Constitutional Law Commons^™

The Consequences Of School Desegregation: The Mismatch Between The Research And The Rationale, Amy Stuart Wells

UC Law Constitutional Quarterly

This article challenges the narrow way in which the "consequences" of school desegregation have been defined - namely as measured by standardized test scores alone. This article serves as a reminder that in the early, pre-Brown cases, the Supreme Court argued that the purpose of school desegregation was to assure "wider association" for African American students who had been cut off from high-status educational institutions and the honor and social networks they confer. The bulk of social science research on school desegregation has ignored this rationale as researchers mostly examined students' test scores after only one or two years of …

Anti-Vibrator Legislation: The Law Is On Shaky Ground, Nicole Schilder

UC Law Constitutional Quarterly

This Note confronts the absurdity of laws that ban the sale and production of sexual devices. These laws are imbedded in the obscenity statutes of Alabama, Georgia, Mississippi, Texas, and Virginia. The Note commences with a history of sexual devices in the United States. The Note proceeds to use the 11th Circuit case of Williams v. Pryor and cases from Colorado, Georgia, Kansas, Louisiana, and Texas to demonstrate that anti-sexual device statutes are unconstitutional because they infringe on the privacy right or, in the alternative, are overbroad and thus must fail under the rational basis test.

The Marlboro Man's Secret Versus The Public Health: Trade Secrets And Unconstitutional Takings In Phillip Morris V. Reilly, Melanie Tang

UC Law Constitutional Quarterly

Trade secrets have traditionally been considered to be property interests under the law protected by the Fifth Amendment. However, in a series of decisions finding a Massachusetts tobacco product disclosure law to be unconstitutional, the Massachusetts district court departed from established Fifth Amendment takings case law, setting a precedent for successful "regulatory takings" challenges by private companies to public health, welfare, and safety laws. This Note discusses the novel interpretation of a property owner's reasonable investment-backed expectations advanced by the Phillip Morris holdings in contravention to Ruckelshaus v. Monsanto, as x ell as the misguided analysis of the character of …

Juvenile Curfews And Fundamental Rights Methodology, Calvin R. Massey

Faculty Scholarship

No abstract provided.

American Constitution-Making: The Neglected State Constitutional Sources, Marsha L. Baum, Christian G. Fritz

UC Law Constitutional Quarterly

Early in America's history, comprehensive compilations of existing state constitutions were printed and widely available to the public. These compilations have been largely overlooked as legal sources, but provide significant insights into this country's productive culture of constitutional history and law. This Article examines the distinct sources within the compilations, their variety and availability, and the guidance they provided to early American constitution-makers and the American people. As concise and authoritative sources, they were widely used and referenced during constitutional debates. Due to their availability to the public, these compilations helped democratize the process of constitution-making. A broader understanding of …

Restrictions On Corporate Spending On State Ballot Measure Campaigns: A Re-Evaluation Of Austin V. Michigan Chamber Of Commerce, Susan W. Dana

UC Law Constitutional Quarterly

The U.S. Supreme Court held in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), that it is constitutional to restrict independent expenditures by corporations on behalf of political candidates because corporations can use wealth accumulated in the economic marketplace unfairly to distort the political marketplace of ideas. The Ninth Circuit has recently been asked to extend this "political marketplace" theory to state referendum and initiative campaigns in a case from Montana challenging restrictions on corporate spending on ballot measure campaigns. This article analyzes Austin's political marketplace theory, and concludes that although the theory can logically apply to ballot …

Disease Prevention And The Genetic Revolution: Defining A Parental Right To Protect The Bodily Integrity Of Future Children, Megan Anne Jellinek

UC Law Constitutional Quarterly

Recent advances in genetic and reproductive technology broaden the capacity of parents to make crucial life decisions for their children. In light of the current technological revolution, the scope of parental decision making seems to reach into the realm of embryonic screening and genetic selection. But can embryos be considered children? While labeling embryos as potential children might offer some protections for parents who wish to screen out harmful diseases, the label poses a serious threat to women's somewhat tenuous abortion rights. How then can parental autonomy rights and abortion rights coexist? Is there a constitutional test that protects both …

Not In My Womb: Compelled Prenatal Genetic Testing, Wendy E. Roop

UC Law Constitutional Quarterly

Rapid advances in genetic technology in recent years have profoundly affected prenatal care. What once seemed like science fiction is today a reality. Currently, physicians routinely offer prenatal testing for genetically linked diseases. In utero fetal surgery and genetic treatment is fast becoming widely available. This evolution in prenatal care has quickly outpaced corresponding legal developments, and raised difficult questions as to when prenatal genetic testing is appropriate and to what extend the state should be involved. Statutorily mandated neonatal screening and court ordered caesareans suggest a precedent upon which a woman might be compelled to undergo prenatal genetic testing. …

Supreme Court Voting Behavior: 1998 Term, Richard G. Wilkins, Scott Worthington, R. Chad Hales, Rachelle Fleming

UC Law Constitutional Quarterly

This Article, the fourteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court. This particular study examines the Court's voting behavior during the 1998 Term. The Article attempts to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past terms.

Whether a vote is considered "conservative" or "liberal" depends upon the issues being decided. Generally, votes favoring the assertion of governmental power are "conservative," while those favoring claims of individual liberty are considered "liberal." The issues are categorized into ten …

Electronic Filing And Informational Privacy, Kyla Kitajima

UC Law Constitutional Quarterly

In the past few years, Internet use has grown rapidly. New technology and increased access of information are making everyday tasks and transactions easier and more efficient. By transmitting court information through an electronic medium, Internet filing is the newest way to process legal documents. Electronic filing increases judicial efficiency and cuts costs for attorneys, clients, and courts. However, the efficiency of electronic filing has a price; with the ease and convenience of the Internet comes a loss of informational privacy. Because Internet information is more readily accessible and easier to manipulate than traditional paper documents, there is a need …

Bad Girls And Good Sports: Some Reflections On Violent Female Juvenile Delinquents, Title Ix &(And) The Promise Of Girl Power, Cheryl Hanna

UC Law Constitutional Quarterly

In recent years, the number of female juvenile offenders has been increasing at a faster pace than that of their male counterparts. This Article explores the link between criminality and competition among women. Specifically, it examines the role that involvement in organized sports, or conversely, lack of competition, plays in the development of criminal behavior. Part I addresses the theme of female competition, violence, and sports, and draws conclusions from secondary interdisciplinary research and conversations with incarcerated juvenile females. Part II focuses upon Title IX of the Education Amendments of 1972 and suggests that the rationale behind gender equity in …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

UC Law Constitutional Quarterly

The use of public nuisance injunctions against gangs and suspected gang members is an aggressive prosecutorial strategy upheld and even endorsed by a majority of the California Supreme Court in 1997 in People ex rel. Gallo v. Acuna. This Article critiques these injunctions through the lens of restorative justice principles. Restorative justice rests on the tenet that any crime is injurious, and that the best response is one that heals injuries caused to the victim, the community, and the offender. The Article argues that although anti-gang public nuisance injunctions share significant similarities with some restorative justice programs, the injunctions undermine …

Juvenile Curfews And Fundamental Rights Methodology, Calvin Massey

UC Law Constitutional Quarterly

A spate of cases in the federal courts of appeals has produced sharply divergent views upon the constitutionality of municipal laws establishing a nocturnal curfew for juveniles. The principal disagreement among the circuits concerns the appropriate level of scrutiny to be applied to such laws. Professor Massey canvasses the cases and comments on what these cases may tell us about the methodology of determining fundamental rights for due process purposes. As is often true of substantive due process issues, the dispute is really about the level of generality with which the putative fundamental right ought to be stated. Professor Massey …

The Constitutional Value Of Dialogue And The New Judicial Federalism, Lawrence Friedman

UC Law Constitutional Quarterly

Notwithstanding that the new judicial federalism is no longer new, the question remains whether there is a legitimate basis for state supreme courts to interpret provisions of state constitutions that parallel provisions of the United States Constitution differently than the United States Supreme Court has interpreted the latter. The Author suggests that the interpretation of cognate state constitutional provisions by state court is institutionally legitimate and normatively desirable within the framework of federalism. The legitimacy of the practice is supported by the constitutional value of dialogue - that is, the value that attaches to discourse about law and governance when …

Congress' Property Clause Power To Prohibit Taking Endangered Species, Sophie Akins

UC Law Constitutional Quarterly

In 1995, the Supreme Court in United States v. Lopez reined in Congress' commerce powers by holding that Congress may only regulate activities that substantially affect interstate commerce. Five years later, the Court in United States v. Morrison reaffirmed Lopez and held further that the Commerce Clause only supports Congress' regulation of activities that are economic in nature. This Note examines the repercussions of Lopez and Morrison on Congress' power to enact the Endangered Species Act under the Commerce Clause. Most scholars and courts seem to agree that the Endangered Species Act will fail under the Court's recent Commerce Clause …

Absent Abstinence Accountability, Elizabeth Arndorfer

UC Law Constitutional Quarterly

Teenage sexual activity has important health and fiscal implications for the United States. In response to this, Congress has in the past increased federal funding for abstinence-only education programs. These federally funded abstinence-only education programs stress abstinence as the only viable option for teenagers and provide no information on other methods of contraception. Congress in the new term must decide whether to reauthorize funds for these abstinence-only programs. This Article reviews the history of how these abstinence-only programs acquired federal backing, the methods employed by these abstinence-only programs, and whether these abstinence- only programs are effective. This Article argues that …

Nostalgic Federalism, Judith Olans Brown, Peter D. Enrich

UC Law Constitutional Quarterly

Among the most significant decisions of the Supreme Court over the past decade have been those limiting the scope of congressional authority to act in ways that infringe on the responsibilities and prerogatives of the states. In this article, we review four clusters of such cases - those constraining Congress' powers under the Commerce Clause, those refraining the parameters of section five of the Fourteenth Amendment, cases clarifying the limits on federal authority implicit in the Tenth Amendment, and those expanding the reach of state sovereign immunity. Despite the doctrinal diversity among these cases, the Authors argue that they all …

Justice Murphy And The Fifth Amendment Equal Protection Doctrine: A Contribution Unrecognized, Matthew J. Perry

UC Law Constitutional Quarterly

As the title indicates, this article calls attention to Justice Frank Murphy's jurisprudence which, it claims, helped develop an Equal Protection component of the Fifth Amendment's Due Process Clause as applied to actions of the federal government. This doctrine was eventually adopted by the Supreme Court in Boiling v. Sharpe, a companion case to Brown v. Topeka Board of Education. To present its argument, this article focuses on Justice Murphy's opinions in three infamous WW II cases involving war-time measures curtailing Japanese-Americans' civil rights and liberties, and a lesser-known labor case involving discrimination against African-American railroad workers. After examining the …

The Evolving Police Power: Some Observations For A New Century, Glenn H. Reynolds, David B. Kopel

UC Law Constitutional Quarterly

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the previous turn of the century, the scope of state police powers expanded; states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality. This article examines a number of recent state constitutional decisions having to do with sodomy, parenting, marriage, and procreation and argues that in deciding these cases the courts are returning to the …

First Amendment Protection For Newsgathering: Applying The Actual Malice Standard To Recovery Of Damages For Intrusion, Merrit Jones

UC Law Constitutional Quarterly

The privacy tort of intrusion is an increasingly popular claim against news media defendants, in part because it lacks the constitutional protections of other privacy torts and claims based on publication or broadcast. This note argues that intrusion claims thus undermine those constitutional protections. As a solution, it proposes that a plaintiff be required to show actual malice by a news media defendant in order to recover punitive damages for intrusion.

Elian Or Alien--The Contradictions Of Protecting Undocumented Children Under The Special Immigrant Juvenile Statute, Gregory Zhong Tian Chen

UC Law Constitutional Quarterly

In 1990, Congress enacted the Special Immigrant Juvenile ("SIJ") statute establishing a new form of immigration relief for undocumented children who have suffered from family abuse, neglect, or abandonment. The new law called for cooperation between federal immigration and state child welfare authorities in the implementation of the SIJ law, particularly with regard to jurisdictional and custodial power. Since the late nineteenth century, the federal government has asserted and maintained control over immigration matters, including determinations of individual immigration status. State and local governments, however, have historically taken principal responsibility for protecting the health, safety, and welfare of children within …

The Education Crisis For Children In The California Juvenile Court System, Kathleen Kelly

UC Law Constitutional Quarterly

In all the debate about the burgeoning number of youth incarcerated in California juvenile justice systems or living in foster care because of abuse and neglect, few have recognized the growth of an immense and insidious crisis affecting the children supervised by the juvenile court. The crisis lies in the overwhelming number of children - court dependents and delinquents alike - who suffer from educational deficiencies and disabilities. This Article addresses the educational needs of both juvenile delinquents and dependents (victims of child abuse and neglect). Next, it explores numerous legal avenues to tackle this crisis, which includes relying on …

Constitutionality Of State And Local Selective Purchasing Legislation: A 9-0 Supreme Court Decision In Favor Of And In Defeat Of Plaintiff, Rebecca S. Hartley

UC Law Constitutional Quarterly

In a 9-0 decision handed down in 2000, the Supreme Court struck down a Massachusetts selective purchasing law that restricted state agencies from trading with companies doing business in Burma. The Court based its decision on the narrow grounds that the law violated the Supremacy Clause of the U.S. Constitution. In the wake of so limited a decision, a number of constitutional questions remain unanswered regarding the rights of states to enact laws intruding upon federal foreign affairs.

This article examines three of the main areas of constitutional challenges to state actions in the foreign affairs arena from current orthodox …

Invisibly Radiated: Federalism Principles And The Proposed Hague Convention On Jurisdiction And Foreign Judgments, Khoi D. Nguyen

UC Law Constitutional Quarterly

The proposed Hague Convention provides the United States with a guarantee that U.S. judgments in commercial and civil matters involving at least one foreign party will be recognized and enforced among the signatory countries. It requires the courts that render the judgments to have proper jurisdiction over the parties and the controversies based on a list of accepted and prohibited grounds for the exercise of jurisdiction. Among the prohibited grounds are transient and "doing business" general jurisdiction. Pursuant to the Hague convention, Congress would have to pass implementing legislation proscribing these prohibited bases of jurisdiction in both federal and state …

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

UC Law Constitutional Quarterly

This article explores tensions between law and psychiatry after the California Supreme Court's affirmation of the Sexually Violent Predator Act ("SVPA")-a statute providing for the involuntary civil commitment of sex offenders at the end of their prison terms. The United States Supreme Court upheld a similar Kansas law in 1997. Following a brief discussion of the SVPA's constitutionality, the article considers three issues in greater detail: (1) the sex offender's right to treatment during civil confinement, (2) potential problems with finding a right to refuse treatment, and (3) the need to reconcile the standard for civil confinement under the SVPA …

And Cloning Makes Three: A Constitutional Comparison Between Cloning And Other Assisted Reproductive Technologies, Stephanie J. Hong

UC Law Constitutional Quarterly

In recent years, society and medical technology have combined to yield numerous technologies with which a child may be born beyond traditional reproductive means. These procreative methods necessarily implicate various rights under the Constitution. The recent cloning of "Doily" the sheep and its potential implications for the cloning of human beings has thrust these issues into the forefront of society's collective mind. Despite constitutional concerns, these reproductive technologies remain legally permissible. The introduction of cloning, however, has been met with resistance far greater than that of the previous techniques.

This Note compares the similarities and differences, constitutionally speaking, between cloning …

Supreme Court Voting Behavior: 1997 Term, Richard G. Wilkins, Scott L. Worthington, David M. Buchanan, R. Chad Hales

UC Law Constitutional Quarterly

This Article is the thirteenth consecutive annual study tabulating and analyzing the voting behavior of the United States Supreme Court. This Article examines the Court's voting behavior during the 1997 Term. The study attempts to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past Terms.

Whether a vote is considered "conservative" or "liberal" depends upon the issues being decided. Generally, votes favoring the assertion of governmental power are "conservative," while votes favoring claims of individual liberty are considered "liberal." The issues are categorized into ten …

Getting A Grip On Payne And Restricting The Influence Of Victim Impact Statements In Capital Sentencing: The Timothy Mcveigh Case And Various State Approaches Compared, Niru Shanker

UC Law Constitutional Quarterly

In the 1980's the Supreme Court barred the use of victim impact evidence at capital sentencing hearings as violative of the Cruel and Unusual Punishment clause. The Court reversed itself in Payne v. Tennessee, holding that the Eighth amendment erects no per se bar to victim impact evidence. Such evidence can be properly introduced if it is does not so inflame and prejudice the jury as to render the trial fundamentally unfair. Unfortunately, the Court did not provide any guidance to the lower federal and state courts to use in making that determination. There exists a risk, therefore, that many …

Section Three Of The Defense Of Marriage Act: Is Marriage Reserved To The States, Kristian D. Whitten

UC Law Constitutional Quarterly

It seems clear that the Framers of the Constitution of the United States believed that laws defining and regulating marriage were among the "numerous and indefinite" powers reserved to the states. Early U.S. Supreme Court decisions echoed that sentiment, and as recently as United States v. Lopez, the Court has cited regulation of domestic relations as a quintessentially state power. In 1996 Congress and the President reacted to the possibility that Hawaii might license same-sex marriages by enacting the Defense of Marriage Act, Section 3 which defines the words "marriage" and "spouse" for all federal laws, regulations and programs. This …

Constitutional Comparisons And Converging Histories: Historical Developments In Equal Educational Opportunity Under The Fourteenth Amendment Of The United States Constitution And The New South African Constitution, Alfreda A. Sellers Diamond

UC Law Constitutional Quarterly

The black populations in both the United States and South Africa continue to suffer under the legacy of past discrimination and unequal educational opportunity. In both countries, the constitutional revisions eliminating state-sanctioned racial discrimination failed to alleviate the disadvantages experienced by blacks in terms of socioeconomic status, educational opportunity and political power.

America's post-emancipation history, including the Plessy v. Ferguson and Brown v. Board of Education Supreme Court jurisprudence, shows that the removal of de jure racial discrimination and constitutionally countenanced unequal treatment is not enough to repair the damage and lingering effects caused by former discrimination. Rather, more affirmative …