Constitutional Law Commons^™

And Yet It Moves - The First Amendment And Certainty, Ronald K. L. Collins

UC Law Constitutional Quarterly

Few works on the First Amendment have explored the relation between free speech and certainty. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. This Essay teases outphilosophically, textually, and operationally-the significance of that relationship and what it means for our First Amendment jurisprudence. This Essay examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights. This Essay argues that many free speech theories (from Milton to Meiklejohn …

Certainty And The Censor's Dilemma, Robert Corn-Revere

UC Law Constitutional Quarterly

In a free society the censor never has the moral high ground. This fact rests uneasily with one of the primary qualities of the censor-certainty. It's right there in the job description. As Justice Anthony Kennedy has written, "[s]elf-assurance has always been the hallmark of a censor." Chief Justice Oliver Wendell Holmes captured the ethos of censorship nearly a century ago in his famous Abrams v. United States dissent: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart …

Clash Of The First And Second Amendments: Proposed Regulation Of Armed Protests, Katlyn E. Deboer

UC Law Constitutional Quarterly

The United States has strayed far from its traditional use of citizen militias to demand freedom from the British and has taken a deep dive into a practice of flaunting weapons at political protests as a display of bravado to provoke fear, chill opposition, and reap media attention. The recent "Unite The Right" rally in Charlottesville, Virginia, and its resulting violent pandemonium brought the issue of open carry protests to the forefront of public discourse. Armed protesters cling to their First and Second Amendment rights as shields to justify the semiautomatic firearms slung about their backs, but is this faith …

Striking The Right Balance: Hate Speech Laws In Japan, The United States, And Canada, Craig Martin

UC Law Constitutional Quarterly

This Article engages in a comparative examination of three different approaches to finding the right balance between legal limits on hate speech and the right to freedom of expression. The Japanese and American systems have struggled to find both a sufficiently important purpose to justify hate speech laws, or an appropriate limiting principle to narrow their scope. Neither system views hate speech laws as implicating equal protection rights, and so the balance is heavily in favor of freedom of speech. The American doctrine views hate speech laws as justifiable only if they can come within other ill-fitting categories of lesser-protected …

Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn A Careful Ban, Rory K. Little

UC Law Constitutional Quarterly

In the wake of the 2017 Charlottesville protests and the recent revival of "white supremacy" rallies, some constitutional scholars have asserted once again that a "hate speech ban" is unconstitutional under the First Amendment. There are certainly strong policy and historical arguments to oppose such a ban, although the Supreme Court upheld such a ban in 1942 and has never overruled that precedent. The doctrinal objection to such a ban is based on a restrictive adoption of Brandenburg v. Ohio, and a failure to fully explicate the alternative ground for prohibition found in the Supreme Court's repeated definition of "fighting …

Proceed With Caution: Hate Speech Regulation In Japan, Junko Kotani

UC Law Constitutional Quarterly

The Diet of Japan enacted the Hate Speech Elimination Act in 2016 amid heated debates over the appropriate role that the government should play in confronting the vulgar racist hate speech that had been permeating the country. The Act, however, does not criminalize or make illegal hate speech and is thus criticized by Professor Craig Martin. This Article argues that while the principles of freedom of speech under the Constitution of Japan may tolerate criminalization of narrowly defined hate speech, one should be cautious in advocating for immediate criminalization of racist hate speech in the country. This Article provides an …

Rluipa And Method-Of-Execution Claims After Glossip: The Free Exercise Exception To Glossip's Known-And-Available Alternative Requirement, Griffin Estes

UC Law Constitutional Quarterly

Since the Court's decision in Glossip v. Gross, a capital inmate has the burden of proposing an alternative method-of-execution to be administered in lieu of the statutorily proscribed method if the inmate believes that the method-of-execution to be used in their execution would violate the Eighth Amendment's prohibition on "cruel and unusual punishments." Many inmates have specific religious beliefs and it is possible that a condemned inmate might have a religious objection to capital punishment. The Religious Land Use and Institutionalized Persons Act ("RLUIPA") represents Congress's sensitivity toward the religious liberties of inmates. This Note applies the RLUIPA framework to …

