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Is The Pcaob A "Heavily Controlled Component" Of The Sec?: An Essential Question In The Constitutional Controversy, Donna M. Nagy

Articles by Maurer Faculty

The U.S. Supreme Court recently heard oral arguments in Free Enterprise Fund v. Public Company Accounting Oversight Board, described by D.C. Circuit Judge Brett Kavanaugh as “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.” Established by Congress as the cornerstone of the Sarbanes-Oxley Act of 2002, the PCAOB was structured as a strong, independent board in the private sector, to oversee the conduct of auditors of public companies.

This Article challenges the D.C. Circuit’s depiction of the PCAOB as “a heavily controlled component” of the SEC, and …

On Parents Involved And The Problematic Praise Of Justice Clarence Thomas, Ronald Turner

UC Law Constitutional Quarterly

In a recent comment on the United States Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1, Judge J. Harvie Wilkinson focused on and endorsed Justice Clarence Thomas's concurring opinion in that case as a culmination of the pronouncements on race and education by the Court's only African-American Justice. This essay argues that Judge Wilkinson has praised Justice Thomas for doing that which the Justice decries: the commission of an act of nonoriginalist and discretionary judging grounded in and reflecting the Justice's race and ideology. In addition, the essay contends that Judge Wilkinson uncritically …

Supreme Court Voting Behavior: 2007 Term, Richard G. Wilkins, Scott Worthington, Elisabeth Liljenquist, Adam Pomeroy

UC Law Constitutional Quarterly

This Study, the twenty-second in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2007 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. This Study attempts to remove this subjectivity by applying the following consistent classification scheme to ten categories of cases across time: "conservative" votes are those that favor an assertion of governmental power, while "liberal" votes are those that favor a claim of individual liberty.

The voting patterns …

The Guarantee Clause In The States: Structural Protections For Minority Rights And Necessary Limits On The Initiative Power, Anya J. Stein

UC Law Constitutional Quarterly

This Note discusses the constitutional significance of the Guarantee Clause of Article IV, Section 4, which states that "[t]he United States shall guarantee to every State in this Union, a Republican Form of Government." For decades, the United States Supreme Court has held that the Guarantee Clause presents a nonjusticiable political question in the federal courts. Notwithstanding this federal doctrine, the Guarantee Clause remains justiciable in the state courts.

State ballot initiatives are vulnerable to uses that violate the Guarantee Clause's protection of the republican form of government. This Note presents a three-part argument. First, the Guarantee Clause provides critical …

Cutting The Fourth Amendment Loose From Its Moorings: The Unconstitutional Use Of Fisa Evidence In Ordinary Criminal Prosecutions, Kathlyn Querubin

UC Law Constitutional Quarterly

After the terrorist acts of September 11, 2001, Congress passed the USA Patriot Act, which amended, among other things, the Foreign Intelligence Surveillance Act (FISA). The FISA amendments permit the government to conduct electronic surveillance even when gathering foreign intelligence is merely a "significant purpose" of the surveillance, eliminating the requirement that the government demonstrate that foreign intelligence surveillance is the "primary purpose" of the surveillance. As a result, the Patriot Act's amendments to FISA allow the government to conduct FISA surveillance even when ordinary domestic criminal prosecution-and not foreign intelligence gathering-is its primary objective. The information that is gathered …

Accounting For The Lack Of Accountability: The Great Depression Meets The Great Recession, Steven Pearse

UC Law Constitutional Quarterly

In the midst of the financial crisis of 2008, Congress hastily passed the Bailout legislation. Although good intentions and quick action were necessary to halt the financial chaos, Congress treaded upon constitutionally ambiguous grounds through their delegation of a monumental sum of money to the Executive Branch. With little guidance or oversight in place, the Bailout seemingly defied the United States Constitution and stripped away protections from the American people. This Note explores this constitutional ambiguity through an exploration and comparison of the Great Depression over-delegation cases and an examination of facets of the Bailout legislation itself. These examinations and …

Sexting And The First Amendment, John A. Humbach

UC Law Constitutional Quarterly

"Sexting" and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as much as 50%, having received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions. Given the reality of changing social practices, mores, and technology utilization, today's pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America's young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur …

Highly Uncertain Times: An Analysis Of The Executive Branch's Decision To Not Investigate Or Prosecute Individuals In Compliance With State Medical Marijuana Laws, Vijay Sekhon

UC Law Constitutional Quarterly

This Comment analyzes the constitutionality and impact of the Executive Branch's decision to not investigate or prosecute individuals in compliance with state medical marijuana laws. As detailed in this Comment, the Executive Branch's decision to not investigate or prosecute individuals in compliance with state medical marijuana laws is a questionable use of prosecutorial discretion and provides individuals with a false sense of security in relying upon compliance with such laws. In conclusion, the author urges Congress to pass and President Obama to sign into law legislation consistent with the Executive Branch's revised enforcement policy regarding medical marijuana in order to …

I'M Dying To Tell You What Happened: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

UC Law Constitutional Quarterly

In Crawford v. Washington and its progeny, the U.S. Supreme Court retheorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are "testimonial" in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote six of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This Article builds on the dictum set forth in footnote six of Crawford, the meaning of which the lower courts are just beginning to explore. Relying on historical evidence, this Article first demonstrates the …

Beyond The Schoolhouse Gates And Into The Virtual Playground: Moderating Student Cyberbullying And Cyberharassment After Morse V. Frederick, Jessica Moy

UC Law Constitutional Quarterly

Student blogs, social-networking sites, YouTube, and the Internet blur the line between high school students' public and private selves. Amid a world of rapid technological development and cloaked in the anonymity of cyberspace, cyberbullies are emboldened to utilize particularly cruel, and often psychologically damaging, tactics to victimize their peers. This Note examines the way in which the Supreme Court's decision in Morse v. Frederick has affected and changed the way lower courts evaluate the reach of school disciplinary authority in student Internet-posting cases and how the concept of what constitutes "on-campus" and "off-campus" activities has evolved over time. In light …

Proposition 8 And The Need For California Constitutional Amendment Initiative Reform: Tolerance Requires Time And Deliberation, Angela Chrysler

UC Law Constitutional Quarterly

The California constitutional amendment initiative process requires a small number of signatures to appear on the ballot and only a simple majority vote to amend the California Constitution. The California courts are the only institutional actors that can review the process, and even then the courts' review is limited. Proposition 8 is a quintessential example of how the initiative system allowed the electorate to amend the constitution without deliberation or safeguards in place to protect the interests of a minority group. The California constitutional amendment initiative process should be reformed by looking at other initiative processes, such as those in …

Tax Reform Commissioners In The Sweep Of California's Fiscal History, Steven M. Shefrin

UC Law Constitutional Quarterly

What role do tax reform commissions play in California fiscal history? The recent California Commission on the 21st Century Economy-the Parsky Commission-temporarily raised hopes for substantive tax reform in California. However, its apparent failure raises broader questions about the role of tax commissions. Have they ever led to fundamental tax policy changes in the state and, if so, what made them successful?

To address these questions, this paper explores the experiences of two important California tax commissions, the 1906 and 1929 commissions, and places them into the history of taxation in California. Both the recommendations of the 1906 and 1929 …

Ballot Box Budgeting In California: The Bane Of The Golden State Or An Overstated Problem, Jessica A. Levinson, Robert M. Stern

UC Law Constitutional Quarterly

This Article analyzes the phenomenon known as ballot box budgeting. This Article examines both legislative measures put to a vote of the people and initiative measures which affect California's budget. The Article concludes that ballot box budgeting have lead to the state's current fiscal crisis are overblown, but that ballot box budgeting has in part contributed to California's economic woes. The Article includes a number of recommendations for improving the process of ballot box budgeting. First, a system of "pay-go" is recommended, whereby measures that reduce revenue should identify which program(s) will be cut, and measures that call for the …

The Business Net Receipts Tax: A Dog That Will Not Hunt, Charles E. Mclure Jr.

UC Law Constitutional Quarterly

The business net receipts tax ("BNRT"), the centerpiece proposal of the Commission on the 21st Century Economy, is seriously flawed and should not be considered seriously. The BNRT exhibits the well-known defects of a subtraction method VAT. Sales-only apportionment would not achieve the desired effects of destination-based taxation in many important cases. If enacted, the BNRT is likely to be subject to both tax planning (including the substitution of independent contractors for employees and reclassification of employees as independent contractors) and legal challenges, and to be unpopular with California business and labor.

Keeping The Commitment: Why California Should Maintain Consideration Of The Commitment Offense In Determining Parole For Life Inmates, Kathleen Noone

UC Law Constitutional Quarterly

The California prison system is currently in federal receivership because of overcrowding and failing to provide prisoners with sufficient medical care. The prison system is a mess, and the miniscule number of life inmates receiving parole each year is disheartening. In the California Supreme Court case In re Lawrence, the court took a step towards increasing the rate of parole for line inmates when it clarified that an inmate cannot be denied parole based solely on the severity of his or her commitment offense. Of course, a future court might go a step further and hold that the commitment offense …

Between Safety And Transparency: Prior Restraints, Foia, And The Power Of The Executive, Devin S. Schindler

UC Law Constitutional Quarterly

The Freedom of Information Act, and, to a lesser extent, the Constitution, embody a democratic commitment to transparent and open government. Roughly balanced against this commitment is the need in selected circumstances to prevent the release of information that could lead directly or indirectly to tangible harm to America and its interests. Most recently, the debate between safety and transparency came to the forefront in the case American Civil Liberties Union v Department of Defense, where the Second Circuit ordered the President to release a series of nonconfidential but potentially inflammatory pictures showing prisoner abuse at the Abu Ghraib prison. …

Seeking Common Ground: A Secular Statement, Bruce Ledewitz

UC Law Constitutional Quarterly

It is clear that there is a crisis today in the interpretation of the Establishment Clause. Not only do we not know what the Clause means, we do not even have clear opposing constitutional visions. At the same time, we have today a related crisis in American political life between religious believers and nonbelievers over the proper place of religion in politics. Finally, we have today in the West, a crisis of social morals as older religious certainties fade and secularism drifts dangerously close to nihilism. In my view, all of these issues are related. The answer to all three …

The Marketplace Metaphor And Commercial Speech Doctrine: Or How I Learned To Stop Worrying About And Love Citizens United, Darrel C. Menthe

UC Law Constitutional Quarterly

In this article, I place the Citizens United decision in historical and doctrinal context, and argue that the decision indicates a terminal stage of the development and application of the "marketplace of ideas" metaphor in First Amendment law. I argue that the "good news" about the Citizens United decision is that it sets the stage for the abolition of the commercial speech doctrine, which resulted in lower protection for commercial speech, as previously set forth in the 1980 Central Hudson decision. This is good news because the commercial speech doctrine has become a doctrinal anomaly that threatens to undermine the …

There's An Amendment For That: A Comprehensive Application Of Fourth Amendment Jurisprudence To Smart Phones, Daniel Zamani

UC Law Constitutional Quarterly

The near ubiquity of smart phones in American society raises a multitude of issues as courts attempt to fit the use of this new technology into old property analogies. This Note specifically addresses the application of the Fourth Amendment's proscription against unwarranted search and seizures to these devices. It traces Fourth Amendment jurisprudence through Katz v. United States and more recent cases such as City of Ontario v. Quon and notes a general emphasis on property analogies. However, this emphasis is deemed insufficient in its application to smart phones, given that they do not neatly fall into any prior categories. …

A Matter Of Conscience: United States V. Seeger And The Supreme Court's Historical Failure To Define Conscientious Objector Status Under The First Amendment, Claire Marblestone

UC Law Constitutional Quarterly

This Note will explore the Supreme Court's 1965 decision addressing conscientious objectors, United States v. Seeger. The Note will argue that the Court should have addressed the First Amendment and Due Process questions presented in Seeger. In the days leading up to the decision, three Supreme Court Justices circulated dissenting and concurring opinions which addressed the constitutional questions before the Court. I will argue that the traditional reasons for invoking the doctrine of constitutional avoidance did not justify issuing a weak test for lower courts and administrative agencies to administer. I will also attempt to explain why the Justices decided …

Obscenity On The Internet: Nationalizing The Standard To Protect Individual Rights, Sarah Kagan

UC Law Constitutional Quarterly

This note was written in response to the Ninth Circuit Court of Appeals' 2009 decision in United States v. Kilbride. The Court's opinion called for the application of a "national obscenity standard" when evaluating speech transmitted online or through e-mail. This note seeks to address some of the practical issues raised by a national standard, including identifying the relevant national community, the need for empirical research on community standards for obscenity, implications for free speech under a national standard and mechanisms to ensure consistent application of a national standard in a diverse country.

On The Lamb: Toward A National Animal Abuser Registry, Stacy A. Nowicki

Animal Law Review

A national animal abuser registry has the potential to provide law enforcement agencies with a much-needed tool for tracking animal abusers, but no such registry exists. This Comment first discusses existing state and federal criminal registries for sex offenders, child abusers, and elder abusers. It determines that existing criminal registries often contain inaccurate entries and that they have little deterrent effect, making their potential infringement on offenders’ Constitutional rights and other collateral consequences difficult to justify.

This Comment then turns to the viability of a national animal abuse registry, discussing the link between the abuse of animals and violence towards …

A Duty To Serve?: Assessing The Application Of Religious Exemptions For Marriage Officiants In Same-Sex Marriage Laws With Lessons Learned From The Reproductive Rights World, Christina Coiro

Student Works

No abstract provided.

When U.S. Supreme Court Decisions Are Not Final: An Examination Of The Rehearing Rule And The Court’S Application Of It In Kennedy V. Louisiana, Brian De Vito

Student Works

No abstract provided.

Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook

Nevada Law Journal

Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject …

The Shadow Of State Secrets, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention. Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, …

Rising Seas And Common Law Baselines: A Comment On Regulatory Takings Discourse Concerning Climate Change, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.

The Subjects Of The Constitution, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been …

The Roberts Court Vs. Free Speech, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Free Speech At What Cost?: Snyder V. Phelps And Speech-Based Tort Liability, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than …