Digital Commons Network^™

I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave

Publications

Last week, while Supreme Court nominee Amy Coney Barrett was holding forth about how she applies originalism, invoking her mentor and former boss Justice Antonin Scalia, current Supreme Court justices were undermining an originalist opinion authored by Scalia. Nominee Barrett explained originalism: “I understand [the Constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Oral arguments in Torres v. Madrid make clear that, for some justices, originalism is appropriate, except when …

The 2020 Supreme Court Term In The Shadow Of Blm, Metoo, And The Notorious Rbg, Rachel A. Van Cleave

Publications

The upcoming Supreme Court term comes in the context of widespread protests about police violence, the criminal (in)justice system, continuing fallout from the #MeToo movement, and the death of iconic Supreme Court Justice Ruth Bader Ginsburg. The court has agreed to hear cases that involve the enduring white supremist legacy of a Louisiana law that allowed for non-unanimous jury criminal convictions, standards for evaluating excessive use of force by police, what is required to sentence a juvenile to life without parole, and military sexual violence.

It is imperative that the Court acknowledge the difficult truths that Black Lives Matter protesters, …

Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen

Publications

This Article seeks to understand and evaluate core elements of the past promise and present reality of Spain’s transformation from Francoist dictatorship to modern European democracy. It does this by investigating the role of the 1978 Constitution and the distinctive Spanish Model of relatively peaceful constitutional transformation in facilitating the key legal elements of Spain’s transition to democracy. Following a review of important historical developments related to Spanish constitutionalism in Part I, this Article scrutinizes the process by which Spain transitioned to democracy in the 1970s. Part II focuses particularly on the dominant characteristics of the Spanish Model, which facilitated …

A Brief History Of Anglo-Western Suicide: From Legal Wrong To Civil Right, Helen Y. Chang

Publications

This article will examine the history of suicide from antiquity, where certain types of self-killing were socially acceptable, to its evolution as a criminal wrong and its modern reincarnation as a moral and legal right. In the early Common Era, suicide was not a criminal wrong, but with the spread of Christianity, suicide became illegal. In the present day, a growing minority of states have legalized some forms of suicide or self-killing. In 2018, six states and the District of Columbia had legalized some form of physician-assisted suicide: California, Colorado, District of Columbia, Montana, Oregon, Vermont, and Washington. Twenty-three states …

How Much Is Police Brutality Costing America?, Eleanor Lumsden

Publications

The criminal law of the United States fails to stop the unlawful killing of minorities by law enforcement. In fact, it was never meant to do so. Civil tort law is also unequal to the task. The consequences of not correcting these legal failures are far-reaching for the United States and for our neighbors, and have so far been underreported. This article explores the direct and indirect costs of these failings, positive measures already underway, and makes further sugges-tions for reform.

Ready For Marriage? Evaluating The Supreme Court's Obergefell Arguments Like A Pro, Eric C. Christiansen

Publications

Amateur constitutional law gurus, rejoice! Marriage equality advocates and marriage traditionalists, warm up your commenting keyboards! And, secret Supreme Court junkies, put on your “Notorious RBG” t-shirts and rehearse your favorite Justice Scalia quote! On Tuesday, the United States Supreme Court will hear two and a half hours of arguments on whether the U.S. Constitution permits states to exclude same-sex couples from the rights and responsibilities of marriage. The case, Obergefell v. Hodges, is the most eagerly anticipated case of the Court’s current term. And, unlike the last time this court faced the marriage issue, the Justices have very …

Marriage And The Court: San Francisco's Role In The Debate, Kathleen Morris

Publications

No abstract provided.

Transformative Properties Of Fdr's Court-Packing Plan And The Significance Of Symbol, Laura A. Cisneros

Publications

In this Article, I begin by laying a basic theoretical foundation for understanding how language choice provides contextual cues to direct interpretation. Next, I analyze cases that use the "Court-Packing Plan" language. I argue that these references are intended to trigger a response in the reader that is sympathetic to judicial independence and, in some instances, to judicial incursions into policymaking. I then analyze references to the "switch in time" language, extracting the arguments about constitutional methodology and judicial activism embedded in that phrase. Here, I argue that the phrase "switch in time" is deployed to remind the reader of …

