Constitutional Law Commons^™

Funding Gideon's Promise By Viewing Excessive Caseloads As Unethical Conflicts Of Interest, Heidi Reamer Anderson

UC Law Constitutional Quarterly

Some states recently have attempted to legislate around a defendant's constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Step two-the step that has slipped by without sufficient notice or criticism-is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants' Sixth Amendment rights to effective assistance.

In this article, I urge courts to "constitutionalize" the excessive caseload problem via two steps of their …

(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda

Journal Articles

Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others of color after …

Proceduralisation's Triumph And Engagement's Promise In Socio-Economic Rights Litigation, Brian E. Ray

Law Faculty Articles and Essays

Three of the Constitutional Court's socio-economic rights decisions of the 2009 term are the culmination of a strong trend towards the proceduralisation of socio-economic rights that many commentators have argued fails to fulfill their original promise. This triumph of proceduralisation undeniably restricts the direct transformative potential of these rights. But there is another aspect to this trend - an aspect reflected in the Court's emphasis on participatory democracy and the ability of procedural remedies to democratise the rights-enforcement process. This article considers what the triumph of proceduralisation means for future social and economic rights litigation and argues that properly developed …

Demosprudence In Comparative Perspective, Brian E. Ray

Law Faculty Articles and Essays

This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive …

Taking Stare Decisis Seriously: A Cautionary Tale For A Progressive Supreme Court, James G. Wilson

Law Faculty Articles and Essays

To better understand stare decisis and to normatively explore our constitutional future, this article assumes that President Obama's election signifies a constitutional shift similar to the one occurring after President Nixon won in 1968. From that contentious, self-righteous era to the present day, all American Presidents selected Supreme Court nominees who were more conservative than the members of the Warren Court majority, much less that aggressively liberal duo, Justices Brennan and Marshall. Justice Stevens, appointed by the moderate Republican President Gerald Ford, is arguably the most liberal member on the Court. It is impossible to predict how far the country …

Top-Down Or Bottom-Up? A Look At The Unification Of Private Law In Federal Systems, Daniel Halberstam, Mathias Reimann

Book Chapters

At its current stage, European private law is still more an aspiration than a reality. It is true that there is a substantial body of European private law on the Union level; and it is also true that there are private law principles and rules shared by many—often by most, and sometimes even by all—European legal systems. Still, in most areas, we do not at present have one body of positive private law for all of Europe, but rather a coexistence of more or less similar national laws. Thus, to the extent one considers a European private law desirable, one …

An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller

Scholarly Works

The jurisdiction of the New York Court of Appeals has long been shrouded in mystery. When the Court dismisses an appeal, it provides a boilerplate, one-sentence decretal entry, which gives the litigants little, if any, meaningful indication of the Court’s reasons for dismissal. In February 2010, however, the world received a rare glimpse into the Court’s jurisdiction when, in Kachalsky v. Cacace, 925 N.E.2d 80 (N.Y. 2010), Judge Robert Smith dissented from the Court’s sua sponte dismissal of the appeal. Judge Smith voted to retain the appeal, arguing that the Court was using the requirement of “substantiality” to invoke discretion …

Framing The Fourth, Tracey Maclin, Julia Mirabella

UF Law Faculty Publications

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law. Cuddihy’s historical analysis is unprecedented. As Justice …

Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski

Cleveland State Law Review

This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach. Part VI then ends with the …

The Unconstitutionality Of Oklahoma's Sq 755 And Other Provisions Like It That Bar State Courts From Considering International Law, Penny M. Venetis

Cleveland State Law Review

This paper will discuss SQ 755's many legal deficiencies, focusing primarily on its constitutional infirmities. First, SQ 755 is a clear violation of the Supremacy Clause of Article VI of the U.S. Constitution. The prohibition on looking to international law requires that Oklahoma courts disregard U.S. treaty obligations, and the law of nations (also known as customary international law), which are all binding on American courts. Second, SQ 755 unconstitutionally limits a state's duty to give full faith and credit to the judicial decisions of other states. The law is clear that no state has the authority to condition its …

Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro

Law Faculty Scholarship

No abstract provided.

Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Preface, Frank H. Wu

UC Law Constitutional Quarterly

No abstract provided.

The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn

Fordham Urban Law Journal

This Article examines the term "blight" and how it is used in eminent domain cases. Part I discusses the development of the term and how various states define it. Part II lays out a hierarchy which may be used to compare the private benefits on one hand and the public benefits on the other hand in redevelopment projects. In Part III, the Columbia University expansion in Manhattanville is examined, at both the New York Appellate Division and Court of Appeals levels. Part IV discusses how forty-three states redefined blight after the Kelo case. Part V discusses how political and business …

Democracy, Gender Equality, And Customary Law: Constitutionalizing Internal Cultural Disruption, Susan H. Williams

Indiana Journal of Global Legal Studies

Customary law often includes gender discriminatory rules that violate women's rights under constitutional equality guarantees. Dialogic democracy theory offers valuable tools that can help a legal system both to protect customary law and to protect the equality of its women citizens. By focusing on the need for challenge and on the dialogue within the cultural community, the legal system can create incentives and conditions to support the capacity of women to shape the customary law of their own communities. This approach is necessary because legal rights for women, when imposed by the larger society, often result in backlash within minority …

Abuse Of Power And Corruption In Kenya: Will The New Constitution Enhance Government Accountability, Migai Akech

Indiana Journal of Global Legal Studies

This article suggests that corruption in the Kenyan government is largely an institutional problem, rather than a cultural one. It attributes such corruption to the predominance of arbitrary power, especially in the statutory (as opposed to constitutional) order. The statutory order grants executive, legislative, and judicial actors broad powers without establishing effective procedural mechanisms to circumscribe their exercise. In the absence of effective regulation, law often aids the abuse of power and corruption. Although the new constitution establishes principles and mechanisms that may enhance government accountability, the statutory order must be aligned with the values and principles of this new …

Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will

Journal Articles

Depending on what we mean by “fertilization,” there could be impacts on many reproductive choices including birth control, fertility treatments like in vitro fertilization (IVF), and of course, women’s ability to choose to have an abortion. Certain proponents of Measure 26 suggest that even discussing these implications (other than perhaps abortion) amounts to fear mongering. While primarily focusing on birth control, the goal of this essay is to introduce readers to why the concerns regarding these reproductive choices are very real, and how these concerns are further complicated by the issue of whether, if passed, Measure 26 would be deemed …

Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John F. Stinneford

UF Law Faculty Publications

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. …

Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker

Faculty Publications By Year

In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in …

Extra! Read All About It: Why Notice By Newspaper Publication Fails To Meet Mullane's Desire-To-Inform Standard And How Modern Technology Provides A Viable Alternative, Jennifer L. Case

Georgia Law Review

Decades ago the Supreme Court articulated that due
process requires adopting a means of service that one
would naturally adopt if he actually desired to inform
another. For generations newspaper publication has been
allowed where the party to be notified is not known or
cannot be located. But, given the rapid transformation

of information dissemination over our country's recent
history, are newspapers a method that anyone would use if
they truly wanted to relay information to another person?
This Note examines the shift in how American's receive
news and information in our modern society. It explores
the decline in newspaper …

Looking For A Few Good Philosopher Kings: Political Gerrymandering As A Question Of Institutional Competence, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, and particularly the U. S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960’s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. The courts have taken sides, to be sure, but these can only be described as acts of volition and will, not constitutional law. The leading case is Reynolds v. Sims. This …

Judicial Activism And The Interpretation Of The Voting Rights Act, Luis Fuentes-Rohwer

Articles by Maurer Faculty

From the moment the U.S. Supreme Court first confronted the difficult constitutional questions at the heart of the Voting Rights Act, its posture has been one of deference. This posture has continued to this day. In contrast, the Court has interpreted the language of the Act dynamically, often in total disregard to the text of the law or the intent of Congress. But as this Article explains, the Roberts Court appears poised to unsettle this longstanding narrative. The Act is in serious constitutional danger. One way to explain this move on the part of the Court is by invoking the …

About Face: Using Moral Rights To Increase Copyright Enforcement In China, Heidi Hansen Kalscheur

UC Law Constitutional Quarterly

While copyright protections are provided by nations around the world, the application and enforcement of copyright protections are not always consistent. Even between nations that have copyright treaties, conflicts have not always been avoided. With some nations, the United States has worked to increase copyright protections by lobbying for the adoption of a Western-style copyright law because United States economic policy seeks robust protections for international and domestic intellectual property.

