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NMLR Current Issue

Summer 2016, Vol. 46, No. 2

Front Matter

This Article advocates that courts should rely more heavily on an underappreciated method of constitutional interpretation: reference to parallel state constitutional text and jurisprudence. This article is novel insofar as it develops a normative argument for why courts should consult state constitutions in interpreting the meaning of the federal constitution. To illustrate the value of this method for jurists who ascribe to various judicial philosophies, the authors apply this method to the U.S. Supreme Court’s newly developed Second Amendment jurisprudence. While District of Columbia v. Heller provides some guidance in interpreting the Second Amendment under the Court’s new framework, many questions remain unanswered in its wake. For instance, the Court has not yet answered what level of scrutiny should apply to Second Amendment regulations. Additional questions include exactly what kinds of “arms” will fall within the protection of the Amendment, in what kinds of places the right be given greater sanctity, and how protected arms may and may not be carried or stored. The authors argue, and illustrate with examples, how the states have widely already addressed these issues under their state constitutions, with striking uniformity in their conclusions.

This Article is empirically valuable because it is a repository for data on a number of issues related to the Second Amendment. It catalogues the exact number of states, with citations, that have adopted the reasonable regulation standard and the number of states that have upheld concealed carry bans. It also collects data on a number of other, related, characteristics of these states, such as cataloguing the states that consider the right to bear arms fundamental and cataloguing the number of states that have found “self defense” to be one of the animating concerns under their right to bear arms. Additionally, this Article provides data for originalists on the number of states with constitutions at different points in time relevant to the historical analysis, not just at the time of the founding, and among those states, the number of states with right to bear arms provisions. Finally, it catalogues the number of states from that period with language similar to that used in the federal Second Amendment.

The New Mexico Supreme Court opinion in Quality Automotive Center, LLC v. Arrieta, 2013-NMSC-041, involved the peremptory challenge to excuse a judge found at NMSA 1978, Section 38-3-9 (1985). The Supreme Court announced that the right embodied in the statute was procedural in nature and therefore the Court could amend or abolish the right. The Court then proposed new rules of procedure which limited a litigant’s ability to exercise Section 38-3-9.

This article traces the history of judicial disqualification statutes in New Mexico from territorial days through early statehood to the present as well as the evolution of judicial rule-making as a function of the legislative branch and the judicial branch of government. This article then demonstrates that the Legislature and judiciary reached a compromise on the peremptory excusal of judges in 1985 that the judiciary sought to withdraw from in 2013. This article further examines the problems those Proposed Rules of 2013 would have created, the bar members’ reaction to the proposed rules, and the Judiciary’s solution by enacting newly proposed rules in 2015.

Finally, this article argues that the Legislature does have a role to play in judicial rule-making. The Supreme Court should address its concerns about Section 38-3-9 along with its recommended solution to the Legislature and allow the Legislature to remedy the problem or alternatively recognize that Section 38-3-9 contains a substantive right to excuse a judge along with the procedural aspects which the Supreme Court now seeks to amend.

The legal profession—in viewing entry into a premarital agreement as an antagonistic process—has erected additional ethical barriers to hiring an attorney to prepare a premarital agreement. For those couples that do decide to pursue a marriage contract, the barriers put in place by the common law and by the legal profession inject unnecessary expense and adversarial decision-making to what could—and should—be a relatively inexpensive and collaborative process. Common law and the legal profession have, in a sense, created a self-fulfilling prophecy. By adopting a dual-representation, dissolution-focused model for entering into premarital agreements, we increase the chances that agreements will be coercive, stressful, and will fail to reflect the expectations of the spouses.

I argue that these barriers are premised on sexist and outdated notions—notions that typically do more harm than good. Removing these barriers and empowering couples to decide how to arrange their financial affairs would have an overall positive effect on relationship stability and equality of money management within the relationship. Part II examines the traditional arguments against premarital agreements and asserts that many of these arguments are outdated and unsupported by current data. Part II also considers some of the benefits afforded by premarital agreements. Part III examines the doctrine of unconscionability—one of the most significant barriers to entry into and enforcement of premarital agreements. As Part III explains, common law has created two proxies for assessing conscionability: financial disclosure and independent legal representation. I argue that both proxies are founded on misguided, paternalistic, and gendered notions. Part IV describes an additional unnecessary barrier erected by the legal profession—Rule 1.7 of the Model Rules of Professional Conduct. Part V describes a proposed collaborative approach towards premarital agreements and concludes.

Part I of this article reviews the expert evidence admissibility standard set forth in Daubert v. Merrell Dow Pharm., Inc. and New Mexico’s adoption of the Daubert standard in State v. Alberico.2 Part II of the article provides a summary of the framework expressed in the 2014 publication Group to Individual (G2i) Inference in Scientific Expert Testimony.3 Part III explores case law where DNA testing was considered as evidence and why the courts have concluded that DNA evidence complies with Daubert/Alberico standards. Part IV provides a summary of the use of euroimaging evidence in court and provides an overview of the different neuroimaging techniques being used. Neuroimaging evidence is being increasingly offered in both criminal and civil cases and as a result we believe that a basic familiarity with the different types of techniques is important for all jurists. Part V highlights the distinction between novel science and clinically-established science in showing that Daubert finds its highest purpose when evaluating novel techniques and theories. Part VI concludes that certain types of neuroscience data can be and has been deemed reliable at both the general and individual level through the application of Daubert under a G2i framework.

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