Constitutional Law Commons^™

On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

What Does It Take To Make A Federal System? On Constitutional Entrenchment, Separate Spheres, And Identity, Ernest A. Young

Faculty Scholarship

No abstract provided.

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.

What Are We Doing To The Children?: An Essay On Juvenile (In)Justice, Michael E. Tigar

Faculty Scholarship

No abstract provided.

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

Scholarly Works

No abstract provided.

In God We Trust: The Judicial Establishment Of American Civil Religion, 43 J. Marshall L. Rev. 869 (2010), James J. Knicely, John W. Whitehead

UIC Law Review

No abstract provided.

Second-Class Citizenship: The Tension Between The Supremacy Of The People And Minority Rights, 43 J. Marshall L. Rev. 963 (2010), Adam H. Morse

UIC Law Review

No abstract provided.

How Far Can The Automobile Exception Go? How Searches Of Computers And Similar Devices Push It To The Limit, 43 J. Marshall L. Rev. 1119 (2010), Andrew Wrona

UIC Law Review

No abstract provided.

The Transformation Of Freedom Of Speech: Unsnarling The Twisted Roots Of Citizens United V. Fec, 44 J. Marshall L. Rev. 69 (2010), Steven J. André

UIC Law Review

No abstract provided.

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Maryland Law Review

No abstract provided.

Giles V. California: Forfeiting Justice Instead Of Confrontation Rights In The Court’S Most Recent Forfeiture By Wrongdoing Jurisprudence, Stephanie Bignon

Maryland Law Review

No abstract provided.

Brown V. Hovatter: Announcing The Death Of Rights For Out-Of-State Parties In Fourth Circuit Dormant Commerce Clause Jurisprudence, Lauren C. Genvert

Maryland Law Review

No abstract provided.

On Parents Involved And The Problematic Praise Of Justice Clarence Thomas, Ronald Turner

UC Law Constitutional Quarterly

In a recent comment on the United States Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1, Judge J. Harvie Wilkinson focused on and endorsed Justice Clarence Thomas's concurring opinion in that case as a culmination of the pronouncements on race and education by the Court's only African-American Justice. This essay argues that Judge Wilkinson has praised Justice Thomas for doing that which the Justice decries: the commission of an act of nonoriginalist and discretionary judging grounded in and reflecting the Justice's race and ideology. In addition, the essay contends that Judge Wilkinson uncritically …

La Mauvaise Qualite De La Loi: Vagueness Doctrine At The French Constitutional Council, Patricia Rrapi

UC Law Constitutional Quarterly

In France, over the last ten years, vagueness of statutes has been one of the most important constitutional issues. The Constitutional Council has developed a doctrine known as the "quality of law doctrine" which it uses to invalidate statutes that are "unintelligible" or "inaccessible." The quality of law doctrine is similar to the American vagueness Doctrine. In reality, there are several vagueness doctrines in U.S. Constitutional law. The best known is the one developed in First Amendment cases. But there are others, such as the intelligible principle doctrine, used to determine the validity of delegation of legislative powers. This Article …

Highly Uncertain Times: An Analysis Of The Executive Branch's Decision To Not Investigate Or Prosecute Individuals In Compliance With State Medical Marijuana Laws, Vijay Sekhon

UC Law Constitutional Quarterly

This Comment analyzes the constitutionality and impact of the Executive Branch's decision to not investigate or prosecute individuals in compliance with state medical marijuana laws. As detailed in this Comment, the Executive Branch's decision to not investigate or prosecute individuals in compliance with state medical marijuana laws is a questionable use of prosecutorial discretion and provides individuals with a false sense of security in relying upon compliance with such laws. In conclusion, the author urges Congress to pass and President Obama to sign into law legislation consistent with the Executive Branch's revised enforcement policy regarding medical marijuana in order to …

I'M Dying To Tell You What Happened: The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

UC Law Constitutional Quarterly

In Crawford v. Washington and its progeny, the U.S. Supreme Court retheorized the relationship between hearsay evidence and the Confrontation Clause. Post-Crawford, hearsay statements that are "testimonial" in nature are, as a general rule, inadmissible when offered against the accused in a criminal case. Yet in footnote six of Crawford, the Supreme Court suggested that an exception to the general rule may exist for dying declarations. This Article builds on the dictum set forth in footnote six of Crawford, the meaning of which the lower courts are just beginning to explore. Relying on historical evidence, this Article first demonstrates the …

Beyond The Schoolhouse Gates And Into The Virtual Playground: Moderating Student Cyberbullying And Cyberharassment After Morse V. Frederick, Jessica Moy

UC Law Constitutional Quarterly

Student blogs, social-networking sites, YouTube, and the Internet blur the line between high school students' public and private selves. Amid a world of rapid technological development and cloaked in the anonymity of cyberspace, cyberbullies are emboldened to utilize particularly cruel, and often psychologically damaging, tactics to victimize their peers. This Note examines the way in which the Supreme Court's decision in Morse v. Frederick has affected and changed the way lower courts evaluate the reach of school disciplinary authority in student Internet-posting cases and how the concept of what constitutes "on-campus" and "off-campus" activities has evolved over time. In light …

