Constitutional Law Commons^™

Face-To-Face With Facial Recognition Evidence: Admissibility Under The Post-Crawford Confrontation Clause, Joseph Clarke Celentino

Michigan Law Review

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the …

Out Of Thin Air: Evaluating The Legality Of The Clean Power Plan Under The Equal Sovereignty Principle, Sharma, Deepa

UC Law Constitutional Quarterly

The Clean Power Plan requires states to meet specific carbon emissions targets based on the amount of pollution emitted from in-state power plants. The rule marks the most aggressive action taken by the United States to combat climate change. The rule, however, is currently facing a litany of legal challenges. In addition to the questionable legal authority under which the regulation was promulgated, the regulation may be constitutionally problematic. This paper examines whether the rule violates the Equal Sovereignty Principle as articulated in the Supreme Court's blockbuster ruling in Shelby County v. Holder because it exempts Alaska and Hawaii without …

Where Else Is The Appearance Of Corruption Protected By The Constitution: A Comparative Analysis Of Campaign Finance Laws After Citizens United And Mccutcheon, Vladyslav Dembitskiy

UC Law Constitutional Quarterly

This Note focuses on the appearance of political corruption in the United States after the two infamous Supreme Court decisions, Citizens United v. FEC and McCutcheon v. FEC. As a foundation, this Note explains that traditional bribery-giving money under the table to get political favors-is generally obsolete because developed countries penalize it equally. Because traditional bribery is unequivocally penalized in all contexts, people have found ways to obtain political favors lawfully: by putting money on the table, as opposed to under the table, through lobbying and campaign finance. This is called "appearance of corruption" because the practice looks like bribery, …

Reforming High-Stakes Police Departments: How Federal Civil Rights Will Rebuild Constitutional Policing In America, Ivana Dukanovic

UC Law Constitutional Quarterly

Over the past two decades, the Justice Department has untaken dozens of topdown interventions of local police departments plagued with unconstitutional policing. From Albuquerque, New Mexico, to Ferguson, Missouri, the Justice Department's Civil Rights Division has instituted reform in departments exhibiting patterns or practices that violate individuals' constitutional rights. The government's tool for imposing such reform and oversight on local, state power is a twenty-three-year-old statute: 42 U.S.C. 14141. This Note proposes that § 14141 is the change agent for rebuilding constitutional policing in America.

But with change comes challenge, and many pushback departments continue to resist reform. The Note …

Government Speech And Circumvention Of The First Amendment, Mark Strasser

UC Law Constitutional Quarterly

The government speech doctrine permits the government to convey its stance on issues through its actions. This article focuses on the development of the government speech doctrine and argues the necessity of limitations on this doctrine to prevent infringements on First Amendment rights. In Rust v. Sullivan, the Supreme Court first recognized what would later be characterized as the government speech doctrine, holding that a statute that prevented clinics from receiving federal funds for abortion-related activities did not violate the Constitution. The Court has subsequently suggested that this was in essence allowing the government to convey a particular message through …

Milkovich V. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, And Troubled Demise Of Liar Libel, Leonard Niehoff, Ashley Messenger

University of Michigan Journal of Law Reform

In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to …

Is The Constitution Special?, Nelson Tebbe, Christopher Serkin

Faculty Scholarship

No abstract provided.

Nationwide Injunctions, Rule 23(B)(2), And The Remedial Powers Of The Lower Courts, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Refracted Constitution: Classical Liberalism And The Lessons Of History, 101 Iowa L. Rev. Online 97 (2016), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how …

Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Shareholder Political Primacy, Jay B. Kesten

Scholarly Publications

Corporate political activity raises an important and difficult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …

Confrontation As A Rule Of Production, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

The Confrontation Clause is cost blind; the Supreme Court is not. In 2004, in Crawford v. Washington, the Supreme Court trumpeted its commitment to a procedural Confrontation Clause that required the prosecution to produce its witnesses in court, regardless of the cost or inconvenience. In 2007, in Melendez-Diaz v. Massachusetts, the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid Confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not “suspend the Confrontation Clause,” even if there were “other ways — and in some cases better ways — to challenge or verify” …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

The Development Of Chinese Constitutionalism, Chenglin Liu

Faculty Articles

Since the establishment of the People's Republic of China (PRC) in 1949, the country has enacted four constitutions. This Article provides a historical analysis of how the Communist Party of China (the Party) and its paramount leaders shaped each constitution, influenced the public perception of the law, and determined the method individual constitutional rights should be permitted. Through examining leading incidents that defined the PRC's history, this Article provides a detailed examination of how the Party used a constitutional framework to achieve its specific agenda of the time.

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes, Alexandra L. Klein

Washington and Lee Law Review

No abstract provided.

In Need Of Direction: An Evaluation Of The "Direct Effect" Requirement Under Foreign Trade Antitrust Improvements Act, Claire L. Leonard

Washington and Lee Law Review

No abstract provided.

