Law Commons^™

Examining The Americans With Disabilities Act's Reassignment Provision Through An Equal Protection Lens, Danielle Bogaards

UC Law Constitutional Quarterly

Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a …

Moving Beyond Race: The Joint Committee On Reconstruction And The Drafting Of The Fourteenth Amendment, Earl M. Maltz

UC Law Constitutional Quarterly

April 28th, 1866 was by any standard, a pivotal moment in the evolution of American constitutional law. On that date, the Joint Committee on Reconstruction voted to replace a provision of the proposed Fourteenth Amendment that focused only on racial discrimination with the current text of section one. This decision created the predicate for much of modern constitutional law, including but not limited to the Court's treatment of gender discrimination, abortion, gay rights, criminal procedure, and freedom of speech.

This article provides a detailed analysis of the forces that shaped the Joint Committee's decision. The article contends that the decision …

The Health Insurance Mandate - A Tax Or A Taking, Karl Manheim

UC Law Constitutional Quarterly

The Patient Protection and Affordable Care Act requires Americans to have or buy health insurance. The Act, particularly the "individual mandate," has generated enormous political controversy and constitutional litigation. The House of Representatives has voted 54 times to repeal the law, and President Obama's implementation has spurred calls for his impeachment.

The Act has already reached the Supreme Court twice. In National Federation of Independent Business v. Sebelius ("NFIB"), the Supreme Court held the mandate could not be sustained as an exercise of Congress' power over interstate commerce, but was valid under the Tax and Spend Clause. Other constitutional challenges …

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

UC Law Constitutional Quarterly

The Religious Freedom Restoration Act ("RFRA") threatens religious freedom. Burwell v. Hobby Lobby, the Supreme Court's recent decision exempting for-profit corporations from the contraceptive mandate of the Affordable Care Act ("ACA"), proves this counterintuitive point.

This Article identifies Hobby Lobby as part of an alarming twenty-fiveyear trend to impose religious beliefs through force of law. This imposition was undertaken in the name of religious freedom, and was defended by Republicans, Democrats, professors, and politicians, however in practice it has restricted civil rights. Women's rights were limited in Hobby Lobby, where the Court didn't even factor women's equality and reproductive liberty …

Racism 4.0, Civity, And Re-Constitution, Palma Joy Strand

UC Law Constitutional Quarterly

Racism is deeply imbedded in our culture and can be grouped into four distinct manifestations over the multi-century arc of our nation's history. These manifestations are identified as Racism 1.0, Racism 2.0, Racism 3.0, and-the current "operating system"--Racism 4.0. Racism 1.0 and 2.0 include slavery and the reign of violence and lynching during which Whites sought to control and marginalize Blacks, primarily but not exclusively in the South. In the South, Racism 3.0 took the form of "Jim Crow," legislatively enacted separation by race with "separate but equal" rhetoric and "separate and unequal" reality. The Civil Rights Movement and its …

Emtala: Medicare's Unconstitutional Condition On Hospitals, E. H. Morreim

UC Law Constitutional Quarterly

The Emergency Medical Treatment and Active Labor Act ("EMTALA") requires every Medicare-contracting hospital with an emergency department ("ED") to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare's initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA's constitutionality. Although this longstanding statute may not be reconfigured any time soon, it is important to consider the constitutional legitimacy of legislation carrying such an enormous and growing impact.

This Article proposes that EMTALA violates the Fifth Amendment's Takings …

Interracial Marriage And The Original Understanding Of The Privileges Or Immunities Clause, David R. Upham

UC Law Constitutional Quarterly

A perennial objection to the constitutional theory known as "originalism" is its alleged inconsistency with the result in Loving v. Virginia. Judicial and scholarly critics have often cited this inconsistency as a leading argument against what one court called the "rigid, originalist view of constitutional interpretation." According to several courts (prompted by the Supreme Court's opinion in United States v. Windsor), just as Loving properly disregarded the original understanding of the Fourteenth Amendment by invalidating laws prohibiting marriage between persons of different races, courts today should likewise set aside historical understandings to invalidate laws inhibiting marriage between persons of the …

Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality, Snehal Desai

UC Law Constitutional Quarterly

Revenge pornography is an increasingly prevalent form of cyberharassment, in which embarrassing and sexually explicit pictures and videos are posted on the internet without the consent of the depicted individual. Due to the First Amendment's protection of speech and expression, victims have had little legal recourse against their cyber-harassers. Many states have started to pass laws prohibiting revenge pornography, which have fortunately created some protections for victims. However, the recent passage of such statutes has also led to the debate about their constitutionality.

