Constitutional Law Commons^™

Thomas Jefferson's Establishment Clause Federalism, David E. Steinberg

UC Law Constitutional Quarterly

Constitutional history can be used or misused. Historical analysis can provide insight into provisions shrouded in opaque language. But constitutional history also can be used to mislead, painting an intentionally distorted picture of people or events.

In the vast majority of its opinions analyzing the First Amendment's Establishment Clause that also include a historical account from Thomas Jefferson, the Supreme Court has consistently stated that Jefferson viewed the Establishment Clause as the embodiment of the church-state separation principle. However, if Jefferson were alive today and could read the Court's account of his views, he would be horrified. A distrust of …

Bans On Sex-Selective Abortions: How Far Is Too Far, Annie Moskovian

UC Law Constitutional Quarterly

"My mother in law always tells me I am useless because I do not have a son. If I do not have a son, she says, they will send me back to India." These words come from a qualitative study on son preference and fetal sex selection among Indian immigrants in the United States in which women expressed the pressure to have sons from in-laws and husbands. Census studies also indicate that many Chinese and Korean Americans terminate pregnancies if the fetus is of the undesired sex.

Further, studies imply that sex selection is not a practice that can be …

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

UC Law Constitutional Quarterly

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially …

The First Amendment In The Multicultural Climate Of Colleges And Universities: A Story Ending With Christian Legal Society V. Martinez, Blake Lawrence

UC Law Constitutional Quarterly

This article argues that the "limited public forum" analysis used by the United States Supreme Court in Christian Legal Society v. Martinez correctly addresses the competing concerns of students and university administration when approaching free speech and association on college and university campuses. It extensively analyzes the creation of the "limited public forum" analysis, explains why that particular analysis is illequipped for limiting high school speech, and comprehensively addresses the Christian Legal Society v. Martinez opinion. Further, weaknesses in the dicta of Christian Legal Society v. Martinez are analyzed and points made by dissenting Justices are critiqued.

Where California Went Wrong With The Amazon Tax: Application Of Due Process And Commerce Clause Jurisprudence To State Use Tax Collection Requirements Imposed On Out-Of-State Internet Retailers, Andrew T. Cannon

UC Law Constitutional Quarterly

California recently enacted legislation that aims to collect revenue from a novel source: out-of-state internet retailers. The statute achieves this goal by imposing greater responsibilities for collection of use taxes on these retailers. While the State's objective is laudable, the new law missed the mark from the start. The use tax collection law makes an exception for out-of-state online retailers that engage in their business through Google, Inc., an internet business having an obvious California nexus. This Note analyzes long-standing and recent case authority and legislative policy to provide an alternative that will better meet the State's needs.

Media Liability For Incitement And True Threats Under California Abortion Provider Privacy Law, Aditi Mukherji

UC Law Constitutional Quarterly

To keep up with the evolving methods of radical antiabortion tactics in the digital age, the California Legislature enacted Government Code Section 6218 and related provisions. The statute imposes civil penalties on any person who posts online specific personal information about abortion providers or patients with the intent to threaten or incite violence against a provider or patient. Apart from Section 6218.01, however, Section 6218 does not expressly confront the issue of media liability under the statute. This Note explores the probable result of a Section 6218 claim were a member of the press to releases personal information online about …

The Elephant In The Room: Gonduct, Groups, And Lawrence V. Texas, Elliot Wong

UC Law Constitutional Quarterly

In its landmark 2003 decision of Lawrence v. Texas, the United States Supreme Court articulated that a ban on homosexual sexual conduct had a meaningful and negative effect on the lives of homosexuals. So significant was the effect on homosexuals that ultimately the Court declared the ban on the underlying conduct unconstitutional.

