Constitutional Law Commons^™

Taking The Courts: A Brief History Of Takings Jurisprudence And The Relationship Between State, Federal, And The United States Supreme Courts, Rachel A. Rubin

UC Law Constitutional Quarterly

Regulatory takings law today is criticized as a confused muddle, intractable, and as an ambiguous area in which the United States Supreme Court complicates its own jurisprudence with each new decision. Though this is rather true, it is because the often factspecific nature of takings cases leads to results that are "pragmatic at the expense of internal consistency." This note traces the role of the federal courts and the United States Supreme Court with regard to review of state judicial changes in takings or property law. It examines the position of the federal courts in their review of both physical …

Access And Lobbying: Looking Beyond The Corruption Paradigm, Dorie Apollonio, Bruce E. Cain, Lee Drutman

UC Law Constitutional Quarterly

After a recent spate of lobbying scandals involving Jack Abramoff among others, Congress passed a lobbying and ethics reform bill banning a wide variety of lobbyist-to-legislator gifts. In so doing, it dealt with lobbyist influence primarily as a quid pro quo corruption problem. But a large body of literature suggests that lobbyists have multiple sources of influence that go way beyond what could be considered "corruption." Lobbyists, for example, are valuable sources of expertise and information, and are often old trusted friends and advisors to key political decision-makers. Even if all money and gifts were banned, lobbyists would likely still …

Rethinking Granfinanciera: May The Bankruptcy Court Retain Pre-Trial Jurisdiction After Finding A Valid Jury Trial Right, Amber Arakaki

UC Law Constitutional Quarterly

Bankruptcy courts are vested with authority under Article I to provide swift resolution of a debtor's insolvency, but under the current bankruptcy jurisdiction scheme, an Article III court which possesses the essential attributes of judicial power must ultimately adjudicate private rights. Nearly twenty years ago, the U.S. Supreme Court, in Granfinanciera, S.A. v. Nordberg, recognized that a party in bankruptcy litigation may demand a jury trial when asserting a private right. Following Granfinanciera, neither Congress nor the Court provided any guidance on how a case subject to a valid jury trial right is handled under Article III constraints, resulting in …

Supreme Court Voting Behavior: 2006 Term, Richard G. Wilkins, Scott Worthington, Peter J. Jenkins, Elisabeth Liljenquist

UC Law Constitutional Quarterly

This Article, the twenty-first in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2006 Term. The analysis is designed to measure whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms.

The voting patterns tabulated by this Article reveal a Court in transition. The generally consistent conservative voting patterns of Chief Justice Rehnquist have been replaced with several surprisingly liberal voting patterns tallied by Chief Justice John Roberts. As a result, ideological bias demonstrates a significantly wider "gap" …

From The Fringes Of Copyright Law: Examining California's True Name And Address Internet Piracy Statute, Brian Mcfarlin

UC Law Constitutional Quarterly

In 2004, California Governor Schwarzenegger signed into law California Penal Code section 653aa. Under the statute, anyone located in California who, "knowing that a particular recording or audiovisual work is commercial, knowingly electronically disseminates all or substantially all of that commercial recording or audiovisual work to more than 10 other people without disclosing his or her email address, and the title of the recording or audiovisual work" is guilty of a misdemeanor. While this statute allows copyright holders, such as music companies, to easily identify copyright infringers online, it accomplishes this goal by going outside of federal copyright law entirely …

A Reexamination Of The Tinker Standard: Freedom Of Speech In Public Schools, Jerico Lavarias

UC Law Constitutional Quarterly

The question of whether homosexuality is a sin has been, especially in the last decade, at the center of public discourse. People who practice any Christian religion would strongly answer in the affirmative to this question. However, we live in modem times where the right to freedom of speech and enjoyment of civil liberties are arguably at their height, and contrary to religious conclusions many positive viewpoints have arisen on the practice of homosexuality. Yet the debate continues. While there is no question to the right afforded to adults to freely and openly discuss the issue of whether homosexuality is …

Let The Sun Shine On The Supreme Court, Marjorie Cohn

UC Law Constitutional Quarterly

Though the Supreme Court allows public attendance and print media coverage of argument sessions, Supreme Court Justices have long been reluctant to allow news cameras into the courtroom. Justice David Souter famously stated, "The day you see a camera come into our courtroom it's going to roll over my dead body." This essay, originally presented as part of the Hastings Constitutional Law Quarterly Volume 34 Symposium: Cameras in the Court, traces the history of cameras in the courtroom and the Justices' various reasons to oppose their entry. The essay argues that it is in the Supreme Courtroom that the law …

Political Party And Senatorial Succession: A Response To Vikram Amar On How Best To Interpret The Seventeenth Amendment, Sanford Levinson

UC Law Constitutional Quarterly

This Article explores the author's fundamental disagreement with Vikram Amar's argument as to the meaning of the Seventeenth Amendment. Amar's argument is "a brilliant explication of various trees that misses the reality of the surrounding forest." The author contrasts my response to this article to another article that several years ago definitively demonstrated the unconstitutionality of the current Succession in Office Act (the Act) inasmuch as it makes the Speaker of the House (and then the president pro tempore of the Senate) next in line to the vice president to fill any vacancies in the Oval Office. Both that article …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, H. Kwasi Prempeh

UC Law Constitutional Quarterly

This Article focuses on the comparative dimension of a phenomenon that is already well known to U.S. constitutional discourse: the imperial presidency. While U.S. constitutional scholars have shown a great deal of interest in new constitutional courts in the world's newest democracies, the contemporaneous phenomenon of persistent imperial presidency in Africa has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourses, Africa has witnessed since 1990 a dramatic transition to democratic rule that has resulted in the toppling of many of the region's long-reining autocrats and the installation of new counter-authoritarian constitutions. However, …

Gang Injunctions Under Heat From Equal Protection: Selective Enforcement As A Way To Defeat Discrimination, Cathy Wang

UC Law Constitutional Quarterly

Courts have issued gang injunctions, primarily in California, to enjoin alleged gang members from engaging in activities in furtherance of gang objectives. On the surface, these quasi-civil/criminal remedies might seem to protect the welfare of the community from alleged gang members. But a closer look reveals an Equal Protection problem: The injunctions prohibit defendants from doing what others can do solely based on their arbitrarily conferred gang affiliation status. What makes the situation all the more troubling is that many of the people labeled as "gang bangers" are poor minorities.

Because gang injunctions can easily entail unconstitutional discrimination, defendants should …

Domestic Surveillance For International Terrorists: Presidential Power And Forth Amendment Limits, Richard Henry Seamon

UC Law Constitutional Quarterly

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called "Terrorist Surveillance Program" (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President's powers; or (2) violates the Fourth Amendment. …

Government-Sponsored Chaplains And Crisis: Walking The Fine Line In Disaster Response And Daily Life, Mary Jean Dolan

UC Law Constitutional Quarterly

Two significant public issues have been the limits of partnership between government and religion and government's role in helping citizens cope with disasters. One intriguing intersection of these issues is local governments' use of chaplaincy programs to address the human face of trauma, both large-scale and personal. This Article asserts that the constitutional line differs for mass disaster response and the daily human dramas, clearly painful, addressed by local police and fire departments. There is an important and valid role for clergy and faith-based assistance as part of the broad spectrum of governmental disaster relief. In the everyday tragedies, however, …

Are Statutes Constraining Gubernatorial Power To Make Temporary Appointments To The United States Senate Constitutional Under The Seventeenth Amendment, Vikram David Amar

UC Law Constitutional Quarterly

This Article is Professor Amar's response to Professor Levinson's article above.

Morse V. Frederick And The Regulation Of Student Cyberspeech, Brannon P. Denning, Molly C. Taylor

UC Law Constitutional Quarterly

Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. This Article analyzes the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of student speech cases. In addition, it examines the impact the decision could have on what looks to be the new frontier of student First Amendment rights: public school regulation of on-line speech-student "cyberspeech."

Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace-all …

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

UC Law Constitutional Quarterly

As the distinction between interpretation and politics diminishes, the need for pluralism in interpretation increases. The Article argues, first, that the rule of law requires that no one tribunal possess the power to subordinate a whole legal system to its politicized rule.