Speech On Campus: How America's Crisis In Confidence Is Eroding Free Speech Values, Joseph Russomanno

UC Law Constitutional Quarterly

Speech on America's university and college campuses has been a long-time issue, from classrooms to open spaces, from efforts to protect students to approaches toward invited speakers. These issues especially surfaced in the early twenty-first century, and predominantly in response to invited speakers. Several incidents in early 2017-some involving violent protests-moved these issues into an analytical spotlight. This Article examines efforts to silence controversial oncampus speakers. It does so first through the lens of free speech doctrine and how it addresses this development. Second, this Article seeks to explain this increasing intolerance for the expression of ideas: an escalating crisis …

Reviving The Voting Rights Act Post-Shelby County: A New Standard For Vote Denial And Voter Id Law Analysis Under Section Two, Elizabeth Cermak

UC Law Constitutional Quarterly

Since the United States Supreme Court struck down section 4(b) of the Voting Rights Act ("VRA") and effectively disabled its section 5 enforcement provision in Shelby County v. Holder, States across the country have passed and updated election laws with far less accountability than during the pre-Shelby era. Among the most controversial are "voter ID" laws, which require voters to present identification before casting a ballot. Prior to 2013, section 5 of the VRA had been used to challenge these laws in federal proceedings in Texas, Florida, South Carolina, and New Hampshire. The combined decisions of Shelby and Crawford v. …

Preface: Hate Speech Laws In Japan In Comparative Perspectives, Setsuo Miyazawa

UC Law Constitutional Quarterly

No abstract provided.

The History Of Japanese Racism, Japanese American Redress, And The Dangers Associated With Government Regulation Of Hate Speech, Hiroshi Fukurai, Alice Yang

UC Law Constitutional Quarterly

This Article analyzes the historical roots of the Japanese government's rhetoric of racial supremacy that merged with nationalist agendas to rationalize and promote Japanese colonial aggression, military ventures, and brutal rule in Asia in the first half of the twentieth century. Next, this Article examines the movement in the U.S. to obtain redress for Japanese Americans who suffered mass removal and incarceration during World War II. This Article explores why grassroots activism and political lobbying succeeded in obtaining the passage of American redress legislation in 1988 and the possible lessons of this campaign for other victims of government policies. Finally, …

How The Lone Star State's Refusal To Expand Medicaid Is Leaving Pregnant Women More Alone Than Ever, Naomi Strauss

UC Law Constitutional Quarterly

Texas's maternal mortality rates are alarmingly high, reflecting a larger trend across the United States. By analyzing structural and social factors, this Note suggests that increasingly restrictive access to family planning and women's health clinics across Texas has contributed to this public health crisis. Further complicating matters, the limited availability of quality maternal health data makes it hard to disentangle causes and effects. In order to correct this disturbing trend which stands in stark contrast to the rest of the developed world-states should expand Medicaid coverage and access to services for all. California, for example, has implemented programs, which have …

A Tipsy Balance: Dormant Commerce Clause Limits On A State's Prerogatives Under The Twenty-First Amendment, Sherry Truong

UC Law Constitutional Quarterly

The Eighteenth Amendment, which prohibited alcohol distribution and sales nationwide, signaled a shift in American culture that valued temperance and lawfulness. States exercised their expanded plenary powers by creating and enforcing laws banning alcohol within state borders, giving rise to continual challenges to regulatory schemes that arguably ran afoul of the Commerce Clause. Over a decade later, the prohibitionist movement faltered as public support waned, paving the way for the ratification of the Twenty-first Amendment and thereby abolishing Prohibition, leaving the Supreme Court with the task of balancing and enforcing limits on state power to regulate alcohol. In Granholm v. …

Dignity And The Death Penalty In The United States Supreme Court, Bharat Malkani

UC Law Constitutional Quarterly

The concept of dignity is central to moral and legal issues about the death penalty. The United States Supreme Court has justified the use of dignity to retain the use of the death penalty. However, this article argues that dignity should not be used as a means to uphold the use of capital punishment. Instead, the concept of dignity involves the relationship between the "human dignity" of the people involved in the crime, the dignity of the wider community in whose name the death penalty is being imposed, and the dignity of the legal institution that administers capital punishment. As …

The Reproducibility Of Evolving Social Science Evidence And How It Shapes Equal Protection Jurisprudence, Penney P. Azizi

UC Law Constitutional Quarterly

In Brown v. Board of Education, the Supreme Court ruled that state laws establishing segregation in schools were unconstitutional, overturning Plessy v. Ferguson. In its decision, the Court discussed and cited to social science evidence, which garnered criticism from many legal scholars and ignited a debate as to whether the use of such evidence had a place in Equal Protection jurisprudence. Over thirty years later, in McClesky v. Kemp, the Court rejected the incorporation of social science data in its decision and, instead, applied the Intent Doctrine. Since McClesky, the Court has consistently upheld the use of the Intent Doctrine …

Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell

UC Law Constitutional Quarterly

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then "equal to men" in the military and, therefore, should be required to register for Selective Service-the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in …

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

Family Responsibilities Discrimination In The Public Sector: Maximizing The Use Of Section 1983 To Enforce Constitutional Rights, Stephanie Dominguez

UC Law Constitutional Quarterly

Family responsibilities discrimination ("FRD") claims have become a far more prevalent issue in employment cases. FRD is a workplace discrimination based on an employee's actual or perceived responsibility to care for a family member, including pregnancy discrimination. Although some states and local jurisdictions have passed legislation that specifically prohibits FRD in the workplace, no federal statute expressly prohibits FRD. This Note focuses on how state and local government employees who face FRD can use federal employment statutes such as 42 U.S.C. section 1983 ("Section 1983") to enforce their constitutional due process and equal protection rights. Part I of this Note …

Constitutional Protection For Future Generations From Climate Change, Ylan Nguyen

UC Law Constitutional Quarterly

This Note offers a comprehensive look at the constitutional rights of future generations with respect to climate change. On August 12, 2015, Our Children's Trust filed a lawsuit against the federal government asserting that the government has failed to protect present and future generations from a human caused climate catastrophe. Inspired by Our Children's Trust's lawsuit, this Note seeks to establish that future generations are entitled to constitutional protection from climate change.

This Note consists of five sections aimed at showing that future generations are entitled constitutional protection from climate change and seeks to establish that the federal government has …

Constitutional Implications On Block Pricing In The California Water Market, Deeba Fahami

UC Law Constitutional Quarterly

Due to the severity of the recent drought, those residing in California have realized the devastating effects of climate change. As California continues to experience amplified weather conditions and diminished water supply, the state must adapt to drought conditions and mitigate the impacts of droughts. In order to do so, municipal water pricing mechanisms that send price signals to consumers to conserve water should be enforced to ensure the longevity of California's water supply. In particular, increasing block-pricing structures are a favorable market-based solution that disincentivizes heavy water consumption while allowing essential water use to remain affordable.

