Constitutional Law Commons^™

A Familial Privacy Right Over Death Images: Critiquing The Internet-Propelled Emergence Of A Nascent Constitutional Right That Preserves Happy Memories And Emotions, Clay Calvert

UC Law Constitutional Quarterly

In May 2012, the United States Court of Appeals for the Ninth Circuit broke new constitutional ground in Marsh v. County of San Diego when it held that the constitutional right to privacy encompasses "the power to control images of a dead family member." This article provides an overview of Marsh. It then discusses the historical common law right to familial privacy over death images. In addition, it explores both judicial and legislative recognition of the Internet's power as a force in the battle to preserve privacy. Next, it illustrates how these twin forces-the preexisting common law right to familial …

More Than A Quick Glimpse Of The Life: The Relationship Between Victim Impact Evidence And Death Sentencing, Jerome Deise, Raymond Paternoster

UC Law Constitutional Quarterly

In striking down the use of victim impact evidence ("VIE") during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only …

Letting The Fox Guard The Hen House: Why The Fourth Amendment Should Not Be Applied To Interviews Of Children In Child Abuse Cases, Yourtz, Rachael

UC Law Constitutional Quarterly

This note argues that the Fourth Amendment warrant requirement should not apply to interviews of potential child abuse victims during the course of investigations to assess their safety. The article argues that, in such cases, children are witnesses, not perpetrators, taking them outside the scope of traditional Fourth Amendment jurisprudence. Alternatively, if the Fourth Amendment is applicable, situations where children are potentially victimized by their parents present an extenuating circumstance where procuring a warrant would run counter to the objectives of the Constitution and the State's interest in protecting these children. Finally, the note argues that a warrant requirement would …

When One Is Not Enough, But Two Is A Company Union: A First Amendment Analysis Of The National Labor Relations Board's Restrictions On Employee Involvement At The Nonunion Workplace, Mark J. Mahoney

UC Law Constitutional Quarterly

In this article it is argued that the National Labor Relations Board's longstanding application of Section 8(a)(2) of the 1935 Wagner Act, as amended, violates the First Amendment. It is argued that the principal constitutional defect with the Board's application of this section, which prohibits employers from "dominat[ing] or interfer[ing] with the formation or administration of any labor organization or contribut[ing] financial or other support to it," is that it largely eliminates the most effective means by which employers and nonunion employees can communicate regarding terms and conditions of employment: group discussion.

It is argued that the restrictions that the …

Restoring The Vote: Former Felons, International Law, And The Eighth Amendment, John Ghaelian

UC Law Constitutional Quarterly

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child's school board.

This article begins by chronicling the …

Arizona V. Winn: Negative Implications For First Amendment Proponents And Possibly For Our Nation's Schoolchildren, Adam F. Sloustcher

UC Law Constitutional Quarterly

In a 5-4 decision in Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court drastically curtailed American taxpayers' ability to challenge the constitutionality of certain government expenditures. At issue in Winn was the constitutionality of a tax credit provision that offered a tax break to individuals who donated money to organizations that support religious schools. The Court ruled that taxpayers could not challenge the constitutionality of the tax credit provision because they lacked legal standing to do so.

This note will first present the background of the Winn decision and the history of taxpayer standing. Second, it will …

The Muddled State: California's Application Of Confrontation Clause Jurisprudence In People V. Dungo And People V. Lopez, Mark K. Hanasono

UC Law Constitutional Quarterly

Crawford v. Washington revitalized the Confrontation Clause by addressing the admissibility of testimonial hearsay by declarants whom defendants never previously had the opportunity to cross-examine. Courts continue to review Confrontation Clause challenges in a variety of contexts. How should courts determine the admissibility of forensic analyses introduced through witnesses who were not personally involved with them?

Most recently in California, the state supreme court decided People v. Dungo and People v. Lopez, limiting Confrontation Clause protection to testimonial hearsay statements contained in forensic analyses, which were made (1) with formality, and (2) for the primary purpose of criminal prosecution. As …

What Is Really So Bad About A Different Rule Of Law: The Afghan Legal System Reanalyzed, Dana Cook-Milligan

UC Law Constitutional Quarterly

"Rule of Law" is a principle that politicians often discuss to evaluate the stability and progressive nature of another state. From the Western point of view-where Rule of Law is most commonly discussed-Rule of Law is predicated on sovereign, supreme, predictable, and fair legal systems. Failure to satisfy this formulation suggests that a state lacks Rule of Law. Rule of Law's absence, in turn, evokes negative connotations and is often synonymous with a lack of democracy. The Islamic Republic of Afghanistan is war-torn, decentralized, and corrupt-but can it still have Rule of Law? Are these concepts mutually exclusive? Must Afghanistan's …

'Lonesome Road': Driving Without The Fourth Amendment, Lewis R. Katz

Faculty Publications

American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not …

A Question Important To Investors (Whether They Realize It Or Not): Is Realization A Constitutional Requirement For Income Taxation?, Erik M. Jensen

Faculty Publications

This article considers whether realization continues to be a constitutional requirement for an accession to wealth to be included in the base of the federal income tax. Most commentators had thought that the Supreme Court’s 1920 decision in Eisner v. Macomber, which treated realization as central to the meaning of “taxes on incomes” in the Sixteenth Amendment, was deadwood, or close to it. In 2012, however, in his controlling opinion in National Federation of Independent Business v. Sebelius, Chief Justice Roberts cited Macomber favorably on a point critical to the resolution of that case. If realization still has constitutional legs, …

Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013), Kevin Hopkins

UIC Law Open Access Faculty Scholarship

As Professor Steven Lubet notes in his article, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, the ethical conduct of Supreme Court Justices has once again gained national attention. This time, however, the context for public outcry is due to actions of an in-house source who released confidential information to a member of the press concerning the voting behavior and the overall sentiments of members of the Court's minority in one of the most significant and controversial rulings of the year: NFIB v. Sebelius (the "Affordable Care Act"). Professor Lubet uses this leaking of significant …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Cardozo Journal of Conflict Resolution

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

The Confrontation Clause And Forensic Autopsy Reports-A "Testimonial", 74 La. L. Rev. 117 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

This Article examines the landscape of legal issues involved in determining whether the presence at trial of a surrogate pathologist, whose testimony refers to a forensic autopsy report prepared by the examining pathologist and provides the foundation for the admissibility of the forensic autopsy report, implicates the Confrontation Clause of the Sixth Amendment. This Article concludes that the practice of surrogate testimony and admission of the forensic autopsy report, well known and often required in criminal homicide prosecutions, implicates and violates the Confrontation Clause.

Waiving Goodbye To A Fundamental Right: Allocation Of Authority Between Attorneys And Clients And The Right To A Public Trial, 38 J. Legal Prof. 1 (2013), Alberto Bernabe

UIC Law Open Access Faculty Scholarship

No abstract provided.

Windsor Products: Equal Protection From Animus, Dale Carpenter

Faculty Journal Articles and Book Chapters

The Supreme Court's opinion in United States v. Windsor has puzzled commentators, who have tended to overlook or dismiss its ultimate conclusion that the Defense of Marriage Act was unconstitutional because it arose from animus. What we have in Justice Kennedy’s opinion is Windsor Products — an outpouring of decades of constitutional development whose fountainhead is Carolene Products and whose tributaries are the gay-rights and federalism streams. This paper presents the constitutional anti-animus principle, including what constitutes animus, why it offends the Constitution, and how the Supreme Court determines it is present. The paper also discusses why the Court was …

Death And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea …

After United States V. Jones, After The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.

More detail:

United States v. Jones, in which the …

Constructive Upheaval: Railway Labor Executives'ass'n V. Gibbons And The "Choice Of Clause" Challenge To Traditions Of Statutory Construction, Jordan C. Seal

Georgia Law Review

When confronted with constitutional challenges to
Congress's legislative authority, courts must build their
analyses on an interpretation of the statute's language.
Such cases implicate principles of statutory construction
that lay the groundwork for the rulings that follow.
Throughout American judicial history, courts have
favored flexible interpretation to protect Congress's
enactments from constitutional attack. The Supreme
Court's decision in Railway Labor Executives' Association
v. Gibbons dramatically departed from that tradition,
suggesting instead that legislation should be categorized
as a particular type of law to ensure that Congress does
not overstep the boundaries of its enumerated powers.
Although its shift in perspective …

Safe Haven No Longer: The Role Of Georgia Courts And Private Probation Companies In Sustaining A De Facto Debtors' Prison System, Sarah D. Bellacicco

Georgia Law Review

Georgia was specifically established as a colony for debtors-a haven where they could be safe from imprisonment. It is a haven no longer. Georgia courts are regularly imprisoning people for failing to pay debts, often through probation revocation of probationers who have failed to pay a fine or fee imposed as a condition of probation. Some of these probationers are on probation solely because they could not pay a fine on the day of sentencing, a practice which greatly increases the amount they owe due to the additional probation fees imposed. In Bearden v. Georgia, the Supreme Court held that …

Eminent Domain For The Seizure Of Underwater Mortgages, Sarah Thompson

University of Michigan Journal of Law Reform Caveat

Like many cities in the United States, Richmond, California suffered greatly from the recent mortgage crisis. The foreclosure crisis hit Richmond hard in 2009, when more than 2,000 homes in Richmond went into foreclosure. This figure is especially shocking given that there were 18,659 owner-occupied housing units in the city at that time. In 2012, the city saw an additional 914 foreclosures and a foreclosure rate of thirty out of 1,000 homes (well above the national average of thirteen of every 1,000 homes). Today, it is reported that nearly forty-six percent of homes in Richmond are “underwater,” meaning that what …

Marching To A Different Drummer: Are Lower Courts Faithfully Implementing The Evolving Due Process Guideposts To Catch And Correct Excessive Punitive Damages Awards, N. Williams Hines

Catholic University Law Review

No abstract provided.

“The Lady Of The House” Vs. A Man With A Gun: Applying Kyllo To Gun-Scanning Technology, Sean K. Driscoll

Catholic University Law Review

No abstract provided.

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene

Faculty Scholarship

What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because …

International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee

Faculty Scholarship

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

The Dignity Of Equality Legislation, Olatunde C.A. Johnson

Faculty Scholarship

In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," …

Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone

Faculty Law Review Articles

This foreword to the 2012 Browning Symposium contributes to the discussion of republican forms of government in the states by situating Montana's experience in broader themes of federal intervention in state republicanism. It serves as an epilogue to match Jeff Wiltse's prologue, which reexamines the election in 1912 that gave birth to the Corrupt Practices Act by examining the aftermath of the U.S. Supreme Court's burial of that law 100 years later.

Part I of the foreword considers the recent federal constitutional challenges that dismantled elements of the republican form of government that prevailed in Montana for the past century. …

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri Dk Basu V. State Of West Bengal, Sam F. Halabi

Faculty Publications

Under prevailing theories of comparative constitutional law, courts use foreign precedent in one of three ways: to identify “universal” principles of law applicable across jurisdictions; to sharpen understanding of domestic law through contrasting foreign judgments; and, in the case of legal systems with shared origins, to consider alternative jurisprudential paths. While the terminology differs, the concepts broadly hold across current theoretical treatments. Methodologically, these theories are built by analyzing certain foreign decisions, while scholars devote less effort in trying to test prevailing theories by applying theory to a court judgments outside those used to build their theories. In building a …

Minnesota Bounties On Dakota Men During The U.S.-Dakota War, Colette Routel

Faculty Scholarship

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …