Constitutional Law Commons^™

Constitutional Law - United States V. Goldberg: The Third Circuit's Nontraditional Approach To Waiver Of The Sixth Amendment Right To Counsel, Jennifer Elizabeth Parker

Villanova Law Review (1956 - )

No abstract provided.

Bras V. California Public Utilities Commission: Using Economic Realities To Establish Standing And Challenge Goal-Based Affirmative Action, David J. Antczak

Villanova Law Review (1956 - )

No abstract provided.

New Federalism And Constitutional Criminal Procedure: Are We Repeating The Mistakes Of The Past?, James W. Diehm

Maryland Law Review

No abstract provided.

Physician-Assisted Death: An Essay On Constitutional Rights And Remedies, Sylvia A. Law

Maryland Law Review

No abstract provided.

The Promise Of State Constitutionalism: Can It Be Fulfilled In Sheff V. O'Neill, Gayl Shaw Westerman

UC Law Constitutional Quarterly

Sheff v. O'Neill, which is to be decided by the Connecticut Supreme Court this year, is the first case in two decades to challenge the doctrine and rationale of federal school desegregation cases, i.e., that a metropolitan-wide remedy cannot be employed to cure metropolitan-wide school segregation unless state action, infused with discriminatory intent has caused such segregative conditions. The Sheff case is considered a landmark case because it is the first to challenge the federal approach in a state court on the basis of state constitutional provisions alone.

This Article argues that the federal state action discriminatory intent, causation standard …

Good Kids, Bad Kids: A Revelation About The Due Process Rights Of Children, Cecelia M. Espenoza

UC Law Constitutional Quarterly

In the case of Reno v. Flores, the United States Supreme Court held that the indefinite detention of unaccompanied, immigrant children without a mandatory hearing before an immigration judge did not violate the children's substantive or procedural due process rights. To fully examine the procedural and substantive due process rights of these children, the Article engages in an analysis of children's due process rights in general, and then places the Reno v. Flores decision in context.

Confusion In The Courts: The Failure To Tax Punitive Damages Uniformly In Personal Injury Cases, Margaret L. Thum

UC Law Constitutional Quarterly

This Note compares recent circuit cases reaching different opinions on whether punitive damages received on account of personal injuries are taxable under Internal Revenue Code section 104(a)(2). These differing opinions result in disparate taxation of federal taxpayers that violates the rule of uniformity in Article I, section 8, clause 1 of the United States Constitution. To provide a remedy, this Note proposes a rule to encourage the uniform application of federal income tax statutes.

The Hamlet Fallacy: Computer Networks And The Geographic Roots Of Obscenity Regulation, Randolph Stuart Sergent

UC Law Constitutional Quarterly

Juries currently can find sexually oriented material to be obscene based on the community standards of the locality in which they reside. To determine whether sexual material that is transmitted over an international computer network is criminally obscene, one must comprehend the local community standards of every locality in the United States. The Supreme Court's use of this "local community standards" rule reflects a view of the local community as a relatively homogenous society in a distinct, geographically defined locality. When applied to international communications networks, this standard will excessively "chill" speech that is otherwise protected by the First Amendment. …

Reflections On The Proposed United States Reservations To Cedaw: Should The Constitution Be An Obstacle To Human Rights, Ann Elizabeth Mayer

UC Law Constitutional Quarterly

The United States Constitution enjoys a special, sacred status that encourages the United States to treat its constitutional rights standards as definitive and therefore entitled to override conflicting standards in human rights treaties. When ratifying human rights treaties, the United States has entered reservations that are designed to ensure that constitutional rights standards will remain in force, even when they are less protective of rights than their international counterparts. Where women's rights are concerned, the United States has effectively rejected the international standard of equality for women, upholding instead the intermediate-tier standard developed under the Equal Protection Clause. Reluctant to …

The Casey Undue Burden Standard: Problems Predicted And Encountered, And The Split Over The Salerno Test, Ruth Burdick

UC Law Constitutional Quarterly

In June 1992, the United States Supreme Court in Planned Parenthood v. Casey struck down the trimester framework of Roe v. Wade and replaced it with an undue burden standard to test the constitutionality of state abortion regulations. Several commentators predicted that the lower court application of the undue burden standard would be troublesome, and criticism of the standard became widespread. Since the Casey decision, the undue burden standard has now been utilized in a total of thirteen cases, and has been reviewed by four circuit courts.

This Note analyzes the Casey undue burden standard as implemented by the lower …

The Impact Of The Proposed California Civil Rights Initiative, Erwin Chemerinsky

UC Law Constitutional Quarterly

This article assesses the impact of the proposed California Civil Rights Initiative ("CCRI"). If enacted, the CCRI will eliminate a vast array of programs designed to remedy past discrimination and advance equality of opportunity. Although the CCRI abolishes preferences based on race or gender, the term "preferences" is not defined. There is a risk that courts will give the term a broad construction and an even greater risk that governments voluntarily will forego affirmative action programs of all sorts to avoid litigation. Additionally, the CCRI will expand the legal authority for gender discrimination because it expressly permits gender to be …

Understanding Affirmative Action, David Benjamin Oppenheimer

UC Law Constitutional Quarterly

This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports …

Equal Protection, Unequal Political Burdens, And The Ccri, Vikram D. Amar, Evan H. Caminker

UC Law Constitutional Quarterly

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as …

And To The Republic For Which It Stands: Guaranteeing A Republican Form Of Government, Catherine A. Rogers, David L. Faigman

UC Law Constitutional Quarterly

Article IV, Section 4 of the Constitution was intended to safeguard against instability and oppression of voting minorities and to provide a check on factious majorities through a system of representative democracy. The state initiative process directly undermines these principles by allowing measures such as the CCRI to be enacted via direct vote of a largely uninformed population. This "direct democracy" violates the guarantee of a republican form of government in its lack of formal deliberation and debate, absence of opportunity to compromise, polarization of views, deception, and ultimate voter confusion.

This Essay also addresses the arguments in favor of …

Merit-Teaching, Yxta Maya Murray

UC Law Constitutional Quarterly

Professor Yxta Maya Murray explores the notion of Merit-Teaching - the expansion of our current ideas of merit through the inclusion of the virtues and values of "Outsiders." Using insights developed by Aristotelian moral philosophers, critical race theorists, and feminist legal theorists as her guide, Professor Murray investigates Outsiders' particular virtues, and thus merits, that are forged from the experiences of oppression. Professor Murray brings these lessons into relief through the use of storytelling - her rendition of the life stories of her grandmother, her mother, and herself - which demonstrate Outsider virtue in action.

Failure Of The Color-Blind Vision: Race, Ethnicity, And The California Civil Rights Initiative, Neil Gotanda

UC Law Constitutional Quarterly

Advocates for the California Civil Rights Initiative have argued that they seek racial justice in a color-blind society. In this Article, Professor Gotanda first analyzes race color blindness to show that the color-blind vision is far from a truly open and just vision, but instead undermines efforts to achieve genuine social justice. The second section examines Hopwood v. Texas, a recent Fifth Circuit decision, and concludes that the majority opinion pursues an extremist color-blind vision which would deny any validity to the history and culture of women or racial and ethnic minorities. The third section examines the textual language of …

Supreme Court Voting Behavior: 1995 Term, Richard G. Wilkins, Matthew K. Richards, Scott Worthington

UC Law Constitutional Quarterly

This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms. The 1995 figures reveal a Court in ideological tension. Although some statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state …

Protective Orders In The Bankruptcy Court: The Congressional Mandate Of Bankruptcy Code Section 107 And Its Constitutional Implications, William T. Bodoh, Michelle M. Morgan

UC Law Constitutional Quarterly

It is a well-established principle of First Amendment and common law jurisprudence that a proceeding before and all papers filed with a court, particularly in the criminal context, are open to the public. Subsection 107(a) of the Bankruptcy Code codifies this public access doctrine by creating a presumption in favor of public access to all papers filed in a bankruptcy case. The subsection 107(a) presumption is, however, rebuttable. As a result, if a party in interest shows that the material sought to be protected contains a trade secret or confidential information, or is scandalous or defamatory, the bankruptcy court must …

The Allure And Danger Of Community Values: A Criticism Of Liberal Republican Constitutional Theory, Kenneth Ward

UC Law Constitutional Quarterly

This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.

