Constitutional Law Commons^™

California Counties: Second-Rate Localities Or Ready-Made Regional Governments?, Jared Eigerman

UC Law Constitutional Quarterly

There is consensus in planning circles that the "region" is the optimal level for effective land use planning in California. Nevertheless, with very few exceptions, California's system of local government fails to match the regional model. In this Article, Mr. Eigerman argues that it is unwise for lawyers, planners and policy makers to waste time and resources striving for the ideal of a new regional level of government in California. As an alternative, Mr. Eigerman suggests that California's most basic form of local government, the county, is a viable and logical focus for regional planning.

The Article first traces the …

The Outer Limits Of Human Genetic Engineering: A Constitutional Examination Of Parents' Procreative Liberty To Genetically Enchance Their Offspring, Thomas Stuart Patterson

UC Law Constitutional Quarterly

The biotechnological field of genetic engineering is advancing so rapidly that some scientists predict that within the next decade, technology will be available that will enable people to genetically engineer their offspring. This ability could be used for purposes as diverse as curing a genetic disease or selecting certain "favorable" characteristics for one's progeny.

While there seem to be some potential benefits to such technology, there are specific dangers as well. Throughout the short history of genetic engineering, scientists have found that there are sometimes unanticipated negative effects that arise with genetic manipulation. Because of this fact, some scientists are …

Neutrality Of The Equal Protection Clause, K. G. Jan Pillai

UC Law Constitutional Quarterly

Espousing colorblindness as the defining feature of the Equal Protection Clause, a bare majority of the Justices of the United States Supreme Court has outlawed almost all race and gender-conscious government programs such as affirmative action, legislative redistricting and school desegregation. The doctrinal foundation of colorblindness is government neutrality. Colorblindness also envisions vigorous enforcement of anti-discrimination laws as the substitute for race-conscious measures to achieve racial equality. However, equal protection neutrality remains amorphous, undefined and structureless, and it often provides a safe harbor for race disadvantaging laws that do not measure up to the Court's standard of invidious discrimination. Moreover, …

Russia's 1993 Constitution: Rule Of Law For Russia Or Merely A Return To Autocracy, Christina M. Mcpherson

UC Law Constitutional Quarterly

On March 26,2000, Vladimir Putin was elected president in Russia. He had been Russia's interim president since December 31,1999, when Boris Yeltsin stepped down in a surprising act. Putin was Yeltsin's final prime minister, appointed less than six months prior to becoming acting president.

Putin, as the next president of Russia, will be guided by Russia's 1993 constitution and by Yeltsin's example. This Note examines the process of adoption of the 1993 constitution and the way in which it has been implemented and followed over the last seven years. The Note suggests that the constitution was adopted and has been …

Separation Of Powers: The Appointment Of Bill Lann Lee As Acting Assistant Attorney General For Civil Rights, David L. Jordan

UC Law Constitutional Quarterly

This note asserts that President Clinton's naming of Bill Lann Lee as Acting Attorney General for Civil Rights, after the Senate's refusal to consent to his appointment, was a violation of the doctrine of separation of powers under Article II, Section 2, Clause 2 of the Constitution. The President was possessed of neither the Constitutional nor statutory authority to make Lee an "Acting" appointment. Without such authority, the President's actions contravene the principles of separation of power set forth in the Supreme Court's seminal holding of Youngstown Sheet & Tube Co. This conclusion is consistent with the intent of the …

The Rights To A Fair Trial And To Examine Witnesses Under The Spanish Constitution And The European Convention On Human Rights, Dennis P. Riordan

UC Law Constitutional Quarterly

In the wake of the death of dictator Francisco Franco in 1975, Spain enacted a new Constitution containing extensive procedural rights for criminal defendants, thereby in theory moving its justice system closer to the adverserial model of criminal trials long established in common law countries. In the years immediately following the passage of the 1978 Constitution, however, criminal proceedings continued to be inquisitorial in nature, especially in cases involving politically-charged allegations of domestic terrorism.

In this article, the author tracks one such case that had a dramatic impact on the Spanish legal system. Following their conviction for participating in a …

The Missing Pieces Of The Debate Over Federal Property Rights Legislation, Max Kidalov, Richard H. Seamon

UC Law Constitutional Quarterly

This Article analyzes the constitutionality of bills in Congress that would alter the two "ripeness" rules that the United States Supreme Court has developed for certain federal court lawsuits based on the Just Compensation Clause of the U.S. Constitution. The Court's ripeness rules apply when a property owner sues a local land-use agency in federal court claiming that the agency has "taken" property by severely restricting the property's use. One of the Court's rules requires the owner to get a final decision from the local agency regarding permissible uses of the property. The other rule requires the owner to exhaust …

The Constitutionality Of State And Local "Sanctions" Against Foreign Countries: Affairs State, States' Affairs, Or A Sorry State Of Affairs?, Brannon P. Denning, Jack H. Mccall Jr.

