Constitutional Law Commons^™

The Guarantee Clause In The States: Structural Protections For Minority Rights And Necessary Limits On The Initiative Power, Anya J. Stein

UC Law Constitutional Quarterly

This Note discusses the constitutional significance of the Guarantee Clause of Article IV, Section 4, which states that "[t]he United States shall guarantee to every State in this Union, a Republican Form of Government." For decades, the United States Supreme Court has held that the Guarantee Clause presents a nonjusticiable political question in the federal courts. Notwithstanding this federal doctrine, the Guarantee Clause remains justiciable in the state courts.

State ballot initiatives are vulnerable to uses that violate the Guarantee Clause's protection of the republican form of government. This Note presents a three-part argument. First, the Guarantee Clause provides critical …

Cutting The Fourth Amendment Loose From Its Moorings: The Unconstitutional Use Of Fisa Evidence In Ordinary Criminal Prosecutions, Kathlyn Querubin

UC Law Constitutional Quarterly

After the terrorist acts of September 11, 2001, Congress passed the USA Patriot Act, which amended, among other things, the Foreign Intelligence Surveillance Act (FISA). The FISA amendments permit the government to conduct electronic surveillance even when gathering foreign intelligence is merely a "significant purpose" of the surveillance, eliminating the requirement that the government demonstrate that foreign intelligence surveillance is the "primary purpose" of the surveillance. As a result, the Patriot Act's amendments to FISA allow the government to conduct FISA surveillance even when ordinary domestic criminal prosecution-and not foreign intelligence gathering-is its primary objective. The information that is gathered …

Sexting And The First Amendment, John A. Humbach

UC Law Constitutional Quarterly

"Sexting" and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as much as 50%, having received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions. Given the reality of changing social practices, mores, and technology utilization, today's pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America's young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur …

Thirty-Five Years After Berkelman: Seeking A New Debate About Ability Grouping, Matt Chayt

UC Law Constitutional Quarterly

In 1974, a suit filed by the parents of San Francisco children argued that the operation of a selective public school, Lowell High School, inherently violated the Equal Protection Clause of the Fourteenth Amendment. While the suit successfully changed Lowell's admissions policy with regard to gender, the plaintiffs' broader arguments were largely ignored.

This Note re-examines this suit, which challenged the educational practice known as "ability grouping." Integrating current Supreme Court jurisprudence about equal opportunity in education and other relevant case law, the Note argues for a new conversation, one expressly aimed at racial and economic justice, about contemporary ability …

Tax Reform Commissioners In The Sweep Of California's Fiscal History, Steven M. Shefrin

UC Law Constitutional Quarterly

What role do tax reform commissions play in California fiscal history? The recent California Commission on the 21st Century Economy-the Parsky Commission-temporarily raised hopes for substantive tax reform in California. However, its apparent failure raises broader questions about the role of tax commissions. Have they ever led to fundamental tax policy changes in the state and, if so, what made them successful?

To address these questions, this paper explores the experiences of two important California tax commissions, the 1906 and 1929 commissions, and places them into the history of taxation in California. Both the recommendations of the 1906 and 1929 …

The Business Net Receipts Tax: A Dog That Will Not Hunt, Charles E. Mclure Jr.

UC Law Constitutional Quarterly

The business net receipts tax ("BNRT"), the centerpiece proposal of the Commission on the 21st Century Economy, is seriously flawed and should not be considered seriously. The BNRT exhibits the well-known defects of a subtraction method VAT. Sales-only apportionment would not achieve the desired effects of destination-based taxation in many important cases. If enacted, the BNRT is likely to be subject to both tax planning (including the substitution of independent contractors for employees and reclassification of employees as independent contractors) and legal challenges, and to be unpopular with California business and labor.

Why The Joint Powers Authority Refunding Bond Model Works: A Critique Of The Attorney General's Claim Of Unconstitutionality, Joseph L. J. Appel

UC Law Constitutional Quarterly

In 2007, amid concerns that cash-out refunding bonds were legally unsound and might violate state law, State Senator Joseph Simitian submitted five questions to the California Attorney General addressing the legality of cash-out refunding bonds. Of particular interest is Question 5, which asks whether a school district may sell refunding bonds to a joint powers authority with an above-market interest rate. The Attorney General opined that such a financing arrangement would violate the state constitution because it results in new, non-voter approved local government debt. This Comment is a critique of the Attorney General's answer to Question 5 that focuses …

Between Safety And Transparency: Prior Restraints, Foia, And The Power Of The Executive, Devin S. Schindler

UC Law Constitutional Quarterly

The Freedom of Information Act, and, to a lesser extent, the Constitution, embody a democratic commitment to transparent and open government. Roughly balanced against this commitment is the need in selected circumstances to prevent the release of information that could lead directly or indirectly to tangible harm to America and its interests. Most recently, the debate between safety and transparency came to the forefront in the case American Civil Liberties Union v Department of Defense, where the Second Circuit ordered the President to release a series of nonconfidential but potentially inflammatory pictures showing prisoner abuse at the Abu Ghraib prison. …

Seeking Common Ground: A Secular Statement, Bruce Ledewitz

UC Law Constitutional Quarterly

It is clear that there is a crisis today in the interpretation of the Establishment Clause. Not only do we not know what the Clause means, we do not even have clear opposing constitutional visions. At the same time, we have today a related crisis in American political life between religious believers and nonbelievers over the proper place of religion in politics. Finally, we have today in the West, a crisis of social morals as older religious certainties fade and secularism drifts dangerously close to nihilism. In my view, all of these issues are related. The answer to all three …

The Marketplace Metaphor And Commercial Speech Doctrine: Or How I Learned To Stop Worrying About And Love Citizens United, Darrel C. Menthe

UC Law Constitutional Quarterly

In this article, I place the Citizens United decision in historical and doctrinal context, and argue that the decision indicates a terminal stage of the development and application of the "marketplace of ideas" metaphor in First Amendment law. I argue that the "good news" about the Citizens United decision is that it sets the stage for the abolition of the commercial speech doctrine, which resulted in lower protection for commercial speech, as previously set forth in the 1980 Central Hudson decision. This is good news because the commercial speech doctrine has become a doctrinal anomaly that threatens to undermine the …

Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Tom Donnelly

Cleveland State Law Review

In this Article, I consider the constitutional stories we tell our schoolchildren about the Founding and Reconstruction. To that end, I analyze the relevant sections of our leading high school history textbooks, focusing particularly on the consensus narratives and constitutional heroes that emerge in these accounts. This analysis is vital to more fully understanding the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution.

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

The Supreme Court's Legislative Agenda To Free Government From Accountability For Constitutional Deprivations, Gary S. Gildin

Faculty Scholarship

In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, A New Can Of Worms And The Liberty Two-Step?, Elaine Craig

Articles, Book Chapters, & Popular Press

The Court’s recent decision in Vancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights/Baier analysis that essentially means that policies that restrict expressive rights based on groups rather than content will be very unlikely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to only apply the positive rights Baier/Dunmore criteria where the claim is for the government’s ear or the government’s …

Defending Juveniles Facing Life Without Parole In Michigan, Kimberly A. Thomas

Articles

In Graham v. Florida, the United State Supreme Court held that life without parole could not be imposed on a juvenile offender for a non-homicide crime. This article discusses the challenges, under the Eighth Amendment and the Michigan Constitution, to the sentence of life without parole imposed on someone 17 years old or less.

Iqbal And Supervisory Immunity, Kit Kinports

Faculty Scholarship

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.

Ordinary Administrative Law As Constitutional Common Law, Gillian E. Metzger

Faculty Scholarship

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking …