Law Commons^™

Justice Blackmun And The Good Physician: Patients, Populations, And The Paradox Of Medicine, Ann Alpers

UC Law Constitutional Quarterly

Justice Blackmun made unique contributions to law and medicine. In particular, he had a vision of the relationship between doctors and patients that respected both the professional integrity of the physician and the autonomy of the patient. Examination of several of Justice Blackmun's opinions yields a nuanced view of the complex ties between professional care givers and the patients whom they serve. In particular, the Justice valued maintaining the confidentiality of medical information, respecting the role played by allied health professionals in providing comprehensive care to patients, and ensuring that patients gave informed consent to medical care. Most important, Justice …

Some Questions And Answers Concerning Justice Blackmun In Federalism And Separation Of Powers Cases, Vikram David Amar

UC Law Constitutional Quarterly

In this short article, Professor Amar analyzes some of Justice Blackmun's intellectual contributions in the fields of federalism and separation of powers. Professor Amar praises Justice Blackmun for asking the right kinds of questions regarding the interaction between governmental institutions in political processes. Professor Amar does, however, express some misgivings about the way these questions have been answered by the Court.

The Burdens And Benefits Of Race In America, Charles J. Ogletree Jr.

UC Law Constitutional Quarterly

Beginning with the ideals expressed in the Declaration of Independence, America has promised its citizens "equality." The underlying assumption implicit in such ideals is that equal treatment is to be applied regardless of the race of individual citizens. Such an ambitious goal of color-blindness, however, ignores the reality of dual- Americas-one for the majority, and one for the rest-and consequently fails in its attempt at fulfilling the promise. This Article, based on the author's lecture at the 1996 Matthew 0. Tobriner Memorial Lecture, examines ways in which the problems of race have been and should be addressed in legal discourse. …

Justice Harry A. Blackmun: The Model Judge, Karen Nelson Moore

UC Law Constitutional Quarterly

No abstract provided.

Justice Harry A. Blackmun And The Responsibility Of Judging, Diane P. Wood

UC Law Constitutional Quarterly

No abstract provided.

Justice Blackmun's Federal Tax Jurisprudence, Robert A. Green

UC Law Constitutional Quarterly

During his tenure on the Supreme Court, Justice Blackmun was widely regarded as the Court's authority on tax matters. Justice Blackmun viewed tax law not merely as a technical specialty, but as a microcosm of the legal system. His numerous tax opinions involve a wide range of issues of constitutional law, criminal law, administrative procedure, court procedure, and statutory interpretation. This Article begins by discussing two of Justice Blackmun's tax opinions involving constitutional issues. Justice Blackmun refused to create special constitutional rules for tax cases. Instead, he applied generally applicable principles, but with great sensitivity to how those principles would …

Foreword, David J. Jung

UC Law Constitutional Quarterly

No abstract provided.

California And Dillon: The Times They Are A-Changing, Manuela Albuquerque

UC Law Constitutional Quarterly

The development of the law regarding California local governments and their relationship to the state reflects a dichotomy between views of local governments as vehicles of self-determination on the one hand, and as obstacles to personal freedom on the other. The author argues that Dillon's rule, which provides that a local government is a creature of the legislature and has only those powers specifically conferred upon it by the state, has been specifically abrogated in the California Constitution as to both general law and charter cities. Through an analysis of cases interpreting California Constitution Article 11 Section 7, the author …

The Impact Of Fiscal Limits On Governance, John J. Kirlin

UC Law Constitutional Quarterly

Beyond limiting governmental revenues or expenditures, fiscal limits affect governance capacity, the ability to make and effectuate collective choices for a geographically bounded grouping of humans, sustained over time. These effects are visible in California's experience with Proposition 13 and other fiscal limits. Reductions in growth rates of revenues, a political culture constraining governmental action, and tighter constraints on fiscal choices combine to make governments less useful instruments of collective action.

Professor Kirlin argues that the indirect impacts of fiscal limits include diminished intelligibility, reduced visibility, and reduced accountability of governmental activities, yielding increased transaction costs for governments, citizens and …

Discrimination, Distribution, And City Regulation Of Speech, Katheleen M. Sullivan

UC Law Constitutional Quarterly

Cities are sometimes caught in a pincer movement between the First Amendment's twin requirements: if they restrict too much speech in public places, they may violate its requirement that some minimum distribution of speech be secured, but if they try to expand opportunities for speech by exempting particular speech or speakers from general laws, they may run afoul of the ban on content discrimination. The most prudent approach to speech regulation, therefore, would appear to be flat but narrow prohibitions. For example, sales of message-bearing merchandise are better regulated by a flat peddling ban in specified areas than by one …

The Political Price Of The Independent Counsel Law, Joshua M. Perttula

UC Law Constitutional Quarterly

"The Political Price of the Independent Counsel Law" is a comprehensive study of Title VI of the Ethics in Government Act of 1978, commonly known as the independent counsel law.

The essay begins by detailing Kenneth Starr's current investigation into President Clinton's dealings with the Whitewater Development Company. The author includes the Whitewater example to illustrate the flaws in the current system. Next, the essay discusses the political climate that led to the creation of the Act, the procedural initiation requirements, and the constitutionality of the Act. After giving the reader a working background in the law, the author sets …

Reinventing Black Politics: Senate Districts, Minority Vote Dilution And The Preservation Of The Second Reconstruction, Terry Smith

UC Law Constitutional Quarterly

The United States Senate is an unsung power in the tripartite division of our constitutional government. Yet, through its advice and consent role in the appointment of federal judges, the Senate's actions permeate the separation of powers and the daily lives of Americans, at times eclipsing the authority of the President himself. One need only witness President Clinton's recent suurender of power to the G.O.P.- controlled Senate in the selection of a federal court of appeals nominee to the Ninth Circiut to understand the extraordinary power vested in this body. See Neil A. Lewis, Clinton Agrees to G.O.P. Deal on …

Welfare Reform Under The Personal Responsibility Act: Ending Welfare As We Know It Or Governmental Child Abuse, Nancy A. Wright

UC Law Constitutional Quarterly

In August of 1996, in an effort to "end welfare as we know it", Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("the Act"). The Act terminates welfare entitlement programs which have provided crucial safety nets for indigent families for the past sixty-two years. The Act also mandates that states impose work requirements and time limits on the length of time poor families can receive public assistance. In addition, the Act permits states to deny assistance to teenage mothers or to children born to parents more than ten months after the family went on welfare.

Since …

Reexamining Compelling Interests And Radical State Campaign Finance Reforms: So Goes The Nation, Molly Peterson

UC Law Constitutional Quarterly

James Madison noted that "[t]here are two methods of curing the mischiefs of [a] faction: the one, by removing its causes; the other, by controlling its effects." Campaign finance regulation, often spoken of as curing the mischiefs of special interest groups, has experienced a popular resurgence spawned by inquiries into extranational contributions in the 1996 presidential election and the 104th Congress' filibuster of the McCain-Feingold reform package. Since the Supreme Court's decision in the 1976 case Buckley v. Valeo, striking several parts of the Federal Election Campaign Act for infringing upon First Amendment-protected political expression, the efficacy of campaign finance …

Fetal Homicide Laws: Shield Against Domestic Violence Or Sword To Pierce Abortion Rights, Alison Tsao

UC Law Constitutional Quarterly

Under the common law, the intentional killing of a fetus by a party other than the pregnant woman did not constitute murder. A child had to be born alive for homicide statutes to apply. The primitive state of medicine during the common law period necessitated this "born alive" rule because doctors could not determine whether a fetus was capable of independent existence before the baby was born. Nor could doctors accurately determine the cause of death of a fetus. The present sophistication of the medical profession has largely removed the difficulties in determining the exact stage of fetal development and …

Dismantling The Modern State--The Changing Structural Foundations Of Federalism, Keith E. Whittington

UC Law Constitutional Quarterly

Federalism, as a constitutional concept underlying the appropriate distribution of powers among the federal and state governments, has responded in understandable ways to long-term trends in economics, political organization and political values. Such trends have encouraged centralization through most of the twentieth century, as is reflected in both judicial doctrine and governmental practice. However, changing conceptions of the political economy and the political regime have created a new structural dynamic that favors a less centralized version of federalism.

In this article, Professor Whittington examines the structural foundations of the movement toward centralization and the modern countertrends to that movement which …

First Lady, Last Rights--Extending Executive Immunity To The First Lady, T. Natasha Patel

UC Law Constitutional Quarterly

The First Lady's role has expanded beyond the traditional role of playing the White House hostess. The First Lady is actively involved in both domestic and international politics. Accordingly, in this Note, the Author argues that the First Lady's actions are entitled to qualified executive immunity whenever she acts as a representative of the federal government. The Author traces the development of executive branch immunity. The Author also discusses the role in politics, and otherwise, that the First Ladies have played throughout history. Finally, the Author examines the holding in Association of American Physicians and Surgeons, Inc. v. Hillary Rodham …

Permissible Content Discrimination Under The First Amendment: The Strange Case Of The Public Employee, Lawrence Rosenthal

UC Law Constitutional Quarterly

The First Amendment is ordinarily thought to prohibit content or viewpoint discrimination. Yet public employers frequently regulate employees' speech based on the content or viewpoint of their speech. Additionally, they frequently seek to punish employees who publicly criticize their supervisors on the grounds that such criticism is insubordinate or will erode office discipline or morale.

The Supreme Court has attempted to address the special problems posed by the speech of public employees through the two-part "public concern" test. The test protects a public employee's speech if the speech relates to a matter of "public concern," and if the employee's speech …

Incitement By Any Other Name: Dodging A First Amendment Misfire In Rice V. Paladin Enterprises, Inc., Lise Vansen

UC Law Constitutional Quarterly

In this Comment the Author compares divergent applications of the Brandenburg "incitement" standard at the district and appellate court level in Rice v. Paladin Enterprises, Inc. The Author criticizes the district court's incitement analysis for failing to consider the extent to which context governs the meaning of language and the corresponding extent to which the instructions in Paladin's publication of the "Hit Man Manuals" could conceivably, uniquely constitute incitement under Brandenburg.

Ultimately, the Author argues that "at the heart of the district court's unexamined ruling ... is an incitement standard that needs reworking." Hence, the Author explores the usefulness, feasibility, …

The Author Of Roe, Radhika Rao

UC Law Constitutional Quarterly

In her commentary, Professor Radhika Rao focuses upon Justice Blackmun's landmark opinion in Roe v. Wade, exploring the ways in which the Justice shaped and was in turn shaped by the abortion conflict. After describing Roe, she sets forth and responds to a wide range of criticisms of the decision. She then turns her attention to several other abortion and privacy cases, drawing some general insights into Justice Blackmun's jurisprudence. She highlights Justice Blackmun's concern for factual context and his compassion for the real people behind the cases he decided. Professor Rao connects these qualities with Justice Blackmun's opinion in …

Some Thoughts On Autonomy And Equality In Relation To Justice Blackmun, Pamela S. Karlan

UC Law Constitutional Quarterly

This article suggests that Justice Blackmun's contribution to the jurisprudence of sexual orientation lies in his integration of ideas of liberty and equality. Just as the requirement that laws be applied equally can serve to cabin their infringement on autonomy, so too the recognition of fundamental liberty interests can provide a stronger foundation for recognizing claims of equality.

Intuition And Science In The Race Jurisprudence Of Justice Blackmun, Deborah C. Malamud

UC Law Constitutional Quarterly

In the field of race, Justice Harry A. Blackmun is most known for the stirring language in his opinions in Bakke and Weber in the late 1970s and Croson and Wards Cove in the late 1980s. After explaining why no race jurisprudence is made up of stirring language alone, Professor Malamud explores the development of Justice Blackmun's race jurisprudence from his years on the United States Court of Appeals for the Eighth Circuit to his final term on the Court. She paints a picture of a judge who did not always trust his own intuition in race cases, and who …

Weighing The Listener's Interests: Justice Blackmun's Commercial Speech And Public Forum Opinions, William S. Dodge

UC Law Constitutional Quarterly

Justice Blackmun's commercial speech and public forum opinions reflect a distinctive balancing approach that takes seriously the listener's interests in receiving information and, sometimes, in not receiving information. The Justice consistently advocated this listener-oriented balancing approach throughout his tenure on the Supreme Court, and, contrary to the conventional wisdom, this approach proved to be substantially more protective of free speech than the more categorical approaches the Court ultimately adopted. Professor Dodge argues that Justice Blackmun's approach is preferable to the Court's current doctrine by examining two types of cases that current doctrine finds hard to handle: restrictions on protesters in …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

UC Law Constitutional Quarterly

Much has been made of Justice Blackmun's supposed transformation from a "Minnesota TWin" following in the footsteps of Chief Justice Burger to a member of the Supreme Court's liberal wing aligned with Justices Brennan and Marshall. The Justice was appointed at a time when crime control was a major concern both for the American people and for President Nixon, who had pledged to put "law and order" judges on the Supreme Court. Moreover, the Justice's years on the Court coincided with a retreat from a number of the Warren Court precedents that had broadened the constitutional rights afforded criminal defendants. …

Justice Blackmun's Capital Punishment Jurisprudence, Malcolm L. Stewart

UC Law Constitutional Quarterly

Until his final term on the United States Supreme Court, Justice Blackmun adhered to the view that the Constitution permits the imposition of capital punishment, even though he expressed personal opposition to its use. In Callins v. Collins, however, Justice Blackmun took the position that the death penalty, as currently administered, is unconstitutional. This article traces the development of Justice Blackmun's capital punishment jurisprudence over the course of the Justice's tenure on the Court.

In early cases involving broad, systematic challenges to state capital sentencing regimes, Justice Blackmun consistently showed broad deference to legislative decisions regarding the proper administration of …