Constitutional Law Commons^™

The Perils And Possibilities Of Refugee Federalism, Burch Elias

American University Law Review

No abstract provided.

Rationing Justice: The Need For Appointed Counsel In Removal Proceedings Of Unaccompanied Immigrant Children, Wesley C. Brockway

University of Colorado Law Review

No abstract provided.

The Supreme Court As Public Educator?, Frederick Schauer

University of Colorado Law Review

No abstract provided.

Obama's Conversion On Same-Sex Marriage, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

Scholarly Works

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as …

Of Milk And The Constitution, Mathilde Cohen

Faculty Articles and Papers

Central cases in our constitutional law canon share an unexpected similarity: they all arose out of litigation involving cattle and milk. The Slaughter-House Cases, Nebbia v. New York, Carolene Products, and Wickard v. Filburn are familiar to generations of law students as iconic cases that address key concepts such as equal protection, the states' police powers, and Congress' commerce powers. Importantly, they also ground the Supreme Court's "dairy jurisprudence "-the series of cases about milk and cattle decided between the 1880s and the early 2000s. This Article argues that this dairy jurisprudence expresses an underlying ideology of nutrition, which glorifies …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Faculty Articles and Papers

In recent years, the literature of constitutional originalism has adopted a new concept, "constitutional construction." This Essay critically examines that concept. Contrary to some claims, the difference between "interpretation" and "construction" is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for manyindeed for most-constitutional disputes. This conclusion follows, howeveronly when the Constitution is interpreted according to the "new" or "public …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

The Elephant In The Room: What Is A Nonroutine Border Search, Anyway: Digital Device Searches Post-Riley, Eunice Park

UC Law Constitutional Quarterly

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border …

Memo To Cannabis Regulators: The Expressions Hair Design Decision Does Not Limit Your Broad Authority To Restrict All Forms Of Discounting, Leslie Gielow Jacobs

University of the Pacific Law Review

No abstract provided.

Book Review, Justin R. Huckaby

Journal Articles

In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution, John R. Vile discusses the thus-far unused Article V convention method of amending the U.S. Constitution. The book focuses on what an Article V convention could be and what parameters it might entail. Could such a convention be limited in scope, or must it be general in nature? Vile considers these questions and the literature behind them to develop his own interpretation of an Article V convention and how it should be implemented.

The Middle Class, Urban Schools, And Choice, Michael Lewyn

Scholarly Works

It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb.  This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Articles

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Constitutional Law—Fourth Amendment Search And Seizure—We've Got Ourselves In A Pickle: The Supreme Court Of Arkansas's Recent Expansion Of Fourht Amendment Rights May Have Unintended Consequences. Pickle V. State, 2015 Ark. 286, 466 S.W. 3d 410, Ben Honaker

University of Arkansas at Little Rock Law Review

No abstract provided.

Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader

Law Faculty Scholarship

“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?

The subject of this Article, in general, is the relationship between “We the People,” …

The Prophylactic Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

The Free Exercise Of Religious Identity, Lauren Sudeall Lucas

Faculty Publications By Year

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Faculty Publications By Year

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …

Sex Offender Registration In New York: The Dangers Of State Law Preemption Of Local Residency Restriction Laws And Its Implications For Communities And Sex Offenders Alike, Megan Forbes

Touro Law Review

No abstract provided.

Stingrays, Triggerfish, And Hailstroms, Oh My: The Fourth Amendment Implications Of The Increasing Government Use Of Cell-Site Simulators, Jenna Jonassen

Touro Law Review

No abstract provided.

That's What She Said: An Evaluation Of Whether Hearsay Exceptions Should Be Permitted In Accusatory Instruments, Andrea Laterza

Touro Law Review

No abstract provided.

The Stakes Are High: The Professional And Amateur Sports Protection Act Is Constitutionally Vulnerable And Reflects Bad Policy, Stephen Weinstein

Touro Law Review

No abstract provided.

The Evolution Of American Discovery In Light Of Constitutional Challenges: The Role Of The 2015 Rule Amendments To The Federal Rules Of Civil Procedure, Tom Lin

UC Law Constitutional Quarterly

On December 1, 2015, the amendment package that revised Federal Rules of Civil Procedures, Rules 1, 4, 16, 26, 30, 31, 33, 34, and 37, went into effect. This Note offers a first look at the new amendments to the discovery tools of the Federal Rules of Civil Procedure in light of recent constitutional arguments, specifically the scope of discovery under Rule 26(b)(1) and the duty to preserve electronically stored information under Rule 37(e). First, this Note seeks to identify the constitutional challenges to American discovery. Second, this Note seeks to compare the American discovery system with the European discovery …

The 2016 Presidential Election: The Next Four Years And Beyond, Dahlia Lithwick, Bertrall L. Ross Ii, Joan Williams, Scott Dodson

UC Law Constitutional Quarterly

On November 15, 2016, UC Hastings College of the Law held an academic post-election panel to consider what the Donald Trump election means for America in the next four years. The panel was moderated by Scott Dodson, Associate Dean for Research and the Harry & Lillian Hastings Research Chair at UC Hastings. The panel included the following: Joan Williams, a distinguished professor of law and the founding director of the Center for WorkLife Law at UC Hastings; Bertrall Ross, a professor of law at UC Berkeley, where he teaches legislation, election law, and constitutional law; and Dahlia Lithwick, who writes …

Digitizing The Private Search Doctrine: Is A Computer A Container, Taylor J. Pfingst

UC Law Constitutional Quarterly

The Private Search Doctrine permits the government to search property that a private citizen previously gained access to and searched, resulting in discovery of contraband. This Doctrine provides that the subsequent search by the government does not constitute a Fourth Amendment "search." Thus, the government does not need to obtain a warrant prior to examining the property and only infringes on an individual's Fourth Amendment rights if the scope of the search exceeds the bounds permitted by the court in that jurisdiction. Different circuits have taken conflicting approaches in determining the appropriate scope of a follow-up search under the Private …

Allowing Lawless Police Conduct In Order To Forbid Lawless Civilian Conduct: The Court Further Erodes The Exclusionary Rule In Utah V. Strieff, George M. Dery Iii

UC Law Constitutional Quarterly

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This …

Shining A Light On The Rights Of The Most Vulnerable, Shauna Marshall

UC Law Constitutional Quarterly

No abstract provided.

Trumping Asylum: Criminal Prosecutors For Illegal Entry And Reentry Violate The Rights Of Asylum Seekers, Natasha Arnpriester

UC Law Constitutional Quarterly

Criminal prosecution for the immigration-related infractions of illegal entry and illegal reentry have escalated dramatically under the Trump Administration, which has made targeting immigrants a top priority. This escalation is happening at a time when the population coming to the U.S. southern border is largely seeking safety from persecution and danger. The United States does not recognize asylum as a defense to illegal entry or illegal reentry, and asylum seekers are not excluded from being charged and criminally prosecuted for these infractions, despite U.S. treaty obligations prohibiting this practice. As a result, people coming to the United States to seek …