Constitutional Law Commons^™

Less Than Meets The Eye: Antidiscrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

UC Law Constitutional Quarterly

The conventional wisdom is that, in a series of cases beginning with City of Boerne v. Flores, the Supreme Court erected high barriers against Congress's power to enforce fundamental rights under Section 5 of the Fourteenth Amendment and thereby to abrogate a state's Eleventh Amendment Immunity from private lawsuits. This Article shows that the conventional wisdom is inaccurate. The initial applications of the new Section 5 and Eleventh Amendment jurisprudence, which made abrogation dependent on effective Section 5 action, imposed high standards on what evidentiary record might justify enforcement legislation, and placed stringent limits on the remedies that might be …

A Temporary Solution To Climate Change: The Federal Common Law To The Rescue, Jeremy Hessler

UC Law Constitutional Quarterly

In the latter half of 2009, the Second Circuit in Connecticut v. American Electric Power Co. and the Fifth Circuit in Comer v. Murphy Oil USA provided a strong signal to the political branches that the courts could begin regulating greenhouse gas emissions under common law tort actions. This Note focuses upon recent developments in climate change litigation by closely examining the various issues that arise in these suits, as well as of some of the issues that may arise if the trial courts reach the merits of these cases. This examines the constitutionality of climate change suits under the …

Boumediene As A Constitutional Mandate: Bivens Actions At Guantanamo Bay, Ian Samson

UC Law Constitutional Quarterly

The legal status of and the rights of the persons detained at the United States' facility at Guantdnamo Bay are two of the preeminent questions facing today's legal scholars. The United States initially presented Guantdnamo as a legal netherworld-neither fully within nor exempted from the rule of law. But the Supreme Court's decision in Boumediene v. Bush rejected the government's characterization by deciding that, whatever the legal status of Guantdnamo may be, it certainly is not what the government imagined. This note argues that Boumediene's de jure versus de facto sovereignty distinction applies beyond the writ of habeas corpus and …

Marketplace Of Ideas 2.0: Excluding Viewpoints To Include Individuals, Robert Luther Iii

UC Law Constitutional Quarterly

What are the implications of the Christian Legal Society v. Martinez decision? First, in ruling that public universities may require that all recognized student organizations permit any and "all comers" to be eligible for all offices of the organization, the Court issued a narrow rule that is praiseworthy for its clarity but for little else. Second, and on the issue of precedent, it is worth noting that by ratifying Hastings' "all-comers" policy, the Court overlooked numerous precedents and historical facts that recognize the rights of students to associate with those of similar beliefs on campus and free of university-imposed burdens. …

California Dreaming: A Case To Give States Discretion In Providing In-State Tuition To Its Undocumented Students, Debra Urteaga

UC Law Constitutional Quarterly

Should undocumented students qualify for in-state tuition? In a recent decision by the California Supreme Court, the answer is "yes." California Education Code section 68130.5 provides that anyone, including undocumented immigrants, may qualify for in-state tuition if the student has attended a California high school for at least three years and has graduated from a California high school. This issue, however, has been the subject of heated controversy for some time, and certain college students went as far as to sue the Regents of the University of California for admitting undocumented students into their schools. The arguments, however, are misguided.

The Role Of Reporter For A Law Project, Rory K. Little

UC Law Constitutional Quarterly

Professor Little has served as the Reporter for the ABA's Task Force to Revise the Criminal Justice Standards for the Prosecution and Defense Functions since 2005. In this introductory essay for a unique joint publication Symposium between the Hastings Constitutional Law Quarterly and the Hastings Law Journal focused on the Standards, Professor Little provides his description of the role of a Reporter for a law project. Surprisingly, despite almost a century of academics serving as Reporters for law projects sponsored by the American Law Institute and the ABA, there is no literature providing the "inside story" of a Reporter's role. …

A Different Path Taken: Texas Capital Offenders' Post-Atkins Claims Of Mental Retardation, Peggy M. Tobolowsky

UC Law Constitutional Quarterly

In 2002, in Atkins v. Virginia, the United States Supreme Court held that the execution of mentally retarded offenders is unconstitutional, and entrusted the enforcement of this constitutional ban to the states. In the absence of legislative action in Texas, the Texas Court of Criminal Appeals has established substantive and procedural standards to resolve Texas offenders' Atkins claims of mental retardation for offenders seeking state post-conviction relief. This Texas appellate court has also specified most of the standards to resolve Atkins claims at the trial court level and on direct appeal. The United States Court of Appeals for the Fifth …

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.