Law Commons^™

Good Kids, Bad Kids: A Revelation About The Due Process Rights Of Children, Cecelia M. Espenoza

UC Law Constitutional Quarterly

In the case of Reno v. Flores, the United States Supreme Court held that the indefinite detention of unaccompanied, immigrant children without a mandatory hearing before an immigration judge did not violate the children's substantive or procedural due process rights. To fully examine the procedural and substantive due process rights of these children, the Article engages in an analysis of children's due process rights in general, and then places the Reno v. Flores decision in context.

Aggressive Panhandling Legislation And The Constitution: Evisceration Of Fundamental Rights--Or Valid Restrictions Upon Offensive Conduct, Darryl C. Delmonico

UC Law Constitutional Quarterly

The phrase "Brother, can you spare a dime?" was spawned during the Great Depression and originally evoked sympathy and compassion from all but the most hardened listeners. Fifty years later, while economic realities persist, public perceptions and legislative responses have changed. With the middle class slowly becoming extinct, a widening chasm is developing between the 'haves' and the 'have-nots.' The prevalence of panhandlers in communities across the United States is a testament to this phenomenon. With this surge in panhandling has come increased public dissatisfaction. Legislators have reacted to this dissatisfaction by enacting legislation designed to criminalize intimidating or threatening …

A Pro-Death, Self-Fulfilling Constitutional Contruct: The Supreme Court's Evolving Standard Of Decency For The Death Penalty, Susan Raeker-Jordan

UC Law Constitutional Quarterly

In recent Eight Amendment decisions applying the Cruel and Unusual Punishment Clause to substantive challenges to the death penalty, a plurality of the United States Supreme Court has favored employing only the "evolving standards of decency" test of constitutionality, purportedly because it is an objective measurement of cruelty and unusualness. The Article will show, however, that contrary to the assertions of some Court members, the indicia for ascertaining the evolving standard of decency are far from objective. Rather, the evidence gleaned from he "objective indicia" of legislative enactments and jury sentencing behavior can be and has been rigged to favor …

The Hamlet Fallacy: Computer Networks And The Geographic Roots Of Obscenity Regulation, Randolph Stuart Sergent

UC Law Constitutional Quarterly

Juries currently can find sexually oriented material to be obscene based on the community standards of the locality in which they reside. To determine whether sexual material that is transmitted over an international computer network is criminally obscene, one must comprehend the local community standards of every locality in the United States. The Supreme Court's use of this "local community standards" rule reflects a view of the local community as a relatively homogenous society in a distinct, geographically defined locality. When applied to international communications networks, this standard will excessively "chill" speech that is otherwise protected by the First Amendment. …

Of Kirpans, Schools, And The Free Exercise Clause: Cheema V. Thompson Cuts Through Rfra's Inadequacies, Dipanwita Deb

UC Law Constitutional Quarterly

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these …

Equal Protection, Unequal Political Burdens, And The Ccri, Vikram D. Amar, Evan H. Caminker

UC Law Constitutional Quarterly

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as …

And To The Republic For Which It Stands: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

UC Law Constitutional Quarterly

Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.

This Essay also addresses the arguments in favor of …

Viewpoint Discrimination, Marjorie Heins

UC Law Constitutional Quarterly

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article …

The Promise Of State Constitutionalism: Can It Be Fulfilled In Sheff V. O'Neill, Gayl Shaw Westerman

UC Law Constitutional Quarterly

Sheff v. O'Neill, which is to be decided by the Connecticut Supreme Court this year, is the first case in two decades to challenge the doctrine and rationale of federal school desegregation cases, i.e., that a metropolitan-wide remedy cannot be employed to cure metropolitan-wide school segregation unless state action, infused with discriminatory intent has caused such segregative conditions. The Sheff case is considered a landmark case because it is the first to challenge the federal approach in a state court on the basis of state constitutional provisions alone.

This Article argues that the federal state action discriminatory intent, causation standard …

Confusion In The Courts: The Failure To Tax Punitive Damages Uniformly In Personal Injury Cases, Margaret L. Thum

UC Law Constitutional Quarterly

This Note compares recent circuit cases reaching different opinions on whether punitive damages received on account of personal injuries are taxable under Internal Revenue Code section 104(a)(2). These differing opinions result in disparate taxation of federal taxpayers that violates the rule of uniformity in Article I, section 8, clause 1 of the United States Constitution. To provide a remedy, this Note proposes a rule to encourage the uniform application of federal income tax statutes.

Rhetorical Criticism Of Legal Texts: Four Rhetoricians On Lochner V. New York, Hastings Constitutional Law Quarterly

UC Law Constitutional Quarterly

This Forum consists of four Essays which explore and analyze the rhetoric used in the Lochner opinions authored by Justices Peckham, Harlan, and Holmes. These Essays were inspired in part by Judge Richard Posner's Law and Literature: A Misunderstood Relation, and are offered to facilitate interdisciplinary dialogue between legal and rhetoric scholars on the ways legal rhetoric shapes our political and legal institutions.

Preaching The Constitution, William E. Wiethoff

UC Law Constitutional Quarterly

No abstract provided.

The Argumentative Creation Of Individual Liberty, Warren Sandmann

UC Law Constitutional Quarterly

No abstract provided.

On The Rhetorical Criticism Of Judge Posner, James Arnt Aune

UC Law Constitutional Quarterly

No abstract provided.

Reflections On The Proposed United States Reservations To Cedaw: Should The Constitution Be An Obstacle To Human Rights, Ann Elizabeth Mayer

UC Law Constitutional Quarterly

The United States Constitution enjoys a special, sacred status that encourages the United States to treat its constitutional rights standards as definitive and therefore entitled to override conflicting standards in human rights treaties. When ratifying human rights treaties, the United States has entered reservations that are designed to ensure that constitutional rights standards will remain in force, even when they are less protective of rights than their international counterparts. Where women's rights are concerned, the United States has effectively rejected the international standard of equality for women, upholding instead the intermediate-tier standard developed under the Equal Protection Clause. Reluctant to …

The Casey Undue Burden Standard: Problems Predicted And Encountered, And The Split Over The Salerno Test, Ruth Burdick

UC Law Constitutional Quarterly

In June 1992, the United States Supreme Court in Planned Parenthood v. Casey struck down the trimester framework of Roe v. Wade and replaced it with an undue burden standard to test the constitutionality of state abortion regulations. Several commentators predicted that the lower court application of the undue burden standard would be troublesome, and criticism of the standard became widespread. Since the Casey decision, the undue burden standard has now been utilized in a total of thirteen cases, and has been reviewed by four circuit courts.

This Note analyzes the Casey undue burden standard as implemented by the lower …

The Impact Of The Proposed California Civil Rights Initiative, Erwin Chemerinsky

UC Law Constitutional Quarterly

This article assesses the impact of the proposed California Civil Rights Initiative ("CCRI"). If enacted, the CCRI will eliminate a vast array of programs designed to remedy past discrimination and advance equality of opportunity. Although the CCRI abolishes preferences based on race or gender, the term "preferences" is not defined. There is a risk that courts will give the term a broad construction and an even greater risk that governments voluntarily will forego affirmative action programs of all sorts to avoid litigation. Additionally, the CCRI will expand the legal authority for gender discrimination because it expressly permits gender to be …

Understanding Affirmative Action, David Benjamin Oppenheimer

UC Law Constitutional Quarterly

This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports …

Merit-Teaching, Yxta Maya Murray

UC Law Constitutional Quarterly

Professor Yxta Maya Murray explores the notion of Merit-Teaching - the expansion of our current ideas of merit through the inclusion of the virtues and values of "Outsiders." Using insights developed by Aristotelian moral philosophers, critical race theorists, and feminist legal theorists as her guide, Professor Murray investigates Outsiders' particular virtues, and thus merits, that are forged from the experiences of oppression. Professor Murray brings these lessons into relief through the use of storytelling - her rendition of the life stories of her grandmother, her mother, and herself - which demonstrate Outsider virtue in action.

Reverse Racism: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

UC Law Constitutional Quarterly

In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Failure Of The Color-Blind Vision: Race, Ethnicity, And The California Civil Rights Initiative, Neil Gotanda

UC Law Constitutional Quarterly

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of …

Debunking The Myth That Subdivision (C) Of The California Civil Rights Initiative Lessens The Standard Of Judicial Review Of Sex Classifications In California, Pamela A. Lewis

UC Law Constitutional Quarterly

Ms. Lewis argues that opponents of the California Civil Rights Initiative ("CCRI") have attempted to scare women as part of a campaign strategy to defeat the proposed constitutional amendment. In particular, she criticizes the opposition's arguments that, if CCRI passes, subdivision (c) will lower the standard of judicial review of all sex classifications under the California Constitution. The author argues that subdivision (c) will have no such effect as the subdivision's language is borrowed from the bona fide occupational qualification ("BFOQ") provision of the Civil Rights Act of 1964. BFOQs are recognized as narrow exceptions to federal and state antidiscrimination …

Supreme Court Voting Behavior: 1995 Term, Richard G. Wilkins, Matthew K. Richards, Scott Worthington

UC Law Constitutional Quarterly

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state …

Protective Orders In The Bankruptcy Court: The Congressional Mandate Of Bankruptcy Code Section 107 And Its Constitutional Implications, William T. Bodoh, Michelle M. Morgan

UC Law Constitutional Quarterly

It is a well-established principle of First Amendment and common law jurisprudence that a proceeding before and all papers filed with a court, particularly in the criminal context, are open to the public. Subsection 107(a) of the Bankruptcy Code codifies this public access doctrine by creating a presumption in favor of public access to all papers filed in a bankruptcy case. The subsection 107(a) presumption is, however, rebuttable. As a result, if a party in interest shows that the material sought to be protected contains a trade secret or confidential information, or is scandalous or defamatory, the bankruptcy court must …

The Allure And Danger Of Community Values: A Criticism Of Liberal Republican Constitutional Theory, Kenneth Ward

UC Law Constitutional Quarterly

This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.

The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain how the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to …

After Midnight: The Constitutional Status Of Juvenile Curfew Ordinances In California, Susan L. Freitas

UC Law Constitutional Quarterly

Youth is not a crime. Every person, regardless of age, is entitled to the protections of the United States Constitution. This seemingly apparent fact is not a reality for America's children, who are often treated as less than "full citizens" solely because of their age. The explosive proliferation of juvenile curfew ordinances in municipalities across California is one example of such treatment. Curfews have traditionally been used as a method of social control, often imposed in times of great upheaval and emergency, but have recently become the easy solution for communities exasperated by rising juvenile crime and violence. Although curfews …

Constitutionality Of English-Only Provisions In The Public Employee Speech Arena: An Examination Of Yniguez V. Arizonans For Official English, Michael Albert Thomas Pagni

UC Law Constitutional Quarterly

This Note addresses a significant but rarely examined issue concerning whether a state may constitutionally require the exclusive use of the English language by its employees while performing official acts on behalf of the State. The Note focuses on the approach employed by the Ninth Circuit in determining the constitutionality of Article XXVIII of Arizona's Constitution, arguably the most restrictive of the state provisions regulating language rights, in the recent decision of Yniguez v. Arizonans for Official English. The Note concludes that not only did the majority misapply the overbreadth and public employee speech doctrines, it subsequently failed to identify …