Constitutional Law Commons^™

Passwords Please: Rethinking The Constitutional Right To Informational Privacy In The Context Of Social Media, Sara E. Stratton

UC Law Constitutional Quarterly

Much attention has been placed on social media privacy in the workplace. There have been several reports of public employers directing job applicants during their interview to divulge their username and password to allow the government to review the applicant's social media activity as part of a background check. This Note contends that the practice of public employers requiring applicants to provide their social media login information violates the constitutional right to informational privacy. With increasing access to the Internet and the popularity of social media, personal information on the Internet is becoming more accessible than ever before. Although the …

The New Jim Crow - Recovering The Progressive Origins Of Mass Incarceration, Anders Walker

UC Law Constitutional Quarterly

This Article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the "new" and "old" Jim Crows, namely the debt that each owe to progressive and/or liberal politics. In a manner that scholars like Michelle Alexander forget, both racial segregation and mass incarceration owe their existence in part to discourses of reform aimed at promoting black interests, albeit with perverse results. Recognizing the aspirational origins of such systems helps to better explain how they came into being, …

On War And Peace In Cyberspace - Security, Privacy, Jurisdiction, Lothar Determann, Karl T. Guttenberg

UC Law Constitutional Quarterly

The public debate surrounding Edward Snowden's revelations about NSA spying, and government surveillance in times of war and peace more generally, has been passionate and unfocused. This Article takes a look at the legal background and current reform proposals. First, it puts the recent international and domestic outrage regarding the NSA's programs into the context of other countries' intelligence gathering, sharing and cooperation practices. Next, it recalls the purposes of espionage and the legality of spying under international law as well as under national laws from the perspective of the spying and spied-upon government. It then proceeds to assess the …

Incoherent And Indefensible: An Interdisciplinary Critique Of The Supreme Court's Void-For-Vagueness Doctrine, Ryan Mccarl

UC Law Constitutional Quarterly

The Supreme Court's "void-for-vagueness" (or simply "vagueness") doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that "fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" and "encourage arbitrary and erratic arrests and convictions."

This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes …

Probability, Confidence, And The Constitutionality Of Summary Judgment, Luke Meier

UC Law Constitutional Quarterly

Professor Suja Thomas has famously asserted that summary judgment violates the Seventh Amendment guarantee of a right to a jury trial in civil cases. Most commentators and courts, however, continue to believe that summary judgment is constitutional and that the Supreme Court in Fidelity & Deposit Co. v. United States resolved this issue.

This Article argues that this entire debate is misguided. The current debate has proceeded under the assumption that every summary judgment raises identical Seventh Amendment concerns. The reality, however, is more complex. This Article distinguishes between the concepts of probability and confidence, both of which can be …

The Story Of Prudential Standing, S. Todd Brown

UC Law Constitutional Quarterly

Prudential standing, it seems, is the latest target in the Roberts Court's effort to "bring some discipline" to jurisdictional and pseudo-jurisdictional concepts. During the Court's last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts' prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …

Using Section 2 Of The Voting Rights Act To Fight Voter Supression Tactics After Shelby County V. Holder Without A New Section 4(B) Formula, Jessica Cassella

UC Law Constitutional Quarterly

In 2012, the state of Texas attempted to require residents to present photo identification when casting a ballot. The United States Department of Justice objected to the implementation of this law under Section 5 of the Voting Rights Act because data showed that this law would disproportionately impact Hispanic voters in Texas. Data revealed that Hispanic voters were 46.5% more likely than non-Hispanic voters to lack the identification that would be required to vote. Also, the data showed that Hispanic voters were more likely than non-Hispanic voters to encounter barriers when attempting to get the proper documentation, including disproportionately lacking …

Did The Sixteenth Amendment Ever Matter? Does It Matter Today?, Erik M. Jensen

Faculty Publications

This article, prepared for a symposium on the centennial of the ratification of the Sixteenth Amendment, argues that the Amendment was legally and politically necessary in 1913, if there was going to be a modern income tax, and that it remains significant today. The Amendment provides that “taxes on incomes” need not be apportioned among the states on the basis of population, as would otherwise be required for direct taxes. An apportioned income tax would be an absurdity, and, if there were no Amendment, Congress could not enact an unapportioned tax on income from property, the sort of tax that …

Bringing In The Sheaves: Home Grown Wheat, Weed, And Limits On The Commerce Clause, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

How An Environmental Commerce Clause Challenge Presaged The Decision Of Chief Justice Roberts In Nfib V. Sebelius, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Dormant Commerce Clause, The Twenty-First Amendment, And A Freer Wine Market: Why Kentucky Must Wine-Down Its Protectionist Laws Restricting The Direct Shipment Of Wine From Out-Of-State Wineries, Aubrey K. Vaughan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Decline Of Legal Classicism And The Evolution Of New Deal Constitutionalism, 89 Notre Dame L. Rev. 2051 (2014), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

This Article explores how some of the salient characteristics of classical legal thought influenced the evolution of the Supreme Court's constitutional jurisprudence during the New Deal era. It focuses upon the Court's jurisprudence of economic liberty in the context of substantive due process. Though a similar pattern of evolution occurred in the Court's Commerce Clause jurisprudence, examination of this area of constitutional development is beyond the scope of this Article. Part I provides an overview of legal classicism and its influence upon late nineteenth and early twentieth-century constitutional law. The next Part examines the paradox of legal classicism and its …

When Counsel Abandonment Forecloses Post-Conviction Relief: An Argument For Applying The Doctrine Of Cause And Prejudice To The Aedpa Statute Of Limitations, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Parallel Justice: Creating Causes Of Action For Mandatory Mediation, Marie A. Failinger

University of Michigan Journal of Law Reform

The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

Corrections And Sentencing Reform: The Obstacle Posed By Dehumanization, J. Clark Kelso

McGeorge School of Law Scholarly Articles

No abstract provided.

Fouling The First Amendment: Why Colleges Can't, And Shouldn't, Control Student Athletes' Speech On Social Media, Frank D. Lomonte

Journal of Business & Technology Law

No abstract provided.

The Islamic Influence In (Pre-)Colonial And Early America: A Historico-Legal Snapshot, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang Ngov

Faculty Articles

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic based …