Digital Commons Network^™

Less Than Meets The Eye: Antidiscrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

UC Law Constitutional Quarterly

The conventional wisdom is that, in a series of cases beginning with City of Boerne v. Flores, the Supreme Court erected high barriers against Congress's power to enforce fundamental rights under Section 5 of the Fourteenth Amendment and thereby to abrogate a state's Eleventh Amendment Immunity from private lawsuits. This Article shows that the conventional wisdom is inaccurate. The initial applications of the new Section 5 and Eleventh Amendment jurisprudence, which made abrogation dependent on effective Section 5 action, imposed high standards on what evidentiary record might justify enforcement legislation, and placed stringent limits on the remedies that might be …

Examining Copyright Exemptions For Web Mashups In The International Context: Applying American Constitutional Considerations As Guideposts For The Trips Three-Step Test, James De Los Reyes

UC Law Constitutional Quarterly

The proliferation of web mashup websites, which combine information from various online sources into new integrated works, has spurred the emergence of a mashup industry and a culture that uses the medium as a new avenue for expression and communication. By remixing content and presenting information in new ways, web mashups can benefit their creators, consumers, and even the public at large. However, concerns regarding possible copyright infringement have also become more prominent as web mashup creators incorporate greater amounts of online data and content-which may belong to other copyright holders-into their composite works with increasing ease. To determine whether …

Preface, Frank H. Wu

UC Law Constitutional Quarterly

No abstract provided.

Christian Legal Society V. Martinez: Six Frames, Toni M. Massaro

UC Law Constitutional Quarterly

In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization ("RSO") policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that the Christian Legal Society ("CLS") was obliged to comply with an "all-comers" condition on access to benefits, despite the burden on CLS members' expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access …

How Equality Constitutes Liberty: The Alignment Of Cls V. Martinez, Julie A. Nice

UC Law Constitutional Quarterly

Across the constitutional doctrines protecting individual liberty from governmental interference, judicial inquiry often focuses on the unequal infringement of liberty. Many of the most important individual rights have emerged from the synergy between equality and liberty. But the Court has not yet provided any framework for understanding the various ways that liberty and equality interrelate. Neither has any consensus developed around any scholarly attempt to understand the relationship between liberty and equality. Without any grand theory, the search for understanding this important relationship is thus left to induction, as scholars examine one case at a time to glean both specific …

Confidentiality And Disclosure: What The New Aba Criminal Justice Standards (Don't) Say About The Duties Of Defense Counsel, Cecila Klingele

UC Law Constitutional Quarterly

Although the duty to keep client confidences is one of a defense lawyer's defining characteristics, there are times when a lawyer will disclose otherwise confidential information to protect the safety of third parties, convey information to successor counsel, or defend against claims of ineffective assistance. Although disclosure in such instances is sometimes mandated by state professional ethics codes, more often the decision to disclose is left to the discretion of the individual lawyer. One of the few formal resources that offers guidance to defense counsel in making disclosure decisions is the American Bar Association's Criminal Justice Standards for the Defense …

No Match For The Police: An Analysis Of Miranda's Problematic Application To Juvenile Defendants, Zoe Overbeck

UC Law Constitutional Quarterly

In Fare v. Michael C. and Yarborough v. Alvarado, the Supreme Court affirmed the use of adult standards in determining whether a juvenile is under custodial interrogation and whether the juvenile has "knowingly and intelligently" waived her Miranda rights. Due to differences in juvenile cognition, young people's limited comprehension of the words and substance of the Miranda rights, and their vulnerability to police interrogation techniques, I argue in this note that states should go beyond the baseline established by the Supreme Court, as some have already, to offer juvenile suspects increased protection during a custodial interrogation. This note examines the …

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, Donald L. Beschle

UC Law Constitutional Quarterly

The Supreme Court case of Employment Division v. Smith revived an older view of the Constitution's Free Exercise Clause that protected believers only from government acts aimed at beliefs specifically, where those acts grew out of hostility to the religious belief rather than a desire to advance or protect otherwise legitimate nonreligious goals. This reversion to a previously discarded standard by the Supreme Court was much criticized, and states around the country sought to undo its effect by enacting and applying strict scrutiny standards for governmental regulation of religious belief despite there no longer being a Free Exercise exemption.

