Constitutional Law Commons^™

Constitutional Evidence Law, Alex Stein

Faculty Scholarship

No abstract provided.

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Faculty Publications

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …

Undue Burdens On Voter Participation: New Pressures For A Structural Theory Of The Right To Vote, Christopher S. Elmendorf

UC Law Constitutional Quarterly

Judges and law professors alike have worried that an avowedly structural approach to constitutional adjudication of political rights would embroil the courts in contested questions that are beyond their competence to resolve. This Article calls that premise into question. It attempts to demonstrate that the Supreme Court's severe/lesser burden framework for electoral mechanics cases, if meshed with a wholly individualistic conception of voting rights, threatens to open a Pandora's Box of new constitutional claims that judges would have little choice but to resolve on the basis of their personal sense of political fairness. By contrast, a conception of "burden" linked …

Untangling Tenth Amendment Standing: Why Private Parties Cannot Enforce The Federal Structure, David M. Palmer

UC Law Constitutional Quarterly

In the last thirty years, the Tenth Amendment has experienced a resurgence as an independent check on the powers of the federal government. This newfound interest in the meaning and power of the Tenth Amendment has inevitably led to the question: Who may bring a Tenth Amendment claim? As the Tenth Amendment concerns the relationship between states and the federal government, states, not private parties, have traditionally acted as plaintiffs in suits against federal government incursion. However, the Seventh and Eleventh Circuit Courts of Appeals have, in a series of cases beginning twenty-five years ago, expressly permitted private parties to …

Just Don't Say You Heard It From Me: Bridging The Davis V. Washington Divide Of Indistinguishable Primary-Purpose Statements, Thomas M. Forsyth Iii

UC Law Constitutional Quarterly

In Davis v. Washington, the Supreme Court sought to clarify its Crawford v. Washington holding, which restored the Constitution's Confrontation Clause to its original procedural function-to test the reliability of testimonial witness statements "in the crucible of cross-examination." Under Davis, the testimonial/non-testimonial categorization of witness hearsay statements is based on the primary purpose for which those statements were made to law enforcement agents. Despite the Court's two-pronged standard, Davis left a gaping hole between the extreme ends of the testimonial/nontestimonial spectrum where witness statements have a mixed or dual purpose and the primary purpose is indiscernible.

This note proposes that …

Suspension For Beginners: Ex Parte Bollman And The Unconstitutionality Of The 1996 Antiterrorism And Effective Death Penalty Act, Dan Poulson

UC Law Constitutional Quarterly

The 1996 Anti-Terrorism and Effective Death Penalty Act dramatically revised the manner in which federal courts exercise jurisdiction in habeas corpus petitions. Under 28 U.S.C. 2254(d)(1), federal courts cannot grant habeas relief to state prisoners with regard to any claim that has been adjudicated on the merits by a state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Various critics have assailed this language as an unconstitutional limitation on the decision-making powers of federal courts. In …

Who Says So - Defining Cruel And Unusual Punishment By Science, Sentiment, And Consensus, Aimee Logan

UC Law Constitutional Quarterly

The 2003 United States Supreme Court decision Atkins v. Virginia provides a unique opportunity to discuss how the Court integrates science into its constitutional philosophy. In Atkins, a majority of the Court concluded that executing criminals with mental retardation violates the Eighth Amendments prohibition against cruel and unusual punishment. Psychologists, psychiatrists and others in the scientific community have studied mental retardation for some time. However, the tests they use, and the criteria they look at, do not necessarily translate to the criminal justice system. Thus, in order to give legal significance to mental retardation, the Supreme Court must operationally define …

Maintaining The Constitutionality Of The Patent System, Susanna Chenette

UC Law Constitutional Quarterly

Congress' constitutional power to establish a patent system is not unrestrained. Rather, it is derived from a clause that expressly limits the reach of any patent system created by requiring it "to advance the progress of science and the useful arts." Inherent in any such system is the fundamental quid pro quo between society and inventor: an inventor receives an exclusive right for a limited time to his invention, and society benefits from the full disclosure of the inventor's knowledge, incentivizing research and dispersing knowledge. However, while this constitutional dictate remains unaltered, the patent system has grown and changed markedly …

