Constitutional Law Commons^™

Spreading The Wealth: Is Asset Forfeiture The Key To Enticing Local Agencies To Enforce Federal Drug Laws, David T. Gibson

UC Law Constitutional Quarterly

The "War on Drugs" has proven a costly program for the federal government. One of the ways that this ambitious and resource intensive effort has sustained itself is through asset forfeiture of property previously held by criminals. By seizing title to confiscated property that has been used directly in drug crimes or indirectly to further a criminal conspiracy, the government has been able to absorb substantial resources to further its efforts in waging its drug war against drug criminals.

Asset forfeiture is a powerful tool wielded by law enforcement, and can quickly and effectly shut down drug production and trafficking …

How To Hold A State Constitutional Convention In The Twenty-First Century, 44 Loy. L.A. L. Rev. 603 (2011), Ann Lousin

UIC Law Open Access Faculty Scholarship

Although few states have held constitutional conventions in recent decades, there is renewed interest in holding state constitutional conventions in the twenty-first century. This Essay explains the author's views on holding such a convention, based on her experience in Illinois and with a view toward a California convention. The author believes that the two keys to a successful convention in the twenty-first century are extensive preparation and transparency. Only with preparation can the delegates and staff of a convention draft a document worthy of adoption. Only with great transparency of the process, especially in the Internet age, can the citizens …

Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011), Sonia Bychkov Green

UIC Law Open Access Faculty Scholarship

No abstract provided.

Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy

UIC Law Open Access Faculty Scholarship

No abstract provided.

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

Scholarly Works

Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum

Scholarly Works

Iowa held its 2010 judicial retention elections in the shadow of Varnum v. Brien, the 2009 Supreme Court opinion recognizing same sex marriage. As the result of highly politicized campaign, three talented jurists lost their seats on the Court.

This commentary examines that election and offers a structural solution that might better protect constitutional rights against majoritarian intimidation.

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Scholarly Works

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that "the principles and policies they advocate and vote for can be supported by the political values of public reason." This so-called "duty of civility" obligates us to cast our votes on "constitutional questions and matters of basic justice" for reasons that we can explain in terms of the public good and the "ideals and principles expressed by society's conception of political justice." Rawls contrasts these public reasons with "nonpublic reasons" - such as "comprehensive religious and philosophical doctrines" - which he claims cannot …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Scholarly Works

This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court's recent decision in Salazar v. Buono.

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

Scholarly Works

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

Scholarly Works

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

Can They Do That To Me - Does The Eighth Amendment Protect Children's Best Interests?, Maryam Ahranjani

Scholarly Works

No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

Scholarly Works

No abstract provided.

Full-Body Scanners: Tsa's New "Optional" System For Airport Searches, Stuart A. Hindman

Student Articles and Papers

While the world of commercial air transportation has seen major improvements in many technologies over the last decade, nothing has caused a stir quite like the implementation of full-body scanners (FBS) as a one of the first lines of defense in aviation security at U.S. airports.  FBS and “enhanced” pat-downs have been the source of much debate and scrutiny among passengers, flight crews, privacy rights groups, and federal authorities in charge of airport screening.  The paper begins with a general overview of the law as it pertains to airport searches and privacy rights.  In Part II, the technology behind the …

The Cross National Memorial: At The Intersection Of Speech And Religion, 61 Case W. Res. L. Rev. 1171 (2011), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, 39 Cap. U. L. Rev. 1 (2011), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Constitutional Revision: Are Seriatim Amendments Or Constitutional Conventions The Better Way To Amend A State Constitution?, 115 Penn St. L. Rev. 1099 (2011), Ann M. Lousin

UIC Law Open Access Faculty Scholarship

No abstract provided.

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, 44 U. Mich. J.L. Reform 557 (2011), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …