Law Commons^™

Has Georgia Gone Too Far - Or Will Sex Offenders Have To, Jacqueline Canlas-Laflam

UC Law Constitutional Quarterly

There are few criminals in our society that receive more contempt and deserve less sympathy than sex offenders. In the last ten years, twenty-seven states have passed residency restrictions, limiting where a sex offender may live within the state. In some situations, the statutes have effectively banished sex offenders from parts of these states. The United States Supreme Court has yet to review any of these residency restriction statutes. In order to maintain the integrity of our legal system and because state legislatures may not represent the interests of sex offenders fairly, it is imperative to consider the constitutionality of …

Untangling Tenth Amendment Standing: Why Private Parties Cannot Enforce The Federal Structure, David M. Palmer

UC Law Constitutional Quarterly

In the last thirty years, the Tenth Amendment has experienced a resurgence as an independent check on the powers of the federal government. This newfound interest in the meaning and power of the Tenth Amendment has inevitably led to the question: Who may bring a Tenth Amendment claim? As the Tenth Amendment concerns the relationship between states and the federal government, states, not private parties, have traditionally acted as plaintiffs in suits against federal government incursion. However, the Seventh and Eleventh Circuit Courts of Appeals have, in a series of cases beginning twenty-five years ago, expressly permitted private parties to …

Who Says So - Defining Cruel And Unusual Punishment By Science, Sentiment, And Consensus, Aimee Logan

UC Law Constitutional Quarterly

The 2003 United States Supreme Court decision Atkins v. Virginia provides a unique opportunity to discuss how the Court integrates science into its constitutional philosophy. In Atkins, a majority of the Court concluded that executing criminals with mental retardation violates the Eighth Amendments prohibition against cruel and unusual punishment. Psychologists, psychiatrists and others in the scientific community have studied mental retardation for some time. However, the tests they use, and the criteria they look at, do not necessarily translate to the criminal justice system. Thus, in order to give legal significance to mental retardation, the Supreme Court must operationally define …

Supreme Court Voting Behavior: 2006 Term, Richard G. Wilkins, Scott Worthington, Peter J. Jenkins, Elisabeth Liljenquist

UC Law Constitutional Quarterly

This Article, the twenty-first in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2006 Term. The analysis is designed to measure whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms.

The voting patterns tabulated by this Article reveal a Court in transition. The generally consistent conservative voting patterns of Chief Justice Rehnquist have been replaced with several surprisingly liberal voting patterns tallied by Chief Justice John Roberts. As a result, ideological bias demonstrates a significantly wider "gap" …

A Reexamination Of The Tinker Standard: Freedom Of Speech In Public Schools, Jerico Lavarias

UC Law Constitutional Quarterly

The question of whether homosexuality is a sin has been, especially in the last decade, at the center of public discourse. People who practice any Christian religion would strongly answer in the affirmative to this question. However, we live in modem times where the right to freedom of speech and enjoyment of civil liberties are arguably at their height, and contrary to religious conclusions many positive viewpoints have arisen on the practice of homosexuality. Yet the debate continues. While there is no question to the right afforded to adults to freely and openly discuss the issue of whether homosexuality is …

When Legislature May Mean More Than Legislature: Initiated Electoral College Reform And The Ghost Of Bush V. Gore, Richard L. Hasen

UC Law Constitutional Quarterly

Whether or not the California Electoral College measure qualifies for the ballot and is voted upon, courts eventually will have to confront the question whether initiated Electoral College reform violates Article II of the U.S. Constitution. With the National Popular Vote movement in full swing, and other proposals for Electoral College reform floating around, it is only a matter of time before some initiative changing the system qualifies for a state ballot and stands a chance of passing.

Though the constitutional question is straightforward, the answer is not: A strict textual view suggests that initiated reform is unconstitutional; case law …

Suspension For Beginners: Ex Parte Bollman And The Unconstitutionality Of The 1996 Antiterrorism And Effective Death Penalty Act, Dan Poulson

UC Law Constitutional Quarterly

The 1996 Anti-Terrorism and Effective Death Penalty Act dramatically revised the manner in which federal courts exercise jurisdiction in habeas corpus petitions. Under 28 U.S.C. 2254(d)(1), federal courts cannot grant habeas relief to state prisoners with regard to any claim that has been adjudicated on the merits by a state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Various critics have assailed this language as an unconstitutional limitation on the decision-making powers of federal courts. In …

Gang Injunctions Under Heat From Equal Protection: Selective Enforcement As A Way To Defeat Discrimination, Cathy Wang

UC Law Constitutional Quarterly

Courts have issued gang injunctions, primarily in California, to enjoin alleged gang members from engaging in activities in furtherance of gang objectives. On the surface, these quasi-civil/criminal remedies might seem to protect the welfare of the community from alleged gang members. But a closer look reveals an Equal Protection problem: The injunctions prohibit defendants from doing what others can do solely based on their arbitrarily conferred gang affiliation status. What makes the situation all the more troubling is that many of the people labeled as "gang bangers" are poor minorities.

Because gang injunctions can easily entail unconstitutional discrimination, defendants should …

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

UC Law Constitutional Quarterly

As the distinction between interpretation and politics diminishes, the need for pluralism in interpretation increases. The Article argues, first, that the rule of law requires that no one tribunal possess the power to subordinate a whole legal system to its politicized rule.

The Article then uses comparative legal study to analyze two tested alternatives to concentrating interpretive authority in a single court. Under the "separation of powers" approach, some or many jurisdictionally distinct institutions are granted powers to interpret and apply the constitution and the laws. A multiplicity of interpreters helps to prevent domination by any one legal ideology and …

Hot Oil And Hot Air: The Development Of The Nondelegation Doctrine Through The New Deal, A History 1813-1944, Andrew J. Ziaja

UC Law Constitutional Quarterly

Current scholarship's memory of the nondelegation doctrine's history is neither long nor rich. It rightly recalls that the doctrine has not invalidated a statute since 1936 in Carter v. Carter Coal. Despite having been argued before the Court at least twenty two times from 1813 to 1944 alone, however, the doctrine only ever succeeded in three cases, all of which were challenges to statutory components of Franklin D. Roosevelt's New Deal: Panama Refining v. Ryan in 1935, which is known famously as the "hot oil" case since it involved illicit oil sales, A.L.A. Schechter Poultry Corp. v. United States also …

Unqualified Interests, Definitive Definitions: Washington V. Glucksberg And The Definition Of Life, Alexa Hansen

UC Law Constitutional Quarterly

In Washington v. Glucksberg, the Supreme Court upheld a Washington statute that forbade physician-assisted suicide under rational basis review. One of the articulated state interests was the state's "unqualified interest in preserving life." However, the Court neglected to define when life ends, which would mark the end of the state's unqualified interest. Without a definition for the end of life, the Court assumed its eventual conclusion: it is impossible for an individual interest to overcome an unqualified interest in an undefined term.

By adopting "whole brain death" as the definition of the end of life, the Court would provide a …

Let The Sun Shine On The Supreme Court, Marjorie Cohn

UC Law Constitutional Quarterly

Though the Supreme Court allows public attendance and print media coverage of argument sessions, Supreme Court Justices have long been reluctant to allow news cameras into the courtroom. Justice David Souter famously stated, "The day you see a camera come into our courtroom it's going to roll over my dead body." This essay, originally presented as part of the Hastings Constitutional Law Quarterly Volume 34 Symposium: Cameras in the Court, traces the history of cameras in the courtroom and the Justices' various reasons to oppose their entry. The essay argues that it is in the Supreme Courtroom that the law …

Maintaining The Constitutionality Of The Patent System, Susanna Chenette

UC Law Constitutional Quarterly

Congress' constitutional power to establish a patent system is not unrestrained. Rather, it is derived from a clause that expressly limits the reach of any patent system created by requiring it "to advance the progress of science and the useful arts." Inherent in any such system is the fundamental quid pro quo between society and inventor: an inventor receives an exclusive right for a limited time to his invention, and society benefits from the full disclosure of the inventor's knowledge, incentivizing research and dispersing knowledge. However, while this constitutional dictate remains unaltered, the patent system has grown and changed markedly …

Just Don't Say You Heard It From Me: Bridging The Davis V. Washington Divide Of Indistinguishable Primary-Purpose Statements, Thomas M. Forsyth Iii

UC Law Constitutional Quarterly

In Davis v. Washington, the Supreme Court sought to clarify its Crawford v. Washington holding, which restored the Constitution's Confrontation Clause to its original procedural function-to test the reliability of testimonial witness statements "in the crucible of cross-examination." Under Davis, the testimonial/non-testimonial categorization of witness hearsay statements is based on the primary purpose for which those statements were made to law enforcement agents. Despite the Court's two-pronged standard, Davis left a gaping hole between the extreme ends of the testimonial/nontestimonial spectrum where witness statements have a mixed or dual purpose and the primary purpose is indiscernible.

