Law Commons^™

Presence And Absence In Lochner: Making Rights Real, Eileen A. Scallen

UC Law Constitutional Quarterly

No abstract provided.

From Extreme Hardship To Extreme Deference: United States Deportation Of Its Own Children, Edith Z. Friedler

UC Law Constitutional Quarterly

United States citizens, who are children of aliens residing unlawfully in the country, are routinely deported with their parents. The courts, exercising an extreme deference to the decisions of the agency and to the acts of Congress in the area of immigration law, have abdicated their responsibilities in their role as guardians of the constitutional rights of these children. Although the courts have not granted children the same constitutional rights as those granted adults, cases involving de facto deportation of these children do not acknowledge the existence of even a procedural right of due process to protect the interest of …

Supreme Court Voting Behavior: 1994 Term, Richard G. Wilkins, Scott M. Petersen, Matthew K. Richards, Ronald J. Tocchini

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1994 Term. Although generally perceived as a conservative institution, the Court this Term adopted a more liberal stance in its approach to First Amendment, statutory civil rights, jurisdictional and federalism issues, and in litigation involving the federal government. Furthermore, in close cases that were decided by a one-Justice majority, the Court overwhelmingly adopted a more liberal result. Justice Kennedy remained the most influential Justice, his vote determining the outcome in over 80% of these close cases. While some of this …

Is There Such A Thing As Extraconstitutionality? The Puzzling Case Of Dalton V. Specter, Evan Tsen Lee, Larry Alexander

Faculty Scholarship

No abstract provided.

Supreme Court Voting Behavior: 1993 Term, Richard G. Wilkins, James L. Kimball Iii, Scott M. Peterson

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological learnings of the United States Supreme Court during the October 1993 Term. The Court adopted a more liberal approach to civil litigation involving state and federal governments, but it remained relatively conservative in its approach to criminal cases and statutory civil rights issues. Justice Kennedy emerged as the Term's most influential member in cases that were decided by a one-Justice majority; he was a member of the majority in all but one of the cases so decided. Justice Souter continued his gravitation to the liberal pole of the Court, and …

Exposing Human Rights Abuses--A Help Or Hindrance To Reconciliation, Richard Goldstone

UC Law Constitutional Quarterly

Despite the advent of the "new world order," international human rights violations remain a widespread problem. The propensities for such abuses are seen most recently through the widespread violence and genocide encountered in Yugoslavia and Rwanda. In an effort to address such abuses, the United Nations established the International War Crimes Tribunal for the Balkan States and Rwanda. The chief goals of the Tribunal are to collect data and try those accused of war crimes. Justice Richard Goldstone, the Tobriner lecturer, is the Prosecutor of the Tribunal.

In his lecture, Justice Goldstone describes how "truth commissions" have been used to …

Access To Eagles And Eagle Parts: Environmental Protection V. Native American Free Exercise Of Religion, Antonia M. De Meo

UC Law Constitutional Quarterly

The use of eagles and eagle parts, such as feathers and bones, are essential to Native American religious practices. The federal government has sought to protect American eagles through various mechanisms due to their endangered status. Under one such mechanism, Native Americans must undergo a lengthy and intricate permit process to receive eagles and eagle parts for use in religious ceremonies. Oftentimes, eagles and eagle parts are only released after periods and long as five years. Furthermore, when the needed eagles and eagle parts do arrive, they are often unfit for ceremonial use.