This …

A Temporary Solution To Climate Change: The Federal Common Law To The Rescue, Jeremy Hessler

UC Law Constitutional Quarterly

In the latter half of 2009, the Second Circuit in Connecticut v. American Electric Power Co. and the Fifth Circuit in Comer v. Murphy Oil USA provided a strong signal to the political branches that the courts could begin regulating greenhouse gas emissions under common law tort actions. This Note focuses upon recent developments in climate change litigation by closely examining the various issues that arise in these suits, as well as of some of the issues that may arise if the trial courts reach the merits of these cases. This examines the constitutionality of climate change suits under the …

Whose Constitution Is It Anyway - The Executives' Discretion To Defend Initiatives Amending The California Constitution, Jeremy Zeitlin

UC Law Constitutional Quarterly

The decision of then Governor Arnold Schwarzenegger and Attorney General Jerry Brown to refuse to appeal the United States District Court's findings in Perry v. Schwarzenegger, striking down Proposition 8 as unconsitutional, was a bare assertion of executive power. Although plainly contrary to the will of the majority of the electorate who implemented Proposition 8, the Governor and Attorney General's decision was lawful because it stemmed from the wide discretionary powers that the California Constitution and the Government Code grant to the state's executive officers. Instead, the only check to the particular manner executives wield their discretionary authority is the …

Reconciling Parliamentary Sovereignty And Judicial Review: On The Theoretical And Historical Origins Of The Israeli Legislative Override Power, Rivka Weill

UC Law Constitutional Quarterly

It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, Israel's constitutional system, prior to the famous 1995 United Mizrahi Bank decision, offers an affirmative answer to this question.

This article focuses on Israel's constitutional experience during its founding period. It further explains the unique revolutionary role performed by …

Associations And Forums: Situating Cls V. Martinez, Ashutosh Bhagwat

UC Law Constitutional Quarterly

This article explores certain problematic aspects of the Supreme Court's modern First Amendment doctrine through the lens of the Court's 2010 decision in Christian Legal Society v. Martinez. In Martinez the Court upheld a decision by Hastings College of the Law, a public law school, to deny official recognition to a religious student group because the group excluded students based on their religion and sexual orientation. Applying free speech doctrine, the Court found that the Hastings's decision and the policy underlying it were reasonable, viewpoint-neutral restrictions on speech in a limited public forum. While the result reached by the Martinez …

Closing The Door On Misconduct: Rethinking The Ethical Standards That Govern Summations In Criminal Trials, Daniel S. Medwed

UC Law Constitutional Quarterly

Closing argument is the most pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant's guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion-and that emotionally laden rhetoric can distract people from making rational choices.

Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the …

The Role Of Reporter For A Law Project, Rory K. Little

UC Law Constitutional Quarterly

Professor Little has served as the Reporter for the ABA's Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions since 2005. In this introductory essay for a unique joint publication Symposium between the Hastings Constitutional Law Quarterly and the Hastings Law Journal focused on the Standards, Professor Little provides his description of the role of a Reporter for a law project. Surprisingly, despite almost a century of academics serving as Reporters for law projects sponsored by the American Law Institute and the ABA, there is no literature providing the "inside story" of a Reporter's role. …

Prosecuting Terrorism: The Material Support Statute And Muslim Charities, Michael G. Freedman

UC Law Constitutional Quarterly

The federal law prohibiting the provision of material support to terrorist organizations has been no stranger to controversy. From its politically charged origins through its repeated amendment after September 11, 2001, it has remained an important, but often critiqued, weapon in the government's legal response to terrorism. The most prominent legal challenge to the law lasted over a decade. It culminated in June 2010, when the United States Supreme Court upheld the constitutionality of the law in Holder v. Humanitarian Law Project. The Court's opinion, however, correctly recognized that important questions remain unresolved.

