Law Commons^™

Analyzing The Constitutional Implications Of The Department Of Veterans Affairs' Process To Determine Incompetency: Is The Federal Government Violating The Second Amendment And Due Process, Joshua Flynn-Brown

UC Law Constitutional Quarterly

Over the past decade the Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans to the National Instant Criminal Background Check list. Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. The VA is overreporting veterans by utilizing a very low financial incompetence standard: Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that …

The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon

UC Law Constitutional Quarterly

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant's constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright." But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is: "No." Lafler and Frye will not bring …

Passwords Please: Rethinking The Constitutional Right To Informational Privacy In The Context Of Social Media, Sara E. Stratton

UC Law Constitutional Quarterly

Much attention has been placed on social media privacy in the workplace. There have been several reports of public employers directing job applicants during their interview to divulge their username and password to allow the government to review the applicant's social media activity as part of a background check. This Note contends that the practice of public employers requiring applicants to provide their social media login information violates the constitutional right to informational privacy. With increasing access to the Internet and the popularity of social media, personal information on the Internet is becoming more accessible than ever before. Although the …

Check, Pleas: Toward A Jurisprudence Of Defense Ethics In Plea Bargaining, Hadar Aviram, Deanna Dyer, S. C. Thomas

UC Law Constitutional Quarterly

After years of hesitation to acknowledge instances of ineffective assistance of counsel under the standard set in Strickland v. Washington (1984), the Supreme Court has addressed it head-on in the context of pleabargaining. In three recent cases-Padilla v. Kentucky (2010), Lafler v. Cooper (2012), and Missouri v. Frye (2012)-the Court attempted to define defense counsel professionalism and fashion remedies for lack thereof. But these cases are far from the first effort to regulate the quality of counsel in plea bargaining.

The Article starts by using insights from classic courtroom ethnography to explicate the main issues that influence defense practices in …

The New Jim Crow - Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

UC Law Constitutional Quarterly

This Article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the "new" and "old" Jim Crows, namely the debt that each owe to progressive and/or liberal politics. In a manner that scholars like Michelle Alexander forget, both racial segregation and mass incarceration owe their existence in part to discourses of reform aimed at promoting black interests, albeit with perverse results. Recognizing the aspirational origins of such systems helps to better explain how they came into being, …

S.B. 9: A Second Chance For Juveniles Serving Life Without Parole In California In Theory - And Why It Won't Make A Difference In Practice, Evan Reese

UC Law Constitutional Quarterly

Historically, juveniles have been treated differently than adults when convicted of a crime. They were seen as less culpable than adults and more capable of reform. In California and in many other states, however, some juveniles have been tried as adults in a variety of situations. Recent legislation in California has offered a glimmer of hope, and perhaps a second chance, for some juvenile offenders who have been sentenced as adults to life without parole. S.B. 9 allows such juveniles to petition the court for resentencing after serving the first fifteen years of their life sentence. In theory, if the …

Alive Not Dead: The Revival Of Redevelopment Post-Matosantos, Helen Luu Chou

UC Law Constitutional Quarterly

In December 2011, the California Supreme Court in California Redevelopment Association v. Matosantos upheld AB 1X 26-a bill eliminating redevelopment agencies in California. Even though redevelopment officially ended with Matosantos, discussion concerning the state of redevelopment has since been revived. The purpose behind the dissolution of redevelopment agencies was to fund special districts in a time of financial crisis, but what instead followed was dissension within California as cities and counties strongly opposed the dissolution of redevelopment and instead filed lawsuits challenging the constitutionality of AB 1X 26, and its subsequent "clean up" bill, AB 1484. Moreover, the redevelopment wind-up …

Criminalizing The Armchair Terrorist: Entrapment And The Domestic Terrorism Prosecution, Dejan M. Gantar

UC Law Constitutional Quarterly

A variety of factors plague a defendant's rights in a domestic terrorism trial. This Note focuses on contemporary domestic terrorism prosecutions in which the defendants raise an entrapment defense. It suggests that federal courts apply a lower standard for prosecutors in proving predisposition by allowing nothing more than evidence of a defendant's religious or political beliefs, or general "impulse to lash out," to demonstrate predisposition. This Note further argues that this evidentiary laxity establishes a double standard in terrorism cases, and also manifests First Amendment problems.