Is Textualism Required By Constitutional Separation Of Powers?, Ofer Raban

Loyola of Los Angeles Law Review

This article examines the often-heard claim that textualism in statutory interpretation is mandated by constitutional separation of powers. The claim is examined using both the formalist and the functionalist approaches to separation of powers doctrine under the Federal Constitution. As we shall see, these doctrinal inquiries quickly devolve into examinations of the purposes and justification of textualism, and of separating the three branches of government. The article concludes not only that standing constitutional doctrine fails to support the textualist claim, but also that, as a matter of fact, textualism is a judicial philosophy that runs counter to the most basic …

Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron

Osgoode Legal Studies Research Paper Series

This Article was written for Osgoode Hall Law School’s annual Constitutional Cases conference, and provides the keynote overview of the McLachlin Court’s 2014 constitutional jurisprudence. The Court’s 2014 constitutional decisions (Appointment and Senate References; Tsilqot’in Nation; Trial Lawyers) and restrictions on Mr. Big operations (Hart), in combination with a tsunami of Charter decisions early in 2015 (the 2015 Labour Trilogy; Carter v. Canada; R. v. Nur; and others), made this a legacy-building year. More than an overview, this Article probes the nature of the McLachlin Court’s legacy this year and the relationship between legal and political dynamics, to ask: in …

The Conventions Of Constitutional Amendment In Canada, Richard Albert

Osgoode Legal Studies Research Paper Series

Commentators have suggested that the unsuccessful national referendum to ratify the 1992 Charlottetown Accord has created an expectation of popular participation requiring national referendal consultation in major reforms to the Constitution of Canada. In this Article, I inquire whether federal political actors are bound by a constitutional convention of national referendal consultation for formal amendments to the basic structure of the Constitution of Canada. Drawing from the Supreme Court of Canada’s Patriation Reference, I suggest that we cannot know whether federal political actors are bound by such a convention until they are confronted with the question whether or not to …

Legality, Legitimacy And Constitutional Amendment In Canada, Jamie Cameron

Osgoode Legal Studies Research Paper Series

It is accepted that Canada’s Constitution is almost impossible to amend, and that this amendment rigidity stems from the Constitution’s patriation in 1982 and two failed reform initiatives, the Meech Lake and Charlottetown Accords. The high-stakes drama of 1982, threat of Quebec separation and denouement of the post-patriation Accords were events of singular urgency which have dominated the literature and consigned the longer history of amendment to the background. This article provides a corrective which explores Canada’s two uneven periods of constitutional change – before and after textual rules – and in doing so theorizes that rich insights into the …

Collateral Thoughts On Dialogue's Legacy As Metaphor And Theory: A Favourite From Canada, Jamie Cameron

Osgoode Legal Studies Research Paper Series

“Collateral Thoughts” is part of a special issue edited by Professor James Allan, who invited and challenged a group of scholars to select and discuss a favourite law review article. I chose “The Charter Dialogue Between Courts and Legislatures” because it is the most influential article to date in the Charter of Rights and Freedom’s relatively short history (since 1982). I call this reflection “Collateral Thoughts” because my interest is less in the merits of dialogue theory than in its remarkable impact, at home in Canada as well as abroad, in the broader reaches of comparative constitutionalism and constitutional theory. …

"Your Corrupt Ways Had Finally Made You Blind": Prosecutorial Misconduct And The Use Of "Ethnic Adjustments" In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

American University Law Review

No abstract provided.

School Vouchers And Tax Benefits In Federal And State Judicial Constitutional Analysis, Joseph O. Oluwole, Preston C. Green Iii

American University Law Review

No abstract provided.

Walker V. Texas Division, Sons Of Confederate Veterans, Inc. And License Plate Speech: A Dangerous Roadblock For The First Amendment, Morgan E. Creamer

American University Law Review

No abstract provided.

Restore The Republic: The Incompatibility Between The Taxpayer's Bill Of Rights And The Guarantee Clause, Joshua Pens

University of Colorado Law Review

No abstract provided.

The Presidential Statutory Stretch And The Rule Of Law, Peter M. Shane

University of Colorado Law Review

No abstract provided.

Presidential Constitutional Interpretation, Signing Statements, Executive Power, And Zivotofsky, Henry L. Chambers, Jr

University of Colorado Law Review

No abstract provided.

In Defense Of Shelby County's Principle Of Equal State Sovereignty, Jeffrey M. Schmitt

Oklahoma Law Review

In Shelby County v. Holder, the Supreme Court struck down a key aspect of the Voting Rights Act of 1965 based on “the principle that all States enjoy equal sovereignty.” Legal scholars have exhaustively attacked Shelby County’s equal sovereignty principle with a surprising degree of unanimity and contempt. These critics argue that the principle is theoretically unworkable, finds no support in the Supreme Court’s precedent, is inconsistent with constitutional history, undermines individual rights, and is tainted by its association with slavery and Jim Crow. This Article responds to such criticism by arguing that the principle of equal sovereignty is a …