Following Lawrence, courts and commentators have questioned the true effects of the Court's broad language. The Court's opinion relies heavily on the adverse practical effect the ban had on homosexual persons. But what exactly did Texas' unconstitutional law really target? Was it homosexuals as a group, was it …

Routine Body Scanning In Airports: A Fourth Amendment Analysis Focused On Health Effects, Rebekka Murphy

UC Law Constitutional Quarterly

In the beginning of 2011, the United States Transportation and Security Administration ("TSA") gave notice that it would begin using Advanced Imaging Technology ("AIT") to screen all passengers travelling in airports. While the TSA has an unquestionably important function of detecting on-body explosives and thereby augments flight safety, the use of AIT has been controversial and has raised health concerns. This Note analyzes the special needs doctrine and argues TSA officials must have a reasonable suspicion before scanning passengers so long as AIT health effects are not properly understood. Until independent scientific research can establish that advanced imaging technologies do …

California And The Future Of Partial Match Dna Investigations, Jenny Choi

UC Law Constitutional Quarterly

Though DNA testing has been successfuly used in the United States since the 1980s, many high profile prosecutions have thrust this forensic tool into general acceptance as well as the public consciousness. In 2008, California broke new forensic ground, authorizing "partial match" DNA testing to augment the arsenal of law enforcement tools. This proactive technique has yielded substantial results, but has also opened the door to criticism.

This Note analyzes the history of DNA testing in California and nationally, including the progression towards partial match testing. This Note also considers constitutional, social, and policy concerns raised by the use of …

Mutual Fund Sales Notice Fees: Are A Handful Of States Unconstitutionally Exacting $200 Million Each Year, David M. Geffen

UC Law Constitutional Quarterly

This article examines the constitutionality of notice filing fees in six states. Although almost every state requires such fees to be paid by mutual funds, six of these states require fees that are highly disproportional to the amount of shares traded within their states. The filing fees in these states, accounting for 50 percent of the total paid nationwide, are considered as either "regulatory fees" or state taxes.

Regardless of whether these fees are categorized as regulatory fees or state taxes, they are unconstitutional under either the Due Process Clause or Commerce Clause of the Constitution. Not only would these …

Tavern Talk And The Origins Of The Assembly Clause: Tracing The First Amendment's Assembly Clause Back To Its Roots In Colonial Taverns, Baylen J. Linnekin

UC Law Constitutional Quarterly

The First Amendment to the Constitution is "a cluster of distinct but related rights." The freedom of assembly protected therein is one right that Americans exercise every day. With perhaps the exception of speech, assembly is the most widely and commonly practiced action that is enumerated in the Bill of Rights.

This freedom is also one of our least understood and least considered rights. Sometimes ignored and other times grouped with other freedoms, the right of those in America to come together peaceably deserves to be studied, respected, and celebrated.

To better understand the freedom of assembly in America, one …

God In The Deductions: Tax Deductions For Religion And The Future Of Taxpayer Standing For Establishment Clause Challenges, Drew G. Stark

UC Law Constitutional Quarterly

Tax expenditure theory proposes that the Supreme Court not treat tax deductions any differently than direct expenditures. Such analysis is complicated by the fact that taxpayers typically do not have standing unless they can assert an individual and personalized injury. However, Establishment Clause jurisprudence has a narrow exception allowing taxpayers to establish standing without showing personal injury.

While the Supreme Court has revisited this exception several times since its creation, it has yet to address whether it applies to challenges against tax deductions. In cases that involve tax credits, exemptions, or deductions, the Court has either found standing or neglected …

Resuscitating Roberts - How Courts Should Construe The Emergency Exception To The Sixth Amendment's Confrontation Clause, Sloan A. Heffron

UC Law Constitutional Quarterly

This paper argues that in the wake of Crawford, Davis, and Bryant, trial courts need a workable definition of "ongoing emergency," as well as a test that can be applied in assessing the admissibility of statements made under such circumstances. The paper first offers a definition for "ongoing emergency". It then offers a totality-of-the-circumstances test that can be applied in determining if a declarant's statement occurs during the course of an ongoing emergency.

Making A Mountain Out Of A Molehill - Marbury And The Construction Of The Constitutional Canon, Keith E. Whittington, Amanda Rinderle

UC Law Constitutional Quarterly

This article challenges the notion that Marbury v. Madison was a critical case immediately after the Supreme Court issued its decision in 1803. The article performs an empirical analysis of the quantity and quality of citations invoking Marbury over the years to determine its importance and impact at various points in American history. Additionally, the article looks at how the case has been, and continues to be used by courts.

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

UC Law Constitutional Quarterly

In DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court definitively terminated the possibilities of taxpayer standing previously opened by the Warren Court in Flast v. Cohen.

under the U.S. Constitution governing state taxes and outlays. This body of constitutional law will be beyond the direct review of the U.S. Supreme Court because that Court has rejected state taxpayer standing in the federal courts.

