Constitutional Law Commons^™

Bankruptcy And Free Speech: New Bankruptcy Code Provisions Restrict Attorneys' Right To Properly Advise Clients, Robin Huffman

UC Law Constitutional Quarterly

The 2005 amendments to the Bankruptcy code, known collectively as the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), marked a sweeping overhaul of the bankruptcy system in the United States, and also sparked considerable litigation. Some of the most significant litigation arising out of BAPCPA has come from attorneys arguing that portions of BAPCPA violate the First Amendment. The free speech challenges arise from portions of the act governing debt relief agencies, a new designation under BAPCPA. If courts determine that attorneys fall within the meaning of debt relief agencies, attorneys argue that the provisions of BAPCPA constitute an …

The Gnu General Public License: Constitutional Subversion, Tennille M. Christensen

UC Law Constitutional Quarterly

Challenges to the GNU General Public License alleging that it is unconstitutional are properly divided into two categories: those alleging that the bare license granted by the GPL is unconstitutional, and those alleging that enforcing the GPL under state contract law is unconstitutional. As a bare license, the GPL is in parallel with the copyright clause of Article I of the United States Constitution because it relies upon existing federal copyright law to ensure that the copyright holder's work is distributed according to the copyright holder's wishes. However, federal copyright law impliedly preempts enforcement of the GPL as a contract …

Choice V. Chance: The Constitutional Case For Regulating Human Germline Genetic Modification, Nancy Pham

UC Law Constitutional Quarterly

With the rapid rate of advancing technology, human germline intervention ("HGGM") may be possible in the near future. But, is access to HGGM technology a constitutionally protected right? Under traditional substantive due process, constitutional protection turns on whether the right is fundamental. If the courts determine that access to HGGM is a fundamental right, then it would fall in line with the category of reproductive decision-making cases such as Griswold v. Connecticut. Moreover, such a classification would require states to have a compelling interest before restricting the right at all. However, if HGGM is not a fundamental right, then states …

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

UC Law Constitutional Quarterly

In Apodaca v. Oregon and Johnson v. Louisiana, the Supreme Court allowed the relaxation of the decision rule most commonly associated with criminal jury felony verdicts and held that unanimity in state criminal cases is not constitutionally required. The Court announced that states were allowed to use 10-2 and 9-3 verdicts in non-capital state cases in contravention of the traditional rule requiring unanimity. The Court argued that the essential function of the jury is to place between the accused and the state a commonsense group of laymen representing a cross-section of the community-and that relaxation of the unanimity requirement would …

A No Moderator Needed: A Liberty Tradition Right To Broadcast Advertorials, Daniel Matheson

UC Law Constitutional Quarterly

Civic republicans have famously noted that the exclusion of relevant viewpoints from public debate undermines the process of democratic deliberation, a concern directly implicated by commercial broadcasters' well-publicized refusals to transmit controversial issue advertisements. Unfortunately, simply noting the failure of our current broadcasting regime to appropriately inform the public does not provide an actionable First Amendment objection. Current doctrine focuses primarily on preserving individual liberty, presupposing that protection of individuals' rights will prove sufficient to safeguard the speech necessary for participatory democracy and leaving little room for active state direction of the proverbial town meeting. If the liberty tradition is …

The Court Of Disbelief: The Constitution's Article Vi Religious Test Prohibition And The Judiciary's Religious Motive Analysis, Francis J. Beckwith

UC Law Constitutional Quarterly

In several federal cases concerning whether particular statutes or policies violate the First Amendment's prohibition of religious establishment, both the United States Supreme Court and other federal courts have rejected the constitutionality of these laws and policies on the grounds that they have an exclusively religious purpose. Part of the courts' analyses in some of these cases rely on the apparent religious motives of the statute's or policy's sponsors and/or citizen-supporters as the basis by which the courts infer that the law or policy in question has a religious purpose.

I argue in this paper that this sort of analysis …

When The Meaning Of Plain Error Isn't So Plain: Deciphering Plain Error In The Context Of Booker, John Jay Stein

UC Law Constitutional Quarterly

In United States v. Booker, the Court declared that the sentencing judge's ability under the Federal Sentencing Guidelines to enhance a sentence based on facts found by the bench, and not the jury, ran afoul of the Sixth Amendment right to a jury trial. With this dramatic shift in the sentencing sphere, courts are being forced to deal with the question of what is to be done with the criminal defendants who were subject to unconstitutional judicial fact-finding prior to Booker. Courts have particularly struggled when face with defendants convicted prior to, but appealing after Booker. The Supreme Court has …

The Turbulen Aftermath Of Crawford V. Washington: Where Do Child Abuse Victims' Statements Stand, Stephanie Mcmahon

UC Law Constitutional Quarterly

In its Spring 2004 term, the Supreme Court, in Crawford v. Washington, explicitly articulated the test to determine the admissibility of evidence offered against the accused when the declarant is unavailable, clarifying the prior ambiguous test of Ohio v. Roberts. The Court in Crawford stated that: if (1) the declarant is legally unavailable to testify at trial and (2) the prior statement is testimonial in nature, then testimony is not admissible unless the defendant had a prior opportunity to cross examine the witness. The Crawford clarification appears to strike a death knell to the use of child abuse reporting statements …

Crawford V. Washington: Bright Line Rules To Identity Testimonial Statements, Jenny M. Kim

UC Law Constitutional Quarterly

The Confrontation Clause of the Sixth Amendment gives a defendant in a criminal prosecution the right to "be confronted with the witnesses against him." The Constitution's text alone does not resolve the meaning of the Confrontation Clause and its application to the admissibility of an unavailable witness' statements. Thus, in determining whether admission of an unavailable witness' tape-recorded statement to a police officer was a Confrontation Clause violation, the Crawford Court looked to the history of the Confrontation Clause from its inception at English common law. The Court determined that the Framers of the Constitution were particularly concerned about the …

Control, Co-Optation And Co-Operation: Managing Religious Harmony In Singapore's Multi-Ethnic, Quasi-Secular State, Li-Ann Thio

UC Law Constitutional Quarterly

The governors of a multi-ethnic, multi-religious state which is based on political authority derived from secular laws, rather than theocratic mandate, are aware of the paradoxical quality of Religion as a force for peace and conflict. Indeed, the root word re (to bind) legare (what is broken) suggests that Religion is something which is redemptive in its healing quality. However, pragmatism informed by history reveals the need to maintain ethnic and religious cohesion as religious conflicts can tear plural societies apart. Religion is too potent a force to disregard or attempt to coercively eliminate, in a manner reminiscent of totalitarian …

What Nsa Is Doing... And Why It's Illegal, John Cary Sims

UC Law Constitutional Quarterly

On December 16, 2005, The New York Times disclosed the existence of a secret electronic surveillance program being carried out by the National Security Agency (NSA) that involves government interception of the contents of international communications without obtaining warrants. The Foreign Intelligence Surveillance Act of 1978 (FISA), which was enacted following the Supreme Court's decision in United States v. United States District Court (1972) and the Church Committee's disclosure of improper NSA activities, created a comprehensive system regulating electronic surveillance for foreign intelligence purposes. Warrants are required when such surveillance takes place within the United States or when it targets …

Prescribing Morality: The Constitutionality Of Pharmacist Conscience Clauses, Taylor Genovese

UC Law Constitutional Quarterly

Health provider "conscience clauses" were first enacted in response to the United States Supreme Court decision in Roe v. Wade and were specifically related to religious or moral objections to abortion. Generally, today's conscience clauses go well beyond the issue of abortion and provide "varying" levels of legal protection for health providers who refuse to perform services that are against their religious or moral beliefs.

This Note argues that legislation that provides an absolute right for pharmacists to refuse to fill valid prescriptions based on the pharmacist's religious or moral beliefs threatens the constitutionally protected right to access contraceptives if …

The Structural Inadequacy Of Public Schools For Stigmatized Minorities: The Need For Institutional Remedies, Shavar D. Jeffires

UC Law Constitutional Quarterly

This Article challenges the failure of courts and advocates considering remedies in school cases to assess whether public schools, as currently constituted, are institutionally aligned with stigmatized minorities' particular educational needs. Numerous legal scholars have written about the longstanding failure of public schools to effectively educate racial minorities, but they have overlooked the relationship of public schools' institutional context to the educational consequences of racial stigma. This Article does so, claiming, first, that stigma attacks the capacities enabling effective education, and that educational services therefore must specifically account for stigma's noxious effects on racial minorities' educability. Stigma, I contend, uniquely …

Amicus Brief Of Constitutional Law Professors David L. Faigman And Ashutosh A. Bhagwat, Et Al. In The Case Of Gonzales V. Carhart, David L. Faigman, Ashutosh A. Bhagwat, Kathrny Davis

UC Law Constitutional Quarterly

This is an amici curiae brief submitted to the United States Supreme Court in the Gonzales v. Carhart and Gonzales v. Planned Parenthood cases (i.e., the partialbirth abortion cases) argued during the October, 2006 Term. The question the brief addresses is whether the Supreme Court should defer to congressional findings of fact, when the factual questions at issue help to determine the scope of a basic, constitutional right. The argument presented in the brief is as follows:

The question of what level of deference is owed legislative findings of fact in constitutional litigation is not new. It divided the Court …

Deconstructing Davis V. United States: Intention And Meaning In Ambiguous Requests For Counsel, David Aram Kaiser, Paul Lufkin

UC Law Constitutional Quarterly

The authors discuss the United States Supreme Court's decision in Davis v. United States, 512 U.S. 452 (1994), arguing that its holding-that police officers do not have to cease questioning a criminal suspect who utters an ambiguous request for counsel during custodial interrogation-depends on concepts of interpretation that have been discredited by the deconstructionist theory of Jacques Derrida and subsequent literary critics.

Derrida criticized theoretical movements, such as structuralism, that ignored the role of ambiguity in language. In turn, reacting to Derrida's emphasis on the indeterminacy of meaning, other literary critics sought criteria for "objective" interpretation, the search for which …

Square Circles - Restoring Rationality To The Same-Sex Marriage Debate, Jeffrey J. Ventrella

UC Law Constitutional Quarterly

No abstract provided.

A Conservative Critique Of The Federal Marriage Amendment, John Choon Yoo, Anntim Vulchev

UC Law Constitutional Quarterly

No abstract provided.

If It Looks Like A Duck... Traditional Public Forum Status Of Open Areas On Public University Campuses, Nathan W. Kellum

UC Law Constitutional Quarterly

The notion behind the oft-used maxim, "If it looks like a duck. . ." is that it is an irrefutable adage, but it is one that is lost on many public university administrators. Their struggle with the obvious comes at a high cost. Fundamental First Amendment freedoms are often deprived in areas that represent traditional public for a on campus. Although many universities are diverse in their respective creations of policies pertaining to speech on campus, they are remarkable similar in their approaches to control speech. The right to speak no campus is often strictly controlled, certain speakers are even …

Position Paper For Hastings Constitutional Law Quarterly Symposium On Gay Marriage, Therese M. Stewart

UC Law Constitutional Quarterly

No abstract provided.

Supreme Court Voting Behavior 2004 Term, Richard G. Wilkins, Scott Worthington, Jacob Reynolds, John J. Nielsen

UC Law Constitutional Quarterly

The 2004 Term, for the third straight year, notes a liberal trend on the Court. The outcomes tabulated on six of ten Tables in 2004, considered as a whole, manifest overall liberal movement. These results strengthen the hypothesis posed by last year's study that "the United States Supreme Court may have embarked on a new course." The stability of any such trend, however, may depend upon the voting behaviors of the two positions on the Court opened at the end of the 2005 Term. Chief Justice Rehnquist, statistically speaking, was the most conservative Member of the Court this Term as …

Reconciling Morality And Moral Responsibility In The Law: A Due Process Challenge To The Inconsistent Mental Responsibility Standards At Play In Criminal Insanity Defenses And Sexually Violent Predator Civil Commitment Hearings, Jeremy T. Price