This Article addresses current problems with the …

Killing Me Softly: Is The Gas Chamger, Or Any Other Method Of Execution, Cruel And Unusual Punishment, Peter S. Adolf

UC Law Constitutional Quarterly

Although people have debated the wisdom of the death penalty for centuries, little attention has been paid to the actual killing process. With the pace of executions in the United States increasing dramatically in recent years, courts have begun to grapple with the question of what the government can and cannot do in the process of lawfully killing someone. The decisions have been illogical and contradictory: at the time of this writing, hanging is permissible in Washington State and Montana, while California's gas chamber is unlawful "cruel and unusual punishment." The Supreme Court has never decided what the permissible limits …

Detained Aliens Challenging Conditions Of Confinement And The Porous Border Of The Plenary Power Doctrine, Margaret H. Taylor

UC Law Constitutional Quarterly

Serious problems are endemic to the conditions at INS detention facilities. Some detainees are crowded into understaffed INS detention centers. Others are shuttled off to local jails or private facilities, where the INS seldom inquires about their treatment and they are sometimes subjected to inhumane conditions. Attempts of detained aliens to challenge these conditions under the Due Process Clause generally have been thwarted. This article documents the unconscious evolution of a standard requiring detained aliens to allege "malicious infliction of cruel treatment" or "gross physical abuse" in stating a viable due process claim. This standard provides an incomplete measure of …

The Tightening Circle Of Membership, T. Alexander Aleinikoff

UC Law Constitutional Quarterly

No abstract provided.

Ten More Years Of Plenary Power: Immigration, Congress, And The Courts, Stephen H. Legomsky

UC Law Constitutional Quarterly

The Supreme Court has long applied a doctrine of special judicial deference to Congress in the area of immigration regulation. The precise degree of that special deference to plenary congressional power has varied by context and era, and continues to develop today. During the past decade, the author has published two companion pieces which study the history, theory, soundness, politics, and likely future course of the plenary power doctrine. In this essay, the author summarizes the conclusions reached in those two prior publications, synthesizes the judicial trends that have developed since that time, and revises his predictions in light of …

State Immigration Laws And Federal Supremacy, Karl Manheim

UC Law Constitutional Quarterly

The current debate over the meaning of American federalism bears a striking resemblance to our founding struggle over states' rights. One stage where federalism continues to play out is the regulation of aliens and immigration. For most of our first century, immigration control was a state prerogative. But by the late nineteenth century, the Supreme Court equated immigration with foreign policy, thereby recognizing plenary and exclusive federal authority. This exclusivity operates to negate state power by both standard preemption doctrine and constitutional preclusion. In particular, preclusion forecloses state immigration laws even where Congress is silent since states have never possessed …

Storytelling Out Of School: Undocumented College Residency, Race, And Reaction, Michael A. Olivas

UC Law Constitutional Quarterly

The recent wave of anti-immigrant sentiment has resulted in a revisitation of the rights of undocumented alien students. While each state has its own residency rules, a few states, including California, have precluded long-term undocumented alien students from establishing in-state residency for postsecondary tuition purposes. As a result, in most cases, students who are academically qualified to attend the state's institutions, whose only home is and has been within the state, and who otherwise function as full participants in the state's economy, are barred from attending the state's public institutions.

This article examines the legal and social implications of preventing …

Counter-Demonstration As Protected Speech: Finding The Right To Confrontation In Existing First Amendment Law, Kevin Francis O'Neill, Raymond Vasvari

UC Law Constitutional Quarterly

On any given issue, groups with rival viewpoints may clamor for access to a particular forum at a particular moment in time. Public officials, alarmed by the prospect of clashing demonstrators, may seek to enjoin the simultaneous presence of opposing groups. Though counter-demonstration is an increasingly prevalent phenomenon, few cases address the First Amendment implications of such an injunction. Courts granting injunctive relief have relied on a spontaneous combustion thesis, concluding the abstract possibility of violence suffices by itself to justify banishing counter-demonstrators from the forum.

This Article asserts that the spontaneous combustion thesis is utterly inconsistent with First Amendment …

Waiver Of The Right To Appeal, Robert K. Calhoun

UC Law Constitutional Quarterly

Current plea bargaining practice increasingly includes a requirement that the defendant waive any right to appeal as a condition of the plea bargain. This relatively new negotiation tactic carries with it the potential for rendering criminal appeals nearly as rare a phenomenon- as criminal trials have become under the old model of plea bargaining. This could move us one step closer to an administrative model of criminal case resolution in which neither factual nor legal issues are resolved by the courts but rather by the parties through a process of negotiation.

