Constitutional Law Commons^™

Cutting The Fourth Amendment Loose From Its Moorings: The Unconstitutional Use Of Fisa Evidence In Ordinary Criminal Prosecutions, Kathlyn Querubin

UC Law Constitutional Quarterly

After the terrorist acts of September 11, 2001, Congress passed the USA Patriot Act, which amended, among other things, the Foreign Intelligence Surveillance Act (FISA). The FISA amendments permit the government to conduct electronic surveillance even when gathering foreign intelligence is merely a "significant purpose" of the surveillance, eliminating the requirement that the government demonstrate that foreign intelligence surveillance is the "primary purpose" of the surveillance. As a result, the Patriot Act's amendments to FISA allow the government to conduct FISA surveillance even when ordinary domestic criminal prosecution-and not foreign intelligence gathering-is its primary objective. The information that is gathered …

Sexting And The First Amendment, John A. Humbach

UC Law Constitutional Quarterly

"Sexting" and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as much as 50%, having received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions. Given the reality of changing social practices, mores, and technology utilization, today's pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America's young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur …

Thirty-Five Years After Berkelman: Seeking A New Debate About Ability Grouping, Matt Chayt

UC Law Constitutional Quarterly

In 1974, a suit filed by the parents of San Francisco children argued that the operation of a selective public school, Lowell High School, inherently violated the Equal Protection Clause of the Fourteenth Amendment. While the suit successfully changed Lowell's admissions policy with regard to gender, the plaintiffs' broader arguments were largely ignored.

This Note re-examines this suit, which challenged the educational practice known as "ability grouping." Integrating current Supreme Court jurisprudence about equal opportunity in education and other relevant case law, the Note argues for a new conversation, one expressly aimed at racial and economic justice, about contemporary ability …

Tax Reform Commissioners In The Sweep Of California's Fiscal History, Steven M. Shefrin

UC Law Constitutional Quarterly

What role do tax reform commissions play in California fiscal history? The recent California Commission on the 21st Century Economy-the Parsky Commission-temporarily raised hopes for substantive tax reform in California. However, its apparent failure raises broader questions about the role of tax commissions. Have they ever led to fundamental tax policy changes in the state and, if so, what made them successful?

To address these questions, this paper explores the experiences of two important California tax commissions, the 1906 and 1929 commissions, and places them into the history of taxation in California. Both the recommendations of the 1906 and 1929 …

The Business Net Receipts Tax: A Dog That Will Not Hunt, Charles E. Mclure Jr.

UC Law Constitutional Quarterly

The business net receipts tax ("BNRT"), the centerpiece proposal of the Commission on the 21st Century Economy, is seriously flawed and should not be considered seriously. The BNRT exhibits the well-known defects of a subtraction method VAT. Sales-only apportionment would not achieve the desired effects of destination-based taxation in many important cases. If enacted, the BNRT is likely to be subject to both tax planning (including the substitution of independent contractors for employees and reclassification of employees as independent contractors) and legal challenges, and to be unpopular with California business and labor.

Why The Joint Powers Authority Refunding Bond Model Works: A Critique Of The Attorney General's Claim Of Unconstitutionality, Joseph L. J. Appel

UC Law Constitutional Quarterly

In 2007, amid concerns that cash-out refunding bonds were legally unsound and might violate state law, State Senator Joseph Simitian submitted five questions to the California Attorney General addressing the legality of cash-out refunding bonds. Of particular interest is Question 5, which asks whether a school district may sell refunding bonds to a joint powers authority with an above-market interest rate. The Attorney General opined that such a financing arrangement would violate the state constitution because it results in new, non-voter approved local government debt. This Comment is a critique of the Attorney General's answer to Question 5 that focuses …

Between Safety And Transparency: Prior Restraints, Foia, And The Power Of The Executive, Devin S. Schindler

UC Law Constitutional Quarterly

The Freedom of Information Act, and, to a lesser extent, the Constitution, embody a democratic commitment to transparent and open government. Roughly balanced against this commitment is the need in selected circumstances to prevent the release of information that could lead directly or indirectly to tangible harm to America and its interests. Most recently, the debate between safety and transparency came to the forefront in the case American Civil Liberties Union v Department of Defense, where the Second Circuit ordered the President to release a series of nonconfidential but potentially inflammatory pictures showing prisoner abuse at the Abu Ghraib prison. …

Seeking Common Ground: A Secular Statement, Bruce Ledewitz

UC Law Constitutional Quarterly

It is clear that there is a crisis today in the interpretation of the Establishment Clause. Not only do we not know what the Clause means, we do not even have clear opposing constitutional visions. At the same time, we have today a related crisis in American political life between religious believers and nonbelievers over the proper place of religion in politics. Finally, we have today in the West, a crisis of social morals as older religious certainties fade and secularism drifts dangerously close to nihilism. In my view, all of these issues are related. The answer to all three …

The Marketplace Metaphor And Commercial Speech Doctrine: Or How I Learned To Stop Worrying About And Love Citizens United, Darrel C. Menthe

UC Law Constitutional Quarterly

In this article, I place the Citizens United decision in historical and doctrinal context, and argue that the decision indicates a terminal stage of the development and application of the "marketplace of ideas" metaphor in First Amendment law. I argue that the "good news" about the Citizens United decision is that it sets the stage for the abolition of the commercial speech doctrine, which resulted in lower protection for commercial speech, as previously set forth in the 1980 Central Hudson decision. This is good news because the commercial speech doctrine has become a doctrinal anomaly that threatens to undermine the …

Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Tom Donnelly

Cleveland State Law Review

In this Article, I consider the constitutional stories we tell our schoolchildren about the Founding and Reconstruction. To that end, I analyze the relevant sections of our leading high school history textbooks, focusing particularly on the consensus narratives and constitutional heroes that emerge in these accounts. This analysis is vital to more fully understanding the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution.

Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn

Faculty Articles

Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …

The Origin Of Citizen Genet’S Projected Attack On Spanish Louisiana: A Case Study In Girondin Politics, Jud Campbell

Law Faculty Publications

In 1792 the Girondin ministry decided to send Edmond Genet to the United States with plans to recruit western frontiersmen and invade Spanish Louisiana. The episode is well known in American history, but the literature on its French origin is sparse and overemphasizes the contribution of revolutionary leader Jacques- Pierre Brissot. This essay contextualizes the French decision within the debate between Brissot, Minister of Foreign Affairs Pierre Lebrun, and General Charles-François Dumouriez over whether France should send troops against Spanish colonies in South America. The essay argues that Lebrun promoted the western scheme in order to attack Spanish interests without …

Partial Unconstitutionality, Kevin C. Walsh

Law Faculty Publications

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …

A Social Movement History Of Title Vii Disparate Impact Analysis, Susan Carle

Scholarly Articles in Law Reviews & Journals

The U.S. Supreme Court’s recent opinion in Ricci v. DeStefano suggests trouble ahead for disparate impact analysis under Title VII of the Civil Rights Acts of 1964 and 1991. Commentators, too, have begun to question the policy bases for this doctrine. Part of the current tenuousness surrounding disparate impact analysis, which the Court first approved in its 1971 opinion in Griggs v. Duke Power Company, stems from assumptions that the EEOC pursued this theory as a last-minute, ill-conceived afterthought that was not in keeping with Congress’s intent when it passed Title VII in 1964. In this Article I use the …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Accounting For The Lack Of Accountability: The Great Depression Meets The Great Recession, Steven Pearse

UC Law Constitutional Quarterly

In the midst of the financial crisis of 2008, Congress hastily passed the Bailout legislation. Although good intentions and quick action were necessary to halt the financial chaos, Congress treaded upon constitutionally ambiguous grounds through their delegation of a monumental sum of money to the Executive Branch. With little guidance or oversight in place, the Bailout seemingly defied the United States Constitution and stripped away protections from the American people. This Note explores this constitutional ambiguity through an exploration and comparison of the Great Depression over-delegation cases and an examination of facets of the Bailout legislation itself. These examinations and …

Keeping The Commitment: Why California Should Maintain Consideration Of The Commitment Offense In Determining Parole For Life Inmates, Kathleen Noone

UC Law Constitutional Quarterly

The California prison system is currently in federal receivership because of overcrowding and failing to provide prisoners with sufficient medical care. The prison system is a mess, and the miniscule number of life inmates receiving parole each year is disheartening. In the California Supreme Court case In re Lawrence, the court took a step towards increasing the rate of parole for line inmates when it clarified that an inmate cannot be denied parole based solely on the severity of his or her commitment offense. Of course, a future court might go a step further and hold that the commitment offense …

Virtual Child Pornography, Pandering, And The First Amendment: How Developments In Technology And Shifting First Amendment Jurisprudence Have Affected The Criminalization Of Child Pornography, Benjamin A. Mains

UC Law Constitutional Quarterly

Though the depiction of minors engaged in obscene or sexual acts has been heavily criminalized, modern technology and the Internet have allowed for the creation of virtual child pornography-sexually explicit images that appear to depict minors but are produced without the involvement of any real children. Though children are not directly harmed by the production of this type of material, Congress has found that virtual child pornography perpetuates a market for pornography involving actual children and thereby causes what I refer to as a substantial indirect harm to society. Prosecution for possession and distribution of actual child pornographic material has …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

The Roberts Supreme Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commission., Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Institutional Advocacy, Constitutional Obligations, And Professional Responsibilities: Arguments For Government Lawyering Without Glasses, John C. Dehn

Faculty Publications & Other Works

No abstract provided.

Ricci’S “Color-Blind” Standard In A Race Conscious Society: A Case Of Unintended Consequences?, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

Connecticut Yankee Speech In Europe's Court: An Alternative Vision Of Constitutional Defamation Law To "New York Times Co. V. Sullivan?, Allen E. Shoenberger

Faculty Publications & Other Works

The Executive And The Courts, Richard Clayton

Penn State International Law Review (1982 - 2011)

No abstract provided.

Methodological Challenges In Comparative Constitutional Law, Vicki Jackson

Penn State International Law Review (1982 - 2011)

No abstract provided.

Introduction To The Ials Conference On Comparative Constitutional Law, Louis Del Duca, Patrick Del Duca, Gianluca Gentili

Penn State International Law Review (1982 - 2011)

No abstract provided.

Citizenship Privilege Or The Right To Religious Freedom: The Blackmailing Of France's Islamic Women, Yael Barbibay

Cardozo Journal of International and Comparative Law

The note examines the tension between France's commitment to laïcité and the rights of Islamic immigrants, particularly women, to religious freedom and cultural identity. It critiques the denial of citizenship to Faiza Mabchour, arguing that such decisions reflect a broader effort to suppress Islamic practices and undermine pluralism. The analysis contends that France's rigid application of laïcité violates international human rights norms, particularly the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The article advocates for a more inclusive approach to citizenship that balances secularism with religious freedom and cultural diversity.

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee

Scholarly Works

No abstract provided.

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Scholarly Works

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it the author adapts some of his earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction.” The author makes two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, the author doubts the ultimate utility of the distinction as part of a “true and correct” model …