UC Law Constitutional Quarterly

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal …

Evidence And Confrontation In The President's Military Commissions, Nicholas W. Smith

UC Law Constitutional Quarterly

In the wake of the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, President George W. Bush and his administration began a vigorous offensive against America's perceived enemies. President Bush issued a Military Order to capture and take into custody anyone the President perceived to be a member of the al Qaida terror network, any suspect of terrorism, and anyone who aids the efforts of terrorists. The President holds limitless discretion over who falls under the jurisdiction of his order, and those captured are subject to trial of military commission. Five hundred prisoners are …

Restoring The Fourth Amendment: The Original Understanding Revisited, David E. Steinberg

UC Law Constitutional Quarterly

Supreme Court decisions regarding the Fourth Amendment are arbitrary, unpredictable and often border on incoherent. This quagmire is inspiring Fourth Amendment scholars to develop catch phrases for the chaos. And it is all because of Court attempts to apply the Fourth Amendment in situations where it was never intended to apply - particularly in police search and seizures. The Fourth Amendment was never intended to serve this role.

Supreme Court Voting Behavior - 2003 Term, Richard G. Wilkins, Scott Worthington, Lorianne Updike, Jacob Reynolds

UC Law Constitutional Quarterly

The 2003 Term, for the second year, notes a liberal trend across a majority of the Tables of this Study. The voting behavior of individual Justices in 2003 was somewhat more stable this Term in that individual departures from past voting behaviors were less pronounced than in 2002. Nevertheless, the Study still demonstrates continuing instability in the voting behavior of individual Justices. This Term, statistically significant departures from past behavior by at least five Members of the Court are present on six Tables. This might suggest that the voting behavior of the Justices on these Tables is "in transition," although …

Bakke, Grutter, And The Principle Of Subsidiarity, Peter Widulski

UC Law Constitutional Quarterly

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal …

The Federal Role In Managing The Nation's Groundwater, John D. Leshy

Faculty Scholarship

No abstract provided.

The New Formalism: Requiem For Tiered Scrutiny?, Calvin R. Massey

Faculty Scholarship

No abstract provided.

The Trouble With Taxes: Fairness, Tax Policy, And The Constitution, Leo P. Martinez

UC Law Constitutional Quarterly

Fairness stands for a complicated set of moral and practical instructions inculcated in us since childhood. Consequently, fairness presents knotty problems of application for legal and policy analysts in the formulation of tax policy. This article probes the contours of the concept of fairness in taxation. I begin and end with the observation that fairness or the perception of fairness in taxation is a deceptively unsophisticated proposition. Part I includes a brief description of the public perception of fairness in the context of taxation. Part II follows with an exploration of the concept of fairness as a fundamental tenet of …

Viewpoint Neutral Zoning Of Adult Entertainment Businesses, Shima Baradaran-Robison

UC Law Constitutional Quarterly

Zoning of strip clubs, adult video stores, and other adult entertainment businesses is a frequent source of controversy and litigation in many American cities. Community members often oppose strip clubs moving into their city and many cities try to keep these businesses as far from public life as possible. The Supreme Court's First Amendment law has not helped this struggle. In fact, the current "secondary effects" test used by the Supreme Court has actually made it more difficult for cities to zone adult businesses. Although a few commentators have expressed their disapproval of the secondary effects test, they have all …

Supreme Court Voting Behavior: 2002 Term, Richard G. Wilkins, Scott Worthington, Sara Becker, Lorianne Updike

UC Law Constitutional Quarterly

The results of the 2002 Study - as with the Study last Term - reveal continued polarization and voting instability on the United States Supreme Court. Only two categories of cases, Civil/State and Civil/Federal, were decided by predominantly unanimous opinions. Yet, while the Justices voted in fairly consistent "conservative" and "liberal" blocs, neither wing of the Court seems able to consistently garnish the "fifth vote" crucial to a definitive liberal or conservative trend. As a result, the Rehnquist Court may have lost its conservative momentum. The data suggest several possible explanations for this development. Justice O'Connor is again the Court's …