This Article argues against this practice, maintaining that it …

When Judges Impose The Death Penalty After The Jury Recommends Life: Harris V. Alabama As The Excision Of The Tympanic Membrane In An Augmentedly Death-Biased Procedure, Amy D. Ronner

UC Law Constitutional Quarterly

This Article examines the disturbing ramifications of sentencing statutes that allow a judge to override a jury's advisory life verdict and impose the death sentence, analyzes the importance of the jury in a criminal proceeding, its special function in the capital sentencing phase, and the ensuing devastation from a judge trumping a jury life verdict with death.

This Article then advances the position that jury override statutes do not spawn mere death bias, but actually an augmented death bias, and stresses the special significance of a jury life verdict issued in spite of that augmented death bias. This Article also …

Beyond Pinups: Workplace Restrictions On The Private Consumption Of Pornography, Peggy E. Bruggman

UC Law Constitutional Quarterly

While pornography in the public workplace has begun to raise First Amendment concerns, most commentary and jurisprudence has focused on the restriction of verbal speech or the posting of sexually explicit material in the workplace. In Johnson v. County of Los Angeles Fire Department, however, a federal district court struck down as violative of the First Amendment that portion of a sexual harassment policy which prohibited the private consumption of pornography in county firehouses. Using the Johnson decision as a basis for discussion, this Note argues that workplace regulations prohibiting the private reading and consensual sharing of sexually explicit material …

Hung Up On Semantics: A Critique Of Davis V. United States, Samira Sadeghi

UC Law Constitutional Quarterly

A suspect being interrogated by the police suddenly says, Maybe I should talk to a lawyer. What legal effect, if any, should this statement have? What procedure should the police follow upon such an invocation? The United States Supreme Court in Davis v. United States adopted a rigorous standard for suspects invoking their Miranda rights.

This Comment criticizes the Court's adoption of the so-called threshold of clarity approach and its conclusion that only clearly asserted invocations of counsel trigger any protection for suspects. The Court's heightened requirement of clarity unfairly places a higher burden upon suspects in an already intimidating …

Exercising The Amendment Power To Disapprove Of Supreme Court Decisions: A Proposal For A Republican Veto, Thomas E. Baker

UC Law Constitutional Quarterly

Supreme Court Justices, in their role as interpreters of the Constitution, have often determined public policy. Professor Baker, however, suggests that Congress should have a "veto" over Supreme Court decisions where the Court sets public policy contrary to congressional intent.

By using the process to amend the Constitution delineated in Article V, Congress and the state legislatures can overrule Supreme Court decisions. Through the use of a veto, Congress, and not the Supreme Court, would have the final say in the interpretation of a statute and ultimately in setting public policy.

Safeguards are already in place to ensure that this …

Reinterrogation, Marcy Strauss

UC Law Constitutional Quarterly

There is no clear delineation under Miranda and Edwards of when the police may reinterrogate a suspect after ordinarily invoking the right to counsel. Logically, the prohibition cannot be indefinite. This would violate the public policy of enabling law enforcement personnel to control crime. The goals of Miranda, Edwards, and related cases establish several factors to be weighed in determining when the prohibition against reinterrogation should end. These include the length of time since the right to counsel was invoked, whether the new crime is related to the one for which the right to counsel was invoked, whether the suspect …

When Juries Meet The Press: Rethinking The Jury's Representative Function In Highly Publicized Cases, Kenneth B. Nunn

UC Law Constitutional Quarterly

The increasing media saturation of society has altered the traditional roles and function of the jury in criminal trials. In several recent highly-publicized trials, most notably the Reginald Denny beating case, the jurors have been asked to publicly defend and explain their verdicts. In the past, jury verdicts were accepted as legitimate if the jury was representative of their community. Now, however, it seems that a jury must also be representative to their communities.

This new representative function of the jury has profound implications for the more traditional functions of the jury. For example, what effect does the new representative …

License To Sell: Constitutional Protection Against State Or Local Government Regulation Of Liquor Licensing, Shelley Ross Saxer

UC Law Constitutional Quarterly

A liquor license is a valuable asset to the license holder, whether it be considered a privilege or a property interest. Liquor licenses are subject to extensive state and local regulation because they trade in a product which has historically been deemed harmful to the public health, safety, welfare, and morals. Constitutional protection against regulation is available to licensees, but the extent of this protection will depend on whether or not the liquor license is considered to be a property interest. This Article examines attributes, such as the right to obtain and the right to alienate, that are attached to …

Crisis In California: Constitutional Challenges To Inadequate Trial Court Funding, Gabrielle Tracey Letteau

UC Law Constitutional Quarterly

Inadequate funding of government is neither a unique, nor a new problem. Recent and severe cuts made to court budgets, however, threaten to destroy one of the three sacred branches of government. In California and elsewhere, these budgetary pressures bring into question several constitutional issues, such as whether the legislative branch may withhold funding to the detriment of a co-equal branch of government, and whether individual rights to access the courts are guaranteed under state and federal constitutions. This Note attempts to address these issues by examining the nature of the current financial crisis in California and offering suggestions for …

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

UC Law Constitutional Quarterly

Under the Fourth Amendment, when police officers use force, they must adhere to a "reasonableness" standard. This abstract standard, however, has left much room for interpretation, creating a common misperception of Fourth Amendment protections of personal security. Specifically, many courts use the concept of danger to decide whether force is reasonable-that is, force is justifiable so long as danger is posed to the police officers.

This Article argues that other factors-other than danger-should guide whether force is reasonable. Moreover, this Article provides specific guidelines to ascertain when the Fourth Amendment is violated.

Does The Constitution Follow The Flag Into United States Territories Or Can It Be Separately Purchased And Sold, Marybeth Herald

UC Law Constitutional Quarterly

A 1992 Ninth Circuit decision, Wabol v. Villacnisis, revisited the issue of to what extent constitutional protections apply to United States territories. This long-troublesome question has been made more difficult by the infrequency of decisions and the varying relationships the territories have with the United States government. The Northern Mariana Islands became a Commonwealth in 1976, and were then joined with the United States in a consensual and unique relationship that is defined by a Covenant. The Covenant explicitly exempted the Northern Marianas from the application of certain constitutional provisions, including the Equal Protection Clause as applied to racial restrictions …

Cameras In The Restroom: Police Surveillance And The Fourth Amendment, William O'Callaghan

UC Law Constitutional Quarterly

Everyone has occasion to use public restrooms at one time or another, and the recognition is commonplace that what activities take place are very personal. Nevertheless, there is a long history in this country of police surveillance of these areas. This Note discusses the expectation of privacy that should be accorded users of public restrooms in the context of police surveillance of those using public restrooms for sexual purposes. Of particular interest, Mr. O'Callaghan breaks down his analysis of the expectation of privacy in public restrooms into three areas: the common area, doorless stalls, and closed-door stalls.

Fourth Amendment Protection For Juvenile Probationers In California, Slim Or None: In Re Tyrell J., Lidia Stiglich

UC Law Constitutional Quarterly

The Supreme Court of California recently held in In re Tyrell J. that juvenile probationers are subject to random, suspicionless searches. This Comment analyses in detail the reasoning the court used to distinguish the level of suspicion required for juvenile probationers from that used for the population at large and offers some criticism of that logic. Moreover, Ms. Stiglich explores the rationales for probation and parole in general, and examines legal precedent for searches without probable cause of adult probationers and parolees and the relevance of consent to this analysis. To this end, the author discusses the Bravo, Martinez, and …