Law Commons^™

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

UC Law Constitutional Quarterly

In DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court definitively terminated the possibilities of taxpayer standing previously opened by the Warren Court in Flast v. Cohen.

under the U.S. Constitution governing state taxes and outlays. This body of constitutional law will be beyond the direct review of the U.S. Supreme Court because that Court has rejected state taxpayer standing in the federal courts.

State court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenge. Consequently, these state-friendly cases under the U.S. Constitution, …

Tavern Talk And The Origins Of The Assembly Clause: Tracing The First Amendment's Assembly Clause Back To Its Roots In Colonial Taverns, Baylen J. Linnekin

UC Law Constitutional Quarterly

The First Amendment to the Constitution is "a cluster of distinct but related rights." The freedom of assembly protected therein is one right that Americans exercise every day. With perhaps the exception of speech, assembly is the most widely and commonly practiced action that is enumerated in the Bill of Rights.

This freedom is also one of our least understood and least considered rights. Sometimes ignored and other times grouped with other freedoms, the right of those in America to come together peaceably deserves to be studied, respected, and celebrated.

To better understand the freedom of assembly in America, one …

Resuscitating Roberts - How Courts Should Construe The Emergency Exception To The Sixth Amendment's Confrontation Clause, Sloan A. Heffron

UC Law Constitutional Quarterly

This paper argues that in the wake of Crawford, Davis, and Bryant, trial courts need a workable definition of "ongoing emergency," as well as a test that can be applied in assessing the admissibility of statements made under such circumstances. The paper first offers a definition for "ongoing emergency". It then offers a totality-of-the-circumstances test that can be applied in determining if a declarant's statement occurs during the course of an ongoing emergency.

A Constitutional Dilemma For Cities Seeking To Regulate Day Labor Solicitation, Monica Smith

UC Law Constitutional Quarterly

In 2011, the Ninth Circuit invalidated a Redondo Beach municipal ordinance that prohibited individuals from standing on streets or sidewalks and soliciting work, business, or contributions from passing vehicles. The court determined that the law was a facial restriction of speech that did not advance the achievement of the city's stated interest.

This note examines the unsettling gaps in the law as a result of the decision. Although undoubtedly a victory for day laborers, the court's holding potentially precludes any future statute seeking to legitimately regulate such day labor solicitation. Unless crafted with tremendous care, there is a strong likelihood …

The First Amendment In The Multicultural Climate Of Colleges And Universities: A Story Ending With Christian Legal Society V. Martinez, Blake Lawrence

UC Law Constitutional Quarterly

This article argues that the "limited public forum" analysis used by the United States Supreme Court in Christian Legal Society v. Martinez correctly addresses the competing concerns of students and university administration when approaching free speech and association on college and university campuses. It extensively analyzes the creation of the "limited public forum" analysis, explains why that particular analysis is illequipped for limiting high school speech, and comprehensively addresses the Christian Legal Society v. Martinez opinion. Further, weaknesses in the dicta of Christian Legal Society v. Martinez are analyzed and points made by dissenting Justices are critiqued.

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

UC Law Constitutional Quarterly

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially …

Where California Went Wrong With The Amazon Tax: Application Of Due Process And Commerce Clause Jurisprudence To State Use Tax Collection Requirements Imposed On Out-Of-State Internet Retailers, Andrew T. Cannon

UC Law Constitutional Quarterly

California recently enacted legislation that aims to collect revenue from a novel source: out-of-state internet retailers. The statute achieves this goal by imposing greater responsibilities for collection of use taxes on these retailers. While the State's objective is laudable, the new law missed the mark from the start. The use tax collection law makes an exception for out-of-state online retailers that engage in their business through Google, Inc., an internet business having an obvious California nexus. This Note analyzes long-standing and recent case authority and legislative policy to provide an alternative that will better meet the State's needs.

California And The Future Of Partial Match Dna Investigations, Jenny Choi

UC Law Constitutional Quarterly

Though DNA testing has been successfuly used in the United States since the 1980s, many high profile prosecutions have thrust this forensic tool into general acceptance as well as the public consciousness. In 2008, California broke new forensic ground, authorizing "partial match" DNA testing to augment the arsenal of law enforcement tools. This proactive technique has yielded substantial results, but has also opened the door to criticism.

This Note analyzes the history of DNA testing in California and nationally, including the progression towards partial match testing. This Note also considers constitutional, social, and policy concerns raised by the use of …

Media Liability For Incitement And True Threats Under California Abortion Provider Privacy Law, Aditi Mukherji

UC Law Constitutional Quarterly

To keep up with the evolving methods of radical antiabortion tactics in the digital age, the California Legislature enacted Government Code Section 6218 and related provisions. The statute imposes civil penalties on any person who posts online specific personal information about abortion providers or patients with the intent to threaten or incite violence against a provider or patient. Apart from Section 6218.01, however, Section 6218 does not expressly confront the issue of media liability under the statute. This Note explores the probable result of a Section 6218 claim were a member of the press to releases personal information online about …

Making A Mountain Out Of A Molehill - Marbury And The Construction Of The Constitutional Canon, Keith E. Whittington, Amanda Rinderle

UC Law Constitutional Quarterly

This article challenges the notion that Marbury v. Madison was a critical case immediately after the Supreme Court issued its decision in 1803. The article performs an empirical analysis of the quantity and quality of citations invoking Marbury over the years to determine its importance and impact at various points in American history. Additionally, the article looks at how the case has been, and continues to be used by courts.

God In The Deductions: Tax Deductions For Religion And The Future Of Taxpayer Standing For Establishment Clause Challenges, Drew G. Stark

UC Law Constitutional Quarterly

Tax expenditure theory proposes that the Supreme Court not treat tax deductions any differently than direct expenditures. Such analysis is complicated by the fact that taxpayers typically do not have standing unless they can assert an individual and personalized injury. However, Establishment Clause jurisprudence has a narrow exception allowing taxpayers to establish standing without showing personal injury.

While the Supreme Court has revisited this exception several times since its creation, it has yet to address whether it applies to challenges against tax deductions. In cases that involve tax credits, exemptions, or deductions, the Court has either found standing or neglected …

Routine Body Scanning In Airports: A Fourth Amendment Analysis Focused On Health Effects, Rebekka Murphy

UC Law Constitutional Quarterly

In the beginning of 2011, the United States Transportation and Security Administration ("TSA") gave notice that it would begin using Advanced Imaging Technology ("AIT") to screen all passengers travelling in airports. While the TSA has an unquestionably important function of detecting on-body explosives and thereby augments flight safety, the use of AIT has been controversial and has raised health concerns. This Note analyzes the special needs doctrine and argues TSA officials must have a reasonable suspicion before scanning passengers so long as AIT health effects are not properly understood. Until independent scientific research can establish that advanced imaging technologies do …

The Elephant In The Room: Gonduct, Groups, And Lawrence V. Texas, Elliot Wong

UC Law Constitutional Quarterly

In its landmark 2003 decision of Lawrence v. Texas, the United States Supreme Court articulated that a ban on homosexual sexual conduct had a meaningful and negative effect on the lives of homosexuals. So significant was the effect on homosexuals that ultimately the Court declared the ban on the underlying conduct unconstitutional.

Following Lawrence, courts and commentators have questioned the true effects of the Court's broad language. The Court's opinion relies heavily on the adverse practical effect the ban had on homosexual persons. But what exactly did Texas' unconstitutional law really target? Was it homosexuals as a group, was it …

Mutual Fund Sales Notice Fees: Are A Handful Of States Unconstitutionally Exacting $200 Million Each Year, David M. Geffen

UC Law Constitutional Quarterly

This article examines the constitutionality of notice filing fees in six states. Although almost every state requires such fees to be paid by mutual funds, six of these states require fees that are highly disproportional to the amount of shares traded within their states. The filing fees in these states, accounting for 50 percent of the total paid nationwide, are considered as either "regulatory fees" or state taxes.

Regardless of whether these fees are categorized as regulatory fees or state taxes, they are unconstitutional under either the Due Process Clause or Commerce Clause of the Constitution. Not only would these …

Herding Katz: Gps Tracking And Society's Expectations Of Privacy In The 21st Century, Zachary Gray

UC Law Constitutional Quarterly

For nearly forty-four years, the Supreme Court has adhered to the same test for its Fourth Amendment jurisprudence, first announced in Justice Harlan's concurrence in Katz v. United States. Despite the judiciary's steadfast use of the test since its enunciation, the decisions since Katz have been anything but consistent.

Most recently, this nation's federal courts were confronted with questions about the legitimacy of using GPS tracking devices. In its attempt to resolve the issue, the Supreme Court's decision in United States v. Jones strayed from applying Katz and instead relied on the common-law trespass doctrine.

In an attempt to determine …

Tea Party Constitutionalism: Does The Astroturf Have Roots In The History Of The Constitution, Ryan D. Murphy

UC Law Constitutional Quarterly

In 2009, the Tea Party was born-a movement that in just over a year captured a United States senate seat and more than 700 state legislature seats. The movement is a controversial force in American politics, with some arguing that the group merely challenges the moderate tendencies of the Republican Party, while others say it is merely a set of individuals acting at the whims of billionaire backers.

This note argues that the background of the Tea Party is not an originalist movement, as is often claimed, but is instead rooted in Jacksonian populism. Specifically, in assessing the movement's views …