This note proposes that …

A House Divided: How Judicial Inaction And A Circuit Split Forfeited The First Amendment Rights Of Student Journalists At America's Universities, Richard Bradley Ng

UC Law Constitutional Quarterly

In Hazelwood School District v. Kuhlmeier, the Supreme Court examined whether a high school principal's review and censorship of a student newspaper offended the First Amendment. Although the Court held that high school administrators were accorded a high degree of deference in such circumstances, the Court expressly left the question open whether the analytical framework of Hazelwood was applicable to the university setting. Without clear guidance from the Supreme Court, the federal circuit courts have split on the issue.

Because of this circuit split, geography defines the extent of both a student journalist's First Amendment rights and the states' ability …

Domestic Surveillance For International Terrorists: Presidential Power And Forth Amendment Limits, Richard Henry Seamon

UC Law Constitutional Quarterly

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called "Terrorist Surveillance Program" (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President's powers; or (2) violates the Fourth Amendment. …

Government-Sponsored Chaplains And Crisis: Walking The Fine Line In Disaster Response And Daily Life, Mary Jean Dolan

UC Law Constitutional Quarterly

Two significant public issues have been the limits of partnership between government and religion and government's role in helping citizens cope with disasters. One intriguing intersection of these issues is local governments' use of chaplaincy programs to address the human face of trauma, both large-scale and personal. This Article asserts that the constitutional line differs for mass disaster response and the daily human dramas, clearly painful, addressed by local police and fire departments. There is an important and valid role for clergy and faith-based assistance as part of the broad spectrum of governmental disaster relief. In the everyday tragedies, however, …

From The Fringes Of Copyright Law: Examining California's True Name And Address Internet Piracy Statute, Brian Mcfarlin

UC Law Constitutional Quarterly

In 2004, California Governor Schwarzenegger signed into law California Penal Code section 653aa. Under the statute, anyone located in California who, "knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her email address, and the title of the recording or audiovisual work" is guilty of a misdemeanor. While this statute allows copyright holders, such as music companies, to easily identify copyright infringers online, it accomplishes this goal by going outside of federal copyright law entirely …

Direct Democracy And Article Ii: Additional Thoughts On Initiatives And Presidential Elections, Vikram David Amar

UC Law Constitutional Quarterly

This Article focuses on the first of the two questions in Professor Richard Hasen's aricle on whether "initiated changes to rules for choosing Presidential electors violate Article II." The article looks closely at places other than Article II where the Constitution uses the phrase "legislature of the States" and carefully examines Supreme Court cases on the topic. Given that initiative proponents are not necessarily foreclosed by the text of the Constitution, or Supreme Court case law, and given that initiative backers have some nineteenth and twentieth century history on their side, courts should be hesitant to invalidate all initiated changes …

Political Party And Senatorial Succession: A Response To Vikram Amar On How Best To Interpret The Seventeenth Amendment, Sanford Levinson

UC Law Constitutional Quarterly

This Article explores the author's fundamental disagreement with Vikram Amar's argument as to the meaning of the Seventeenth Amendment. Amar's argument is "a brilliant explication of various trees that misses the reality of the surrounding forest." The author contrasts my response to this article to another article that several years ago definitively demonstrated the unconstitutionality of the current Succession in Office Act (the Act) inasmuch as it makes the Speaker of the House (and then the president pro tempore of the Senate) next in line to the vice president to fill any vacancies in the Oval Office. Both that article …

Undue Burdens On Voter Participation: New Pressures For A Structural Theory Of The Right To Vote, Christopher S. Elmendorf

UC Law Constitutional Quarterly

Judges and law professors alike have worried that an avowedly structural approach to constitutional adjudication of political rights would embroil the courts in contested questions that are beyond their competence to resolve. This Article calls that premise into question. It attempts to demonstrate that the Supreme Court's severe/lesser burden framework for electoral mechanics cases, if meshed with a wholly individualistic conception of voting rights, threatens to open a Pandora's Box of new constitutional claims that judges would have little choice but to resolve on the basis of their personal sense of political fairness. By contrast, a conception of "burden" linked …

Are Statutes Constraining Gubernatorial Power To Make Temporary Appointments To The United States Senate Constitutional Under The Seventeenth Amendment, Vikram David Amar

UC Law Constitutional Quarterly

This Article is Professor Amar's response to Professor Levinson's article above.