UC Law Constitutional Quarterly

Since the mid-1990s, many state and local governments have enacted a host of laws barring local governments' procurement of goods and services from persons doing business with certain pariah governments, including Burma (Myanmar), the People's Republic of China, Cuba, Nigeria and even Switzerland. Though ostensibly patterned after earlier laws, most notably longstanding "Buy American" laws and anti-apartheid laws of the 1980s, the latest wave of subnational sanctions statutes and ordinances is much broader in scope and application, raising troubling questions as to the constitutionality of such laws. An example is a Massachusetts statute forbidding the award of state contracts to …

Scared To Death: The Separate Right To Counsel At Capital Sentencing, John E. Spomer Iii

UC Law Constitutional Quarterly

To date, a separate right to counsel at the penalty phase of a capital trial is not recognized as fundamental under the Sixth Amendment right to counsel provision. This Note addresses a capital defendant's constitutional right to have a separate attorney represent him during the sentencing stage. The Supreme Court, in several significant holdings, has stepped towards recognizing this right. The Court has held that the right to counsel applies to capital trials and to all critical stages therein. It also has held that the right to effective assistance of counsel applies at the sentencing phase of these trials and …

Searching For The Structural Vision Of City Of Boerne V. Flores: Vertical And Horizontal Tensions In The New Constitutional Architecture, Thomas W. Beimers

UC Law Constitutional Quarterly

During the Rehnquist Court, America has witnessed accelerating federal judicial activism on behalf of States' rights, and a judicial branch that increasingly views itself as final arbiter of the proper allocation of power between the federal and State governments. Apologists for this trend identify it closely with perceived structural checks embedded in the Constitution, which are designed to ensure greater participatory access in self-governance. Despite this laudable goal, federalism-based precedents appear to conflict with civil rights legislation, such as the Americans With Disabilities Act and the Age Discrimination In Employment Act.

This article attempts to reconcile this apparent conflict by …

Global Responsibility And The United States: The Constitutionality Of The International Criminal Court, Shannon K. Supple

UC Law Constitutional Quarterly

In 1998, the United Nations finalized an International Criminal Court statute. The purpose of this statute was to create an international tribunal, through which the international community could investigate and, if required, prosecute crimes of genocide, war crimes, and crimes against humanity. An overwhelming majority of the United Nations delegates signed the statute, with a promise to bring the document back to their countries for ratification. The United States was one of only seven states to oppose the statute because, it claimed, it contained insufficient safeguards in light of the rights granted by the United States Constitution. This Note addresses …

Justice Harry A. Blackmun And The Responsibility Of Judging, Diane P. Wood

UC Law Constitutional Quarterly

No abstract provided.

Some Questions And Answers Concerning Justice Blackmun In Federalism And Separation Of Powers Cases, Vikram David Amar

UC Law Constitutional Quarterly

In this short article, Professor Amar analyzes some of Justice Blackmun's intellectual contributions in the fields of federalism and separation of powers. Professor Amar praises Justice Blackmun for asking the right kinds of questions regarding the interaction between governmental institutions in political processes. Professor Amar does, however, express some misgivings about the way these questions have been answered by the Court.

Justice Blackmun's Capital Punishment Jurisprudence, Malcolm L. Stewart

UC Law Constitutional Quarterly

Until his final term on the United States Supreme Court, Justice Blackmun adhered to the view that the Constitution permits the imposition of capital punishment, even though he expressed personal opposition to its use. In Callins v. Collins, however, Justice Blackmun took the position that the death penalty, as currently administered, is unconstitutional. This article traces the development of Justice Blackmun's capital punishment jurisprudence over the course of the Justice's tenure on the Court.

In early cases involving broad, systematic challenges to state capital sentencing regimes, Justice Blackmun consistently showed broad deference to legislative decisions regarding the proper administration of …

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

UC Law Constitutional Quarterly

Much has been made of Justice Blackmun's supposed transformation from a "Minnesota TWin" following in the footsteps of Chief Justice Burger to a member of the Supreme Court's liberal wing aligned with Justices Brennan and Marshall. The Justice was appointed at a time when crime control was a major concern both for the American people and for President Nixon, who had pledged to put "law and order" judges on the Supreme Court. Moreover, the Justice's years on the Court coincided with a retreat from a number of the Warren Court precedents that had broadened the constitutional rights afforded criminal defendants. …

Justice Blackmun's Federal Tax Jurisprudence, Robert A. Green

UC Law Constitutional Quarterly

During his tenure on the Supreme Court, Justice Blackmun was widely regarded as the Court's authority on tax matters. Justice Blackmun viewed tax law not merely as a technical specialty, but as a microcosm of the legal system. His numerous tax opinions involve a wide range of issues of constitutional law, criminal law, administrative procedure, court procedure, and statutory interpretation. This Article begins by discussing two of Justice Blackmun's tax opinions involving constitutional issues. Justice Blackmun refused to create special constitutional rules for tax cases. Instead, he applied generally applicable principles, but with great sensitivity to how those principles would …

The Author Of Roe, Radhika Rao

UC Law Constitutional Quarterly

In her commentary, Professor Radhika Rao focuses upon Justice Blackmun's landmark opinion in Roe v. Wade, exploring the ways in which the Justice shaped and was in turn shaped by the abortion conflict. After describing Roe, she sets forth and responds to a wide range of criticisms of the decision. She then turns her attention to several other abortion and privacy cases, drawing some general insights into Justice Blackmun's jurisprudence. She highlights Justice Blackmun's concern for factual context and his compassion for the real people behind the cases he decided. Professor Rao connects these qualities with Justice Blackmun's opinion in …

Intuition And Science In The Race Jurisprudence Of Justice Blackmun, Deborah C. Malamud

UC Law Constitutional Quarterly

In the field of race, Justice Harry A. Blackmun is most known for the stirring language in his opinions in Bakke and Weber in the late 1970s and Croson and Wards Cove in the late 1980s. After explaining why no race jurisprudence is made up of stirring language alone, Professor Malamud explores the development of Justice Blackmun's race jurisprudence from his years on the United States Court of Appeals for the Eighth Circuit to his final term on the Court. She paints a picture of a judge who did not always trust his own intuition in race cases, and who …

Justice Harry A. Blackmun: The Model Judge, Karen Nelson Moore

UC Law Constitutional Quarterly

No abstract provided.

Justice Blackmun And The Good Physician: Patients, Populations, And The Paradox Of Medicine, Ann Alpers

UC Law Constitutional Quarterly

Justice Blackmun made unique contributions to law and medicine. In particular, he had a vision of the relationship between doctors and patients that respected both the professional integrity of the physician and the autonomy of the patient. Examination of several of Justice Blackmun's opinions yields a nuanced view of the complex ties between professional care givers and the patients whom they serve. In particular, the Justice valued maintaining the confidentiality of medical information, respecting the role played by allied health professionals in providing comprehensive care to patients, and ensuring that patients gave informed consent to medical care. Most important, Justice …

Discrimination, Distribution, And City Regulation Of Speech, Katheleen M. Sullivan

UC Law Constitutional Quarterly

Cities are sometimes caught in a pincer movement between the First Amendment's twin requirements: if they restrict too much speech in public places, they may violate its requirement that some minimum distribution of speech be secured, but if they try to expand opportunities for speech by exempting particular speech or speakers from general laws, they may run afoul of the ban on content discrimination. The most prudent approach to speech regulation, therefore, would appear to be flat but narrow prohibitions. For example, sales of message-bearing merchandise are better regulated by a flat peddling ban in specified areas than by one …

California And Dillon: The Times They Are A-Changing, Manuela Albuquerque

UC Law Constitutional Quarterly

The development of the law regarding California local governments and their relationship to the state reflects a dichotomy between views of local governments as vehicles of self-determination on the one hand, and as obstacles to personal freedom on the other. The author argues that Dillon's rule, which provides that a local government is a creature of the legislature and has only those powers specifically conferred upon it by the state, has been specifically abrogated in the California Constitution as to both general law and charter cities. Through an analysis of cases interpreting California Constitution Article 11 Section 7, the author …

The Impact Of Fiscal Limits On Governance, John J. Kirlin

UC Law Constitutional Quarterly

Beyond limiting governmental revenues or expenditures, fiscal limits affect governance capacity, the ability to make and effectuate collective choices for a geographically bounded grouping of humans, sustained over time. These effects are visible in California's experience with Proposition 13 and other fiscal limits. Reductions in growth rates of revenues, a political culture constraining governmental action, and tighter constraints on fiscal choices combine to make governments less useful instruments of collective action.

Professor Kirlin argues that the indirect impacts of fiscal limits include diminished intelligibility, reduced visibility, and reduced accountability of governmental activities, yielding increased transaction costs for governments, citizens and …

The Burdens And Benefits Of Race In America, Charles J. Ogletree Jr.

UC Law Constitutional Quarterly

Beginning with the ideals expressed in the Declaration of Independence, America has promised its citizens "equality." The underlying assumption implicit in such ideals is that equal treatment is to be applied regardless of the race of individual citizens. Such an ambitious goal of color-blindness, however, ignores the reality of dual- Americas-one for the majority, and one for the rest-and consequently fails in its attempt at fulfilling the promise. This Article, based on the author's lecture at the 1996 Matthew 0. Tobriner Memorial Lecture, examines ways in which the problems of race have been and should be addressed in legal discourse. …

The Political Price Of The Independent Counsel Law, Joshua M. Perttula

UC Law Constitutional Quarterly

"The Political Price of the Independent Counsel Law" is a comprehensive study of Title VI of the Ethics in Government Act of 1978, commonly known as the independent counsel law.

The essay begins by detailing Kenneth Starr's current investigation into President Clinton's dealings with the Whitewater Development Company. The author includes the Whitewater example to illustrate the flaws in the current system. Next, the essay discusses the political climate that led to the creation of the Act, the procedural initiation requirements, and the constitutionality of the Act. After giving the reader a working background in the law, the author sets …

Reinventing Black Politics: Senate Districts, Minority Vote Dilution And The Preservation Of The Second Reconstruction, Terry Smith

UC Law Constitutional Quarterly

The United States Senate is an unsung power in the tripartite division of our constitutional government. Yet, through its advice and consent role in the appointment of federal judges, the Senate's actions permeate the separation of powers and the daily lives of Americans, at times eclipsing the authority of the President himself. One need only witness President Clinton's recent suurender of power to the G.O.P.- controlled Senate in the selection of a federal court of appeals nominee to the Ninth Circiut to understand the extraordinary power vested in this body. See Neil A. Lewis, Clinton Agrees to G.O.P. Deal on …

Welfare Reform Under The Personal Responsibility Act: Ending Welfare As We Know It Or Governmental Child Abuse, Nancy A. Wright

UC Law Constitutional Quarterly

In August of 1996, in an effort to "end welfare as we know it", Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("the Act"). The Act terminates welfare entitlement programs which have provided crucial safety nets for indigent families for the past sixty-two years. The Act also mandates that states impose work requirements and time limits on the length of time poor families can receive public assistance. In addition, the Act permits states to deny assistance to teenage mothers or to children born to parents more than ten months after the family went on welfare.

Since …

Fetal Homicide Laws: Shield Against Domestic Violence Or Sword To Pierce Abortion Rights, Alison Tsao

UC Law Constitutional Quarterly

Under the common law, the intentional killing of a fetus by a party other than the pregnant woman did not constitute murder. A child had to be born alive for homicide statutes to apply. The primitive state of medicine during the common law period necessitated this "born alive" rule because doctors could not determine whether a fetus was capable of independent existence before the baby was born. Nor could doctors accurately determine the cause of death of a fetus. The present sophistication of the medical profession has largely removed the difficulties in determining the exact stage of fetal development and …

Incitement By Any Other Name: Dodging A First Amendment Misfire In Rice V. Paladin Enterprises, Inc., Lise Vansen

UC Law Constitutional Quarterly

In this Comment the Author compares divergent applications of the Brandenburg "incitement" standard at the district and appellate court level in Rice v. Paladin Enterprises, Inc. The Author criticizes the district court's incitement analysis for failing to consider the extent to which context governs the meaning of language and the corresponding extent to which the instructions in Paladin's publication of the "Hit Man Manuals" could conceivably, uniquely constitute incitement under Brandenburg.

Ultimately, the Author argues that "at the heart of the district court's unexamined ruling ... is an incitement standard that needs reworking." Hence, the Author explores the usefulness, feasibility, …

Some Thoughts On Autonomy And Equality In Relation To Justice Blackmun, Pamela S. Karlan

UC Law Constitutional Quarterly

This article suggests that Justice Blackmun's contribution to the jurisprudence of sexual orientation lies in his integration of ideas of liberty and equality. Just as the requirement that laws be applied equally can serve to cabin their infringement on autonomy, so too the recognition of fundamental liberty interests can provide a stronger foundation for recognizing claims of equality.