Constitutional Law Commons^™

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 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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

The Constitutionality Of Prolonged Administrative Segregation For Inmates Who Have Received Sex Reassignment Surgery, Eric T. Fleischaker

UC Law Constitutional Quarterly

In 2012, a Massachusetts district court judge issued a controversial decision in Kosilek v. Spencer when he ordered the state to pay for a transgender inmate's sex reassignment surgery. The court ruled that denying sex reassignment surgery to an inmate with Gender Identity Disorder is a violation of the Eighth Amendment. However, the court did not answer the question of where to place the inmate after the surgery. That decision was left up to the prison administrators.

The court utilized a five-step Eighth Amendment test to determine when an inmate has a constitutional right to medical services or care and …

Dog Sniffs, Technology, And The Mythical Constitutional Right To Criminal Privacy, Kenneth J. Melilli

UC Law Constitutional Quarterly

Suppose the government was capable of detecting criminal conduct by some method or device that would not reveal any information concerning lawful items or activities. Could the acquisition of such information under these circumstances constitute an "unreasonable search" under the Fourth Amendment?

This scenario is not merely hypothetical. The most prominent reality in which this question arises involves specially trained dogs, which, using their superior sense of smell, can alert to the presence of illegal drugs. Most dramatically, suppose that such a specially trained dog ("drug dog"), from a location outside a home, alerts to the presence of illegal drugs …

From Spectacle To Speech: The First Amendment And Film Censorship From 1915-1952, Jessica J. Hwang

UC Law Constitutional Quarterly

Through the lenses of both history and the law, this Note examines the parallel transformation of the First Amendment and the medium of film. When the Supreme Court first addressed the censorship of moving pictures in 1915, the Court unanimously rejected film as mere "spectacle" unworthy of constitutional protection. However, in 1952, the Court revisited the same issue and unanimously overturned its prior decision-moving pictures were now protected under the First and Fourteenth Amendments. The reversal ended an era of censorship and marked a new understanding of both speech and film in the law. Neither a fortuitous nor an inevitable …

A Private Sector Solution To A Public Problem, Chris Molina

UC Law Constitutional Quarterly

Over two centuries after the Bill of Rights was enacted, the Supreme Court finally resolved the controversy surrounding the meaning of the Second Amendment in the landmark case, District of Columbia v. Heller. Specifically, the Court held that the Second Amendment protected an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. In reaching this decision, the Court determined that the Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State," did not limit the scope of the right to bear arms for militia purposes. Although the …

In Re C.P.: The Ohio Supreme Court's Expansion Of Roper V. Simmons And Graham V. Florida To The Realm Of Juvenile Sex Offender Registration, Ben Blumenthal

UC Law Constitutional Quarterly

In the landmark 2012 Ohio Supreme Court case In re C.P., the court held the statute mandating a minor's automatic lifetime registration as a sex offender constituted cruel and unusual punishment in violation of the Eight Amendment and Ohio's own constitutional prohibition against cruel and unusual punishment. Additionally, the court found automatic registration ran afoul of the Fourteenth Amendment's Due Process Clause.

In re C.P. raises several critical questions. Chief amongst them is whether categorical principles enunciated in Roper v. Simmons and Graham v. Florida should even apply to juvenile sex-offender registration schemes. This question is highly relevant because an …

The New Flat Tax: A Modest Proposal For A Constitutionally Apportioned Wealth Tax, John T. Plecnik

UC Law Constitutional Quarterly

"Eat the poor children," proposes Jonathan Swift. "Nay," protests Occupy Wall Street, "Eat the rich!" This Article does not propose eating the rich with draconically high taxes. However, the United States has experienced years of multibillion dollar deficits. Many liberals have proposed a European-style value added tax or VAT to balance the budget. Many conservatives have proposed a "fair" or flat tax. Like the Devil, regressive consumption taxes go by many names. Whether they know it or not, liberals and conservatives are proposing essentially the same thing-a federal sales tax, which disproportionately impacts the poor and middle class. This Article …

Analyzing The Constitutional Implications Of The Department Of Veterans Affairs' Process To Determine Incompetency: Is The Federal Government Violating The Second Amendment And Due Process, Joshua Flynn-Brown

