Law Commons^™

The Sound Of Silence: Thoughts Of A Sitting Judge On The Problem Of Free Speech And The Judiciary In A Democracy, Robert H. Alsdorf

UC Law Constitutional Quarterly

In the recent case of Republican Party of Minnesota v. White, the Supreme Court proclaimed a First Amendment right of free speech for elected judges. The majority's holding is marked by a critical omission: it reached its decision without performing an analysis of the role of either the state or the federal judiciary in the American democracy. The Court failed to acknowledge the Founders' apparent intent that state and federal courts perform the same function.

In our democratic and adversarial system, judges are to act essentially as referees, as impartial decision-makers. Judicial officers do not act in a representative capacity …

Public School Assignment Methods After Grutter And Gratz: The View From San Francisco, David I. Levine

UC Law Constitutional Quarterly

This Article first discusses the potential impact of Grutter and Gratz on student assignment plans in public elementary and secondary schools. Professor Levine concludes that public school officials who desire to use race in making student assignment decisions probably will be able to articulate a compelling governmental interest under Gruter. However, under Gratz, they will have significant difficulty in meeting the narrow tailoring prong of strict scrutiny analysis if they seek to use race as an express, mechanical means of selecting and assigning students. Because school districts will search for race-neutral assignment plans as they attempt to comply with both …

Does The Constitutional Right To Privacy Protect Forced Disclosure Of Sexual Orientation, Anne C. Hydorin

UC Law Constitutional Quarterly

After the Supreme Court's holding in Bowers v. Hardwick, the Third and Fourth Circuits were split over whether Bowers impliedly extended to forced disclosure of sexual orientation and private homosexual activity. This Note argues that Bowers does not protect forced disclosure of sexual orientation and that the Constitution protects our right to "be let alone" and preserves expected matters of confidentiality from unwarranted government intrusion. In other words, certain private matters must be beyond the unfettered reach of the state. Permitting the government to force an individual to disclose his or her sexual orientation offends this privacy jurisprudence. The Note …

Supreme Court Voting Behavior: 2001 Term, Richard G. Wilkins, Scott Worthington, Adam Becker, Sara Becker

UC Law Constitutional Quarterly

This Study, the sixteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2001 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Study attempts to remove subjectivity by applying a consistent classification scheme to ten categories of cases over time. This Term's data strongly suggests that the present Court stands in an uneasy ideological balance. The Court's voting behavior during the 2001 Term reverses the modest liberal trend …

Freedom Of Speech And The Language Of Architecture, Kevin G. Gill

UC Law Constitutional Quarterly

Frank Lloyd Wright's Fallingwater, in Bear Run, Pennsylvania, is a celebrated architectural masterpiece of groundbreaking vision and design ingenuity. Today unfortunately, in many municipalities, strict design controls prevent architects from designing such visionary work. These controls preclude buildings that do not mimic a certain architectural style, or otherwise conform to the neighborhood. They are promulgated on notions of community harmony; the argument is made that unconventional architectural design is somehow discordant and will adversely affect property values.

Architecture has been called humanity's greatest form of expression. Architecture can be a physical expression of philosophical, religious, political, and aesthetic ideas and …

The Promise And Preconditon Of Education Autonomy, Neal Kumar Katyal

UC Law Constitutional Quarterly

In this article, Professor Katyal, who filed the "educational autonomy" amicus brief in Grutter on behalf of Deans at the nation's leading private law schools, defends the view that universities have a zone of freedom to pursue Bakke-style affirmative action but outlines some strong limits on such autonomy. The Court's principle of educational autonomy is anchored in judicial precedent and common sense, but, like all forms of judicial deference, such autonomy must be carefully circumscribed. In particular, Professor Katyal argues that if a law school seeks to use educational autonomy as part of its defense of its admissions process, its …

The Benign-Invidious Asymmetry In Equal Protection Analysis, R. Richard Banks

UC Law Constitutional Quarterly

No abstract provided.

High School Drug Testing And The Original Understanding Of The Fourth Amendment, David E. Steinberg

UC Law Constitutional Quarterly

In Board of Education v. Earls, the United States Supreme Court recently held that a high school drug testing programs did not violate the Fourth Amendment to the United States Constitution. The Earls Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all.

Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes …

Justice Byron White And The Importance Of Process, Carl Tobias

UC Law Constitutional Quarterly

Professor Tobias pays tribute to Byron R. White, who was a twentieth-century Renaissance person. At the University of Colorado, he captured honors as the valedictorian and as an All-American football player. In 1939, White attended Oxford University on a Rhodes Scholarship. He then compiled the best academic record in the Yale Law School first-year class and later served as a judicial clerk for Chief Justice Fred Vinson. During 1962, President John F. Kennedy appointed White to the Supreme Court, and the jurist rendered distinguished service for three decades.

This essay affords three examples of White's acute sensitivity to process. One …

Foreword, Hastings Constitutional Law Quaterly

UC Law Constitutional Quarterly

No abstract provided.

Admissions Of A Director, Sarah C. Zearfoss

UC Law Constitutional Quarterly

The admissions process at one of the nation's most prestigious law schools is as much art as it is science. Sarah Zearfoss, Director of Admissions and Assistant Dean at the University of Michigan Law School, offers a firsthand account of the school's admissions program. In the process she answers the commonly asked question, just what do admissions committees take into account when they review an application? She describes the Law School's admissions program from a functional point of view, and explains why the concept of diversity embodies far more than race. She also refutes Justice Rehnquist's analysis in dissent in …

The Too-Many-Minorities And Racegoating Dynamics Of The Anti-Affirmative-Action Position: From Bakke To Grutter And Beyond, Ronald Turner

UC Law Constitutional Quarterly

Twenty five years ago, in Regents of the University of California v. Bakke, the United States Supreme Court validated certain considerations and uses of race in university and college admissions decisions. Writing only for himself in one part of the Bakke Court's opinion, Justice Powell expressed his view that the attainment of a diverse student body was a constitutionally permissible goal for an institution of higher education. A quarter century later, in the University of Michigan affirmative action cases discussed in this article, a majority of the Court endorsed Powell's view that the compelling state interest in student body diversity …

Constitutional Sunsetting: Justice O'Connor's Closing Comments In Grutter, Vikram David Amar, Evan Caminker

UC Law Constitutional Quarterly

In this essay, Professors Amar and Caminker discuss the observation Justice O'Connor's majority opinion in Grutter makes that "[wie expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." While they acknowledge the highly ambiguous nature of this sentence, Amar and Caminker hypothesize this passage as a warning from the Court that it will not necessarily rule a quarter century from now the way it did last summer, even if the underlying demographic facts remain the same. Amar and Caminker discuss how this possible reading fits in with …

The Legal Cost Of The Split Double Header Of Gratz And Grutter, Wendy Parker

UC Law Constitutional Quarterly

In this article, Professor Parker examines Justice Scalia's prediction that the "split double header" of Gratz and Grutter - which seemingly contradict one another - will result in a dramatically increased amount of litigation and become a never-ending aggravation for both students and educators because of uncertainty in distinguishing between constitutional racial activity and unconstitutional kind racial activity. Justice Scalia further predicts that post-Gratz/Grutter litigation will draw all racial groups - the majority group, underrepresented minority groups, and overrepresented minority groups - as plaintiffs, and he proposes an all-or-nothing approach: Outlaw all racial preferences in the public education setting or …

The Evolution Of Equality In American Law, Gerald Torres

UC Law Constitutional Quarterly

No abstract provided.