State court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenge. Consequently, these state-friendly cases under the U.S. Constitution, …

A Constitutional Dilemma For Cities Seeking To Regulate Day Labor Solicitation, Monica Smith

UC Law Constitutional Quarterly

In 2011, the Ninth Circuit invalidated a Redondo Beach municipal ordinance that prohibited individuals from standing on streets or sidewalks and soliciting work, business, or contributions from passing vehicles. The court determined that the law was a facial restriction of speech that did not advance the achievement of the city's stated interest.

This note examines the unsettling gaps in the law as a result of the decision. Although undoubtedly a victory for day laborers, the court's holding potentially precludes any future statute seeking to legitimately regulate such day labor solicitation. Unless crafted with tremendous care, there is a strong likelihood …

Herding Katz: Gps Tracking And Society's Expectations Of Privacy In The 21st Century, Zachary Gray

UC Law Constitutional Quarterly

For nearly forty-four years, the Supreme Court has adhered to the same test for its Fourth Amendment jurisprudence, first announced in Justice Harlan's concurrence in Katz v. United States. Despite the judiciary's steadfast use of the test since its enunciation, the decisions since Katz have been anything but consistent.

Most recently, this nation's federal courts were confronted with questions about the legitimacy of using GPS tracking devices. In its attempt to resolve the issue, the Supreme Court's decision in United States v. Jones strayed from applying Katz and instead relied on the common-law trespass doctrine.

In an attempt to determine …

Tea Party Constitutionalism: Does The Astroturf Have Roots In The History Of The Constitution, Ryan D. Murphy

UC Law Constitutional Quarterly

In 2009, the Tea Party was born-a movement that in just over a year captured a United States senate seat and more than 700 state legislature seats. The movement is a controversial force in American politics, with some arguing that the group merely challenges the moderate tendencies of the Republican Party, while others say it is merely a set of individuals acting at the whims of billionaire backers.

This note argues that the background of the Tea Party is not an originalist movement, as is often claimed, but is instead rooted in Jacksonian populism. Specifically, in assessing the movement's views …

Excessive Public Defense Workloads: Are Aba Standards For Criminal Justice Adequate, Norman Lefstein

UC Law Constitutional Quarterly

Excessive caseloads among public defenders in the United States is a pervasive national problem, which not only often prevents lawyers from furnishing their clients competent and diligent representation as required by rules of professional conduct but also jeopardizes the quality of justice in criminal and juvenile courts. Although the American Bar Association has addressed the problem in various policy statements, including its Criminal Justice Standards, Professor Lefstein argues that there are still issues that are not adequately covered. Specifically, he argues that the ABA should consider the development of standards that (1) authorize defenders to refuse to provide representation when …

Conflicts Over Conflicts: Challenges In Redrafting The Aba Standards For Criminal Justice On Conflicts Of Interest, Laurie L. Levenson

UC Law Constitutional Quarterly

Currently, an ABA Task Force faces the considerable challenge of redrafting the ABA Standards for Criminal Justice. Prosecutors and defense counsel need clear guidance on how to handle conflicts of interest rules. However, the initial challenge is in identifying those questions a code of ethics should answer when it comes to conflict situations. With the help of prominent lawyers, academics and judges who participated in a series of roundtables on the new ABA standards, this article identifies forty of the key questions to ask about conflicts of interests. These questions allow real progress to be made toward creating a code …

Witness Preparation: Regulating The Profession's Dirty Little Secret, Roberta K. Flowers

UC Law Constitutional Quarterly

Although all attorneys understand that coaching a witness to testify falsely is unethical, additional ethical restraints surrounding witness preparation in criminal cases are not clearly defined by case law, rules of professional conduct or even the newly drafted Criminal Justice Standards for Prosecutors and Defense Attorneys. Many have suggested that the line between proper witness preparation and improper witness coaching is not clear. This article explores some of the gray areas of the practice of witness preparation and why criminal attorneys from both sides of the aisle need guidance on permissible and impermissible conduct in this routine practice of criminal …

Prosecuting Terrorism: The Material Support Statute And Muslim Charities, Michael G. Freedman

UC Law Constitutional Quarterly

The federal law prohibiting the provision of material support to terrorist organizations has been no stranger to controversy. From its politically charged origins through its repeated amendment after September 11, 2001, it has remained an important, but often critiqued, weapon in the government's legal response to terrorism. The most prominent legal challenge to the law lasted over a decade. It culminated in June 2010, when the United States Supreme Court upheld the constitutionality of the law in Holder v. Humanitarian Law Project. The Court's opinion, however, correctly recognized that important questions remain unresolved.

One such question, which this Note addresses, …

Reconciling Parliamentary Sovereignty And Judicial Review: On The Theoretical And Historical Origins Of The Israeli Legislative Override Power, Rivka Weill

UC Law Constitutional Quarterly

It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, Israel's constitutional system, prior to the famous 1995 United Mizrahi Bank decision, offers an affirmative answer to this question.

This article focuses on Israel's constitutional experience during its founding period. It further explains the unique revolutionary role performed by …

Closing The Door On Misconduct: Rethinking The Ethical Standards That Govern Summations In Criminal Trials, Daniel S. Medwed

UC Law Constitutional Quarterly

Closing argument is the most pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant's guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion-and that emotionally laden rhetoric can distract people from making rational choices.

Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the …

Confidentiality And Disclosure: What The New Aba Criminal Justice Standards (Don't) Say About The Duties Of Defense Counsel, Cecila Klingele

UC Law Constitutional Quarterly

Although the duty to keep client confidences is one of a defense lawyer's defining characteristics, there are times when a lawyer will disclose otherwise confidential information to protect the safety of third parties, convey information to successor counsel, or defend against claims of ineffective assistance. Although disclosure in such instances is sometimes mandated by state professional ethics codes, more often the decision to disclose is left to the discretion of the individual lawyer. One of the few formal resources that offers guidance to defense counsel in making disclosure decisions is the American Bar Association's Criminal Justice Standards for the Defense …

Every Step You Take, They'll Be Watching You: The Legal And Practical Implications Of Lifetime Gps Monitoring Of Sex Offenders, Sarah Shekhter

UC Law Constitutional Quarterly

In 2006, California voters passed Proposition 63 ("Jessica's Law") which, among other provisions, required lifetime GPS monitoring of sex offenders. So far, California has only succeeded in fixing GPS devices to registered sex offenders on parole, yet this already constitutes the largest use of GPS monitoring anywhere in the world. A proper analysis of the constitutional issues surrounding electronic surveillance of parolees, probationers, and the released is warranted before further implementation.

This note explores past constitutional challenges to surveillance technology and sex offender legislation, applying their analyses to lifetime monitoring of sex offenders. It concludes that lifetime GPS monitoring threatens …

Waiving Goodbye To Rights: Plea Bargaining And The Defense Dilemma Of Competent Representation, Jane Campbell Moriarty, Marisa Main

UC Law Constitutional Quarterly

The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant's proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993; the changes in the practice since that time; and the proposed changes to the Standards. The article focuses on the complex …

The Case For A Commerce Clause Challenge To State Antitrust Laws Banning Minimum Resale Price Maintenance, Barbara O. Bruckmann

UC Law Constitutional Quarterly

This article explores the circumstances under which inconsistent state antitrust regulation of minimum resale price maintenance (or RPM) may be unconstitutional under the dormant Commerce Clause. In particular, a handful of states purport to prohibit RPM and thus conflict with the substantive treatment of RPM under the antitrust laws of other states. This conflict among the states stems from the Supreme Court's recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), in which the Court overturned its near-century old prohibition under the Sherman Act, and held instead that RPM should be assessed under a …

California Penal Code Sec. 270.1: A Constitutionally Impermissible Attempt To Combat Truancy, Alison Cordova

UC Law Constitutional Quarterly

In the 2008-2009 academic school year, over a quarter of the California public school student population was truant. There is a well established correlation between truancy and dropping out of high school. And high school dropouts make up over three quarters of the prison population of the State of California.

Responding to this alarming domino effect, the California Legislature enacted Penal Code section 270.1 in September, 2010. This statute imposes criminal liability on parents of chronically truant students for not encouraging or supervising their child's school attendance. While the aim of this law is clearly to attack criminality before it …