Law Commons^™

Changing The Balance Of Power: Why A Treaty-Trump Presumption Should Replace The Later-In-Time Rule When Interpreting Conflicting Treaties And Statutes, Scott A. Penner

UC Law Constitutional Quarterly

When a statute and treaty conflict, courts resolve the conflict in favor of the one most recently implemented. This rule of statutory interpretation has existed for over a century. However, the underlying rationale for the later-in-time rule does not comport with the Constitution. Instead, this Note argues that courts should employ a treaty-trump presumption-absent a clear statement from Congress of their intent to abrogate a treaty provision-where a later-in-time statute comes into conflict with the treaty.

While the Supremacy Clause does seem to' indicate that statutes and treaties should be treated equally, this Note argues that in reality, the Supremacy …

Committing A Crime While A Refugee: Rethinking The Issue Of Deportation In Light Of The Principle Against Double Jeopardy, Won Kidane

UC Law Constitutional Quarterly

The Double Jeopardy Clause of the United States Constitution provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb ... " If a refugee who has committed a deportable offense and served his sentence is subsequently deported from a place where he calls home to a place where he would face persecution, he could literally be said to have been twice put in jeopardy of life and limb. That seems to be a prima facie violation of the Double Jeopardy Clause of the Fifth Amendment. This constitutional guarantee is, …

The State Secrets Privilege: What's Wrong With It, How It Got That Way, And How The Courts Can Fix It, Christohper D. Yamaoka

UC Law Constitutional Quarterly

The state secrets privilege shields evidence from discovery at trial where disclosure of the evidence would threaten national security. It is an important privilege, allowing the government to protect potentially dangerous information from being exposed by way of litigation. But it is also a powerful privilege; when accepted, it often leads to outright dismissal of the case. Given its nuclear effect, expansion of the doctrine beyond its legitimate bounds is constitutionally troubling. And indeed, over the last half century, the privilege has expanded far beyond its original form: courts have grown increasingly likely to use it to dismiss litigation before …

Marbury In Mexico: Judicial Review's Precocious Southern Migration, M. C. Mirow

UC Law Constitutional Quarterly

Scholars agree that the United States Supreme Court did not "discover" the general judicial review aspects of Marbury v. Madison (1803) until nearly a century later in 1895. This article reveals that the Mexican Supreme Court, relying heavily on U.S. constitutional sources and actually quoting Marbury, discovered this aspect of the case more than a dozen years earlier than the United States Supreme Court.

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the …

Thawing A Frozen Treaty: Protecting United States Interests In The Arctic With A Congressional-Executive Agreement On The Law Of The Sea, Andrew King

UC Law Constitutional Quarterly

The steadily shrinking Arctic ice cap has triggered a feverish interest among the five nations whose coastlines border the region concerning their respective rights to the ocean and the seabed below. The possibility of huge reserves of natural gas and oil, and the potential for newly navigable channels have led to competing claims by the United States, Canada, Russia, Denmark, and Norway over large sections of the Arctic. The United States, however, is in danger of losing out due to the obstructionist efforts of a handful of isolationist Senators who consigned a crucial treaty providing a mechanism to negotiate these …

Has Mighty Casey Struck Out: Societal Reliance And The Supreme Court's Modern Stare Decisis Analysis, Tom Hardy

UC Law Constitutional Quarterly

The Supreme Court has recently elaborated an analysis for cases in which it is asked to overturn a precedent. This special justifications analysis involves several factors, including whether the precedent has been relied upon. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Dickerson v. United States and Lawrence v. Texas, the Court has expanded the definition of reliance to include what might be called "societal reliance," as opposed to economic reliance. Commentators have criticized this expansion of the reliance factor, some arguing that it allows the Court too much power to justify any result it favors, while others argue that …

Pics In Focus: A Majority Of The Supreme Court Reaffirms The Constitutionality Of Race-Conscious School Integration Strategies, Michael J. Kaufman

UC Law Constitutional Quarterly

In Parents Involved in Community Schools (PICS) v. Seattle School Dist. No. 1, a majority of the Supreme Court reaffirmed the constitutionality of a school district's use of race-conscious strategies designed to achieve the compelling benefits of a racially diverse student body. The Court's decision turned on the question of whether the Equal Protection Clause bars a public school district from considering the race of children of the majority group as part of its effort to foster a racially integrated school. The answer not only hinges upon an understanding of the Supreme Court's interpretations of the Equal Protection Clause in …

Bankruptcy And Free Speech: New Bankruptcy Code Provisions Restrict Attorneys' Right To Properly Advise Clients, Robin Huffman

UC Law Constitutional Quarterly

The 2005 amendments to the Bankruptcy code, known collectively as the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), marked a sweeping overhaul of the bankruptcy system in the United States, and also sparked considerable litigation. Some of the most significant litigation arising out of BAPCPA has come from attorneys arguing that portions of BAPCPA violate the First Amendment. The free speech challenges arise from portions of the act governing debt relief agencies, a new designation under BAPCPA. If courts determine that attorneys fall within the meaning of debt relief agencies, attorneys argue that the provisions of BAPCPA constitute an …

The Revival Of Impeachment As A Partisan Political Weapon, Richard K. Neumann Jr.

UC Law Constitutional Quarterly

Partisan impeachment-in which one branch of government attacks anotherhas played a central role in three of the four great confrontations between or among branches of the federal government: (1) the struggle, in the first decade of the nineteenth century, between the Federalist-dominated judiciary on one hand and the Jeffersonian administration and Congress on the other; (2) the confrontation from 1865 to 1869 over Reconstruction between President Andrew Johnson and a Congress run by Radical Republicans; (3) the conflict that reached a peak in 1937 between the administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down New …

To What Extent Can Congress Change The Patent Right Without Effecting A Taking, Jesse S. Chui

UC Law Constitutional Quarterly

The Constitution confers upon Congress the power to "promote the ... useful Arts, by securing for limited Times to... Inventors the exclusive Right to their... Discoveries." Since the Patent Act of 1790, Congress has continued to define and redefine the metes and bounds of the patent right. This tradition continues with the Patent Reform Act of 2005, introduced in the House of Representatives on June 8, 2005.

The Story Of The Court: A Narrative Analysis Of Planned Parenthood V. Casey, Nicholas Short

UC Law Constitutional Quarterly

To some degree, we are all storytellers, and we tell stories for a great variety of purposes: to animate speeches, to justify our conduct, and even to explain our opinions and views. These stories, or narratives, do a lot of work in human communication, and understanding them is essential to understanding the people that use them and the message they are attempting to send.

Because of the prevalence of narratives in everyday life, and their explanatory power, it is perhaps not surprising to find narratives being used even in more staunchly "academic" or "critical" contexts, such as works of history, …

Supreme Court Voting Behavior 2005 Term, Richard G. Wilklins, Scott Worthington, John J. Nielsen, Peter J. Jenkins

UC Law Constitutional Quarterly

This Study, the twentieth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2005 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. As in politics, whether a judicial trend is "conservative" or "liberal" often lies in the eye of the beholder. On such a point, members of the American Civil Liberties Union and the Federalist Society for Law and Public Policy Studies might well disagree.

This Study attempts to …

Constitutional Taking Clauses: A Proposed Typology, Benjamin Wiles

UC Law Constitutional Quarterly

Although constitutional takings clauses have been the topic of substantial scholarship, the current literature lacks a methodological framework for understanding and analyzing takings clauses. Because there are so few cases of constitutional takings clauses to compare, applying "large n" quantitative methods to takings clauses would be difficult. Therefore, legal scholars need to use "small n" qualitative research methods.

Typologies can provide a framework for meaningful qualitative analysis. In the social sciences, typologies have been used to differentiate among different types of political regimes, electoral shifts, and economic growth strategies. These typologies can then be used to frame research questions, develop …