The crux of this Note is that federal courts should refine the entrapment doctrine …

A Private Sector Solution To A Public Problem, Chris Molina

UC Law Constitutional Quarterly

Over two centuries after the Bill of Rights was enacted, the Supreme Court finally resolved the controversy surrounding the meaning of the Second Amendment in the landmark case, District of Columbia v. Heller. Specifically, the Court held that the Second Amendment protected an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In reaching this decision, the Court determined that the Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," did not limit the scope of the right to bear arms for militia purposes. Although the …

The New Flat Tax: A Modest Proposal For A Constitutionally Apportioned Wealth Tax, John T. Plecnik

UC Law Constitutional Quarterly

"Eat the poor children," proposes Jonathan Swift. "Nay," protests Occupy Wall Street, "Eat the rich!" This Article does not propose eating the rich with draconically high taxes. However, the United States has experienced years of multibillion dollar deficits. Many liberals have proposed a European-style value added tax or VAT to balance the budget. Many conservatives have proposed a "fair" or flat tax. Like the Devil, regressive consumption taxes go by many names. Whether they know it or not, liberals and conservatives are proposing essentially the same thing-a federal sales tax, which disproportionately impacts the poor and middle class. This Article …

On War And Peace In Cyberspace - Security, Privacy, Jurisdiction, Lothar Determann, Karl T. Guttenberg

UC Law Constitutional Quarterly

The public debate surrounding Edward Snowden's revelations about NSA spying, and government surveillance in times of war and peace more generally, has been passionate and unfocused. This Article takes a look at the legal background and current reform proposals. First, it puts the recent international and domestic outrage regarding the NSA's programs into the context of other countries' intelligence gathering, sharing and cooperation practices. Next, it recalls the purposes of espionage and the legality of spying under international law as well as under national laws from the perspective of the spying and spied-upon government. It then proceeds to assess the …

The Constitutionality Of Prolonged Administrative Segregation For Inmates Who Have Received Sex Reassignment Surgery, Eric T. Fleischaker

UC Law Constitutional Quarterly

In 2012, a Massachusetts district court judge issued a controversial decision in Kosilek v. Spencer when he ordered the state to pay for a transgender inmate's sex reassignment surgery. The court ruled that denying sex reassignment surgery to an inmate with Gender Identity Disorder is a violation of the Eighth Amendment. However, the court did not answer the question of where to place the inmate after the surgery. That decision was left up to the prison administrators.

The court utilized a five-step Eighth Amendment test to determine when an inmate has a constitutional right to medical services or care and …

The New Speech, Andrew Tutt

UC Law Constitutional Quarterly

Could the government prevent Facebook from deleting an individual's Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, nontransferable, ungatherable, or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

Each …

The First Amendment And Religion After Hosanna-Tabor, Mark W. Cordes

UC Law Constitutional Quarterly

The Supreme Court's recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which it recognized a "ministerial exception" under the Religion Clauses to antidiscrimination laws, marks an important, though limited, development in protecting religious rights. Prior to Hosanna-Tabor, the Court had increasingly resorted to a neutrality paradigm in resolving religion issues under the First Amendment. Although the focus on neutrality frequently protected religious interests, particularly under the Free Speech and Establishment Clauses, it also failed to accommodate religious interests when they were burdened under neutral laws. As such, religious interests were increasingly vulnerable to government interference from …

Dog Sniffs, Technology, And The Mythical Constitutional Right To Criminal Privacy, Kenneth J. Melilli

UC Law Constitutional Quarterly

Suppose the government was capable of detecting criminal conduct by some method or device that would not reveal any information concerning lawful items or activities. Could the acquisition of such information under these circumstances constitute an "unreasonable search" under the Fourth Amendment?

This scenario is not merely hypothetical. The most prominent reality in which this question arises involves specially trained dogs, which, using their superior sense of smell, can alert to the presence of illegal drugs. Most dramatically, suppose that such a specially trained dog ("drug dog"), from a location outside a home, alerts to the presence of illegal drugs …

From Spectacle To Speech: The First Amendment And Film Censorship From 1915-1952, Jessica J. Hwang

UC Law Constitutional Quarterly

Through the lenses of both history and the law, this Note examines the parallel transformation of the First Amendment and the medium of film. When the Supreme Court first addressed the censorship of moving pictures in 1915, the Court unanimously rejected film as mere "spectacle" unworthy of constitutional protection. However, in 1952, the Court revisited the same issue and unanimously overturned its prior decision-moving pictures were now protected under the First and Fourteenth Amendments. The reversal ended an era of censorship and marked a new understanding of both speech and film in the law. Neither a fortuitous nor an inevitable …

In Re C.P.: The Ohio Supreme Court's Expansion Of Roper V. Simmons And Graham V. Florida To The Realm Of Juvenile Sex Offender Registration, Ben Blumenthal

UC Law Constitutional Quarterly

In the landmark 2012 Ohio Supreme Court case In re C.P., the court held the statute mandating a minor's automatic lifetime registration as a sex offender constituted cruel and unusual punishment in violation of the Eight Amendment and Ohio's own constitutional prohibition against cruel and unusual punishment. Additionally, the court found automatic registration ran afoul of the Fourteenth Amendment's Due Process Clause.

In re C.P. raises several critical questions. Chief amongst them is whether categorical principles enunciated in Roper v. Simmons and Graham v. Florida should even apply to juvenile sex-offender registration schemes. This question is highly relevant because an …

Bring Your Own Devices: A Cautionary Tale For Public Employees During Investigatory Searches, Julie Chow

UC Law Constitutional Quarterly

The advancement of technology-specifically in the form of electronic communication devices-has given rise to a new phenomenon known as "Bring Your Own Device," or "BYOD," whereby employees use their personal electronic devices, such as smartphones, laptops and tablets, for work purposes. While this growing trend may be beneficial to employers and employees, it raises potential problems, especially in the area of employee privacy for those who work in state and local government. The extension of BYOD practices to public employers and government agencies raises Fourth Amendment concerns regarding whether employers may search these employee-owned devices for work purposes in the …

Wireless Internet Searches: How The Fourth Amendment Applies To Police Searches Of Information Accessed Over A Wireless Internet Connection, Taylor Hobin

UC Law Constitutional Quarterly

In a series of rulings by the U.S. District Court for the District of Oregon and the Ninth Circuit Court of Appeals, it is suggested that a person may not have an expectation of privacy in some computer files that are accessible through a secured, or unsecured, wireless network. This Note uses the reasoning in these court decisions to create a framework for analyzing the Fourth Amendment's application to secured and unsecured wireless Internet networks.

This Note concludes that the trespass analysis derived from United States v. Jones would establish a more predictable and functional standard when analyzing a search …

Violent Video Games And The Rights Of Children And Parents: A Critique Of Brown V. Entertainment Merchants Association, Martin Guggenheim

UC Law Constitutional Quarterly

In 2011, in Brown v. Entertainment Merchants Association, the Supreme Court declared unconstitutional California's effort to regulate the sale of certain video games to minors. The Court's ruling deserves careful review because it has halted legislative efforts to regulate video games. Although the ruling is unobjectionable to the extent it concluded the challenged statute was unconstitutionally vague, the decision went well beyond that. It would be one thing if the Court left open room for legislatures to draft clearer legislation that eliminated ambiguity regarding what video games are unsuitable for minors. But the Court held that because video games are …

Incoherent And Indefensible: An Interdisciplinary Critique Of The Supreme Court's Void-For-Vagueness Doctrine, Ryan Mccarl

UC Law Constitutional Quarterly

The Supreme Court's "void-for-vagueness" (or simply "vagueness") doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that "fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "encourage arbitrary and erratic arrests and convictions."

This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes …

Probability, Confidence, And The Constitutionality Of Summary Judgment, Luke Meier

UC Law Constitutional Quarterly

Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue.

This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be …

The Story Of Prudential Standing, S. Todd Brown

UC Law Constitutional Quarterly

Prudential standing, it seems, is the latest target in the Roberts Court's effort to "bring some discipline" to jurisdictional and pseudo-jurisdictional concepts. During the Court's last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts' prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Using Section 2 Of The Voting Rights Act To Fight Voter Supression Tactics After Shelby County V. Holder Without A New Section 4(B) Formula, Jessica Cassella

UC Law Constitutional Quarterly

In 2012, the state of Texas attempted to require residents to present photo identification when casting a ballot. The United States Department of Justice objected to the implementation of this law under Section 5 of the Voting Rights Act because data showed that this law would disproportionately impact Hispanic voters in Texas. Data revealed that Hispanic voters were 46.5% more likely than non-Hispanic voters to lack the identification that would be required to vote. Also, the data showed that Hispanic voters were more likely than non-Hispanic voters to encounter barriers when attempting to get the proper documentation, including disproportionately lacking …

Concussion Crisis: Regulating The Nfl's Concussion Policy Under The Commerce Clause, Margaret Greer

UC Law Constitutional Quarterly

During a 2009 House Judiciary hearing, California Representative Linda Sanchez, in an exchange with National Football League Chairman Roger Goodell, noted: "[t]he NFL sort of reminds me of the tobacco companies, pre-'90s, when they kept saying, 'no, there is no link between smoking and damage to your health."' In the years following Representative Sanchez's striking commentary on the NFL's refusal to acknowledge a correlation between concussions and long term neurological damage, the NFL has publicly admitted that repeated concussions can have adverse effects on a player's brain. An analysis of the concussion litigation between the NFL and former NFL players …