Proposition 8 And The Need For California Constitutional Amendment Initiative Reform: Tolerance Requires Time And Deliberation, Angela Chrysler

UC Law Constitutional Quarterly

The California constitutional amendment initiative process requires a small number of signatures to appear on the ballot and only a simple majority vote to amend the California Constitution. The California courts are the only institutional actors that can review the process, and even then the courts' review is limited. Proposition 8 is a quintessential example of how the initiative system allowed the electorate to amend the constitution without deliberation or safeguards in place to protect the interests of a minority group. The California constitutional amendment initiative process should be reformed by looking at other initiative processes, such as those in …

Ballot Box Budgeting In California: The Bane Of The Golden State Or An Overstated Problem, Jessica A. Levinson, Robert M. Stern

UC Law Constitutional Quarterly

This Article analyzes the phenomenon known as ballot box budgeting. This Article examines both legislative measures put to a vote of the people and initiative measures which affect California's budget. The Article concludes that ballot box budgeting have lead to the state's current fiscal crisis are overblown, but that ballot box budgeting has in part contributed to California's economic woes. The Article includes a number of recommendations for improving the process of ballot box budgeting. First, a system of "pay-go" is recommended, whereby measures that reduce revenue should identify which program(s) will be cut, and measures that call for the …

Business Improvement Districts And The Constitution: The Troubling Necessity Of Privatized Government For Urban Revitalization, Wayne Batchis

UC Law Constitutional Quarterly

Quasi-governmental Business Improvement Districts ("BIDs") have proliferated in cities across the country. By compensating for the service deficiencies of under-performing city governments, BIDs have been a notable bright spot in what has otherwise been a grim half-century for America's cities. BIDs have been hailed as a remarkable practical success in the struggle to revitalize urban centers and neighborhoods throughout America. However, their constitutional roots have yet to be explored in significant depth by law and politics scholars. BIDs face constitutional challenges in courts across the country due to their innovative, yet constitutionally questionable, quasi-governmental structure. They are endowed with many …

There's An Amendment For That: A Comprehensive Application Of Fourth Amendment Jurisprudence To Smart Phones, Daniel Zamani

UC Law Constitutional Quarterly

The near ubiquity of smart phones in American society raises a multitude of issues as courts attempt to fit the use of this new technology into old property analogies. This Note specifically addresses the application of the Fourth Amendment's proscription against unwarranted search and seizures to these devices. It traces Fourth Amendment jurisprudence through Katz v. United States and more recent cases such as City of Ontario v. Quon and notes a general emphasis on property analogies. However, this emphasis is deemed insufficient in its application to smart phones, given that they do not neatly fall into any prior categories. …

Obscenity On The Internet: Nationalizing The Standard To Protect Individual Rights, Sarah Kagan

UC Law Constitutional Quarterly

This note was written in response to the Ninth Circuit Court of Appeals' 2009 decision in United States v. Kilbride. The Court's opinion called for the application of a "national obscenity standard" when evaluating speech transmitted online or through e-mail. This note seeks to address some of the practical issues raised by a national standard, including identifying the relevant national community, the need for empirical research on community standards for obscenity, implications for free speech under a national standard and mechanisms to ensure consistent application of a national standard in a diverse country.

Murphy V. Internal Revenue Service, The Meaning Of 'Income,' And Sky-Is-Falling Tax Commentary, Erik M. Jensen

Faculty Publications

This article examines the widely noted D.C. Circuit case, Murphy v. Internal Revenue Service, where a panel twice got itself hopelessly entangled in the relationship between the meaning of “income” in the Internal Revenue Code and its meaning in the Sixteenth Amendment. At issue was whether a whistle-blower's recovery for emotional distress could be reached by the income tax. The first time around, the panel concluded that the recovery could not be taxed constitutionally because it was not income. The second time, apparently after having visited another planet, the very same panel concluded that the recovery could be taxed whether …

Privacy Is The Problem, Raymond Shih Ray Ku

Faculty Publications

A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, …

Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill

Faculty Publications

The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, …

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, B. Jessie Hill

Faculty Publications

Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court.

That resolution will depend on an understanding of the social meaning of the practice …

Unlimited Power: Why The President’S (Warrantless) Surveillance Program Is Unconstitutional, Raymond Shih Ray Ku

Faculty Publications

In this essay, Professor Ku explores the constitutionality of the President's Surveillance Program (PSP), and critiques the Bush Administration's legal explanations supporting warrantless surveillance. Defenders of the program have relied upon the President's inherent executive authority, the Congressional Authorization for Use of Military Force, the FISA Amendment Act of 2008, and ultimately that under any of these sources of authority the warrantless surveillance authorized is consistent with the right of privacy protected Fourth Amendment to the U.S. Constitution. As such, Professor Ku uses the PSP to illustrate the how and why current constitutional analysis both ignores and subverts “the right …

Constitutional Argument As Jeremiad, 45 Val. U. L. Rev. 33 (2010), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.