UC Law Constitutional Quarterly

Over the past decade the Department of Veterans Affairs ("VA") quietly reported hundreds of thousands of veterans to the National Instant Criminal Background Check list. Placement on the list prevents veterans from obtaining firearms from federal firearms licensees, effectively precluding exercise of the fundamental right to own a firearm. As of June 1, 2012, there were 153,298 names on the list with a shocking 99.3% of them from the VA. The VA is overreporting veterans by utilizing a very low financial incompetence standard: Once it determines that a veteran requires a fiduciary to administer benefit payments, the VA reports that …

The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon

UC Law Constitutional Quarterly

Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant's constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright." But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is: "No." Lafler and Frye will not bring …

Bring Your Own Devices: A Cautionary Tale For Public Employees During Investigatory Searches, Julie Chow

UC Law Constitutional Quarterly

The advancement of technology-specifically in the form of electronic communication devices-has given rise to a new phenomenon known as "Bring Your Own Device," or "BYOD," whereby employees use their personal electronic devices, such as smartphones, laptops and tablets, for work purposes. While this growing trend may be beneficial to employers and employees, it raises potential problems, especially in the area of employee privacy for those who work in state and local government. The extension of BYOD practices to public employers and government agencies raises Fourth Amendment concerns regarding whether employers may search these employee-owned devices for work purposes in the …

Passwords Please: Rethinking The Constitutional Right To Informational Privacy In The Context Of Social Media, Sara E. Stratton

UC Law Constitutional Quarterly

Much attention has been placed on social media privacy in the workplace. There have been several reports of public employers directing job applicants during their interview to divulge their username and password to allow the government to review the applicant's social media activity as part of a background check. This Note contends that the practice of public employers requiring applicants to provide their social media login information violates the constitutional right to informational privacy. With increasing access to the Internet and the popularity of social media, personal information on the Internet is becoming more accessible than ever before. Although the …

The New Jim Crow - Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

UC Law Constitutional Quarterly

This Article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the "new" and "old" Jim Crows, namely the debt that each owe to progressive and/or liberal politics. In a manner that scholars like Michelle Alexander forget, both racial segregation and mass incarceration owe their existence in part to discourses of reform aimed at promoting black interests, albeit with perverse results. Recognizing the aspirational origins of such systems helps to better explain how they came into being, …

On War And Peace In Cyberspace - Security, Privacy, Jurisdiction, Lothar Determann, Karl T. Guttenberg

UC Law Constitutional Quarterly

The public debate surrounding Edward Snowden's revelations about NSA spying, and government surveillance in times of war and peace more generally, has been passionate and unfocused. This Article takes a look at the legal background and current reform proposals. First, it puts the recent international and domestic outrage regarding the NSA's programs into the context of other countries' intelligence gathering, sharing and cooperation practices. Next, it recalls the purposes of espionage and the legality of spying under international law as well as under national laws from the perspective of the spying and spied-upon government. It then proceeds to assess the …

Incoherent And Indefensible: An Interdisciplinary Critique Of The Supreme Court's Void-For-Vagueness Doctrine, Ryan Mccarl

UC Law Constitutional Quarterly

The Supreme Court's "void-for-vagueness" (or simply "vagueness") doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that "fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "encourage arbitrary and erratic arrests and convictions."

This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes …

Probability, Confidence, And The Constitutionality Of Summary Judgment, Luke Meier

UC Law Constitutional Quarterly

Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue.

This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be …

The Story Of Prudential Standing, S. Todd Brown

UC Law Constitutional Quarterly

Prudential standing, it seems, is the latest target in the Roberts Court's effort to "bring some discipline" to jurisdictional and pseudo-jurisdictional concepts. During the Court's last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts' prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Using Section 2 Of The Voting Rights Act To Fight Voter Supression Tactics After Shelby County V. Holder Without A New Section 4(B) Formula, Jessica Cassella

UC Law Constitutional Quarterly

In 2012, the state of Texas attempted to require residents to present photo identification when casting a ballot. The United States Department of Justice objected to the implementation of this law under Section 5 of the Voting Rights Act because data showed that this law would disproportionately impact Hispanic voters in Texas. Data revealed that Hispanic voters were 46.5% more likely than non-Hispanic voters to lack the identification that would be required to vote. Also, the data showed that Hispanic voters were more likely than non-Hispanic voters to encounter barriers when attempting to get the proper documentation, including disproportionately lacking …