Constitutional Law Commons^™

To Loose The Bonds: The Deceptive Promise Of Freedom From Pretrial Immigration Detention, Denise L. Gilman

Indiana Law Journal

Each year, the United States government detains more than 60,000 migrants who are eligible for release during immigration court proceedings that will determine their right to stay in the United States. Detention or release should be adjudicated through a custody determination process focused on the question of whether a mi-grant poses a flight risk or danger to the community. Yet, because the process skips the critical inquiry into the need for detention before setting monetary bond require-ments for release that are difficult to fulfill, freedom remains elusive.

The custody determination process is a cornerstone in the U.S. immigration de-tention edifice …

Reconstituting The Right To Education, Joshua Weishart

Law Faculty Scholarship

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a …

Is The First Amendment At Risk?, Devin Darrow

Nebraska College Preparatory Academy: Senior Capstone Projects

Since the establishment of the Bill of Rights on December 15th 1791, Freedom of Speech has been one of the more controversial topics found within the first ten amendments. The Supreme Court has changed their interpretation of the 1st Amendment, Freedom of Speech clause, due to the cultural shifts of each generation. Recent cases have made technology a major factor for laws needing to be changed in order to protect people’s rights.

In conclusion, the definition of freedom of speech will continuously change due to the progress in technology. The last 10 years have demonstrated the need for changes. There …

Bureaucratic Administration: Experimentation And Immigration Law, Joseph Landau

Faculty Scholarship

In debates about executive branch authority and policy innovation, scholars have focused on two overarching relationships—horizontal tension between the president and Congress and the vertical interplay of federal and state authority. However, these debates have overlooked the role of frontline bureaucratic officials in advancing the laws they administer. This Article looks to immigration law—in which lower-level federal officers exercise discretion delegated down throughout federal agencies—to identify how bottom-up agency influences can inform categorical, across-the-board executive branch policy. In this Article, I argue that decisions by frontline officers can and should be better harnessed to pair local laboratories of executive experimentation …

Twenty-Week Abortion Statutes: Four Arguments, Randy Beck

UC Law Constitutional Quarterly

The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has offered a rationale for the viability rule, and the arguments in non-majority opinions are conclusory or fail to distinguish viability from earlier possible lines. The viability rule is arbitrary because the capacity of a fetus to survive outside the womb says nothing about the value of the fetus from the standpoint of the state or the burden of pregnancy on the mother, the two interests the rule purports to balance. The arbitrary character …

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

UC Law Constitutional Quarterly

This article examines the significance of the United States Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of the Sisters under the backdrop of shifting views on what constitutes appropriate state regulation of education. On its face, the question of how a state may regulate education may not seem so controversial. However, the idea that the state could mandate public education and take children from their parents conflicted with traditional views of family autonomy and parental authority.

Progress would occur with the steady diminution of state authority, but under the guidance of the court. Part I of …

Operation Inherent Resolve And The Reemergence Of The Debate Over The War Powers Resolution, Kyle C. Walker

UC Law Constitutional Quarterly

In the face of terrorist threats and the emergence of the Islamic State of Iraq and the Levant, President Obama has authorized air-strikes as part of the country's antiterrorism campaign. This article begins by discussing the unique justifications for the executive's actions as commander in chief, and identifies the difficult question of defining where Presidential and Congressional war powers begin, end, and overlap. Specifically, the article describes how the Executive has relied on the 2002 Authorization to Use Military Force in Iraq as well as the President's constitutional authority to protect American citizens and national security. In doing so, President …

The Real-World Fourth Amendment, Brent E. Newton

UC Law Constitutional Quarterly

The Fourth Amendment's protections against unreasonable searches and seizures have resulted in a massive body of appellate case law, including several hundreds of decisions by the Supreme Court and many thousands of decisions by the lower courts. The Article, written by a former long-time public defender, provides a comprehensive and accessible survey of the Fourth Amendment as applied to recurring real-world situations in which a police officer or other governmental official engages in a search or seizure of property or a person. The Article addresses both "substantive" and "remedial" aspects of the Fourth Amendment in both criminal prosecutions and civil …

