Constitutional Law Commons^™

Protecting Our Defenders: The Need To Ensure Due Process For Women In The Military Before Amending The Selective Service Act, Kelsey L. Campbell

UC Law Constitutional Quarterly

On January 1, 2016, all previously closed frontline military occupations were opened to women for the first time in U.S. history. Shortly thereafter, several military leaders and politicians stated that due to the change in policy, women were then "equal to men" in the military and, therefore, should be required to register for Selective Service-the system that maintains a list of Americans fit for service in the event a military draft is requested by the president. While the recent change extended employment opportunity to women within the military, a number of polices and laws prevent women from achieving equality in …

The Corporation In The Marketplace Of Ideas, 51 J. Marshall L. Rev. 19 (2017), Matthew Telleen

UIC Law Review

No abstract provided.

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Anti-Gay Curriculum Laws, Clifford Rosky

Utah Law Faculty Scholarship

Since the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have begun discussing what issues the LGBT movement should prioritize next. This article joins that dialogue by developing the framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Agent Narc Is Not Your Client: Reflections On The Proper Understanding Of The Relationship Between Prosecutors And Investigating Agencies, Carrie Leonetti

UC Law Constitutional Quarterly

Assistant United States Attorneys increasingly conceive federal lawenforcement agents as their "clients" in criminal prosecutions. As both a descriptive and normative matter, this cannot be right. As a descriptive matter, official interpretations by the Department of Justice, the bench, the bar, and academic commentators almost always reject this "client" conception. It is inconsistent with the conception of prosecutorial obligations espoused by Brady v. Maryland, the American Bar Association model rules of ethics, federal statutes, and evidentiary law. As a normative matter, it could have serious implications for the law of attorney malpractice, prosecutorial immunity, the disclosure of favorable evidence to …

Family Responsibilities Discrimination In The Public Sector: Maximizing The Use Of Section 1983 To Enforce Constitutional Rights, Stephanie Dominguez

UC Law Constitutional Quarterly

Family responsibilities discrimination ("FRD") claims have become a far more prevalent issue in employment cases. FRD is a workplace discrimination based on an employee's actual or perceived responsibility to care for a family member, including pregnancy discrimination. Although some states and local jurisdictions have passed legislation that specifically prohibits FRD in the workplace, no federal statute expressly prohibits FRD. This Note focuses on how state and local government employees who face FRD can use federal employment statutes such as 42 U.S.C. section 1983 ("Section 1983") to enforce their constitutional due process and equal protection rights. Part I of this Note …

Constitutional Protection For Future Generations From Climate Change, Ylan Nguyen

UC Law Constitutional Quarterly

This Note offers a comprehensive look at the constitutional rights of future generations with respect to climate change. On August 12, 2015, Our Children's Trust filed a lawsuit against the federal government asserting that the government has failed to protect present and future generations from a human caused climate catastrophe. Inspired by Our Children's Trust's lawsuit, this Note seeks to establish that future generations are entitled to constitutional protection from climate change.

This Note consists of five sections aimed at showing that future generations are entitled constitutional protection from climate change and seeks to establish that the federal government has …

Constitutional Implications On Block Pricing In The California Water Market, Deeba Fahami

UC Law Constitutional Quarterly

Due to the severity of the recent drought, those residing in California have realized the devastating effects of climate change. As California continues to experience amplified weather conditions and diminished water supply, the state must adapt to drought conditions and mitigate the impacts of droughts. In order to do so, municipal water pricing mechanisms that send price signals to consumers to conserve water should be enforced to ensure the longevity of California's water supply. In particular, increasing block-pricing structures are a favorable market-based solution that disincentivizes heavy water consumption while allowing essential water use to remain affordable.

The California Constitution …

An Offensive Mark On Offensive Lines: The Question Of Violating The First Amendment Through The Cancellation Of The Washington Redskins' Trademark, Gabriela M. Kirkland

UC Law Constitutional Quarterly

There is a contentious debate about whether it is the government's place to determine whether offensive trademarks should receive legal protection. The Washington Redskins have been embroiled in a legal battle to protect the trademark for their team name. Currently, the cancellation of the Washington Redskins' trademark will not go into effect until the appeals process has been exhausted. The United States Supreme Court's decision on this issue will determine whether trademark owners will have the freedom to choose names without fear of losing legal protections. This Note will argue that though the Washington Redskins' may be considered an offensive …

Johnson V. United States: The Impact On Texas' Habitual Offender Statute, Emily Frances Lynch

UC Law Constitutional Quarterly

In 2015, the Supreme Court struck down the residual clause of a major federal "habitual offender" statute in Johnson v. United States. The Court determined that combining the ambiguously worded "residual clause" with a pure "categorical approach" for interpreting qualifying crimes violated the notice provision of the Due Process Clause. Additionally, the Court identified an inability to create a clear and consistent standard of application for applying the residual clause as a second independent ground for holding the residual clause unconstitutional. Although the Court's holding specifically applied to a federal sentencing enhancement scheme, the holding is undoubtedly applicable to state …

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

The Prisonization Of America's Public Schools, Maryam Ahranjani

Scholarly Works

No abstract provided.

Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

Scholarly Works

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia's death has created. "Public meaning" originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these "New Originalists" have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches …

The Due Process Bona Fides Of Executive Self-Pardons And Blanket Pardons, Peter Brandon Bayer

Scholarly Works

Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"-or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive's political advantages, …

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part I - Originalism And Deontology, Peter Brandon Bayer

Scholarly Works

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Deontological Originalism: Moral Truth, Liberty, And, Constitutional Due Process: Part Ii - Deontological Constitutionalism And The Ascendency Of Kantian Due Process, Peter Brandon Bayer

Scholarly Works

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

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.

Review Of David Cole. Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law., Pat Newcombe

Faculty Scholarship

In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, David Cole presents a fascinating perspective on constitutional law by recounting three engaging stories of enormous constitutional change and of the organizations and individuals, whose efforts achieved such change. Cole’s accounts are well supported with citations to documents and personal interviews, all written in an accessible, engaging, and clear style. The Author highly recommends this first-rate work to law, general academic, and public libraries.

Criminals, Classrooms, And Kangaroo Courts: Why College Campuses Should Not Adjudicate Sexual Assault Cases, Ashley Sarkozi

Loyola of Los Angeles Law Review

No abstract provided.

Making Room For Juvenile Justice: The Supreme Court's Decision In Montgomery V. Louisiana, Chelsea S. Gumaer

Loyola of Los Angeles Law Review

No abstract provided.

Returning To Roe: The Renewed Promise Of Whole Woman's Health, Cristina Salcedo

Loyola of Los Angeles Law Review

No abstract provided.

Women-Only Ridesharing In America: Rising Sexual Assault Rates Demand An Exception To Anti-Discrimination Laws, Cristina Medina

Loyola of Los Angeles Law Review

No abstract provided.

Decrypting The Fourth Amendment: Applying Fourth Amendment Principles To Evolving Privacy Expectations In Encryption Technologies, Candice Gliksberg

Loyola of Los Angeles Law Review

No abstract provided.

Ncaa: No Consequences Against Athletes, Catalina Kelly

Loyola of Los Angeles Law Review

No abstract provided.

Lucia V. Sec: The Debate And Decision Concerning The Constitutionality Of Sec Administrative Proceedings, Elizabeth Wang

Loyola of Los Angeles Law Review

No abstract provided.

Government Identity Speech Programs: Understanding And Applying The New Walker Test, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court extended its previous holding in Pleasant Grove City, Utah v.Summum that a city’s donated park monuments were government speech to the privately proposed designs that Texas accepts and stamps onto its specialty license plates. The placement of the program into the new doctrinal category is significant because the selection criteria for government–private speech combinations that produce government speech are “exempt from First Amendment scrutiny.” By contrast, when the government selects private speakers to participate in a private speech forum, its criteria must be reasonable in light of the …

Brief Of Scholars Of The History And Original Meaning Of The Fourth Amendment As Amici Curiae In Support Of Petitioner: Carpenter V. United States, Margaret Hu

Scholarly Articles

Law enforcement officials wanted to learn where Petitioner Timothy Carpenter was at the time of certain robberies. To figure that out, they obtained records from his cellular service provider showing the movements of his cell phone. Examining those records, they were able to track Carpenter’s whereabouts over a four-month period. Obtaining and examining those records was a “search” in any normal sense of the word—a search of documents and a search for Carpenter and one of his personal effects. It was therefore a “search” within the meaning of the Fourth Amendment. When the Amendment was ratified, to “search” meant to …