The Article then uses comparative legal study to analyze two tested alternatives to concentrating interpretive authority in a single court. Under the "separation of powers" approach, some or many jurisdictionally distinct institutions are granted powers to interpret and apply the constitution and the laws. A multiplicity of interpreters helps to prevent domination by any one legal ideology and …

Direct Democracy And Article Ii: Additional Thoughts On Initiatives And Presidential Elections, Vikram David Amar

UC Law Constitutional Quarterly

This Article focuses on the first of the two questions in Professor Richard Hasen's aricle on whether "initiated changes to rules for choosing Presidential electors violate Article II." The article looks closely at places other than Article II where the Constitution uses the phrase "legislature of the States" and carefully examines Supreme Court cases on the topic. Given that initiative proponents are not necessarily foreclosed by the text of the Constitution, or Supreme Court case law, and given that initiative backers have some nineteenth and twentieth century history on their side, courts should be hesitant to invalidate all initiated changes …

When Legislature May Mean More Than Legislature: Initiated Electoral College Reform And The Ghost Of Bush V. Gore, Richard L. Hasen

UC Law Constitutional Quarterly

Whether or not the California Electoral College measure qualifies for the ballot and is voted upon, courts eventually will have to confront the question whether initiated Electoral College reform violates Article II of the U.S. Constitution. With the National Popular Vote movement in full swing, and other proposals for Electoral College reform floating around, it is only a matter of time before some initiative changing the system qualifies for a state ballot and stands a chance of passing.

Though the constitutional question is straightforward, the answer is not: A strict textual view suggests that initiated reform is unconstitutional; case law …

Would You Like Some First Amendment Rights With That - How Mandatory Nutritional Disclosure On Restaurant Menus Violate The Freedom Of Commercial Speech, Nicole Anderson

UC Law Constitutional Quarterly

Allegations of a so-called "obesity epidemic" have spawned widespread panic throughout the United States. Legislators in California and New York have answered the outcry by crafting regulations which would mandate the disclosure of nutritional information of food items on restaurant menus and menu boards. Although these regulations dream of promoting healthier eating habits throughout the community, they do so by depriving restaurants of their First Amendment rights. A closer look at the regulations reveals a glaring violation of restaurants' freedom of commercial speech, forcing the restaurants to communicate the government's message to their customers without any true causal link between …

The Story Of The Court: A Narrative Analysis Of Planned Parenthood V. Casey, Nicholas Short

UC Law Constitutional Quarterly

To some degree, we are all storytellers, and we tell stories for a great variety of purposes: to animate speeches, to justify our conduct, and even to explain our opinions and views. These stories, or narratives, do a lot of work in human communication, and understanding them is essential to understanding the people that use them and the message they are attempting to send.

Because of the prevalence of narratives in everyday life, and their explanatory power, it is perhaps not surprising to find narratives being used even in more staunchly "academic" or "critical" contexts, such as works of history, …

Supreme Court Voting Behavior 2005 Term, Richard G. Wilklins, Scott Worthington, John J. Nielsen, Peter J. Jenkins

UC Law Constitutional Quarterly

This Study, the twentieth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2005 Term. The analysis is designed to measure whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. As in politics, whether a judicial trend is "conservative" or "liberal" often lies in the eye of the beholder. On such a point, members of the American Civil Liberties Union and the Federalist Society for Law and Public Policy Studies might well disagree.

This Study attempts to …

Constitutional Taking Clauses: A Proposed Typology, Benjamin Wiles

UC Law Constitutional Quarterly

Although constitutional takings clauses have been the topic of substantial scholarship, the current literature lacks a methodological framework for understanding and analyzing takings clauses. Because there are so few cases of constitutional takings clauses to compare, applying "large n" quantitative methods to takings clauses would be difficult. Therefore, legal scholars need to use "small n" qualitative research methods.

Typologies can provide a framework for meaningful qualitative analysis. In the social sciences, typologies have been used to differentiate among different types of political regimes, electoral shifts, and economic growth strategies. These typologies can then be used to frame research questions, develop …

Has Mighty Casey Struck Out: Societal Reliance And The Supreme Court's Modern Stare Decisis Analysis, Tom Hardy

UC Law Constitutional Quarterly

The Supreme Court has recently elaborated an analysis for cases in which it is asked to overturn a precedent. This special justifications analysis involves several factors, including whether the precedent has been relied upon. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Dickerson v. United States and Lawrence v. Texas, the Court has expanded the definition of reliance to include what might be called "societal reliance," as opposed to economic reliance. Commentators have criticized this expansion of the reliance factor, some arguing that it allows the Court too much power to justify any result it favors, while others argue that …

Changing The Balance Of Power: Why A Treaty-Trump Presumption Should Replace The Later-In-Time Rule When Interpreting Conflicting Treaties And Statutes, Scott A. Penner

UC Law Constitutional Quarterly

When a statute and treaty conflict, courts resolve the conflict in favor of the one most recently implemented. This rule of statutory interpretation has existed for over a century. However, the underlying rationale for the later-in-time rule does not comport with the Constitution. Instead, this Note argues that courts should employ a treaty-trump presumption-absent a clear statement from Congress of their intent to abrogate a treaty provision-where a later-in-time statute comes into conflict with the treaty.

