Constitutional Law Commons^™

Supreme Court Voting Behavior: 1993 Term, Richard G. Wilkins, James L. Kimball Iii, Scott M. Peterson

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological learnings of the United States Supreme Court during the October 1993 Term. The Court adopted a more liberal approach to civil litigation involving state and federal governments, but it remained relatively conservative in its approach to criminal cases and statutory civil rights issues. Justice Kennedy emerged as the Term's most influential member in cases that were decided by a one-Justice majority; he was a member of the majority in all but one of the cases so decided. Justice Souter continued his gravitation to the liberal pole of the Court, and …

Exercising The Amendment Power To Disapprove Of Supreme Court Decisions: A Proposal For A Republican Veto, Thomas E. Baker

UC Law Constitutional Quarterly

Supreme Court Justices, in their role as interpreters of the Constitution, have often determined public policy. Professor Baker, however, suggests that Congress should have a "veto" over Supreme Court decisions where the Court sets public policy contrary to congressional intent.

By using the process to amend the Constitution delineated in Article V, Congress and the state legislatures can overrule Supreme Court decisions. Through the use of a veto, Congress, and not the Supreme Court, would have the final say in the interpretation of a statute and ultimately in setting public policy.

Safeguards are already in place to ensure that this …

Reinterrogation, Marcy Strauss

UC Law Constitutional Quarterly

There is no clear delineation under Miranda and Edwards of when the police may reinterrogate a suspect after ordinarily invoking the right to counsel. Logically, the prohibition cannot be indefinite. This would violate the public policy of enabling law enforcement personnel to control crime. The goals of Miranda, Edwards, and related cases establish several factors to be weighed in determining when the prohibition against reinterrogation should end. These include the length of time since the right to counsel was invoked, whether the new crime is related to the one for which the right to counsel was invoked, whether the suspect …

License To Sell: Constitutional Protection Against State Or Local Government Regulation Of Liquor Licensing, Shelley Ross Saxer

UC Law Constitutional Quarterly

A liquor license is a valuable asset to the license holder, whether it be considered a privilege or a property interest. Liquor licenses are subject to extensive state and local regulation because they trade in a product which has historically been deemed harmful to the public health, safety, welfare, and morals. Constitutional protection against regulation is available to licensees, but the extent of this protection will depend on whether or not the liquor license is considered to be a property interest. This Article examines attributes, such as the right to obtain and the right to alienate, that are attached to …

Crisis In California: Constitutional Challenges To Inadequate Trial Court Funding, Gabrielle Tracey Letteau

UC Law Constitutional Quarterly

Inadequate funding of government is neither a unique, nor a new problem. Recent and severe cuts made to court budgets, however, threaten to destroy one of the three sacred branches of government. In California and elsewhere, these budgetary pressures bring into question several constitutional issues, such as whether the legislative branch may withhold funding to the detriment of a co-equal branch of government, and whether individual rights to access the courts are guaranteed under state and federal constitutions. This Note attempts to address these issues by examining the nature of the current financial crisis in California and offering suggestions for …

Exposing Human Rights Abuses--A Help Or Hindrance To Reconciliation, Richard Goldstone

UC Law Constitutional Quarterly

Despite the advent of the "new world order," international human rights violations remain a widespread problem. The propensities for such abuses are seen most recently through the widespread violence and genocide encountered in Yugoslavia and Rwanda. In an effort to address such abuses, the United Nations established the International War Crimes Tribunal for the Balkan States and Rwanda. The chief goals of the Tribunal are to collect data and try those accused of war crimes. Justice Richard Goldstone, the Tobriner lecturer, is the Prosecutor of the Tribunal.

In his lecture, Justice Goldstone describes how "truth commissions" have been used to …

Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya

UC Law Constitutional Quarterly

Under the Fourth Amendment, when police officers use force, they must adhere to a "reasonableness" standard. This abstract standard, however, has left much room for interpretation, creating a common misperception of Fourth Amendment protections of personal security. Specifically, many courts use the concept of danger to decide whether force is reasonable-that is, force is justifiable so long as danger is posed to the police officers.

This Article argues that other factors-other than danger-should guide whether force is reasonable. Moreover, this Article provides specific guidelines to ascertain when the Fourth Amendment is violated.

Access To Eagles And Eagle Parts: Environmental Protection V. Native American Free Exercise Of Religion, Antonia M. De Meo

UC Law Constitutional Quarterly

The use of eagles and eagle parts, such as feathers and bones, are essential to Native American religious practices. The federal government has sought to protect American eagles through various mechanisms due to their endangered status. Under one such mechanism, Native Americans must undergo a lengthy and intricate permit process to receive eagles and eagle parts for use in religious ceremonies. Oftentimes, eagles and eagle parts are only released after periods and long as five years. Furthermore, when the needed eagles and eagle parts do arrive, they are often unfit for ceremonial use.

This Article addresses current problems with the …

State Immigration Laws And Federal Supremacy, Karl Manheim

UC Law Constitutional Quarterly

The current debate over the meaning of American federalism bears a striking resemblance to our founding struggle over states' rights. One stage where federalism continues to play out is the regulation of aliens and immigration. For most of our first century, immigration control was a state prerogative. But by the late nineteenth century, the Supreme Court equated immigration with foreign policy, thereby recognizing plenary and exclusive federal authority. This exclusivity operates to negate state power by both standard preemption doctrine and constitutional preclusion. In particular, preclusion forecloses state immigration laws even where Congress is silent since states have never possessed …

Supreme Court Voting Behavior: 1994 Term, Richard G. Wilkins, Scott M. Petersen, Matthew K. Richards, Ronald J. Tocchini

UC Law Constitutional Quarterly

This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1994 Term. Although generally perceived as a conservative institution, the Court this Term adopted a more liberal stance in its approach to First Amendment, statutory civil rights, jurisdictional and federalism issues, and in litigation involving the federal government. Furthermore, in close cases that were decided by a one-Justice majority, the Court overwhelmingly adopted a more liberal result. Justice Kennedy remained the most influential Justice, his vote determining the outcome in over 80% of these close cases. While some of this …

Waiver Of The Right To Appeal, Robert K. Calhoun

UC Law Constitutional Quarterly

Current plea bargaining practice increasingly includes a requirement that the defendant waive any right to appeal as a condition of the plea bargain. This relatively new negotiation tactic carries with it the potential for rendering criminal appeals nearly as rare a phenomenon- as criminal trials have become under the old model of plea bargaining. This could move us one step closer to an administrative model of criminal case resolution in which neither factual nor legal issues are resolved by the courts but rather by the parties through a process of negotiation.

This Article argues against this practice, maintaining that it …

Beyond Pinups: Workplace Restrictions On The Private Consumption Of Pornography, Peggy E. Bruggman

UC Law Constitutional Quarterly

While pornography in the public workplace has begun to raise First Amendment concerns, most commentary and jurisprudence has focused on the restriction of verbal speech or the posting of sexually explicit material in the workplace. In Johnson v. County of Los Angeles Fire Department, however, a federal district court struck down as violative of the First Amendment that portion of a sexual harassment policy which prohibited the private consumption of pornography in county firehouses. Using the Johnson decision as a basis for discussion, this Note argues that workplace regulations prohibiting the private reading and consensual sharing of sexually explicit material …

When Judges Impose The Death Penalty After The Jury Recommends Life: Harris V. Alabama As The Excision Of The Tympanic Membrane In An Augmentedly Death-Biased Procedure, Amy D. Ronner

UC Law Constitutional Quarterly

This Article examines the disturbing ramifications of sentencing statutes that allow a judge to override a jury's advisory life verdict and impose the death sentence, analyzes the importance of the jury in a criminal proceeding, its special function in the capital sentencing phase, and the ensuing devastation from a judge trumping a jury life verdict with death.

This Article then advances the position that jury override statutes do not spawn mere death bias, but actually an augmented death bias, and stresses the special significance of a jury life verdict issued in spite of that augmented death bias. This Article also …

Detained Aliens Challenging Conditions Of Confinement And The Porous Border Of The Plenary Power Doctrine, Margaret H. Taylor

UC Law Constitutional Quarterly

Serious problems are endemic to the conditions at INS detention facilities. Some detainees are crowded into understaffed INS detention centers. Others are shuttled off to local jails or private facilities, where the INS seldom inquires about their treatment and they are sometimes subjected to inhumane conditions. Attempts of detained aliens to challenge these conditions under the Due Process Clause generally have been thwarted. This article documents the unconscious evolution of a standard requiring detained aliens to allege "malicious infliction of cruel treatment" or "gross physical abuse" in stating a viable due process claim. This standard provides an incomplete measure of …

From Extreme Hardship To Extreme Deference: United States Deportation Of Its Own Children, Edith Z. Friedler

UC Law Constitutional Quarterly

United States citizens, who are children of aliens residing unlawfully in the country, are routinely deported with their parents. The courts, exercising an extreme deference to the decisions of the agency and to the acts of Congress in the area of immigration law, have abdicated their responsibilities in their role as guardians of the constitutional rights of these children. Although the courts have not granted children the same constitutional rights as those granted adults, cases involving de facto deportation of these children do not acknowledge the existence of even a procedural right of due process to protect the interest of …

Cameras In The Restroom: Police Surveillance And The Fourth Amendment, William O'Callaghan

UC Law Constitutional Quarterly

Everyone has occasion to use public restrooms at one time or another, and the recognition is commonplace that what activities take place are very personal. Nevertheless, there is a long history in this country of police surveillance of these areas. This Note discusses the expectation of privacy that should be accorded users of public restrooms in the context of police surveillance of those using public restrooms for sexual purposes. Of particular interest, Mr. O'Callaghan breaks down his analysis of the expectation of privacy in public restrooms into three areas: the common area, doorless stalls, and closed-door stalls.

Ten More Years Of Plenary Power: Immigration, Congress, And The Courts, Stephen H. Legomsky

UC Law Constitutional Quarterly

The Supreme Court has long applied a doctrine of special judicial deference to Congress in the area of immigration regulation. The precise degree of that special deference to plenary congressional power has varied by context and era, and continues to develop today. During the past decade, the author has published two companion pieces which study the history, theory, soundness, politics, and likely future course of the plenary power doctrine. In this essay, the author summarizes the conclusions reached in those two prior publications, synthesizes the judicial trends that have developed since that time, and revises his predictions in light of …

Counter-Demonstration As Protected Speech: Finding The Right To Confrontation In Existing First Amendment Law, Kevin Francis O'Neill, Raymond Vasvari

UC Law Constitutional Quarterly

On any given issue, groups with rival viewpoints may clamor for access to a particular forum at a particular moment in time. Public officials, alarmed by the prospect of clashing demonstrators, may seek to enjoin the simultaneous presence of opposing groups. Though counter-demonstration is an increasingly prevalent phenomenon, few cases address the First Amendment implications of such an injunction. Courts granting injunctive relief have relied on a spontaneous combustion thesis, concluding the abstract possibility of violence suffices by itself to justify banishing counter-demonstrators from the forum.

This Article asserts that the spontaneous combustion thesis is utterly inconsistent with First Amendment …

Hung Up On Semantics: A Critique Of Davis V. United States, Samira Sadeghi

UC Law Constitutional Quarterly

A suspect being interrogated by the police suddenly says, Maybe I should talk to a lawyer. What legal effect, if any, should this statement have? What procedure should the police follow upon such an invocation? The United States Supreme Court in Davis v. United States adopted a rigorous standard for suspects invoking their Miranda rights.

This Comment criticizes the Court's adoption of the so-called threshold of clarity approach and its conclusion that only clearly asserted invocations of counsel trigger any protection for suspects. The Court's heightened requirement of clarity unfairly places a higher burden upon suspects in an already intimidating …

When Juries Meet The Press: Rethinking The Jury's Representative Function In Highly Publicized Cases, Kenneth B. Nunn

UC Law Constitutional Quarterly

The increasing media saturation of society has altered the traditional roles and function of the jury in criminal trials. In several recent highly-publicized trials, most notably the Reginald Denny beating case, the jurors have been asked to publicly defend and explain their verdicts. In the past, jury verdicts were accepted as legitimate if the jury was representative of their community. Now, however, it seems that a jury must also be representative to their communities.

This new representative function of the jury has profound implications for the more traditional functions of the jury. For example, what effect does the new representative …

Killing Me Softly: Is The Gas Chamger, Or Any Other Method Of Execution, Cruel And Unusual Punishment, Peter S. Adolf

UC Law Constitutional Quarterly

Although people have debated the wisdom of the death penalty for centuries, little attention has been paid to the actual killing process. With the pace of executions in the United States increasing dramatically in recent years, courts have begun to grapple with the question of what the government can and cannot do in the process of lawfully killing someone. The decisions have been illogical and contradictory: at the time of this writing, hanging is permissible in Washington State and Montana, while California's gas chamber is unlawful "cruel and unusual punishment." The Supreme Court has never decided what the permissible limits …

Fourth Amendment Protection For Juvenile Probationers In California, Slim Or None: In Re Tyrell J., Lidia Stiglich

UC Law Constitutional Quarterly

The Supreme Court of California recently held in In re Tyrell J. that juvenile probationers are subject to random, suspicionless searches. This Comment analyses in detail the reasoning the court used to distinguish the level of suspicion required for juvenile probationers from that used for the population at large and offers some criticism of that logic. Moreover, Ms. Stiglich explores the rationales for probation and parole in general, and examines legal precedent for searches without probable cause of adult probationers and parolees and the relevance of consent to this analysis. To this end, the author discusses the Bravo, Martinez, and …

The Tightening Circle Of Membership, T. Alexander Aleinikoff

UC Law Constitutional Quarterly

No abstract provided.

Storytelling Out Of School: Undocumented College Residency, Race, And Reaction, Michael A. Olivas

UC Law Constitutional Quarterly

The recent wave of anti-immigrant sentiment has resulted in a revisitation of the rights of undocumented alien students. While each state has its own residency rules, a few states, including California, have precluded long-term undocumented alien students from establishing in-state residency for postsecondary tuition purposes. As a result, in most cases, students who are academically qualified to attend the state's institutions, whose only home is and has been within the state, and who otherwise function as full participants in the state's economy, are barred from attending the state's public institutions.

This article examines the legal and social implications of preventing …

A Bill Of Rights For The Twenty-First Century, Richard L. Nygaard

UC Law Constitutional Quarterly

This Essay was originally delivered as a speech to the Erie County Bar Association on Law Day, 1993. It examines the United States's and other countries' experiences with developing bills of rights and proposes a new bill of rights to be used by emerging democracies in the twenty-first century.

The Invidiousness Of Invidiousness: On The Supreme Court's Affirmative Action Jurisprudence, Mark Strasser

UC Law Constitutional Quarterly

The Supreme Court's invidious discrimination jurisprudence has manifested a pattern in which one sense of "invidious" is used in certain kinds of cases and a different sense in other (although relevantly similar) kinds of cases. The Court's decisions are inconsistent with respect to both when the Court will presume antipathy and to when the presence of antipathy will be either a necessary or a sufficient condition for a policy's unconstitutionality. Both patterns disadvantage minorities. Examples are offered from both higher education and employment contexts. It is exactly this kind of patterned, subtle alteration both of the meanings of key terms …

What Is The Court Trying To Establish: An Analysis Of Lee V. Weisman, Dina F. El-Sayed

UC Law Constitutional Quarterly

Lee v. Weisman marked a new turn in Establishment Clause jurisprudence. In Lee, the United States Supreme Court declared that prayers delivered as part of a public school graduation ceremony violate the Establishment Clause of the First Amendment. In holding the prayers unconstitutional, the Court invented a new framework for analyzing Establishment Clause cases-the coercion test. By invoking the coercion test without clarifying the status of the test previously developed in Lemon v. Kurtzman, the Court has left the law in a state of confusion. This Comment does not discuss whether graduation prayers should be constitutional. Rather, it criticizes the …

Standards Of Review And Constitutional Analysis Of Health Care Issues, Roy G. Spece Jr.

UC Law Constitutional Quarterly

No abstract provided.

Federalism And Judicial Review: An Update, Jesse H. Choper

UC Law Constitutional Quarterly

This Commentary argues that the Court decided New York v. United States incorrectly. The Court failed to take into account both the highly pragmatic nature of federal-state questions and the extent to which state interests are represented in the national political process. The Court, instead, should have followed the author's "Federalism Proposal" whereby all issues of federalism arising under the Tenth Amendment are deemed non-justiciable and are left to the political branches for resolution. This Commentary illustrates the shortcomings of the New York approach in the context of national health care regulation.

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Clause Hurdles, Candice Hoke

UC Law Constitutional Quarterly

Reform of health policy, via federal legislation appears to be a primary goal of both the President and Congress. Most of the leading bills introduced in 1993-94 attempt to utilize both state governmental power and the state fisc to achieve federal reforms, and many directly order state governments to enact appropriate legislation and execute the federal programs. After New York v. United States, national regulatory programs are subject to new scrutiny under the Tenth Amendment if they command state governments to implement federal programs. The Supreme Court has also cautioned against uses of the spending power that virtually compel state …