Constitutional Law Commons^™

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.

Signs Of Danger - The Third Circuit Emphasizes Foreseeability As The Crucial Element In The State-Created Danger Theory: Morse V. Lower Merion School District, Christina M. Madden

Villanova Law Review (1956 - )

No abstract provided.

Weighing The Listener's Interests: Justice Blackmun's Commercial Speech And Public Forum Opinions, William S. Dodge

UC Law Constitutional Quarterly

Justice Blackmun's commercial speech and public forum opinions reflect a distinctive balancing approach that takes seriously the listener's interests in receiving information and, sometimes, in not receiving information. The Justice consistently advocated this listener-oriented balancing approach throughout his tenure on the Supreme Court, and, contrary to the conventional wisdom, this approach proved to be substantially more protective of free speech than the more categorical approaches the Court ultimately adopted. Professor Dodge argues that Justice Blackmun's approach is preferable to the Court's current doctrine by examining two types of cases that current doctrine finds hard to handle: restrictions on protesters in …

The Constitutionalization Of Law In The United States, William B. Fisch, Richard S. Kay

Faculty Publications

The constitution is that the federal courts and a majority of state court systems will only entertain a constitutional claim in the context of a concrete dispute involving adversary parties with a specific stake in the outcome, and abstract review in these systems is unknown.

New York Public School Financing Litigation (Symposium: New York State Constitutional Law: Trends And Developments), Leon D. Lazer

Scholarly Works

No abstract provided.

The Constitutionality Of Censure, Michael J. Gerhardt

University of Richmond Law Review

It has become commonplace for commentators to suggest that, in the aftermath of the Senate's acquittal of President William Jefferson Clinton, there have been only losers and no real winners. Whether this is true generally is a difficult question to which I will not hazard an answer. It is beyond question, however, that one device that lost ground as a result of the storm of impeachment was censure. That censure has taken a severe beating is unfortunate because so much of the beating was based on misguided interpretations of, or arguments about, the Constitution.

Striking The Rock: Confronting Gender Equality In South Africa, Penelope E. Andrews

Michigan Journal of Race and Law

This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime. The author argues that, although South African women have benefited from the global …

Affirmative Action: Where Is It Coming From And Where Is It Going?, Denise Page Hood

Michigan Journal of Race and Law

A review of We Wont Go Back: Making the Case for Affirmative Action by Charles R. Lawrence III & Mari J. Matsuda

Prying, Spying And Lying: Intrusive Newsgather And What The Law Should Do About Them, Lyrissa Lidsky

Faculty Publications

The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …

Conditional Federal Spending And The States "Free Exercise" Of The Tenth Amendment, Kristian D. Whitten

Campbell Law Review

This article will examine Congress' power under the Spending Clause, and will seek to determine whether, by using its spending power, Congress can constitutionally impose a "free exercise" condition on States and local governments. Part II discusses federalism and the Court's "free exercise" clause jurisprudence. Part III addresses the substance of the proposed RLPA. Parts IV and V examine the Court's shifting posture towards the Spending Clause and federalism respectively. Part VI contrasts the broad provisions of the RLPA, with the more narrow conditions found in the Equal Access Act. Finally, Part VII concludes that enactment of the proposed RLPA …

Computer-Generated Child Pornography: A Legal Alternative?, Wendy L. Pursel

Seattle University Law Review

This Comment does not debate the efficacy of the Child Pornography Prevention Act in accomplishing its purpose-the effective regulation of computer-generated images. Nor does this Comment address adult-simulated child pornography. Rather, working under the assumption that the statute accomplishes what it aims to accomplish-namely the regulation of computer-generated child pornography-this Comment looks beyond the statute and its language to the broader discussion of the value in regulating this type of material. Specifically, this Comment will focus on two issues: first, whether legislation regulating computer-generated child pornography can survive First Amendment considerations of free speech, and second, the social arguments made …

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

Scholarly Works

No abstract provided.

The Brady Act: Shot Down By The Tenth Amendment, Patricia A. Rooney

Scholarly Works

No abstract provided.

Stop ... Go Directly To Jail, Do Not Pass Go, And Do Not Ask For A Notary, 31 J. Marshall L. Rev. 879 (1998), R. Jason Richards

UIC Law Review

No abstract provided.

First Lady, Last Rights--Extending Executive Immunity To The First Lady, T. Natasha Patel

UC Law Constitutional Quarterly

The First Lady's role has expanded beyond the traditional role of playing the White House hostess. The First Lady is actively involved in both domestic and international politics. Accordingly, in this Note, the Author argues that the First Lady's actions are entitled to qualified executive immunity whenever she acts as a representative of the federal government. The Author traces the development of executive branch immunity. The Author also discusses the role in politics, and otherwise, that the First Ladies have played throughout history. Finally, the Author examines the holding in Association of American Physicians and Surgeons, Inc. v. Hillary Rodham …

Constitutional Fidelity, Matthew Steffey

Journal Articles

No abstract provided.

State Discretion Under New Federal Welfare Legislation: Illusion, Reality, And A Federalism-Based Constitutional Challenge, S. Candice Hoke

Law Faculty Articles and Essays

This article challenges the common characterization of the 1996 welfare reforms. States do not have the ability to do “almost anything they want.” Most notably, states with more compassionate political leadership who wish to counter the national trend may seek areas of flexibility in vain. The Act's mandates and penalties will force all states into particular policies that they may not have chosen had Edelman been correct about the range of their discretionary powers.Edelman's critique typifies the standard assessment of the Act. According to the prevailing view, the Act's policies are objectionable because the federal government has capped the money …

Reevaluating Substantive Due Process As A Source Of Protection For Psychiatric Patients To Refuse Drugs, William M. Brooks

Scholarly Works

No abstract provided.

Commentary - Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson

St. Thomas Law Review

This Commentary will explore some of the jurisprudential and practical issues by examining the nature of victims' rights and victimization. After a brief introduction to the history of victim's rights amendments in the United States, this Commentary will explore the images in the rhetoric that lead to unreflective support for victims' rights, then turn to images of justice and arguments for a particular kind of victims' rights, together with a critique of that vision. Finally, this Commentary suggests some alternative approaches and programs that promise to be more helpful to victims of crime than any constitutional amendment would be.

Walking A Tightrope: Redrawing Congressional District Lines After Shaw V. Reno And Its Progeny, Donovan L. Wickline

Fordham Urban Law Journal

The Supreme Court's decision in Shaw V. Reno forbade the drawing of congressional district lines so that minorities would make up a larger percentage of the voting population. This note explores the tension between this ruling and the section of the Voting Rights Act requiring that minorities be fully represented within their congressional districts. It argues that the two rulings do not necessarily conflict. It concludes that the Court should clarify the meaning and role of "compactness" in redistricting and provide guideposts for legislators litigants, and courts involved in the reapportionment process.

Permissible Content Discrimination Under The First Amendment: The Strange Case Of The Public Employee, Lawrence Rosenthal

UC Law Constitutional Quarterly

The First Amendment is ordinarily thought to prohibit content or viewpoint discrimination. Yet public employers frequently regulate employees' speech based on the content or viewpoint of their speech. Additionally, they frequently seek to punish employees who publicly criticize their supervisors on the grounds that such criticism is insubordinate or will erode office discipline or morale.

The Supreme Court has attempted to address the special problems posed by the speech of public employees through the two-part "public concern" test. The test protects a public employee's speech if the speech relates to a matter of "public concern," and if the employee's speech …

Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

A Comment On The Evolution Of Direct Democracy In Western State Constitutions, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.