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Hung Up On Semantics: A Critique Of Davis V. United States, Samira Sadeghi

UC Law Constitutional Quarterly

A suspect being interrogated by the police suddenly says, Maybe I should talk to a lawyer. What legal effect, if any, should this statement have? What procedure should the police follow upon such an invocation? The United States Supreme Court in Davis v. United States adopted a rigorous standard for suspects invoking their Miranda rights.

This Comment criticizes the Court's adoption of the so-called threshold of clarity approach and its conclusion that only clearly asserted invocations of counsel trigger any protection for suspects. The Court's heightened requirement of clarity unfairly places a higher burden upon suspects in an already intimidating …

Ten More Years Of Plenary Power: Immigration, Congress, And The Courts, Stephen H. Legomsky

UC Law Constitutional Quarterly

The Supreme Court has long applied a doctrine of special judicial deference to Congress in the area of immigration regulation. The precise degree of that special deference to plenary congressional power has varied by context and era, and continues to develop today. During the past decade, the author has published two companion pieces which study the history, theory, soundness, politics, and likely future course of the plenary power doctrine. In this essay, the author summarizes the conclusions reached in those two prior publications, synthesizes the judicial trends that have developed since that time, and revises his predictions in light of …

Storytelling Out Of School: Undocumented College Residency, Race, And Reaction, Michael A. Olivas

UC Law Constitutional Quarterly

The recent wave of anti-immigrant sentiment has resulted in a revisitation of the rights of undocumented alien students. While each state has its own residency rules, a few states, including California, have precluded long-term undocumented alien students from establishing in-state residency for postsecondary tuition purposes. As a result, in most cases, students who are academically qualified to attend the state's institutions, whose only home is and has been within the state, and who otherwise function as full participants in the state's economy, are barred from attending the state's public institutions.

This article examines the legal and social implications of preventing …

Waiver Of The Right To Appeal, Robert K. Calhoun

UC Law Constitutional Quarterly

Current plea bargaining practice increasingly includes a requirement that the defendant waive any right to appeal as a condition of the plea bargain. This relatively new negotiation tactic carries with it the potential for rendering criminal appeals nearly as rare a phenomenon- as criminal trials have become under the old model of plea bargaining. This could move us one step closer to an administrative model of criminal case resolution in which neither factual nor legal issues are resolved by the courts but rather by the parties through a process of negotiation.

This Article argues against this practice, maintaining that it …

When Judges Impose The Death Penalty After The Jury Recommends Life: Harris V. Alabama As The Excision Of The Tympanic Membrane In An Augmentedly Death-Biased Procedure, Amy D. Ronner

UC Law Constitutional Quarterly

This Article examines the disturbing ramifications of sentencing statutes that allow a judge to override a jury's advisory life verdict and impose the death sentence, analyzes the importance of the jury in a criminal proceeding, its special function in the capital sentencing phase, and the ensuing devastation from a judge trumping a jury life verdict with death.

This Article then advances the position that jury override statutes do not spawn mere death bias, but actually an augmented death bias, and stresses the special significance of a jury life verdict issued in spite of that augmented death bias. This Article also …

Reinterrogation, Marcy Strauss

UC Law Constitutional Quarterly

There is no clear delineation under Miranda and Edwards of when the police may reinterrogate a suspect after ordinarily invoking the right to counsel. Logically, the prohibition cannot be indefinite. This would violate the public policy of enabling law enforcement personnel to control crime. The goals of Miranda, Edwards, and related cases establish several factors to be weighed in determining when the prohibition against reinterrogation should end. These include the length of time since the right to counsel was invoked, whether the new crime is related to the one for which the right to counsel was invoked, whether the suspect …

When Juries Meet The Press: Rethinking The Jury's Representative Function In Highly Publicized Cases, Kenneth B. Nunn

UC Law Constitutional Quarterly

The increasing media saturation of society has altered the traditional roles and function of the jury in criminal trials. In several recent highly-publicized trials, most notably the Reginald Denny beating case, the jurors have been asked to publicly defend and explain their verdicts. In the past, jury verdicts were accepted as legitimate if the jury was representative of their community. Now, however, it seems that a jury must also be representative to their communities.

This new representative function of the jury has profound implications for the more traditional functions of the jury. For example, what effect does the new representative …

License To Sell: Constitutional Protection Against State Or Local Government Regulation Of Liquor Licensing, Shelley Ross Saxer

UC Law Constitutional Quarterly

A liquor license is a valuable asset to the license holder, whether it be considered a privilege or a property interest. Liquor licenses are subject to extensive state and local regulation because they trade in a product which has historically been deemed harmful to the public health, safety, welfare, and morals. Constitutional protection against regulation is available to licensees, but the extent of this protection will depend on whether or not the liquor license is considered to be a property interest. This Article examines attributes, such as the right to obtain and the right to alienate, that are attached to …

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

UC Law Constitutional Quarterly

Under the Fourth Amendment, when police officers use force, they must adhere to a "reasonableness" standard. This abstract standard, however, has left much room for interpretation, creating a common misperception of Fourth Amendment protections of personal security. Specifically, many courts use the concept of danger to decide whether force is reasonable-that is, force is justifiable so long as danger is posed to the police officers.

This Article argues that other factors-other than danger-should guide whether force is reasonable. Moreover, this Article provides specific guidelines to ascertain when the Fourth Amendment is violated.

