Constitutional Law Commons^™

Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes

Michigan Law Review Online

In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the U.K.’s withdrawal …

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.

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 …

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, …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Adjudicative Limits Of Originalism, Gary S. Lawson

Faculty Scholarship

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority …

By Any Other Name: Rational Basis Inquiry And The Federal Government's Fiduciary Duty Of Care, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors …

Take The Fifth... Please!: The Original Insignificance Of The Fifth Amendment's Due Process Of Law Clause, Gary S. Lawson

Faculty Scholarship

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process …

Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming

Faculty Scholarship

In my recent book, Fidelity to Our Imperfect Constitution, I put forward a sustained critique of originalism in all its forms and defend what Ronald Dworkin called a "moral reading" of the U. S. Constitution and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation. In this essay for the UNAM symposium on the book, I reply to five thoughtful commentaries. First, as against Barber's commentary, I justify responding to the "persistent resurgence of originalism" and attempting to "save the new originalists from themselves" by showing the extent to which many of them acknowledge …

What We Think, What We Know And What We Think We Know About False Convictions, Samuel Gross

Articles

False convictions are notoriously difficult to study because they can neither be observed when they occur nor identified after the fact by any plausible research strategy. Our best shot is to collect data on those that come to light in legal proceedings that result in the exoneration of the convicted defendants. In May 2012, the National Registry of Exonerations released its first report, covering 873 exonerations from January 1989 through February 2012. By October 15, 2016, we had added 1,027 cases: 599 exonerations since March 1, 2012, and 428 that had already happened when we issued our initial report but …

Data Breaches, Identity Theft, And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits?, Bradford C. Mank

Notre Dame Law Review

In data breach cases, the plaintiff typically alleges that the defendant used inadequate computer security to protect the plaintiff’s personal data. In most, but not all cases, the plaintiff cannot prove that a hacker or thief has actually used or sold the data to the plaintiff’s detriment. In most cases, a plaintiff alleges that the defendant’s failure to protect his personal data has caused him damages by increasing his risk of suffering actual identity theft in the future and therefore imposed costs on the plaintiff when he reasonably takes measures to prevent future unauthorized third-party data access by purchasing credit …

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 …

Silencing Talk About Race: Why Arizona's Prohibition Of Ethnic Studies Violates Equality, M. Isabel Medina

UC Law Constitutional Quarterly

In 2010, Arizona made national headlines when it enacted laws targeting undocumented immigrants, perceived in the state to be primarily Mexican. Arizona experienced population growth that projected it would become a minority majority state within one or two decades. Republican politicians spearheaded a ban on ethnic studies, with its intended target a successful Mexican American studies program at the Tucson Unified School District. The Mexican American studies program was initiated as part of a desegregation decree in ongoing desegregation litigation against the Tucson Unified School District; state superintendents of education in Arizona branded the program "racist" because students were encouraged …

Lighting The Way Towards Liberty: The Right To Abortion After Obergefell And Whole Woman's Health, Erika Hanson

UC Law Constitutional Quarterly

The federal government has failed to fulfill the constitutional guarantee of equal rights for all. While this promise requires affirmative governmental action to ensure the protection of historically subordinated groups, policymakers persist in using the will of the majority to deny the dignity and fundamental rights of groups lacking political defenses. Luckily, recent developments in the doctrine of marriage equality now allow advocates and supportive lawmakers to remedy this injustice by forever removing the fundamental rights of subordinated groups from political debate. Policymakers must address the harm to subordinated groups posed by a tiered system of fundamental rights through constitutional …

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …

Counteracting Diminished Privacy In An Augmented Reality: Protecting Geolocation Privacy, Diana Martinez

Loyola of Los Angeles Law Review

No abstract provided.

Gun Rights Or Gun Control? How California's Waiting Period Law Can Pave The Way To Increased Regulation, Natasha Tran

Loyola of Los Angeles Law Review

No abstract provided.

Supreme Court Supremacy In A Time Of Turmoil: James V. City Of Boise, Richard Henry Seamon

Loyola of Los Angeles Law Review

Last Term’s decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system’s inadequate response to it. In James ̧ the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney’s fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts’ well-settled duty to obey the Court’s decisions on federal law, this article shows that the duty …

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …