments about construing their own law. This issue would seem to arise in at least a couple of other Crim. cases this term — totally outside the Apprendi line — including Smith and Panetti. It will be interesting to see if this toughness carries over to other areas or if its presence becomes dependent on the issue in question.
Download michaels_on_cunningham.doc
MORE: Another colleague, Kate Stith from Yale, has chimed in with an additional comment about a notable aspect of Justice Alito’s dissent: