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2006

Constitutional Law

University of California, Hastings College of the Law

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What Nsa Is Doing... And Why It's Illegal, John Cary Sims Jan 2006

What Nsa Is Doing... And Why It's Illegal, John Cary Sims

Hastings Constitutional Law Quarterly

On December 16, 2005, The New York Times disclosed the existence of a secret electronic surveillance program being carried out by the National Security Agency (NSA) that involves government interception of the contents of international communications without obtaining warrants. The Foreign Intelligence Surveillance Act of 1978 (FISA), which was enacted following the Supreme Court's decision in United States v. United States District Court (1972) and the Church Committee's disclosure of improper NSA activities, created a comprehensive system regulating electronic surveillance for foreign intelligence purposes. Warrants are required when such surveillance takes place within the United States or when ...


Supermajoritarianism And The American Criminal Jury, Ethan J. Leib Jan 2006

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Hastings Constitutional Law Quarterly

In Apodaca v. Oregon and Johnson v. Louisiana, the Supreme Court allowed the relaxation of the decision rule most commonly associated with criminal jury felony verdicts and held that unanimity in state criminal cases is not constitutionally required. The Court announced that states were allowed to use 10-2 and 9-3 verdicts in non-capital state cases in contravention of the traditional rule requiring unanimity. The Court argued that the essential function of the jury is to place between the accused and the state a commonsense group of laymen representing a cross-section of the community-and that relaxation of the unanimity requirement would ...


A No Moderator Needed: A Liberty Tradition Right To Broadcast Advertorials, Daniel Matheson Jan 2006

A No Moderator Needed: A Liberty Tradition Right To Broadcast Advertorials, Daniel Matheson

Hastings Constitutional Law Quarterly

Civic republicans have famously noted that the exclusion of relevant viewpoints from public debate undermines the process of democratic deliberation, a concern directly implicated by commercial broadcasters' well-publicized refusals to transmit controversial issue advertisements. Unfortunately, simply noting the failure of our current broadcasting regime to appropriately inform the public does not provide an actionable First Amendment objection. Current doctrine focuses primarily on preserving individual liberty, presupposing that protection of individuals' rights will prove sufficient to safeguard the speech necessary for participatory democracy and leaving little room for active state direction of the proverbial town meeting. If the liberty tradition is ...


The Court Of Disbelief: The Constitution's Article Vi Religious Test Prohibition And The Judiciary's Religious Motive Analysis, Francis J. Beckwith Jan 2006

The Court Of Disbelief: The Constitution's Article Vi Religious Test Prohibition And The Judiciary's Religious Motive Analysis, Francis J. Beckwith

Hastings Constitutional Law Quarterly

In several federal cases concerning whether particular statutes or policies violate the First Amendment's prohibition of religious establishment, both the United States Supreme Court and other federal courts have rejected the constitutionality of these laws and policies on the grounds that they have an exclusively religious purpose. Part of the courts' analyses in some of these cases rely on the apparent religious motives of the statute's or policy's sponsors and/or citizen-supporters as the basis by which the courts infer that the law or policy in question has a religious purpose.

I argue in this paper that ...


The Turbulen Aftermath Of Crawford V. Washington: Where Do Child Abuse Victims' Statements Stand, Stephanie Mcmahon Jan 2006

The Turbulen Aftermath Of Crawford V. Washington: Where Do Child Abuse Victims' Statements Stand, Stephanie Mcmahon

Hastings Constitutional Law Quarterly

In its Spring 2004 term, the Supreme Court, in Crawford v. Washington, explicitly articulated the test to determine the admissibility of evidence offered against the accused when the declarant is unavailable, clarifying the prior ambiguous test of Ohio v. Roberts. The Court in Crawford stated that: if (1) the declarant is legally unavailable to testify at trial and (2) the prior statement is testimonial in nature, then testimony is not admissible unless the defendant had a prior opportunity to cross examine the witness. The Crawford clarification appears to strike a death knell to the use of child abuse reporting statements ...


The Gnu General Public License: Constitutional Subversion, Tennille M. Christensen Jan 2006

The Gnu General Public License: Constitutional Subversion, Tennille M. Christensen

Hastings Constitutional Law Quarterly

Challenges to the GNU General Public License alleging that it is unconstitutional are properly divided into two categories: those alleging that the bare license granted by the GPL is unconstitutional, and those alleging that enforcing the GPL under state contract law is unconstitutional. As a bare license, the GPL is in parallel with the copyright clause of Article I of the United States Constitution because it relies upon existing federal copyright law to ensure that the copyright holder's work is distributed according to the copyright holder's wishes. However, federal copyright law impliedly preempts enforcement of the GPL as ...


Crawford V. Washington: Bright Line Rules To Identity Testimonial Statements, Jenny M. Kim Jan 2006

Crawford V. Washington: Bright Line Rules To Identity Testimonial Statements, Jenny M. Kim

Hastings Constitutional Law Quarterly

The Confrontation Clause of the Sixth Amendment gives a defendant in a criminal prosecution the right to "be confronted with the witnesses against him." The Constitution's text alone does not resolve the meaning of the Confrontation Clause and its application to the admissibility of an unavailable witness' statements. Thus, in determining whether admission of an unavailable witness' tape-recorded statement to a police officer was a Confrontation Clause violation, the Crawford Court looked to the history of the Confrontation Clause from its inception at English common law. The Court determined that the Framers of the Constitution were particularly concerned about ...


When The Meaning Of Plain Error Isn't So Plain: Deciphering Plain Error In The Context Of Booker, John Jay Stein Jan 2006

When The Meaning Of Plain Error Isn't So Plain: Deciphering Plain Error In The Context Of Booker, John Jay Stein

Hastings Constitutional Law Quarterly

In United States v. Booker, the Court declared that the sentencing judge's ability under the Federal Sentencing Guidelines to enhance a sentence based on facts found by the bench, and not the jury, ran afoul of the Sixth Amendment right to a jury trial. With this dramatic shift in the sentencing sphere, courts are being forced to deal with the question of what is to be done with the criminal defendants who were subject to unconstitutional judicial fact-finding prior to Booker. Courts have particularly struggled when face with defendants convicted prior to, but appealing after Booker. The Supreme Court ...


Amicus Brief Of Constitutional Law Professors David L. Faigman And Ashutosh A. Bhagwat, Et Al. In The Case Of Gonzales V. Carhart, David L. Faigman, Ashutosh A. Bhagwat, Kathrny Davis Jan 2006

Amicus Brief Of Constitutional Law Professors David L. Faigman And Ashutosh A. Bhagwat, Et Al. In The Case Of Gonzales V. Carhart, David L. Faigman, Ashutosh A. Bhagwat, Kathrny Davis

Hastings Constitutional Law Quarterly

This is an amici curiae brief submitted to the United States Supreme Court in the Gonzales v. Carhart and Gonzales v. Planned Parenthood cases (i.e., the partialbirth abortion cases) argued during the October, 2006 Term. The question the brief addresses is whether the Supreme Court should defer to congressional findings of fact, when the factual questions at issue help to determine the scope of a basic, constitutional right. The argument presented in the brief is as follows:

The question of what level of deference is owed legislative findings of fact in constitutional litigation is not new. It divided the ...


Prescribing Morality: The Constitutionality Of Pharmacist Conscience Clauses, Taylor Genovese Jan 2006

Prescribing Morality: The Constitutionality Of Pharmacist Conscience Clauses, Taylor Genovese

Hastings Constitutional Law Quarterly

Health provider "conscience clauses" were first enacted in response to the United States Supreme Court decision in Roe v. Wade and were specifically related to religious or moral objections to abortion. Generally, today's conscience clauses go well beyond the issue of abortion and provide "varying" levels of legal protection for health providers who refuse to perform services that are against their religious or moral beliefs.

This Note argues that legislation that provides an absolute right for pharmacists to refuse to fill valid prescriptions based on the pharmacist's religious or moral beliefs threatens the constitutionally protected right to access ...


Choice V. Chance: The Constitutional Case For Regulating Human Germline Genetic Modification, Nancy Pham Jan 2006

Choice V. Chance: The Constitutional Case For Regulating Human Germline Genetic Modification, Nancy Pham

Hastings Constitutional Law Quarterly

With the rapid rate of advancing technology, human germline intervention ("HGGM") may be possible in the near future. But, is access to HGGM technology a constitutionally protected right? Under traditional substantive due process, constitutional protection turns on whether the right is fundamental. If the courts determine that access to HGGM is a fundamental right, then it would fall in line with the category of reproductive decision-making cases such as Griswold v. Connecticut. Moreover, such a classification would require states to have a compelling interest before restricting the right at all. However, if HGGM is not a fundamental right, then states ...


The Structural Inadequacy Of Public Schools For Stigmatized Minorities: The Need For Institutional Remedies, Shavar D. Jeffires Jan 2006

The Structural Inadequacy Of Public Schools For Stigmatized Minorities: The Need For Institutional Remedies, Shavar D. Jeffires

Hastings Constitutional Law Quarterly

This Article challenges the failure of courts and advocates considering remedies in school cases to assess whether public schools, as currently constituted, are institutionally aligned with stigmatized minorities' particular educational needs. Numerous legal scholars have written about the longstanding failure of public schools to effectively educate racial minorities, but they have overlooked the relationship of public schools' institutional context to the educational consequences of racial stigma. This Article does so, claiming, first, that stigma attacks the capacities enabling effective education, and that educational services therefore must specifically account for stigma's noxious effects on racial minorities' educability. Stigma, I contend ...


Control, Co-Optation And Co-Operation: Managing Religious Harmony In Singapore's Multi-Ethnic, Quasi-Secular State, Li-Ann Thio Jan 2006

Control, Co-Optation And Co-Operation: Managing Religious Harmony In Singapore's Multi-Ethnic, Quasi-Secular State, Li-Ann Thio

Hastings Constitutional Law Quarterly

The governors of a multi-ethnic, multi-religious state which is based on political authority derived from secular laws, rather than theocratic mandate, are aware of the paradoxical quality of Religion as a force for peace and conflict. Indeed, the root word re (to bind) legare (what is broken) suggests that Religion is something which is redemptive in its healing quality. However, pragmatism informed by history reveals the need to maintain ethnic and religious cohesion as religious conflicts can tear plural societies apart. Religion is too potent a force to disregard or attempt to coercively eliminate, in a manner reminiscent of totalitarian ...