While the Supremacy Clause does seem to' indicate that statutes and treaties should be treated equally, this Note argues that in reality, the Supremacy …

The Revival Of Impeachment As A Partisan Political Weapon, Richard K. Neumann Jr.

UC Law Constitutional Quarterly

Partisan impeachment-in which one branch of government attacks anotherhas played a central role in three of the four great confrontations between or among branches of the federal government: (1) the struggle, in the first decade of the nineteenth century, between the Federalist-dominated judiciary on one hand and the Jeffersonian administration and Congress on the other; (2) the confrontation from 1865 to 1869 over Reconstruction between President Andrew Johnson and a Congress run by Radical Republicans; (3) the conflict that reached a peak in 1937 between the administration of Franklin D. Roosevelt and a Supreme Court that repeatedly struck down New …

To What Extent Can Congress Change The Patent Right Without Effecting A Taking, Jesse S. Chui

UC Law Constitutional Quarterly

The Constitution confers upon Congress the power to "promote the ... useful Arts, by securing for limited Times to... Inventors the exclusive Right to their... Discoveries." Since the Patent Act of 1790, Congress has continued to define and redefine the metes and bounds of the patent right. This tradition continues with the Patent Reform Act of 2005, introduced in the House of Representatives on June 8, 2005.

Thawing A Frozen Treaty: Protecting United States Interests In The Arctic With A Congressional-Executive Agreement On The Law Of The Sea, Andrew King

UC Law Constitutional Quarterly

The steadily shrinking Arctic ice cap has triggered a feverish interest among the five nations whose coastlines border the region concerning their respective rights to the ocean and the seabed below. The possibility of huge reserves of natural gas and oil, and the potential for newly navigable channels have led to competing claims by the United States, Canada, Russia, Denmark, and Norway over large sections of the Arctic. The United States, however, is in danger of losing out due to the obstructionist efforts of a handful of isolationist Senators who consigned a crucial treaty providing a mechanism to negotiate these …

Committing A Crime While A Refugee: Rethinking The Issue Of Deportation In Light Of The Principle Against Double Jeopardy, Won Kidane

UC Law Constitutional Quarterly

The Double Jeopardy Clause of the United States Constitution provides: "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb ... " If a refugee who has committed a deportable offense and served his sentence is subsequently deported from a place where he calls home to a place where he would face persecution, he could literally be said to have been twice put in jeopardy of life and limb. That seems to be a prima facie violation of the Double Jeopardy Clause of the Fifth Amendment. This constitutional guarantee is, …

The State Secrets Privilege: What's Wrong With It, How It Got That Way, And How The Courts Can Fix It, Christohper D. Yamaoka

UC Law Constitutional Quarterly

The state secrets privilege shields evidence from discovery at trial where disclosure of the evidence would threaten national security. It is an important privilege, allowing the government to protect potentially dangerous information from being exposed by way of litigation. But it is also a powerful privilege; when accepted, it often leads to outright dismissal of the case. Given its nuclear effect, expansion of the doctrine beyond its legitimate bounds is constitutionally troubling. And indeed, over the last half century, the privilege has expanded far beyond its original form: courts have grown increasingly likely to use it to dismiss litigation before …

Pics In Focus: A Majority Of The Supreme Court Reaffirms The Constitutionality Of Race-Conscious School Integration Strategies, Michael J. Kaufman

UC Law Constitutional Quarterly

In Parents Involved in Community Schools (PICS) v. Seattle School Dist. No. 1, a majority of the Supreme Court reaffirmed the constitutionality of a school district's use of race-conscious strategies designed to achieve the compelling benefits of a racially diverse student body. The Court's decision turned on the question of whether the Equal Protection Clause bars a public school district from considering the race of children of the majority group as part of its effort to foster a racially integrated school. The answer not only hinges upon an understanding of the Supreme Court's interpretations of the Equal Protection Clause in …

Marbury In Mexico: Judicial Review's Precocious Southern Migration, M. C. Mirow

UC Law Constitutional Quarterly

Scholars agree that the United States Supreme Court did not "discover" the general judicial review aspects of Marbury v. Madison (1803) until nearly a century later in 1895. This article reveals that the Mexican Supreme Court, relying heavily on U.S. constitutional sources and actually quoting Marbury, discovered this aspect of the case more than a dozen years earlier than the United States Supreme Court.

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the …