This Note first examines revenge pornography from various First Amendment perspectives, concluding that courts should carve out …

The Politics Of Statutory Interpretation: The Hayekian Foundations Of Justice Antonin Scalia's Jurisprudence, Gautam Bhatia

UC Law Constitutional Quarterly

During his time on the Court, Justice Scalia has developed a uniquely personal approach to statutory interpretation, constituted by diverse aspects such as textualism, a rejection of legislative history, original public meaning, the use of dictionaries, a rejection of precedent, the rule of lenity, and so on. Over the years, individual aspects of his approach have been subjected to critical scrutiny. There has not yet, however, been an attempt to synthesize the various strands of his jurisprudence into one coherent framework, and to examine the normative foundations that underlie it. The need is particularly acute, because in 2012, Justice Scalia, …

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

UC Law Constitutional Quarterly

The last few years have seen a reinvention of the economy through the growth of the "sharing economy" or the "new economy." The sharing economy has redefined consumption in the housing context in a manner that implicates the exclusivity of the use and enjoyment of real property. However, there is a brewing conflict between this genesis and the realities of economic regulation. Recently, controversy erupted in New York after New York Attorney General Eric Schneiderman subpoenaed Airbnb's records requesting data on its hosts for the previous three years. Schneiderman contended that Airbnb hosts in New York City were violating a …

Eugenics Then And Now: Constitutional Limits On The Use Of Reproductive Screening Technologies, Hannah Lou

UC Law Constitutional Quarterly

Advancements in assisted reproductive technologies ("ARTs") have allowed prospective parents to exercise unprecedented control over the reproductive process and their progeny. Among ARTs, prenatal screening and diagnosis is a particularly powerful category of tools due to its mass accessibility, non-invasiveness, and availability before conception and during pregnancy. However, increased adoption of these tools also forces parents and societies to confront a broad range of ethical, legal, and personal questions about how genetic information should be used to screen for or preselect the traits of prospective offspring.

This Note advocates that based on historical experience, previous court decisions, and modern evolution …

The Unconstitutionality Of The Current Housing Arrangements For Intersex Prisoners, Nicole Antonopoulos

UC Law Constitutional Quarterly

The perpetuation of a binary society with regards to sex creates problems for intersex persons who do not easily categorize as male or female. The current housing and treatment of intersex prisoners are based partly on this classic male-female dichotomy. This Note sheds light on sex as a spectrum, and examines the potential constitutional violations that arise from the current prison housing arrangements and treatment. It also analyzes the experiences of intersex prisoner Miki Ann DiMarco and her constitutional challenges as brought forward in DiMarco v. Wyoming Department of Corrections. Additionally, this Note suggests that intersex discrimination is a form …

Beyond Coordination: Defining Indirect Campaign Contributions For The Super Pac Era, Brent Ferguson

UC Law Constitutional Quarterly

This Article addresses a legal issue that has rapidly gained relevance since Citizens United and the proliferation of Super PACs: the constitutionally acceptable boundaries of treating campaign expenditures as contributions, and therefore allowing them to be limited in amount. The government may not limit Super PACs' spending because such groups may not legally coordinate with candidates, but Super PACs and other organizations have blurred the line of independence by spending millions on single candidates and employing people with close ties to the supported candidate. Current rules prevent some of this collaboration, but still allow much of it to occur.

Because …

The New Data Marketplace: Protecting Personal Data, Electronic Communications, And Individual Privacy In The Age Of Mass Surveillance Through A Return To A Property-Based Approach To The Fourth Amendment, Megan Blass

UC Law Constitutional Quarterly

The Supreme Court's Fourth Amendment jurisprudence is often critiqued, particularly the Court's refusal to acknowledge the distinction between secrecy, limited disclosure, and public disclosure. The Snowden leaks only fueled the fervor. With the revelations about the National Security Agency's PRISM, XKeyscore, and similar mass surveillance programs came renewed concern and discussion about the legal and regulatory framework protecting Americans' privacy. Privacy is en vogue.

The critiques of Katz v. United States and celebrations of Justice Sotomayor's concurrence in United States v. Jones are well-worn. As an alternative, this Note proposes vesting property rights in personal data and electronic communications to …

Protecting Immigrants From Prolonged Pre-Removal Detention: When It Depends Is No Longer Reasonable, Michelle Firmacion

UC Law Constitutional Quarterly

Most undocumented immigrants who are detained pending resolution of their removal proceedings are neither criminals nor actually deportable. Many are women and children with legitimate claims for remaining in the United Sates. Yet thousands of undocumented immigrants are detained for more than six months, longer than some convicted criminals. Because of this, one might ask: how "civil" is civil immigration detention?

In 2013, the United States Court of Appeals for the Ninth Circuit imposed a bright-line rule in Rodriguez v. Robbins, establishing an undocumented immigrant's right to a bond hearing when his detention exceeds six months. This rule ensures that …

Is Hobby Lobby Really A Brave New World - Litigation Truths About Religious Exercise By For-Profit Organizations, Eric Rassbach

UC Law Constitutional Quarterly

The Supreme Court in Burwell v. Hobby Lobby Stores held that the Religious Freedom Restoration Act applied to for-profit corporations and that the Affordable Care Act's requirement that group health care plans provide FDA-approved contraceptives created a substantial burden on Hobby Lobby Stores, Inc. Although controversial, this Article explains why the following outcry and dismay after the decision by media and scholars alike is unjustified. Hobby Lobby is merely a substantial burden case in a long line of substantial burden cases. The escalated level of attention to Hobby Lobby is not doctrinal, which is supported by the fact that it …

Evaluating The Sociology Of First Amendment Silence, Mae Kuykendall

UC Law Constitutional Quarterly

The First Amendment associational freedom analysis of the 2000 culture wars case of Boy Scouts of America v. Dale adopts an understanding of conventions permitting (or mandating) silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scoutmasters, despite a New Jersey statute barring such discrimination from a "public accommodation." The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which …

Why California's Second-Degree Felony-Murder Rule Is Now Void For Vagueness, Evan Tsen Lee

UC Law Constitutional Quarterly

In late June 2015, the U.S. Supreme Court struck down part of a federal three-strikes statute as unconstitutionally vague. Although that would seem to have nothing to do with the felony-murder rule, since the two rules would never come up in the same case, in fact the Court's rationale for finding the federal statute vague applies to California's unique seconddegree felony-murder rule all the way down the line. Like other states, California insists that the predicate felony in felony-murder be "dangerous to human life." Unlike any other state, however, California decides which felonies are dangerous not by looking at the …

Using The Endangered Species Act To Preempt Constitutional Challenges To Gmo Regulation, Caitlin Kelly-Garrick

UC Law Constitutional Quarterly

Scientific studies show that genetically modified organisms ("GMOs") have an adverse impact on biodiversity, especially pollinating species. Enforcement of the laws regulating the introduction of GMOs into the environment has not kept pace with this finding. Under existing judicial interpretation of the GMO regulatory framework, a loophole exists by which no single agency is responsible for assessing the cumulative environmental impacts of GMOs on biodiversity. Section 7 of the Endangered Species Act ("ESA") requires the government to consult with the Fish and Wildlife Service ("FWS") when an action might endanger the continued survival of a species. This paper argues that …

The Reasonability Of California Groundwater Policies In Light Of The Drought, Lindsey Pace

UC Law Constitutional Quarterly

California is America's largest agricultural farming state. Agriculture in the Central Valley is a multimillion dollar industry. California is the fifth largest supplier of food in the world. The productivity of the agricultural sector of the Central Valley is one reason why California could overtake Brazil this year as the world's seventh largest economy. The agricultural sector produces over $30 billion-dollars' worth of America's supply of almonds, milk, cattle, grapes, strawberries, walnuts, lettuce, hay, tomatoes, and more. Additionally the state produces over 400 commodities and nearly half of all US-grown fruits, vegetables, and nuts. California's robust agriculture sector is the …

Hands Up, Don't Shoot: Policing, Fatal Force, And Equal Protection In The Age Of Colorblindness, Zach Newman

UC Law Constitutional Quarterly

This note discusses race, policing, the use of fatal force, and the Black Lives Matter movement, contextualizing it within the "prison industrial complex," the "New Jim Crow," the hegemony of colorblindness and postracialism, and jurisprudential limitations placed on Equal Protection. It argues that narrow legal reforms of policing, like body cameras or increased training, cannot be conceived of as complete solutions. Although these reforms are important, they must be connected to critiques of and actions against overarching structures of stratification, subordination, and social control in advanced capitalism. Contemporary policing is one manifestation of a deeply flawed and racialized criminal punishment …