Youngston Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

Publications

My goal in this Article is not to provide a comprehensive survey of the Court's separation of powers cases from 1952 to the present. Rather, I want to present a modest-sized account of this shift from humility to arrogance and to do so not by the direct method of scrupulous narration, but through a combination of stealth and selectivity, with the idea that less could be more. With this model in mind, I have focused on the language of a few representative opinions: Jackson and Frankfurters concurrences in Youngstown, Chief Justice Rehnquist's majority opinion in Dames & Moore v. Regan, …

Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany Glidden

Publications

Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that …

Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner

Publications

The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave

Publications

People v. Gonzales involved an issue that continues to divide lawyers, judges, scholars, politicians, as well as the general public: how best to protect individuals from law enforcement conduct that violates constitutional protections? This question is particularly controversial in the context of a criminal case, since the exclusion of illegally obtained evidence often results in the alleged criminal going free. In Gonzales, the California Supreme Court was asked to adopt the exclusionary rule as a remedy for violations of constitutional rights. A majority of California Supreme Court justices answered this in the negative. Justice Carter disagreed, and his analysis provided …

Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang

Publications

By the middle of the 20th century, police interrogation of criminal suspects had developed into a fine art designed to extract confessions. The use of the “third degree,” otherwise known as the infliction of physical or mental suffering, was not uncommon. “[T]he most frequently utilized interrogation techniques have involved mental and psychological stratagems—trickery, deceit, deception, cajolery, subterfuge, chicanery, wheedling, false pretenses of sympathy, and various other artifices and ploys.” As the United States Supreme Court noted in its famous Miranda v. Arizona decision, this type of police interrogation involved “inherent compulsion,” was “inherently coercive,” “exact[ed] a heavy toll on individual …

Payroll Guarantee Association, Inc. V. The Board Of Education Of The San Francisco Unified School District: Denying Hecklers The Right To Veto Unpopular Speech, David Zizmor, Clifford Rechtschaffen

Publications

Payroll Guarantee Association, Inc. v. The Board of Education of the San Francisco Unified School District dealt with a difficult balancing question in First Amendment jurisprudence: to what degree are the rights of a speaker espousing unpopular views protected when such speech engenders disruptive protests— protests which themselves constitute a form of speech? Are the free speech rights of the unpopular speaker paramount? Do opponents have the right to protest such speech to the point at which the protests are so disturbing that the speech cannot go forward, in effect giving opponents a “heckler’s veto?”

“The Hysteria Of Our Times”: Loyalty Oaths In California, Marc Stickgold

Publications

In the years following World War II, the United States government, as well as many of the states, including California, enacted an almost endless stream of laws designed to weed out, isolate, sanction, and punish anyone thought to share any ideas or associations that could be labeled subversive. This historical period, called the “American inquisition,” saw the enactment and enforcement of a wide variety of laws meant to accomplish these purposes. People were subject to criminal prosecution for their beliefs, associations or advocacy; denial of, or discharge from, employment; denial of government benefits or licenses; and exclusion from publicly funded …

Transformative Constitutionalism In South Africa: Creative Uses Of Constitutional Court Authority To Advance Substantive Justice, Eric Christiansen

Publications

In this Article, I will first discuss some easily overlooked constitutional tools for promoting greater social justice: the procedural provisions of the South African Constitution related to jurisdiction, access, remedies and constitutional interpretation. Following that, I will use three recent Constitutional Court cases to demonstrate the Court's creative (and promising) use of its judicial authority to advance substantive justice. By way of conclusion, I will elaborate on the meaning of these recent developments for the transformative agenda of South Africa and for other nations.

Richmond Medical Center For Women V. Herring: Prohibiting Partial Birth Abortion But Keeping Constitutional Rights Intact, Kathleen Morris

Publications

In Richmond Medical Center for Women v. Herring (Richmond Medical Center V), the United States Court of Appeals for the Fourth Circuit held that Virginia's ban on partial birth abortion did not impose an undue burden on a woman's right to obtain an abortion and was thus constitutional. The Virginia Partial Birth Infanticide Act specifically prohibits only the intact dilation and evacuation procedure. It further includes intent requirements and a life exception, which allow a physician to avoid liability in rare cases where an intended standard dilation and evacuation procedure inadvertently results in an intact partial delivery of the fetus. …

Nothing But A Northern Lynching: The Death Of Fred Hampton Revisited, Susan Rutberg

Publications

No abstract provided.