The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain how the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to …

Constitutionality Of English-Only Provisions In The Public Employee Speech Arena: An Examination Of Yniguez V. Arizonans For Official English, Michael Albert Thomas Pagni

UC Law Constitutional Quarterly

This Note addresses a significant but rarely examined issue concerning whether a state may constitutionally require the exclusive use of the English language by its employees while performing official acts on behalf of the State. The Note focuses on the approach employed by the Ninth Circuit in determining the constitutionality of Article XXVIII of Arizona's Constitution, arguably the most restrictive of the state provisions regulating language rights, in the recent decision of Yniguez v. Arizonans for Official English. The Note concludes that not only did the majority misapply the overbreadth and public employee speech doctrines, it subsequently failed to identify …

United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

A Return To Owen: Depersonalizing Section 1983 Municipal Liability Litigation, Barbara Kritchevsky

Villanova Law Review (1956 - )

No abstract provided.

Mcdaniels V. Flick: Terminating The Employment Of Tenured Professors - What Process Is Due, Corinne D. Kruft

Villanova Law Review (1956 - )

No abstract provided.

Introduction To Symposium, The New Federalism After United States V. Lopez, Jonathan L. Entin

Faculty Publications

Introduction to Symposium, The New Federalism After United States v. Lopez, Cleveland, Ohio, 1996.

Cary V. Riss: Protecting Due Process Concerns In West Virginia Probate, Chad S. Lovejoy

West Virginia Law Review

No abstract provided.

California's Proposition 187 - Does It Mean What It Says - Does It Say What It Means - A Textual And Constitutional Analysis, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Toward A Religious Minority Voice: A Look At Free Exercise Law Through A Religious Minority Perspective, Samuel J. Levine

Scholarly Works

Legal scholars have recently advanced theories emphasizing the importance of perspectives in the law. Perspective scholarship recognizes that laws are necessarily shaped by society's dominant forces, including its biases and preconceptions. Perspective scholars attempt to understand how these forces have shaped our laws, and they suggest changes to accommodate those affected by society's biases. In this Article, Professor Levine introduces the concept of a religious minority perspective. He develops the concept of a religious minority perspective in the context of several, prominent Free Exercise cases. Professor Levine discusses these cases in his presentation of the central themes of a religious …

The Evolution Of Race In The Law: The Supreme Court Moves From Approving Internment Of Japanese Americans To Disapproving Affirmative Ation For African Americans, Reggie Oh, Frank Wu

Michigan Journal of Race and Law

As the Court suggests, the Korematsu precedent is crucial to the Adarand decision. In Adarand, the Court analyzes Korematsu in depth, acknowledging that its own judgment had been mistaken in the internment cases, instead of simply citing the decisions as it formally had done until the very recent past. The Court nevertheless fails to appreciate the differences between Korematsu and Adarand, and in particular the consequences of using "strict scrutiny" for all racial classifications. This essay explores the complex relation-ship between Korematsu and Adarand, and offers a critique of the reasoning used in both cases. The essay …

Drawing The Line On Incumbency Protection, Sally Dworak-Fisher

Michigan Journal of Race and Law

In an effort to fill the void in scholarly debate and legal analysis, this Note evaluates incumbency protection as a redistricting principle and analyzes its treatment in various court opinions. After arguing that protecting incumbents is not a legitimate redistricting objective, this Note illustrates how the Supreme Court and lower federal courts have been reluctant to pass judgment on incumbency protection. This Note contrasts this "hands-off" approach to the strict scrutiny afforded claims of racial gerrymandering and argues that such an approach enables incumbents to manipulate the Voting Rights Act for their self-interest. Additionally, this Note argues that incumbents, a …