Law Commons^™

A Tipsy Balance: Dormant Commerce Clause Limits On A State's Prerogatives Under The Twenty-First Amendment, Sherry Truong

UC Law Constitutional Quarterly

The Eighteenth Amendment, which prohibited alcohol distribution and sales nationwide, signaled a shift in American culture that valued temperance and lawfulness. States exercised their expanded plenary powers by creating and enforcing laws banning alcohol within state borders, giving rise to continual challenges to regulatory schemes that arguably ran afoul of the Commerce Clause. Over a decade later, the prohibitionist movement faltered as public support waned, paving the way for the ratification of the Twenty-first Amendment and thereby abolishing Prohibition, leaving the Supreme Court with the task of balancing and enforcing limits on state power to regulate alcohol. In Granholm v. …

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

Family Responsibilities Discrimination In The Public Sector: Maximizing The Use Of Section 1983 To Enforce Constitutional Rights, Stephanie Dominguez

UC Law Constitutional Quarterly

Family responsibilities discrimination ("FRD") claims have become a far more prevalent issue in employment cases. FRD is a workplace discrimination based on an employee's actual or perceived responsibility to care for a family member, including pregnancy discrimination. Although some states and local jurisdictions have passed legislation that specifically prohibits FRD in the workplace, no federal statute expressly prohibits FRD. This Note focuses on how state and local government employees who face FRD can use federal employment statutes such as 42 U.S.C. section 1983 ("Section 1983") to enforce their constitutional due process and equal protection rights. Part I of this Note …

Johnson V. United States: The Impact On Texas' Habitual Offender Statute, Emily Frances Lynch

UC Law Constitutional Quarterly

In 2015, the Supreme Court struck down the residual clause of a major federal "habitual offender" statute in Johnson v. United States. The Court determined that combining the ambiguously worded "residual clause" with a pure "categorical approach" for interpreting qualifying crimes violated the notice provision of the Due Process Clause. Additionally, the Court identified an inability to create a clear and consistent standard of application for applying the residual clause as a second independent ground for holding the residual clause unconstitutional. Although the Court's holding specifically applied to a federal sentencing enhancement scheme, the holding is undoubtedly applicable to state …

Dignity And The Death Penalty In The United States Supreme Court, Bharat Malkani

UC Law Constitutional Quarterly

The concept of dignity is central to moral and legal issues about the death penalty. The United States Supreme Court has justified the use of dignity to retain the use of the death penalty. However, this article argues that dignity should not be used as a means to uphold the use of capital punishment. Instead, the concept of dignity involves the relationship between the "human dignity" of the people involved in the crime, the dignity of the wider community in whose name the death penalty is being imposed, and the dignity of the legal institution that administers capital punishment. As …

The Evolution Of American Discovery In Light Of Constitutional Challenges: The Role Of The 2015 Rule Amendments To The Federal Rules Of Civil Procedure, Tom Lin

UC Law Constitutional Quarterly

On December 1, 2015, the amendment package that revised Federal Rules of Civil Procedures, Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37, went into effect. This Note offers a first look at the new amendments to the discovery tools of the Federal Rules of Civil Procedure in light of recent constitutional arguments, specifically the scope of discovery under Rule 26(b)(1) and the duty to preserve electronically stored information under Rule 37(e). First, this Note seeks to identify the constitutional challenges to American discovery. Second, this Note seeks to compare the American discovery system with the European discovery …

The 2016 Presidential Election: The Next Four Years And Beyond, Dahlia Lithwick, Bertrall L. Ross Ii, Joan Williams, Scott Dodson

UC Law Constitutional Quarterly

On November 15, 2016, UC Hastings College of the Law held an academic post-election panel to consider what the Donald Trump election means for America in the next four years. The panel was moderated by Scott Dodson, Associate Dean for Research and the Harry & Lillian Hastings Research Chair at UC Hastings. The panel included the following: Joan Williams, a distinguished professor of law and the founding director of the Center for WorkLife Law at UC Hastings; Bertrall Ross, a professor of law at UC Berkeley, where he teaches legislation, election law, and constitutional law; and Dahlia Lithwick, who writes …

The Elephant In The Room: What Is A Nonroutine Border Search, Anyway: Digital Device Searches Post-Riley, Eunice Park

UC Law Constitutional Quarterly

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border …

Constitutional Protection For Future Generations From Climate Change, Ylan Nguyen

UC Law Constitutional Quarterly

This Note offers a comprehensive look at the constitutional rights of future generations with respect to climate change. On August 12, 2015, Our Children's Trust filed a lawsuit against the federal government asserting that the government has failed to protect present and future generations from a human caused climate catastrophe. Inspired by Our Children's Trust's lawsuit, this Note seeks to establish that future generations are entitled to constitutional protection from climate change.

This Note consists of five sections aimed at showing that future generations are entitled constitutional protection from climate change and seeks to establish that the federal government has …

Digitizing The Private Search Doctrine: Is A Computer A Container, Taylor J. Pfingst

UC Law Constitutional Quarterly

The Private Search Doctrine permits the government to search property that a private citizen previously gained access to and searched, resulting in discovery of contraband. This Doctrine provides that the subsequent search by the government does not constitute a Fourth Amendment "search." Thus, the government does not need to obtain a warrant prior to examining the property and only infringes on an individual's Fourth Amendment rights if the scope of the search exceeds the bounds permitted by the court in that jurisdiction. Different circuits have taken conflicting approaches in determining the appropriate scope of a follow-up search under the Private …

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

The Reproducibility Of Evolving Social Science Evidence And How It Shapes Equal Protection Jurisprudence, Penney P. Azizi

UC Law Constitutional Quarterly

In Brown v. Board of Education, the Supreme Court ruled that state laws establishing segregation in schools were unconstitutional, overturning Plessy v. Ferguson. In its decision, the Court discussed and cited to social science evidence, which garnered criticism from many legal scholars and ignited a debate as to whether the use of such evidence had a place in Equal Protection jurisprudence. Over thirty years later, in McClesky v. Kemp, the Court rejected the incorporation of social science data in its decision and, instead, applied the Intent Doctrine. Since McClesky, the Court has consistently upheld the use of the Intent Doctrine …

Constitutional Implications On Block Pricing In The California Water Market, Deeba Fahami

UC Law Constitutional Quarterly

Due to the severity of the recent drought, those residing in California have realized the devastating effects of climate change. As California continues to experience amplified weather conditions and diminished water supply, the state must adapt to drought conditions and mitigate the impacts of droughts. In order to do so, municipal water pricing mechanisms that send price signals to consumers to conserve water should be enforced to ensure the longevity of California's water supply. In particular, increasing block-pricing structures are a favorable market-based solution that disincentivizes heavy water consumption while allowing essential water use to remain affordable.

The California Constitution …

An Offensive Mark On Offensive Lines: The Question Of Violating The First Amendment Through The Cancellation Of The Washington Redskins' Trademark, Gabriela M. Kirkland

UC Law Constitutional Quarterly

There is a contentious debate about whether it is the government's place to determine whether offensive trademarks should receive legal protection. The Washington Redskins have been embroiled in a legal battle to protect the trademark for their team name. Currently, the cancellation of the Washington Redskins' trademark will not go into effect until the appeals process has been exhausted. The United States Supreme Court's decision on this issue will determine whether trademark owners will have the freedom to choose names without fear of losing legal protections. This Note will argue that though the Washington Redskins' may be considered an offensive …

Shining A Light On The Rights Of The Most Vulnerable, Shauna Marshall

UC Law Constitutional Quarterly

No abstract provided.

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …

Silencing Talk About Race: Why Arizona's Prohibition Of Ethnic Studies Violates Equality, M. Isabel Medina

UC Law Constitutional Quarterly

In 2010, Arizona made national headlines when it enacted laws targeting undocumented immigrants, perceived in the state to be primarily Mexican. Arizona experienced population growth that projected it would become a minority majority state within one or two decades. Republican politicians spearheaded a ban on ethnic studies, with its intended target a successful Mexican American studies program at the Tucson Unified School District. The Mexican American studies program was initiated as part of a desegregation decree in ongoing desegregation litigation against the Tucson Unified School District; state superintendents of education in Arizona branded the program "racist" because students were encouraged …

Lighting The Way Towards Liberty: The Right To Abortion After Obergefell And Whole Woman's Health, Erika Hanson

UC Law Constitutional Quarterly

The federal government has failed to fulfill the constitutional guarantee of equal rights for all. While this promise requires affirmative governmental action to ensure the protection of historically subordinated groups, policymakers persist in using the will of the majority to deny the dignity and fundamental rights of groups lacking political defenses. Luckily, recent developments in the doctrine of marriage equality now allow advocates and supportive lawmakers to remedy this injustice by forever removing the fundamental rights of subordinated groups from political debate. Policymakers must address the harm to subordinated groups posed by a tiered system of fundamental rights through constitutional …

Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell

UC Law Constitutional Quarterly

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then "equal to men" in the military and, therefore, should be required to register for Selective Service-the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in …

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …