Constitutional Law Commons^™

Abandoned Or Unattended? The Outer Limit Of Fourth Amendment Protection For Homeless Persons’ Property, Tim Donaldson

UC Law Constitutional Quarterly

Homelessness in America has become an epidemic problem. Homeless encampments can be found in public areas of almost every major city, and the resulting accumulation of waste, debris, and other items in those areas presents public health and safety concerns. Many cities have responded to those challenges by periodically clearing or cleaning campsites and must determine, often among tons of materials, what may be collected and discarded. This article reviews the constitutional treatment of abandoned property versus unabandoned property. It proposes guidelines for determining when unattended property left in public areas by homeless persons may be considered abandoned and beyond …

Adjudicating Dignity: Judicial Motivations And Justice Kennedy’S Jurisprudence Of Dignity, Allyson C. Yankle, Daniel Tagliarina

UC Law Constitutional Quarterly

Drawing primarily on scholarship concerning legal motivation and the decisionmaking of Supreme Court median justices, we use Justice Kennedy’s opinions as a case study to examine how institutional position on the Supreme Court allows median justices to look beyond policy goals and consider legal goals and motivations in their decision-making. We argue that Kennedy’s unique position on the Court as the median justice allows him to pursue legal considerations, including his seemingly idiosyncratic conception of dignity. Kennedy provides an example of how median justices can use their position to not only pursue policy and political outcomes, but also legal considerations …

Meritless Historical Arguments In Second Amendment Litigation, Mark Anthony Frassetto

UC Law Constitutional Quarterly

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is …

A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody Lyneé Madeira

UC Law Constitutional Quarterly

In the past decade, “gun rights” advocates have attempted to strategically articulate a Second Amendment privacy interest in being free from interference from both governmental actors and private actors with ownership of, access to, or use of firearms. This essay explores why privacy is an appealing framework for these purposes, and how courts have responded to such claims thus far. Part I analyzes privacy as a legal and sociocultural construct, assesses claims that firearms ownership and use are stigmatized, and discusses how privacy doctrine can be a stigma management strategy. Part II examines three cases in which gun rights supporters …

Reciprocal Concealed Carry: The Constitutional Issues, William D. Araiza

UC Law Constitutional Quarterly

Legislation introduced in recent congressional sessions would enact some version of “concealed carry reciprocity” for firearms. This legislation would create a regime in which a holder of a concealed firearms carry permit issued by one state can carry a concealed weapon in any state that allows some form of concealed carry. Concealed carry reciprocity legislation raises a complex web of constitutional issues. After Part I of this Article introduces the concept of concealed carry reciprocity, as exemplified by a bill that the House passed in December, 2017, Parts II and III consider those constitutional issues. Part II considers the three …

The Second Amendment As A Fundamental Right, Timothy Zick

UC Law Constitutional Quarterly

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They have asserted that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and even orphaned. Reviewing the available evidence, this Article generally rejects secondclass claims as either false or significantly overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately …

Corpus Evidence Illuminates The Meaning Of Bear Arms, Dennis Baron

UC Law Constitutional Quarterly

In his opinion in District of Columbia v. Heller (2008), the late Justice Antonin Scalia insisted that the phrase “bear arms” did not refer to military contexts in the founding era. An examination of corpus data not available in 2008 clearly shows that founding-era sources almost always use “bear arms“ in an unambiguously military sense. This suggests that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carry weapons in war,’ or in other forms of military or quasi-military action, not in hunting or individual self-defense. Corpus evidence shows as well that the phrases …

A Different Constitutionality For Gun Regulation, Lindsay Schakenbach Regele

UC Law Constitutional Quarterly

District of Columbia v. Heller hinged on the Second Amendment, defining for the first time an individual’s right to own a firearm unconnected with militia use, so long as the firearm is in “common use.” This essay argues that because the government determined which firearms were in “common use” throughout the nation’s early history, the Second Amendment allows regulating the types of weapons available to civilians, and their usage. It uses evidence from Congress, the War Department, and private arms manufacturers to examine the role of the federal government in developing and shaping the firearms industry from the nation’s founding …

A Triggered Nation: An Argument For Extreme Risk Protection Orders, Caroline Shen

UC Law Constitutional Quarterly

In recent years, the U.S. has experienced an unprecedented number of mass shootings and other gun-related injuries and deaths. In spite of all of this gun violence, there is still an unyielding resistance against the passage of common sense gun laws. Many laws restricting large capacity magazines and gun silencers, for example, are continuously shot down by federal and state courts, and the National Rifles Association and its constituents in Congress continue to hitch their arguments to the decision of the Supreme Court in District of Columbia v. Heller.

In this time of political gridlock, perhaps the best solution is …

Constitutional Law: Funding Restrictions And Separation Of Powers, Zachary S. Price

The Judges' Book

No abstract provided.

Filling The Gap In The Efficiency Gap: Measuring Partisan Gerrymandering On A Per-District Basis, Richard E. Finneran, Steven K. Luther

UC Law Constitutional Quarterly

In Gill v. Whitford, the Supreme Court dismissed a challenge to Wisconsin’s state legislative map based upon a lack of standing. While the plaintiffs alleged that the statewide map violated the Equal Protection Clause of the Constitution by being gerrymandered to asymmetrically advantage one political party over the other, the Court held that such allegations were insufficient to state a personal, individualized injury under Article III’s Case or Controversy Clause. Since the plaintiffs had not alleged that their voting power in their particular legislative districts had been diluted, the Court found that the plaintiffs’ complaint stated only a “generalized grievance” …

Ghosting In Tax Law: Sunset Provisions And Their Unfaithfulness, Alli Sutherland

UC Law Constitutional Quarterly

Tax is a subject that could easily put many to sleep. It is dense, convoluted, and intimidating. But it also touches practically every American. This note will discuss how the recent tax overhaul by the Trump Administration includes dangerous provisions, called sunset provisions. These sunset provisions, which get their name from how the law expire after a specified date, are dangerous because they constitute a legislative runaround. Rarely, if ever, do these provisions actually expire. Rather, law makers are able to avoid procedural requirements by placing an end date on the law, but then extending the law’s effective date. This …

Waiving Goodbye To First Amendment Protections: First Amendment Waiver By Contract, Brittany Scott

UC Law Constitutional Quarterly

The First Amendment is an embodiment of American freedom and therefore is often considered inviolable. This is a fallacy. First Amendment rights are not absolute and may be waived. The Supreme Court has declined to outline a rule for First Amendment waiver, but the Circuit Courts have filled this gap and adapted the waiver rules from criminal procedure to permit waiver of First Amendment rights by contract. In permitting waiver of First Amendment rights, the Courts give deference to contracts and strain the outer boundaries of First Amendment protections.

The Extraterritorial Reach Of Tribal Court Criminal Jurisdiction, Grant Christensen

UC Law Constitutional Quarterly

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct …

Kennedy’S Legacy: A Principled Justice, Mitchell N. Berman, David Peters

UC Law Constitutional Quarterly

After three decades on the Supreme Court, Justice Anthony Kennedy enters retirement as, arguably, both its most widely maligned member and its most enigmatic. These distinctions are related, for commentators’ inability to identify any coherent, law-like explanation for Kennedy’s decisions, especially in constitutional disputes, significantly fuels the widespread judgment that no such explanation exists and that he was simply “making it up.” We think the common wisdom largely mistaken. This Article argues that Kennedy’s constitutional decision making reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more …

The Unofficial Federal Officer, Megan M. Mclaughlin

UC Law Constitutional Quarterly

Most people can state who the first lady is, but no one can clearly explain what the first lady is. This silence, which stretches across all three branches of government, speaks volumes and leaves the first lady’s official constitutional status as an open question. Most discussions of this matter arose during the Clinton presidency in the context of Hillary Rodham Clinton’s role in her husband’s administration. The few legal academics who touched on the topic then have not revisited it despite the changing political and social landscape. This paper explores how the evolution of first ladies has made the legal …

The Outrageous Government Conduct Defense: An Interpretive Argument For Its Application By Scotus, Eve A. Zelinger

UC Law Constitutional Quarterly

The U.S. Supreme Court has held that the Due Process Clause protects defendants from Outrageous Government Conduct (“OGC”) via the OGC defense, but the Court has not yet been presented with a set of facts it believes warrants its application. As a result, the Court has not set forth such criteria for application of the OGC defense, leaving the lower courts to apply their own standards. While some critics contend there is no use for the OGC defense due to the availability of the entrapment defense, this Note will uncover why this is not the case. More specifically, this Note …

The President’S Role In The Administrative State: Rejecting The Illusion Of “Political Accountability”, Kevin Bohm

UC Law Constitutional Quarterly

Direct presidential control of executive agencies is a contentious issue in administrative law. This note first presents an overview of Constitutional basics, before exploring the unique twist on traditional presidential control theories that now-Justice Elena Kagan proposed in her 2001 article “Presidential Administration.” Kagan’s justification for enhanced presidential control rests a novel statutory interpretation perspective and the notion that the President is uniquely qualified to impose his will on agency decision-making as he is politically accountable to the American electorate at-large. This note highlights the criticisms, from other prominent academics in the field, of relying on political accountability to justify …

Judges Of Color: Examining The Impact Of Judicial Diversity In The Equal Protection Jurisprudence Of The United States Court Of Appeals For The Ninth Circuit, Kristine L. Avena

UC Law Constitutional Quarterly

From slavery to civil rights to affirmative action, America’s history has been plagued with the issue of race. The federal bench is no exception. For almost two centuries, the highest court of the nation did not represent the public that it served. This Note aims to determine how the presence of minority judges on the United States Court of Appeals for the Ninth Circuit impacts Equal Protection doctrine. This Note shows that a Ninth Circuit judge’s race is important in providing procedural and substantive contributions to the federal bench. Diverse judges use their life experiences to ensure that every person …

No “Market” For Truth: The Weaknesses Of Free Speech-Based Defenses To Credit Rating Industry Liability, Andy Carr

UC Law Constitutional Quarterly

Credit rating agencies are essential components of the global financial systems. The major CRAs primarily serve the financial systems as “gatekeepers,” in that their ratings determine whether a financial instrument is “investment grade” under federal and state laws, and as information-facilitators for the complicated instruments being bought and sold within the system. Because of their systemic significance, CRAs faced especially harsh scrutiny in the aftermath of the financial crisis and Great Recession a decade ago. Initial public scrutiny was followed by waves of litigation which resurfaced long-dormant questions about the CRAs’ exposure to liability and decades-old defenses of their rating …

The Putative Problem Of Pestersome Paupers: A Critique Of The Supreme Court’S Increasing Exercise Of Its Power To Bar The Courthouse Doors Against In Forma Pauperis Petitioners, Jared S. Sunshine

UC Law Constitutional Quarterly

The Supreme Court has increasingly adopted the practice of categorically and prospectively barring its more prolific petitioners from proceeding in forma pauperis—that is, without paying a filing fee. The optics of closing the courtroom doors to those who cannot afford to pay are not particularly seemly; nonetheless, the Court has persevered in and expanded this practice dramatically over the years. In the beginning, however, the Court grappled thoughtfully with the wisdom of this practice in a series of disputatious decisions. The article revisits these arguments in light of American tradition and legal precedent of unfettered access to the courts and …

Separating Fact From Fiction: The First Amendment Case For Addressing “Fake News” On Social Media, Michael K. Park

UC Law Constitutional Quarterly

“Fake news” or disinformation that appropriates the look and feel of real news stories continues to spread across social networks, suppressing informed dialogue and sowing civil discord. After revelations that influential media websites like Facebook and Twitter were used to spread fake news during the 2016 presidential election, these companies vowed to take remedial action, but have failed to contain the spread of fake news. This essay makes the case that First Amendment principles mandate that the government has a duty to preserve democratic deliberation and democratic decision-making institutions, even if that means overriding private interests. It explores some prospective …

Illuminating The Dark Act, Samantha Ricci

UC Law Constitutional Quarterly

Labeling is a primary method of providing information about food such as the production, ingredients, and nutrition facts-but what happens when labels become less accessible? This Note explores the justice implications of the first genetically modified organism (GMO) labeling bill, The Safe and Accurate Food Labeling Act, or known to opponents as The DARK Act (Denying Americans the Right to Know). This Act allows for a "QR" code, website, or 1-800 number to constitute a label for GMO labeling requirements. This Act discriminates against 100 million Americans who do not own smart phones or have access to Wi-Fi or data, …

Federalism Friction In The First Year Of The Trump Presidency, Vikram David Amar

UC Law Constitutional Quarterly

Over the last twelve months or so, federalism principles have been repeatedly invoked by state and local governments in a range of lawsuits and legislative proposals seeking to block or temper federal policy initiatives emanating from the new Administration of President Donald Trump. In this essay, I hope to sketch out a few of the more high-profile federalism flashpoints that have emerged over the past year or so, and offer some preliminary assessments of some of the decisions that lower courts (and legislative bodies) have been rendering in some of them. I try to highlight areas of agreement and areas …

Jeopardizing Their Communities, Their Safety, And Their Lives: Forced Concealed Carry Reciprocity's Threat To Federalism, Hannah E. Shearer

UC Law Constitutional Quarterly

The Concealed Carry Reciprocity Act (H.R. 38) is a gun bill that would force each state to recognize and enforce the concealed carry laws of every other state. State laws governing the concealed carry of firearms vary widely in how effectively they screen out reckless or unlawful gun carriers. Weaker state laws let more people carry with fewer background checks or other restrictions, and H.R. 38 would extend the geographic scope of the weakest concealed carry laws in the nation, without requiring that Congress actually adopt a weak national standard. This Essay argues that forced reciprocity violates the division of …

The President's Constitutional Responsibility To Confront Climate Change And Invest In Renewable Energy For National Security, Bishop Garrison

UC Law Constitutional Quarterly

Climate change is having a direct effect on the United States as well as the rest of the world. The national security community has long identified climate change as an ongoing security threat. For decades, plans of action have been established to address it, but the issue is still treated from a more partisan space than with the heft of a danger with lasting consequences. If national security leaders have deemed it a hazard, it follows that the leader of the Free World-the president of the United States-has a duty under the U.S. Constitution to protect against such a threat. …

Constitutionally Compromised Democracy: The United States District Clause, Its Historical Significance, And Modern Repercussions, Bradley Raboin

UC Law Constitutional Quarterly

The United States is widely considered the most prominent example of the modem democratic state. Yet, America's most prolific historical document remains imbued with a seemingly impossible contradiction. The District of Columbia, the Constitutionally mandated territory housing the federal government and serving as the literal epicenter of American democracy, does not actually provide representation to citizens living in that district. Incredibly, the very place created to house a government "for the people, of the people, and by the people," does not even allow the people residing therein to partake in that government.

This Article examines this Constitutional conflict within American …

Sex Offender Regulations And The Rule Of Law: When Civil Regulatory Schemes Circumvent The Constitution, Ryan W. Porte

UC Law Constitutional Quarterly

The U.S. Supreme Court last decided the issue of whether post-incarceration sex offender regulations constituted punishment or nonpunitive regulations over twenty years ago. In coming to its conclusion, the Supreme Court assessed the regulations as they were written in the 1990s and the early 2000s and maintained the assumption that offenders constituted a greater danger to the public than other classes of criminals. In 2018, post-incarceration sex offender regulations are far more restrictive than they were two decades ago and scientific studies tend to refute the public belief that sex offenders are more recidivistic than other criminals. Recognizing this, some …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

UC Law Constitutional Quarterly

As the Supreme Court addresses partisan gerrymanders in 2018, the "political question" doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape forjudges facing challenging legal questions.

The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims …

Freedom Of Speech Remains Superior To All Other Alternatives, David L. Faigman

UC Law Constitutional Quarterly

No abstract provided.