Ritual, Emotion, And Political Belief: The Search For The Constitutional Limit To Patriotic Education In Public Schools, Brent T. White

Publications

No abstract provided.

The Road To Reason: Arizona V. Gant And The Search Incident To Arrest Doctrine, Myron Moskovitz

Publications

No abstract provided.

A Rule In Search Of A Reason: An Empirical Reexamination Of Chimel And Belton, Myron Moskovitz

Publications

No abstract provided.

State Constitutional Interpretation And Methodology, Rachel A. Van Cleave

Publications

The question of constitutional theory in state courts often results in a comparative analysis of the state and federal constitutions. Typically where a comparative analysis is used, the purpose is to support the authority of the state court to interpret the state document independently and to justify an interpretation and result that diverge from federal precedent. While this approach may add to the persuasiveness of the opinion, it does little to advance the role of state courts in the dialogue of constitutionalism. The critical tension in state constitutionalism is between the need to persuade critics that the state court is …

When Is An Error Not An "Error"? Habeas Corpus And Cumulative Error Analysis, Rachel A. Van Cleave

Publications

This article first addresses the question of whether courts should consider cumulative error analysis in habeas corpus cases, or whether the Eighth Circuit Court of Appeals is correct that each error must stand on its own. After concluding that cumulative error analysis should be a cognizable issue in habeas corpus petitions, the question of whether courts should employ a different standard for habeas petitions alleging cumulative error is addressed. Emphasis is placed on the Fifth Circuit case, Derden v. McNee and. that court's rationale for imposing limitations on habeas corpus petitions alleging cumulative error. The Fifth Circuit's four-prong test for …

State V. Mchugh: The Louisiana Supreme Court Upholds Gaming Checks, Anthony S. Niedwiecki

Publications

No abstract provided.

A Constitution In Conflict: The Doctrine Of Independent State Grounds And The Voter Initiative In California, Rachel A. Van Cleave

Publications

Part I of this Article discusses the fundamental nature of the rights found in California's Declaration of Rights, and the need to maintain their stability. It also discusses the problems inherent in forcing the interpretation of California rights to follow federal interpretations. Part II traces the development of the independent state grounds doctrine in the United States, and specifically, in California. Part III explains the history and procedure of the voter initiative in California, while Part IV analyzes how Propositions 8 and 115 have limited the ability of the California judiciary to give independent meaning to California's Declaration of Rights. …

Michigan V. Chesternut And Investigative Pursuits: Is There No End To The War Between The Constitution And Common Sense?, Rachel A. Van Cleave

Publications

Section I of this Comment examines Terry v. Ohio, in which the Supreme Court decided that certain on-the-street encounters between police officers and citizens come within fourth amendment scrutiny. Section II traces the development of standards for determining when a seizure has occurred, that is, when a reasonable person would believe he was not "at liberty to ignore the police presence and go about his business."' In section III, this Comment argues that, when the police chase a citizen, their conduct constitutes a seizure because the citizen is aware of the police's attempt to apprehend him and is therefore …

How California Governs The News Media, Jon H. Sylvester

Publications

While California legislation is generally regarded as progressive, it is not immediately clear what "progressive" means when such democratic values as the right to information and the right to privacy conflict. This article surveys how certain state laws impact the operations of the print and broadcast news media. Laws affecting the media include a number of traditional subject areas, including constitutional law, torts, evidence, and civil, criminal and administrative procedure. The topics discussed herein are defamation, invasion of privacy, cameras in the courtroom, shield law (or "reporter's privilege"), publication of recorded conversations and pilfered documents, and legislation regarding open meetings …

How The States Govern The News Media - A Survey Of Selected Jurisdictions, Jon H. Sylvester

Publications

This article examines the statutory and decisional law of California, the District of Columbia, Massachusetts, New York and Texas to determine the similarities and differences of their laws regarding defamation, invasion of privacy, cameras in the courtroom, shield laws (reporter's privilege), broadcast of recorded conversations, publication of pilfered documents, open records legislation, and open meetings legislation.

Issues Forum: Pornography, Drucilla S. Ramey

Publications

Prof. Dru Ramey discussed the ramifications of the decision of the school book store manager to carry issues of Playboy for sale.

Constitutional Review: Supreme Court, October 1977 Term, Marc Greenberg

Publications

This review of Supreme Court cases address the News Media and the Broadcast Media and the First Amendment.