A more effective way to achieve consistent application and enforcement of copyright protections specifically in China may be possible by encouraging a practice widely practiced by civil law nations: basing …

The California Resale Royalty Act: Droit De [Not So] Suite, Emily Eschenbach Barker

UC Law Constitutional Quarterly

It is a generally accepted principal that an artist owns certain rights to exploit the economic value of his works. In the United States an artist's rights are protected by various provisions of the federal copyright laws. These pecuniary rights exist largely in the same form across the globe, however, some countries, and now the state of California, have begun to recognize personal rights of artists in their work. These moral rights, or droit moral, are retained by the artist even after a work is sold. The particular moral right that my manuscript is concerned with is the droit de …

Examining Copyright Exemptions For Web Mashups In The International Context: Applying American Constitutional Considerations As Guideposts For The Trips Three-Step Test, James De Los Reyes

UC Law Constitutional Quarterly

The proliferation of web mashup websites, which combine information from various online sources into new integrated works, has spurred the emergence of a mashup industry and a culture that uses the medium as a new avenue for expression and communication. By remixing content and presenting information in new ways, web mashups can benefit their creators, consumers, and even the public at large. However, concerns regarding possible copyright infringement have also become more prominent as web mashup creators incorporate greater amounts of online data and content-which may belong to other copyright holders-into their composite works with increasing ease. To determine whether …

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another, James E. Moliterno

UC Law Constitutional Quarterly

Awareness is increasing that the U.S. criminal justice system produces convictions of the innocent. Currently, except in two states (Alaska and Massachusetts), lawyer confidentiality law prevents a lawyer from revealing client information to rectify the wrongful conviction of an innocent. An interpretation of the standard future harms exception, especially with the Restatement illustration gloss, may yield permission to reveal the client's information and rectify the wrongful conviction. But that result is far from certain and is weighted down with significant factor-weighing to determine if the wrongly convicted is suffering "substantial bodily harm." Despite a broader view that would dictate revelation …

No Match For The Police: An Analysis Of Miranda's Problematic Application To Juvenile Defendants, Zoe Overbeck

UC Law Constitutional Quarterly

In Fare v. Michael C. and Yarborough v. Alvarado, the Supreme Court affirmed the use of adult standards in determining whether a juvenile is under custodial interrogation and whether the juvenile has "knowingly and intelligently" waived her Miranda rights. Due to differences in juvenile cognition, young people's limited comprehension of the words and substance of the Miranda rights, and their vulnerability to police interrogation techniques, I argue in this note that states should go beyond the baseline established by the Supreme Court, as some have already, to offer juvenile suspects increased protection during a custodial interrogation. This note examines the …

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

A Review Of Beyond Citizenship: American Identity After Globalization, By Peter J. Spiro, Andy Williams

Indiana Journal of Global Legal Studies

No abstract provided.

Municipal Predatory Lending Regulation In Ohio: The Disproportionate Impact Of Preemption In Ohio's Cities, Brett Altier

Cleveland State Law Review

Whether in the case of predatory lending or other issues that will differ from location to location, municipalities should continue to protect their cities by exercising their power under the Home Rule Amendment to enforce regulations not in direct conflict with Ohio law. Even though the Framers of the Home Rule Amendment intended to protect municipal power by ensuring that only those ordinances in actual conflict would be voided, Ohio courts have denied municipalities their Home Rule police power by applying a conflict by implication test, contributing to the housing crisis still plaguing Ohio's cities. While Ohio courts have made …