One such question, which this Note addresses, …

Too Big To Fail And Too Big To Pay: States, Their Public-Pension Bills, And The Constitution, Debra Brubaker Burns

UC Law Constitutional Quarterly

Faced with the most severe budget crises since the Great Depression, many state officials and lawmakers within the United States are desperately trying to pay their bills and balance their budgets. More than a few economists, reporters, academicians, lawyers, and politicians are arguing about legal solutions for pension liabilities that are too big to pay, including possible federal bailouts for states that are deemed "too big to fail."

States choosing to default on or repudiate any public-pension obligation would face significant legal challenges to any action that impaired those pensions. Beyond the protections of the Constitution's Contract Clause, state constitutional …

California Penal Code Sec. 270.1: A Constitutionally Impermissible Attempt To Combat Truancy, Alison Cordova

UC Law Constitutional Quarterly

In the 2008-2009 academic school year, over a quarter of the California public school student population was truant. There is a well established correlation between truancy and dropping out of high school. And high school dropouts make up over three quarters of the prison population of the State of California.

Responding to this alarming domino effect, the California Legislature enacted Penal Code section 270.1 in September, 2010. This statute imposes criminal liability on parents of chronically truant students for not encouraging or supervising their child's school attendance. While the aim of this law is clearly to attack criminality before it …

Advocacy, True Threats, And The First Amendment, Mark Strasser

UC Law Constitutional Quarterly

Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain-the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …

The California Resale Royalty Act: Droit De [Not So] Suite, Emily Eschenbach Barker

UC Law Constitutional Quarterly

It is a generally accepted principal that an artist owns certain rights to exploit the economic value of his works. In the United States an artist's rights are protected by various provisions of the federal copyright laws. These pecuniary rights exist largely in the same form across the globe, however, some countries, and now the state of California, have begun to recognize personal rights of artists in their work. These moral rights, or droit moral, are retained by the artist even after a work is sold. The particular moral right that my manuscript is concerned with is the droit de …

Boumediene As A Constitutional Mandate: Bivens Actions At Guantanamo Bay, Ian Samson

UC Law Constitutional Quarterly

The legal status of and the rights of the persons detained at the United States' facility at Guantdnamo Bay are two of the preeminent questions facing today's legal scholars. The United States initially presented Guantdnamo as a legal netherworld-neither fully within nor exempted from the rule of law. But the Supreme Court's decision in Boumediene v. Bush rejected the government's characterization by deciding that, whatever the legal status of Guantdnamo may be, it certainly is not what the government imagined. This note argues that Boumediene's de jure versus de facto sovereignty distinction applies beyond the writ of habeas corpus and …

Reviewing Associational Freedom Claims In A Limited Public Forum: An Extension Of The Distinction Between Debate-Dampening And Debate-Distorting State Action, Alan Brownstein, Vikram Amar

UC Law Constitutional Quarterly

In this article, Professors Brownstein and Amar critically examine the important freedom of association and viewpoint discrimination arguments raised in the Christian Legal Society v. Martinez case. The authors agree with the Christian Legal Society ("CLS") that the Hastings nondiscrimination policy imposes serious burdens on the associational freedom of registered student groups ("RSOs") at the law school. To determine if that policy is constitutional, however, it is necessary for the Supreme Court to determine for the first time the extent to which freedom of association receives first amendment protection in a limited public forum. That analysis requires the translation of …

Marketplace Of Ideas 2.0: Excluding Viewpoints To Include Individuals, Robert Luther Iii

UC Law Constitutional Quarterly

What are the implications of the Christian Legal Society v. Martinez decision? First, in ruling that public universities may require that all recognized student organizations permit any and "all comers" to be eligible for all offices of the organization, the Court issued a narrow rule that is praiseworthy for its clarity but for little else. Second, and on the issue of precedent, it is worth noting that by ratifying Hastings' "all-comers" policy, the Court overlooked numerous precedents and historical facts that recognize the rights of students to associate with those of similar beliefs on campus and free of university-imposed burdens. …

Protecting Surface Land By Internalizing The Cost Of Oil And Gas Development: Wyoming's Surface Owner Accommodation Act Strikes A More Sustainable Balance, Jennifer A. Richardson

UC Law Constitutional Quarterly

Split estate mineral lands have been well established in the United States since 1900, but state legislatures have only recently begun to reexamine whether damages to the surface estate should be paid for by the surface owner or instead by the mineral developer. The Wyoming Surface Owner Accommodation Act ("WSOAA") is one such state law that allows surface owners to be compensated for impacts to the surface estate's value beyond the compensation provided for by federal law. However, unlike the preempted mining regulations of several other states, the WSOAA supplements federal regulations in a permissible manner because it does not …

California Dreaming: A Case To Give States Discretion In Providing In-State Tuition To Its Undocumented Students, Debra Urteaga

UC Law Constitutional Quarterly

Should undocumented students qualify for in-state tuition? In a recent decision by the California Supreme Court, the answer is "yes." California Education Code section 68130.5 provides that anyone, including undocumented immigrants, may qualify for in-state tuition if the student has attended a California high school for at least three years and has graduated from a California high school. This issue, however, has been the subject of heated controversy for some time, and certain college students went as far as to sue the Regents of the University of California for admitting undocumented students into their schools. The arguments, however, are misguided.

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another, James E. Moliterno

UC Law Constitutional Quarterly

Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client's information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering "substantial bodily harm." Despite a broader view that would dictate revelation …

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Lissa Griffin, Stacy Caplow

UC Law Constitutional Quarterly

The newest revision of the influential ABA Standards for the Prosecution and Defense Function recognizes the changing practices and attitudes in today's criminal justice system. Placing even more responsibility on prosecutors than past versions, the proposed Standards require prosecutors to be problem-solvers and reformers who consult and cooperate with defense counsel when engaging in both routine and systemic matters. These changes signal new responsibilities for prosecutors that call for more than lip service to their role as administrators of justice. Candor, cooperation and civility are now explicit values that should pervade all dealings between prosecutors, defense lawyers and courts.

Conflicts Over Conflicts: Challenges In Redrafting The Aba Standards For Criminal Justice On Conflicts Of Interest, Laurie L. Levenson

UC Law Constitutional Quarterly

Currently, an ABA Task Force faces the considerable challenge of redrafting the ABA Standards for Criminal Justice. Prosecutors and defense counsel need clear guidance on how to handle conflicts of interest rules. However, the initial challenge is in identifying those questions a code of ethics should answer when it comes to conflict situations. With the help of prominent lawyers, academics and judges who participated in a series of roundtables on the new ABA standards, this article identifies forty of the key questions to ask about conflicts of interests. These questions allow real progress to be made toward creating a code …

Excessive Public Defense Workloads: Are Aba Standards For Criminal Justice Adequate, Norman Lefstein

UC Law Constitutional Quarterly

Excessive caseloads among public defenders in the United States is a pervasive national problem, which not only often prevents lawyers from furnishing their clients competent and diligent representation as required by rules of professional conduct but also jeopardizes the quality of justice in criminal and juvenile courts. Although the American Bar Association has addressed the problem in various policy statements, including its Criminal Justice Standards, Professor Lefstein argues that there are still issues that are not adequately covered. Specifically, he argues that the ABA should consider the development of standards that (1) authorize defenders to refuse to provide representation when …

Witness Preparation: Regulating The Profession's Dirty Little Secret, Roberta K. Flowers

UC Law Constitutional Quarterly

Although all attorneys understand that coaching a witness to testify falsely is unethical, additional ethical restraints surrounding witness preparation in criminal cases are not clearly defined by case law, rules of professional conduct or even the newly drafted Criminal Justice Standards for Prosecutors and Defense Attorneys. Many have suggested that the line between proper witness preparation and improper witness coaching is not clear. This article explores some of the gray areas of the practice of witness preparation and why criminal attorneys from both sides of the aisle need guidance on permissible and impermissible conduct in this routine practice of criminal …

Waiving Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Campbell Moriarty, Marisa Main

UC Law Constitutional Quarterly

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant's proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993; the changes in the practice since that time; and the proposed changes to the Standards. The article focuses on the complex …