Shocking The Eighth Amendment's Conscience: Applying A Substantive Due Process Test To The Evolving Cruel And Unusual Punishments Clause, Jency Megan Butler

UC Law Constitutional Quarterly

Excessive force is today's most prominently debated governmental abuse. The "shocks the conscience" test is a widely used substantive due process protection that analyzes excessive force claims. More specifically, under excessive force law, the "shocks the conscience" test evaluates whether the government has violated a person's constitutional rights. This Note begins with an overview of Eighth Amendment history and articulates a problem in today's Cruel and Unusual jurisprudence created by the Supreme Court's unsettled proportionality review. This Note then proposes that the Cruel and Unusual Punishments Clause should be interpreted with the "shocks the conscience" standard. For an Eighth Amendment …

Procedural Due Process Liberty Interests, Ann Woolhandler

UC Law Constitutional Quarterly

The Supreme Court's divided decision inKerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia's plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer's dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. …

Waiving Goodbye: In Memory Of The Reasonable-Doubt Standard, Steven Wall

UC Law Constitutional Quarterly

This Note will focus on the unique helplessness of innocent defendants who have plead guilty in cases involving governmental misconduct. The Supreme Court has recognized that our criminal justice system is, for the most part, a system of pleas rather than trials. Unfortunately, there are many indications that innocent people plead guilty. The most developed realm of law being used to push for measures to reduce the occurrence of this phenomena is the body of cases stemming from Brady v. Maryland. Brady v. Maryland requires prosecutors to disclose material exculpatory evidence (evidence demonstrating actual innocence) and impeaching evidence at trial. …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Expanding Territorial Bounds: The Recognition Doctrine After Zivotofsky V. Kerry, Nicole Kirkilevich

Loyola of Los Angeles Law Review

No abstract provided.

Ignorance Of The Law Is No Excuse—Unless You’Re A Cop, Hannah Dunn

Loyola of Los Angeles Law Review

No abstract provided.

Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld

Scholarly Publications

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …

International Dealmaking At The White House: Toward A Viable Test Of Allowable Sole Executive Agreements, Joshua Abbuhl

National Security Law Program

The Constitution's Treaty Clause states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." This clause represents the only instance in which the Constitution describes a process by which the United States can conclude agreements with foreign governments. However, the President regularly enters international agreements on his own authority and without the assent of a supermajority of the Senate. This Note explores when the President may lawfully enter such agreements, known as "sole executive agreements."

Miranda 2.0, Tonja Jacobi

Faculty Articles

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this Article analyzes the range of proposals and develops a realistic set of reforms — Miranda 2.0 — which is directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they …

The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo

Touro Law Review

No abstract provided.

The Big Picture View Of Anonymous Tips From Ordinary People, Amanda M. Dadiego

Touro Law Review

No abstract provided.

A Defendant's Fifth Amendment Right And Double Jeopardy In Contempt Cases, Saba Khan

Touro Law Review

No abstract provided.

Discretion Or Discrimination: Whether The Equal Protection Clause Of The Fifth Amendment Requires Fathers And Mothers To Be Treated Equally In Satisfying The Physical Presence And Legitimization Clause Of Title 8 U.S.C. § 1409, Jossity Vasquez

Touro Law Review

No abstract provided.

Confirm Judge Koh For The Ninth Circuit, Carl W. Tobias

Law Faculty Publications

On February 25, 2016, President Barack Obama appointed United States District Court Judge Lucy Haeran Koh for a judicial emergency vacancy on the United States Court of Appeals for the Ninth Circuit. The jurist has served professionally for more than six years in the United States District Court for the Northern District of California, ably resolving major litigation. Thus, White House efforts to confirm her were unsurprising. Nevertheless, 2016 is a presidential election year when delay infuses many court appointments. That conundrum was exacerbated because the United States Senate Republican majority refused to even consider United States Court of Appeals …

Of Trials, Reparation, And Transformation In Post-Apartheid South Africa: The Making Of A Common Purpose, Andrea Durbach

NYLS Law Review

No abstract provided.

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

It’S Complicated: The Unusual Way Obergefell V. Hodges Legalized Same Sex Marriage, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …