Digital Commons Network^™

Modern Models Of Organ Donation: Challenging Increases Of Federal Power To Save Lives, Jonathan G. August

UC Law Constitutional Quarterly

Much of today's scholarship on noninformed consent organ donation models has focused on either presumed consent or paid donation systems. Recently, however, individual states and foreign countries have begun to rethink their organ donation procedures in an attempt to increase donation rates.

Looking specifically at the informed consent model and the brand-new Israeli incentive program, this note first examines the success rates of these programs as potentially viable alternatives to traditional organ donation models. Next, this note argues that adopting these programs at the federal level will not violate the United States constitution under First Amendment and Fourteenth Amendment challenges, …

A Familial Privacy Right Over Death Images: Critiquing The Internet-Propelled Emergence Of A Nascent Constitutional Right That Preserves Happy Memories And Emotions, Clay Calvert

UC Law Constitutional Quarterly

In May 2012, the United States Court of Appeals for the Ninth Circuit broke new constitutional ground in Marsh v. County of San Diego when it held that the constitutional right to privacy encompasses "the power to control images of a dead family member." This article provides an overview of Marsh. It then discusses the historical common law right to familial privacy over death images. In addition, it explores both judicial and legislative recognition of the Internet's power as a force in the battle to preserve privacy. Next, it illustrates how these twin forces-the preexisting common law right to familial …

Democracy In Ohio: Ohio's Fiscal Constitution And The Unconstitutional Nationwide Arena Deal, Dave Ebersole

UC Law Constitutional Quarterly

Between September 2011 and March 2012 multiple public institutions unanimously approved the public purchase of Nationwide Arena in Columbus, Ohio, to save Columbus' National Hockey League franchise, the Blue Jackets, from moving to another locality.

Blue Jackets, from moving to another locality. As a result of public officials' unanimous support for the transaction and disregard for issues of democracy, public debt, economic development, and the transaction's legality under the Ohio Constitution, this matter demonstrates that nonelectoral fiscal restraints are needed in constitutions.

This article argues first that the transaction violates Ohio's constitutional fiscal restraints. Second, Ohio's debt limits, including Ohio …

When One Is Not Enough, But Two Is A Company Union: A First Amendment Analysis Of The National Labor Relations Board's Restrictions On Employee Involvement At The Nonunion Workplace, Mark J. Mahoney

UC Law Constitutional Quarterly

In this article it is argued that the National Labor Relations Board's longstanding application of Section 8(a)(2) of the 1935 Wagner Act, as amended, violates the First Amendment. It is argued that the principal constitutional defect with the Board's application of this section, which prohibits employers from "dominat[ing] or interfer[ing] with the formation or administration of any labor organization or contribut[ing] financial or other support to it," is that it largely eliminates the most effective means by which employers and nonunion employees can communicate regarding terms and conditions of employment: group discussion.

It is argued that the restrictions that the …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Ghaelian

UC Law Constitutional Quarterly

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child's school board.

This article begins by chronicling the …

Quill's Call To Action: Will Congress Update Commerce Clause Nexus Requirements In Light Of Cloud Computing, Molly Schneider

UC Law Constitutional Quarterly

In Quill Corp. v. North Dakota, the Supreme Court emphasized that Congress is the proper authority to promulgate rules governing state taxation of interstate commerce. Despite this confirmation of authority, Congress has only successfully set a uniform state sales-and-use tax regime once with the Mobile Telecommunication Sourcing Act. Since the enactment of the MTSA, states have continually attempted to adapt tax regimes to new technologies, but have been severely limited by the Commerce Clause.

One area of particular focus has been cloud computing due to the industry's complicated web of locations. This note will discuss whether states need Congress to …

Livelihood, Ability To Pay, And The Original Meaning Of The Excessive Fines Clause, Nicholas M. Mclean

UC Law Constitutional Quarterly

This article highlights the circuit split that has recently emerged regarding the Eighth Amendment's Excessive Fines Clause in the years since United States v. Bajakajian. The article introduces the traditional English legal principle of salvo contenemento and examines the role this principle played in informing the meaning of the excessive fines under English law. It then goes on to consider American colonial understandings of salvo contenemento, undertaking a brief survey of post-Founding considerations of the meaning of the phrase "excessive fines." The article studies the public meaning of the Excessive Fines Clause at the time of the Fourteenth Amendment's ratification …

Something To [Lex Loci] Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

UC Law Constitutional Quarterly

The new question relating to same sex marriage is not "who decides," but who is married. The federal government and many states have historically relied on the place-of-celebration rule, or lex loci celebrationis, to determine who is married. This ensures that married couples do not lose their marital status simply because they travel across state borders or relocate to a new home. Under lex loci celebrationis, if the marriage is legally valid where it was celebrated, then the marriage is legally valid everywhere else.