The California Constitution …

An Offensive Mark On Offensive Lines: The Question Of Violating The First Amendment Through The Cancellation Of The Washington Redskins' Trademark, Gabriela M. Kirkland

UC Law Constitutional Quarterly

There is a contentious debate about whether it is the government's place to determine whether offensive trademarks should receive legal protection. The Washington Redskins have been embroiled in a legal battle to protect the trademark for their team name. Currently, the cancellation of the Washington Redskins' trademark will not go into effect until the appeals process has been exhausted. The United States Supreme Court's decision on this issue will determine whether trademark owners will have the freedom to choose names without fear of losing legal protections. This Note will argue that though the Washington Redskins' may be considered an offensive …

Johnson V. United States: The Impact On Texas' Habitual Offender Statute, Emily Frances Lynch

UC Law Constitutional Quarterly

In 2015, the Supreme Court struck down the residual clause of a major federal "habitual offender" statute in Johnson v. United States. The Court determined that combining the ambiguously worded "residual clause" with a pure "categorical approach" for interpreting qualifying crimes violated the notice provision of the Due Process Clause. Additionally, the Court identified an inability to create a clear and consistent standard of application for applying the residual clause as a second independent ground for holding the residual clause unconstitutional. Although the Court's holding specifically applied to a federal sentencing enhancement scheme, the holding is undoubtedly applicable to state …

The Elephant In The Room: What Is A Nonroutine Border Search, Anyway: Digital Device Searches Post-Riley, Eunice Park

UC Law Constitutional Quarterly

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border …

The Evolution Of American Discovery In Light Of Constitutional Challenges: The Role Of The 2015 Rule Amendments To The Federal Rules Of Civil Procedure, Tom Lin

UC Law Constitutional Quarterly

On December 1, 2015, the amendment package that revised Federal Rules of Civil Procedures, Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37, went into effect. This Note offers a first look at the new amendments to the discovery tools of the Federal Rules of Civil Procedure in light of recent constitutional arguments, specifically the scope of discovery under Rule 26(b)(1) and the duty to preserve electronically stored information under Rule 37(e). First, this Note seeks to identify the constitutional challenges to American discovery. Second, this Note seeks to compare the American discovery system with the European discovery …

The 2016 Presidential Election: The Next Four Years And Beyond, Dahlia Lithwick, Bertrall L. Ross Ii, Joan Williams, Scott Dodson

UC Law Constitutional Quarterly

On November 15, 2016, UC Hastings College of the Law held an academic post-election panel to consider what the Donald Trump election means for America in the next four years. The panel was moderated by Scott Dodson, Associate Dean for Research and the Harry & Lillian Hastings Research Chair at UC Hastings. The panel included the following: Joan Williams, a distinguished professor of law and the founding director of the Center for WorkLife Law at UC Hastings; Bertrall Ross, a professor of law at UC Berkeley, where he teaches legislation, election law, and constitutional law; and Dahlia Lithwick, who writes …

Digitizing The Private Search Doctrine: Is A Computer A Container, Taylor J. Pfingst

UC Law Constitutional Quarterly

The Private Search Doctrine permits the government to search property that a private citizen previously gained access to and searched, resulting in discovery of contraband. This Doctrine provides that the subsequent search by the government does not constitute a Fourth Amendment "search." Thus, the government does not need to obtain a warrant prior to examining the property and only infringes on an individual's Fourth Amendment rights if the scope of the search exceeds the bounds permitted by the court in that jurisdiction. Different circuits have taken conflicting approaches in determining the appropriate scope of a follow-up search under the Private …

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

Shining A Light On The Rights Of The Most Vulnerable, Shauna Marshall

UC Law Constitutional Quarterly

No abstract provided.

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …

Silencing Talk About Race: Why Arizona's Prohibition Of Ethnic Studies Violates Equality, M. Isabel Medina

UC Law Constitutional Quarterly

In 2010, Arizona made national headlines when it enacted laws targeting undocumented immigrants, perceived in the state to be primarily Mexican. Arizona experienced population growth that projected it would become a minority majority state within one or two decades. Republican politicians spearheaded a ban on ethnic studies, with its intended target a successful Mexican American studies program at the Tucson Unified School District. The Mexican American studies program was initiated as part of a desegregation decree in ongoing desegregation litigation against the Tucson Unified School District; state superintendents of education in Arizona branded the program "racist" because students were encouraged …