Constitutional Law Commons^™

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 …

Doing It With Mirrors: New York V. United States And Constitutional Limitations On Federal Power To Require State Legislation, Martin H. Redish

UC Law Constitutional Quarterly

This Commentary points out that the decision in New York v. United States is flawed because the Court improperly equated the "enclave" model of federal power, which recognizes defined areas of state sovereignty, with the "enumerated powers" model, which merely inquires whether federal action falls within the scope of the federal government's enumerated power. Due to its structure, the Tenth Amendment should be analyzed solely under the "enumerated powers" model. This Commentary suggests that the limits of federal power over the states are properly found in and defined by the Commerce Clause.

Reply To Professor Brewbaker, Thomas W. Merrill

UC Law Constitutional Quarterly

No abstract provided.

Rejoinder To Professor Merrill, William S. Brewbaker Iii

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Challenges To Bans On Assisted Suicide: The View From Without And Within, Robert A. Sedler

UC Law Constitutional Quarterly

This Article analyzes constitutional challenges to bans on "assisted suicide" from the dual perspectives of an academic commentator and a constitutional litigator. The focus is on the application of such bans to the terminally ill. An absolute ban on the use of physician-prescribed medications by a terminally ill person to hasten that person's inevitable death, if and when the person chooses to do so, is an "undue burden" on that person's constitutionally protected liberty interest in personal autonomy. The "preserving life" justification typically asserted for bans on assisted suicide is insufficient in the case of a terminally ill person because …

Out, Out Brief Candle: Constitutionally Prescribed Suicide For The Terminally Ill, Thomas J. Marzen

UC Law Constitutional Quarterly

Proponents of assisted suicide claim a constitutional right for competent adults with terminal conditions or unbearable suffering to receive a physician-prescribed lethal dose of drugs. Critics respond that any such right cannot be confined to such narrow categories in view of the abortion and withdrawal-of-treatment precedents and the force of reason and experience. Beyond the "slippery slope" that any constitutionally protected liberty to assisted suicide portends, such an asserted right has no historical basis and cannot be derived from principals implicit in the Fourteenth Amendment to the Constitution. The claim that "rational" assisted suicide is a right presumes a set …

Womb For Rent: Norplant And The Undoing Of Poor Women, Jeanne L. Vance

UC Law Constitutional Quarterly

In a desperate effort to cut government costs, many state legislators have introduced bills that would pay women on welfare to be surgically implanted with the longlasting contraceptive Norplant. This Note explores the constitutionality of these proposals by analyzing traditional and developing privacy law, the interplay between constitutional rights and the receipt of public benefits, and the equal protection doctrine as it applies to gender classifications. This Note argues for a constitutional interpretation that takes into account social conditions behind legislation and concludes that, under any of these doctrines, the described proposals would be unconstitutional.

Tribute To Professor William B. Lockhart, Mary Kay Kane

UC Law Constitutional Quarterly

No abstract provided.

The Constitution Of The Czech Republic Of 1992, George E. Glos

UC Law Constitutional Quarterly

The Czech Republic adopted a new constitution in 1992, following the division of Czechoslovakia into the Czech and Slovak Republics. In many ways the Constitution of 1992 recalls the formative days of Czech democracy, when the country was born in the aftermath of World War I. Today's constitution is largely based on the Czechoslovak Constitution of 1920, yet follows a long period of inattention to constitutional issues. The author, now, with the Library of Congress, received his legal training in Czechoslovakia. In this Article, he elucidates the basic tenets of the new constitution, and, in the process, compares it with …

Presidential Defiance Of Unconstitutional Laws: Reviving The Royal Prerogative, Christopher N. May

UC Law Constitutional Quarterly

The yet to be authorized 'line item veto' advocated by recent administrations pales in comparison to the 'absolute item veto' already wielded by an 'Imperial Presidency'. When the Executive refuses to enforce disfavored statutes, the effect is a veto without Congressional override. Can such a power be reconciled with our government scheme? A review of the Framer's intent shows that it was believed that the Constitution conferred on the Executive no general power to avoid enforcing unconstitutional statutes. Rather, the Executive must work within the parameters of its grant to achieve its objectives.

Evidence of presidential defiance can be traced …

Minnesota Burning: R.A.V. V. City Of St. Paul And First Amendment Precedent, Jeffrey M. Laurence

UC Law Constitutional Quarterly

The Supreme Court has long held that it would strictly scrutinize restrictions which burdened protected speech based on the content of the speech. In the past, fighting words have been considered as having such slight social value that they did not merit First Amendment protection. In R.A.V., the Court entered uncharted First Amendment territory when it added an underinclusiveness standard to the content based test. Under the new standard, St. Paul, Minnesota's hate speech law was found invalid as viewpoint discrimination aimed at a subset of fighting words.

The test adopted by the majority is problematic. Contrary to the majority's …