This article address the most pressing unresolved question of United States v. Windsor: Will the federal …

San Francisco's Checkout Bag Fee Ordinance And The Problem Of Proposition 26, Nicole Misha Goodwin

UC Law Constitutional Quarterly

In 2012, the San Francisco Board of Supervisors enacted the county's Checkout Bag Ordinance. Designed to decrease the use of disposable checkout bags and mitigate their harmful environmental effects, the ordinance requires all retailers to charge ten cents per paper or reusable checkout bag distributed to their customers. Fifteen months later, the California electorate passed Proposition 26 that added a definition of a "tax" to the California Constitution to recategorize certain regulatory fees. The reclassification will undoubtedly affect state and local governments' ability to impose certain regulatory fees without prior authorization by the electorate.

Using the Proposition 26 framework to …

Foreign In A Domestic Sense: American Samoa And The Last U.S. Nationals, Sean Morrison

UC Law Constitutional Quarterly

Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.

Recently, some …

Bans On Sex-Selective Abortions: How Far Is Too Far, Annie Moskovian

UC Law Constitutional Quarterly

"My mother in law always tells me I am useless because I do not have a son. If I do not have a son, she says, they will send me back to India." These words come from a qualitative study on son preference and fetal sex selection among Indian immigrants in the United States in which women expressed the pressure to have sons from in-laws and husbands. Census studies also indicate that many Chinese and Korean Americans terminate pregnancies if the fetus is of the undesired sex.

Further, studies imply that sex selection is not a practice that can be …

Negative Lawmaking Delegations: Constitutional Structure And Delegations To The Executive Of Discretionary Authority To Amend, Waive, And Cancel Statutory Text, R. Craig Kitchen

UC Law Constitutional Quarterly

In Clinton v. City of New York, the Supreme Court suggested congressional delegation of the power to amend, waive, or cancel statutory text violates bicameralism and presentment. This Article reexamines the Court's holding and shows that it has had little impact on judicial review of lawmaking delegations. The article then proposes an analytical framework for lawmaking decisions by categorizing them as either positive or negative delegations. It discusses the different types of negative delegations that congress can make, thereby granting the executive partial or total power to negate statutory text. The article then discusses how such negative delegations are constitutionally …

A Check-In On Privacy After United States V. Jones: Current Fourth Amendment Jurisprudence In The Context Of Location-Based Applications And Services, Kathryn Nobuko Horwath

UC Law Constitutional Quarterly

This note will discuss whether current Fourth Amendment jurisprudence adequately protects user location information obtained from location-based services ("LBS"), and if not, what changes can be made to ensure our right to privacy in this digital information. In Part I, the concept of LBS and a technical description of how it works is discussed. Part II summarizes the Supreme Court's recent decision in United States v. Jones on warrantless prolonged use of a GPS tracking device and will outline the Fourth Amendment jurisprudence underpinning the Court's logic. Part III delivers an in-depth description of federal statutory law that applies to …

What Is Really So Bad About A Different Rule Of Law: The Afghan Legal System Reanalyzed, Dana Cook-Milligan

UC Law Constitutional Quarterly

"Rule of Law" is a principle that politicians often discuss to evaluate the stability and progressive nature of another state. From the Western point of view-where Rule of Law is most commonly discussed-Rule of Law is predicated on sovereign, supreme, predictable, and fair legal systems. Failure to satisfy this formulation suggests that a state lacks Rule of Law. Rule of Law's absence, in turn, evokes negative connotations and is often synonymous with a lack of democracy. The Islamic Republic of Afghanistan is war-torn, decentralized, and corrupt-but can it still have Rule of Law? Are these concepts mutually exclusive? Must Afghanistan's …

Redevelopment In The Golden State: A Study In Plenary Power Under The California Constitution, Daniel S. Maroon

UC Law Constitutional Quarterly

On January 20, 2011, California Governor Jerry Brown issued a proclamation reaffirming the fiscal emergency that had been declared by his predecessor administration. In response to the fiscal emergency, the state Legislature enacted two measures that were intended to stabilize school funding by reducing or eliminating the diversion of property tax revenues from school districts to the state's community redevelopment agencies. The California Redevelopment Association, the League of California Cities, and other affected parties immediately brought suit, seeking direct relief from the Supreme Court of California on grounds that the statutes violated various portions of the California Constitution.

This note …

Paid Organ Donations And The Constitutionality Of The National Organ Transplant Act, John A. Robertson

UC Law Constitutional Quarterly

Organ transplant is a well-established medical therapy that saves thousands of lives. Yet many people who could survive with transplants die on waiting lists. With ever expanding indications for transplant, the supply of organs will never meet demand. But many more organ transplants could occur than do.

Under the National Organ Transplant Act ("NOTA"), the United States government prohibits the use of money in any form of organ donation scheme. By making it a federal felony to provide valuable consideration for organ donations, many proposed organ brokerages and exchanges have not been allowed to come to fruition. Valuable consideration includes …

Thomas Jefferson's Establishment Clause Federalism, David E. Steinberg

UC Law Constitutional Quarterly

Constitutional history can be used or misused. Historical analysis can provide insight into provisions shrouded in opaque language. But constitutional history also can be used to mislead, painting an intentionally distorted picture of people or events.

In the vast majority of its opinions analyzing the First Amendment's Establishment Clause that also include a historical account from Thomas Jefferson, the Supreme Court has consistently stated that Jefferson viewed the Establishment Clause as the embodiment of the church-state separation principle. However, if Jefferson were alive today and could read the Court's account of his views, he would be horrified. A distrust of …

More Than A Quick Glimpse Of The Life: The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome Deise, Raymond Paternoster

UC Law Constitutional Quarterly

In striking down the use of victim impact evidence ("VIE") during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Letting The Fox Guard The Hen House: Why The Fourth Amendment Should Not Be Applied To Interviews Of Children In Child Abuse Cases, Yourtz, Rachael

UC Law Constitutional Quarterly

This note argues that the Fourth Amendment warrant requirement should not apply to interviews of potential child abuse victims during the course of investigations to assess their safety. The article argues that, in such cases, children are witnesses, not perpetrators, taking them outside the scope of traditional Fourth Amendment jurisprudence. Alternatively, if the Fourth Amendment is applicable, situations where children are potentially victimized by their parents present an extenuating circumstance where procuring a warrant would run counter to the objectives of the Constitution and the State's interest in protecting these children. Finally, the note argues that a warrant requirement would …

National Federation Of Independent Business V. Sebelius: Five Takes, Glenn H. Reynolds, Brannon P. Denning

UC Law Constitutional Quarterly

In National Federation of Independent Business v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act-popularly known as "Obamacare"-was an unconstitutional assertion of Congress' power to regulate commerce among the several states, but was nonetheless sustainable under Congress' power to tax. This piece looks at some possible meanings and implications of the Supreme Court's decision. Takes One and Two analogize Sebelius and two other famous cases-Marbury v. Madison and Regents of the University of California v. Bakke-whose opinions are held out as deftly straddling the line between principle and prudence. Takes Three and Four examine the …

Arizona V. Winn: Negative Implications For First Amendment Proponents And Possibly For Our Nation's Schoolchildren, Adam F. Sloustcher

UC Law Constitutional Quarterly

In a 5-4 decision in Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court drastically curtailed American taxpayers' ability to challenge the constitutionality of certain government expenditures. At issue in Winn was the constitutionality of a tax credit provision that offered a tax break to individuals who donated money to organizations that support religious schools. The Court ruled that taxpayers could not challenge the constitutionality of the tax credit provision because they lacked legal standing to do so.

This note will first present the background of the Winn decision and the history of taxpayer standing. Second, it will …

Public Disclosure And Moving The World Forward: Why We Need The America Invents Act, Arman Matevosyan

UC Law Constitutional Quarterly

This note discusses the shift in the United States from a first-to-invent scheme to a first-to-file regime in patents, as provided by the Leahy-Smith America Invents Act. It discusses the historical patent regime in the United States and abroad. It then the Leahy-Smith Act's provisions and the putative constitutional bases upon which the act was passed. Finally, the note argues that the Leahy-Smith Act, and its first-to-file regime, is in line with Supreme Court precedent, creates a better system, and conforms to international standards more closely than the previous first-to-invent regime.

The Muddled State: California's Application Of Confrontation Clause Jurisprudence In People V. Dungo And People V. Lopez, Mark K. Hanasono

UC Law Constitutional Quarterly

Crawford v. Washington revitalized the Confrontation Clause by addressing the admissibility of testimonial hearsay by declarants whom defendants never previously had the opportunity to cross-examine. Courts continue to review Confrontation Clause challenges in a variety of contexts. How should courts determine the admissibility of forensic analyses introduced through witnesses who were not personally involved with them?

Most recently in California, the state supreme court decided People v. Dungo and People v. Lopez, limiting Confrontation Clause protection to testimonial hearsay statements contained in forensic analyses, which were made (1) with formality, and (2) for the primary purpose of criminal prosecution. As …

A Higher Protection For Scholars Faced With Defamation Suits, Ameet Kaur Nagra

UC Law Constitutional Quarterly

Defamation suits against scholars have rarely been successful in the United States because of First Amendment protections, but the prospect of spending a hefty sum to defend a defamation suit has a chilling effect on what scholars research or write. Compared to the publications of media giants, a defamation claim is more likely to inhibit scholarly ideas from scholars such as scientists, psychologists, economists, mathematicians, law professors, and book reviewers.

The U.S. Supreme Court has refused to significantly alter its defamation framework promulgated almost half a century ago. Lower courts have worked within this constitutional framework to protect scholars by …