Constitutional Law Commons^™

Violent Video Games And The Rights Of Children And Parents: A Critique Of Brown V. Entertainment Merchants Association, Martin Guggenheim

UC Law Constitutional Quarterly

In 2011, in Brown v. Entertainment Merchants Association, the Supreme Court declared unconstitutional California's effort to regulate the sale of certain video games to minors. The Court's ruling deserves careful review because it has halted legislative efforts to regulate video games. Although the ruling is unobjectionable to the extent it concluded the challenged statute was unconstitutionally vague, the decision went well beyond that. It would be one thing if the Court left open room for legislatures to draft clearer legislation that eliminated ambiguity regarding what video games are unsuitable for minors. But the Court held that because video games are …

S.B. 9: A Second Chance For Juveniles Serving Life Without Parole In California In Theory - And Why It Won't Make A Difference In Practice, Evan Reese

UC Law Constitutional Quarterly

Historically, juveniles have been treated differently than adults when convicted of a crime. They were seen as less culpable than adults and more capable of reform. In California and in many other states, however, some juveniles have been tried as adults in a variety of situations. Recent legislation in California has offered a glimmer of hope, and perhaps a second chance, for some juvenile offenders who have been sentenced as adults to life without parole. S.B. 9 allows such juveniles to petition the court for resentencing after serving the first fifteen years of their life sentence. In theory, if the …

Check, Pleas: Toward A Jurisprudence Of Defense Ethics In Plea Bargaining, Hadar Aviram, Deanna Dyer, S. C. Thomas

UC Law Constitutional Quarterly

After years of hesitation to acknowledge instances of ineffective assistance of counsel under the standard set in Strickland v. Washington (1984), the Supreme Court has addressed it head-on in the context of pleabargaining. In three recent cases-Padilla v. Kentucky (2010), Lafler v. Cooper (2012), and Missouri v. Frye (2012)-the Court attempted to define defense counsel professionalism and fashion remedies for lack thereof. But these cases are far from the first effort to regulate the quality of counsel in plea bargaining.

The Article starts by using insights from classic courtroom ethnography to explicate the main issues that influence defense practices in …

Alive Not Dead: The Revival Of Redevelopment Post-Matosantos, Helen Luu Chou

UC Law Constitutional Quarterly

In December 2011, the California Supreme Court in California Redevelopment Association v. Matosantos upheld AB 1X 26-a bill eliminating redevelopment agencies in California. Even though redevelopment officially ended with Matosantos, discussion concerning the state of redevelopment has since been revived. The purpose behind the dissolution of redevelopment agencies was to fund special districts in a time of financial crisis, but what instead followed was dissension within California as cities and counties strongly opposed the dissolution of redevelopment and instead filed lawsuits challenging the constitutionality of AB 1X 26, and its subsequent "clean up" bill, AB 1484. Moreover, the redevelopment wind-up …

Concussion Crisis: Regulating The Nfl's Concussion Policy Under The Commerce Clause, Margaret Greer

UC Law Constitutional Quarterly

During a 2009 House Judiciary hearing, California Representative Linda Sanchez, in an exchange with National Football League Chairman Roger Goodell, noted: "[t]he NFL sort of reminds me of the tobacco companies, pre-'90s, when they kept saying, 'no, there is no link between smoking and damage to your health."' In the years following Representative Sanchez's striking commentary on the NFL's refusal to acknowledge a correlation between concussions and long term neurological damage, the NFL has publicly admitted that repeated concussions can have adverse effects on a player's brain. An analysis of the concussion litigation between the NFL and former NFL players …

Originalism's Promise, And Its Limits - Symposium: History And Meaning Of The Constitution, Lee J. Strang

Cleveland State Law Review

At the same time, I believe, originalism’s promise remains. Originalism’s promise is three-fold. First, originalism promises that it can paint constitutional interpretation in the most normatively attractive light. Not ideal results. Instead—on balance and systemically—normatively more attractive results than its competitors. Second, originalism promises that constitutional interpretation can fit the key facets of our Constitution. These key facets include, for example, the Constitution’s writtenness and its particular origins, facets that originalism better fits than alternative methods of constitutional interpretation. Third, originalism promises that constitutional interpretation can respect judges’ capacities. Judges’ pivotal role necessitates that interpretative methodologies work with their capacities, …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

The Attrition Of Rights Under Parole, Tonja Jacobi, Song Richardson, Gregory Barr

Faculty Articles

We conduct a detailed doctrinal and empirical study of the adverse effects of parole on the constitutional rights of both individual parolees and the communities in which they live. We show that parolees' Fourth, Fifth and Sixth Amendment rights have been eroded by a multitude of punitive conditions endorsed by the courts. Punitive parole conditions actually increase parolees' vulnerability to criminal elements, and thus likely worsen recidivism. Simultaneously, the parole system broadly undermines the rights of nonparolees, including family members, cotenants, and communities. We show that police target parolee-dense neighborhoods for additional Terry stops, even when income, race, population, and …

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Saving Originalism’S Soul, Stephen E. Sachs

Faculty Scholarship

No abstract provided.

Voting Rights Law And Policy In Transition, Guy-Uriel E. Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati

Faculty Scholarship

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …

Good Cause Requirements For Carrying Guns In Public, Joseph Blocher

Faculty Scholarship

No abstract provided.

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Common Sense And Key Questions, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young

Faculty Scholarship

No abstract provided.