Picking Up the Pieces of the Gordian Knot: Towards a Sensible Merger Methodology

This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature. The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates that the issue of consecutive sentencing (merger) is not an issue contained within the heartland of Double Jeopardy analysis at all and that its inclusion there with traditional successive prosecution matters serves neither discipline. Her analysis leaves merger on an island, in need of a definitive methodology for courts to use to employ it as a stand-alone concept of systematic importance. This article provides that scholarly methodology. The methodology is based on a structured analysis of legislative intent found in both the elements of the offenses involved and the particular way in which the legislature has described the boundaries of those offenses for sentencing purposes. This methodology draws upon existing case interpretations and interpretive statutes, but forges new formulations meant to be readily applied in even the most complex of cases where the issue will arise. While the article uses the Pennsylvania Crimes Code to explain the newly proposed merger methodology, the issues raised are common to any system based primarily on the Model Penal Code. This is a fresh look at a complex and important issue, a look that the courts will hopefully convert into practical, doctrinal application

The Rights Question

This is the published version

Five Hot Topics: Issues Pending Concern in Pennsylvania\u27s Appellate Courts

In June, 2003 the author was honored to be asked to address the conference of the Superior Court of Pennsylvania on a variety of topics which have percolated to the surface of Pennsylvania appellate practice in recent years. In response to the court\u27s invitation, brief abstracts of five topics were created to suggest an analytical framework for future research in each of the five respective areas. These abstracts have been updated and revised for this publication. The five topics discussed are diverse in subject matter and each is the subject of considerable ongoing litigation

Probable Cause in a Nervous Age

The article seeks a new understanding of the ancient principle of probable cause in an age in which public policy and law have been profoundly influenced by the fear of terrorism. It explores the importance of probable cause within a broader constitutional system, arguing that while it helps to protect the specific right against unreasonable searches, it is also part of a larger, structural protection of liberty generally. The article explores the frustrating efforts a judge will undertake in finding meaning to the concept by resort to precedent, linguistics, mathematical models or history. Ultimately, it argues that the core of the concept can only be seen through the lens of political science, particularly the political philosophy of John Rawls. From Rawls, the article borrows the idea of the original position and posits that by applying it to probable cause, a judge can more readily sense its proper application in a given case. Essentially, probable cause should be found when any rational, self-interested person would agree that the facts known at the time are sufficient, knowing that they could turn out to be the person searched, the victim of the crime being investigated or a neighbor in the community in which the search takes place. Rawls’ idea of public reason is also put into this context. The philosophical underpinnings of that concept are argued to account for the remarkable longevity of probable cause as a doctrine. The underlying reasonableness of the doctrine, seen as a publicly accepted mandate by a people rationally balancing their desire for freedom and their need for order, is set forth as the compelling reason why, even in a nervous age, probable cause should, and will, prevail

Golden spiral photonic crystal fiber: polarization and dispersion properties

A golden spiral photonic crystal fiber (GS-PCF) design is presented in which air holes are arranged in a spiral pattern governed by the golden ratio, where the design has been inspired by the optimal arrangement of seeds found in nature. The birefringence and polarization properties of this fiber are analyzed using a vectorial finite-element method. The fiber that is investigated shows a large modal birefringence peak value of 0.016 at an operating wavelength of 1.55 μm and exhibits highly tuneable dispersion with multiple zero dispersion wavelengths and also large normal dispersion. The GS-PCF design has identical circular air holes that potentially simplify fabrication. In light of its properties, the GS-PCF could have application as a highly birefringent fiber and in nonlinear optics, and moreover the 2D chiral nature of the pattern could yield exotic properties

It's Harder to Splash on Soft Solids

Droplets splash when they impact dry, flat substrates above a critical velocity that depends on parameters such as droplet size, viscosity and air pressure. By imaging ethanol drops impacting silicone gels of different stiffnesses we show that substrate stiffness also affects the splashing threshold. Splashing is reduced or even eliminated: droplets on the softest substrates need over 70\% more kinetic energy to splash than they do on rigid substrates. We show that this is due to energy losses caused by deformations of soft substrates during the first few microseconds of impact. We find that solids with Young's moduli $\lesssim 100$kPa reduce splashing, in agreement with simple scaling arguments. Thus materials like soft gels and elastomers can be used as simple coatings for effective splash prevention. Soft substrates also serve as a useful system for testing splash-formation theories and sheet-ejection mechanisms, as they allow the characteristics of ejection sheets to be controlled independently of the bulk impact dynamics of droplets.Comment: 5 pages, 4 figure