Does The Constitution Follow The Flag Into United States Territories Or Can It Be Separately Purchased And Sold, Marybeth Herald

UC Law Constitutional Quarterly

A 1992 Ninth Circuit decision, Wabol v. Villacnisis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions …

Due Process

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Right To Cross-Examine

Touro Law Review

No abstract provided.

Exposing Some Myths About Physician-Assisted Suicide, Giles R. Scofield

Seattle University Law Review

From my perspective, the fuss about physician-assisted suicide is about as important as re-arranging the deck chairs on the Titanic. Given the current state of our health care system, which remains in a state of crisis regardless—and perhaps because of—what did not happen last year, the legalization of physician-assisted suicide is morally essential only to those who are indifferent to the health care needs and concerns of most Americans. You now know that I do have something to say about this issue. Instead of engaging in the debate, however, I intend to engage the debate. By that, I mean that …

Juries And Jurors: Juries On Trial: Constitutional Right Versus Judicial Burden: An Analysis Of Jury Effectiveness And Alternative Methods For Deciding Cases, Matthew Forbes

Oklahoma Law Review

No abstract provided.

The Constitutionality Of Student-Led Prayer At Public School Graduation Ceremonies, Johanna J. Raimond

Vanderbilt Law Review

The Supreme Court consistently has held that it is unconstitutional to pray in public school classrooms.' Until 1992, however, the Court had never addressed the issue of prayer at a public school graduation ceremony. Prior to the Court's ruling, public school districts across the country regularly included a prayer of some variety in their graduation programs. In June 1992, the Supreme Court finally addressed this longstanding practice. In Lee v. Weisman, the Court held that the Providence, Rhode Island school district violated the Establishment Clause of the First Amendment by permitting a rabbi to offer an invocation and benediction at …

The Supreme Court Limits The Fifth Amendment Right To Counsel By Requiring Clear Requests--Davis V. United States, Gregory J. Griffith

Kentucky Law Journal

No abstract provided.

Prior Restraints On The Media And The Right To A Fair Trial: A Proposal For A New Standard, Alberto Bernabe-Riefkohl

Kentucky Law Journal

No abstract provided.

The Dormant Commerce Clause And State-Mandated Preference Laws In Public Contracting: Developing A More Substantive Application Of The Market-Participant Exception, Benjamin C. Bair

Michigan Law Review

This Note argues that the current focus on the relationship between states and their local governments as the key determinant of the constitutional validity of state-mandated preference laws is flawed. Instead, a court considering the validity of a state-mandated preference law should uphold such a law only if it distributes the benefits of state expenditures to state residents and does not excessively burden interstate commerce.

The Law And Politics Of Quebec Secession, Patrick J. Monahan

Osgoode Hall Law Journal

This paper considers the various legal issues that would arise in the context of Quebec's secession from Canada, and attempts to situate these issues politically. The author argues that, under the current constitutional amending formula, Quebec secession would require the support of the federal Parliament as well as the unanimous consent of the provinces; he also suggests that it is extremely unlikely that this level of support would be attained. The paper goes on to explore the possibility of Quebec seceding from Canada through a unilateral declaration of independence (UDI), suggesting that the success or failure of a UDI would …

Standing In Charter Declaratory Actions, June M. Ross

Osgoode Hall Law Journal

Standing rules applicable to Charter declaratory actions are examined. It is argued that, in Charter cases, Supreme Court has taken a restrictive approach to public interest standing that is inconsistent with prior case law and does not forward the purposes of standing law. Alternative forms of standing are also examined. The use of the traditional form of private standing has been severely and, it is suggested, unnecessarily restricted in Charter actions. However, there is a potential for a new form of private standing in the "section 24" plaintiff. The implications of both of these developments are considered.

Note: A Procedural Approach To Limited Public Forum Cases, Lee Rudy

Fordham Urban Law Journal

This Note argues that the Supreme Court, beginning with Perry, has defined the limited public forum in a manner that offends the underlying policies of the First Amendment.9 Part II of this Note explains the significance of the limited public forum doctrine within First Amendment jurisprudence. Part III provides an historical overview of limited public forum cases, demonstrating that Perry relaxed limited public forum analysis by making it easier for government selectively to restrict access to public property, and that subsequent cases have had to struggle to apply Perry. Part IV criticizes Perry's reformulation of the limited public forum as …

Note: New York City's Restrictive Zoning Of Adult Businesses: A Constitutional Analysis, Rachel Simon

Fordham Urban Law Journal

Part I explores the adult pornography industry in New York City and the constitutional framework developed by both federal and New York State courts to regulate non-obscene pornographic expression. Part II analyzes the City's Adult Zoning Resolution in light of decisions of the New York State Court of Appeals, the United States Supreme Court, and various federal district and circuit courts. Part III proposes changes that will increase the probability that the City's Adult Zoning Resolution will survive constitutional challenges. This Note concludes that although the current version of the City's Adult Zoning Resolution infringes unconstitutionally on adult business owners' …

Text As Tool: Why We Read The Law, Richard K. Greenstein

Washington and Lee Law Review

No abstract provided.

Products Of The Will: Robertson's Children Of Choice, Gilbert Meilaender

Washington and Lee Law Review

No abstract provided.

Children Of Choice: Whose Children? At What Cost?, Laura M. Purdy

Washington and Lee Law Review

No abstract provided.

Towards Democracy In A New South Africa, Adrien Katherine Wing

Michigan Journal of International Law

Review of Constitutional Options for a Democratic South Africa: A Comparative Perspective by Ziyad Motala

Liberalism And The Limits Of Procreative Liberty: A Response To My Critics, John A. Robertson

Washington and Lee Law Review

No abstract provided.