Hot Oil And Hot Air: The Development Of The Nondelegation Doctrine Through The New Deal, A History 1813-1944, Andrew J. Ziaja

UC Law Constitutional Quarterly

Current scholarship's memory of the nondelegation doctrine's history is neither long nor rich. It rightly recalls that the doctrine has not invalidated a statute since 1936 in Carter v. Carter Coal. Despite having been argued before the Court at least twenty two times from 1813 to 1944 alone, however, the doctrine only ever succeeded in three cases, all of which were challenges to statutory components of Franklin D. Roosevelt's New Deal: Panama Refining v. Ryan in 1935, which is known famously as the "hot oil" case since it involved illicit oil sales, A.L.A. Schechter Poultry Corp. v. United States also …

Taking The Courts: A Brief History Of Takings Jurisprudence And The Relationship Between State, Federal, And The United States Supreme Courts, Rachel A. Rubin

UC Law Constitutional Quarterly

Regulatory takings law today is criticized as a confused muddle, intractable, and as an ambiguous area in which the United States Supreme Court complicates its own jurisprudence with each new decision. Though this is rather true, it is because the often factspecific nature of takings cases leads to results that are "pragmatic at the expense of internal consistency." This note traces the role of the federal courts and the United States Supreme Court with regard to review of state judicial changes in takings or property law. It examines the position of the federal courts in their review of both physical …

Access And Lobbying: Looking Beyond The Corruption Paradigm, Dorie Apollonio, Bruce E. Cain, Lee Drutman

UC Law Constitutional Quarterly

After a recent spate of lobbying scandals involving Jack Abramoff among others, Congress passed a lobbying and ethics reform bill banning a wide variety of lobbyist-to-legislator gifts. In so doing, it dealt with lobbyist influence primarily as a quid pro quo corruption problem. But a large body of literature suggests that lobbyists have multiple sources of influence that go way beyond what could be considered "corruption." Lobbyists, for example, are valuable sources of expertise and information, and are often old trusted friends and advisors to key political decision-makers. Even if all money and gifts were banned, lobbyists would likely still …

Rethinking Granfinanciera: May The Bankruptcy Court Retain Pre-Trial Jurisdiction After Finding A Valid Jury Trial Right, Amber Arakaki

UC Law Constitutional Quarterly

Bankruptcy courts are vested with authority under Article I to provide swift resolution of a debtor's insolvency, but under the current bankruptcy jurisdiction scheme, an Article III court which possesses the essential attributes of judicial power must ultimately adjudicate private rights. Nearly twenty years ago, the U.S. Supreme Court, in Granfinanciera, S.A. v. Nordberg, recognized that a party in bankruptcy litigation may demand a jury trial when asserting a private right. Following Granfinanciera, neither Congress nor the Court provided any guidance on how a case subject to a valid jury trial right is handled under Article III constraints, resulting in …

Supreme Court Voting Behavior: 2006 Term, Richard G. Wilkins, Scott Worthington, Peter J. Jenkins, Elisabeth Liljenquist

UC Law Constitutional Quarterly

This Article, the twenty-first in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2006 Term. The analysis is designed to measure whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms.

The voting patterns tabulated by this Article reveal a Court in transition. The generally consistent conservative voting patterns of Chief Justice Rehnquist have been replaced with several surprisingly liberal voting patterns tallied by Chief Justice John Roberts. As a result, ideological bias demonstrates a significantly wider "gap" …

An Analysis Of Historical And Legal Sanctuary And A Cohesive Approach To The Current Movement, 42 J. Marshall L. Rev. 135 (2008), Pamela Begaj

UIC Law Review

No abstract provided.

A Constitutional Analysis Of Parents Involved In Community Schools V. Seattle School District No. 1 And Voluntary School Integration Policies, Angelo N. Ancheta

Faculty Publications

On June 28, 2007, a sharply divided United States Supreme Court invalidated student assignment plans in Seattle, Washington and Louisville, Kentucky that were designed to promote racial diversity and to address racial isolation in K-12 education. By a 5-to-4 vote in Parents Involved in Community Schools v. Seattle School District No. I and McFarland v. Jefferson County Board of Education, the Court struck down voluntary integration plans under the "strict scrutiny" standard applied to race-conscious policies challenged under the Equal Protection Clause of the Fourteenth Amendment, and ruled that the plans were not narrowly tailored to the interests asserted by …

Limits On Injunctive Relief Under The Ada: Rethinking The Standing Rule For Deaf Patients In The Medical Setting, Michael A. Schwartz

Journal of Health Care Law and Policy

No abstract provided.

Resolved, Or Is It? The First Amendment And Giving Money To Terrorists, Jeff Breinholt

American University Law Review

No abstract provided.

Material Support To Terrorists Or Terrorist Organizations: Asylum Seekers Walking The Relief Tightrope , Craig R. Novak

The Modern American

No abstract provided.

The Upbringing Of A Creature: The Scope Of A Parent's Right To Teach Children To Hate, Brooke Emery

The Modern American

No abstract provided.

The Religious Freedom Restoration Act And Protection Of Native American Religious Practices, Jason Gubi

The Modern American

No abstract provided.

Presumptions, Inferences, And Strict Liability In Illinois Criminal Law: Preempting The Presumption Of Innocence?, 41 J. Marshall L. Rev. 715 (2008), Theodore A. Gottfried, Peter G. Baroni

UIC Law Review

No abstract provided.

Criminal And Sentencing Law Review Commissions: Detached, Contemplative Decision Making On Matters Of Criminal Justice Reform, 41 J. Marshall L. Rev. 777 (2008), John J. Cullerton, Kirk W. Dillard, James B. Durkin, Robert S. Molaro, Peter G. Baroni

UIC Law Review

No abstract provided.

Reforming The Illinois Criminal Code: Where The Clear Commission Stopped Short Of Its Goals, 41 J. Marshall L. Rev. 741 (2008), Terri L. Mascherin, Andrew Vail, Jennifer L. Dlugosz

UIC Law Review

No abstract provided.

"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth

UIC Law Review

No abstract provided.

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

Magic Words And Millionaires: The Supreme Court's Assault On Campaign Funding, 42 J. Marshall L. Rev. 1 (2008), Michael J. Kasper

UIC Law Review

No abstract provided.

Washington: The Past And Present Populist State, Hugh D. Spitzer

Chapters in Books

Describes the impact of the late-nineteenth century populist movement on the structure and content of Washington’s constitution and the consequential impact on the state’s political and legal life. Suggests that the anti-business attitudes and skepticism about government prevalent among Washington State residents in the 1880s and 1890s, continues to influence that state's constitution, laws and politics today.

Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.

Richmond Journal of Global Law & Business

Are lawyers strangling our government’s ability to fight the first war of the twenty-first century? Does judicial adventurism and the fear of litigation undermine the War Against Terrorism? In essence, is our national security apparatus overlawyered? This article analyzes how some lawyers have produced a synthetic “litigation culture” over the war on terror. It argues that litigation concerning electronic surveillance, interrogation and all manners of prisoner treatment has chilled counterintelligence since 9/11.

Reflections On The Mirror Image Doctrine: Should The Federal Trade Commission Regulate False Advertising For Books Promising Wealth, Weight Loss, And Miraculous Cures?, Keith R. Fentonmiller

West Virginia Law Review

No abstract provided.

Balancing Public School Students' First Amendment Freedoms With The Blackboard Jungle: Are Students In Danger Of Becoming Another Brick In The Wall After Hazelwood?, Daniel Lattanzi

West Virginia Law Review

No abstract provided.