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, H. Kwasi Prempeh

UC Law Constitutional Quarterly

This Article focuses on the comparative dimension of a phenomenon that is already well known to U.S. constitutional discourse: the imperial presidency. While U.S. constitutional scholars have shown a great deal of interest in new constitutional courts in the world's newest democracies, the contemporaneous phenomenon of persistent imperial presidency in Africa has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourses, Africa has witnessed since 1990 a dramatic transition to democratic rule that has resulted in the toppling of many of the region's long-reining autocrats and the installation of new counter-authoritarian constitutions. However, …

Morse V. Frederick And The Regulation Of Student Cyberspeech, Brannon P. Denning, Molly C. Taylor

UC Law Constitutional Quarterly

Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. This Article analyzes the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of student speech cases. In addition, it examines the impact the decision could have on what looks to be the new frontier of student First Amendment rights: public school regulation of on-line speech-student "cyberspeech."

Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace-all …

Taking The Courts: A Brief History Of Takings Jurisprudence And The Relationship Between State, Federal, And The United States Supreme Courts, Rachel A. Rubin

UC Law Constitutional Quarterly

Regulatory takings law today is criticized as a confused muddle, intractable, and as an ambiguous area in which the United States Supreme Court complicates its own jurisprudence with each new decision. Though this is rather true, it is because the often factspecific nature of takings cases leads to results that are "pragmatic at the expense of internal consistency." This note traces the role of the federal courts and the United States Supreme Court with regard to review of state judicial changes in takings or property law. It examines the position of the federal courts in their review of both physical …

Access And Lobbying: Looking Beyond The Corruption Paradigm, Dorie Apollonio, Bruce E. Cain, Lee Drutman

UC Law Constitutional Quarterly

After a recent spate of lobbying scandals involving Jack Abramoff among others, Congress passed a lobbying and ethics reform bill banning a wide variety of lobbyist-to-legislator gifts. In so doing, it dealt with lobbyist influence primarily as a quid pro quo corruption problem. But a large body of literature suggests that lobbyists have multiple sources of influence that go way beyond what could be considered "corruption." Lobbyists, for example, are valuable sources of expertise and information, and are often old trusted friends and advisors to key political decision-makers. Even if all money and gifts were banned, lobbyists would likely still …

Would You Like Some First Amendment Rights With That - How Mandatory Nutritional Disclosure On Restaurant Menus Violate The Freedom Of Commercial Speech, Nicole Anderson

UC Law Constitutional Quarterly

Allegations of a so-called "obesity epidemic" have spawned widespread panic throughout the United States. Legislators in California and New York have answered the outcry by crafting regulations which would mandate the disclosure of nutritional information of food items on restaurant menus and menu boards. Although these regulations dream of promoting healthier eating habits throughout the community, they do so by depriving restaurants of their First Amendment rights. A closer look at the regulations reveals a glaring violation of restaurants' freedom of commercial speech, forcing the restaurants to communicate the government's message to their customers without any true causal link between …

Rethinking Granfinanciera: May The Bankruptcy Court Retain Pre-Trial Jurisdiction After Finding A Valid Jury Trial Right, Amber Arakaki

UC Law Constitutional Quarterly

Bankruptcy courts are vested with authority under Article I to provide swift resolution of a debtor's insolvency, but under the current bankruptcy jurisdiction scheme, an Article III court which possesses the essential attributes of judicial power must ultimately adjudicate private rights. Nearly twenty years ago, the U.S. Supreme Court, in Granfinanciera, S.A. v. Nordberg, recognized that a party in bankruptcy litigation may demand a jury trial when asserting a private right. Following Granfinanciera, neither Congress nor the Court provided any guidance on how a case subject to a valid jury trial right is handled under Article III constraints, resulting in …