Showing papers in "William and Mary Bill of Rights Journal in 2012"

Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Case(s) of DREAM Act Students

Abstract: Imagine there's no heavenIt's easy if you try. . . .You, you may sayI'm a dreamer, but I'm not the only oneI hope some day you'll join usAnd the world will be as one. . . .- John Lennon, "Imagine"1Introduction: The Aftermath of the DREAM Act DefeatsIn Fall 2010, at the urging of Latino groups, Senator Harry Reid (D-NV) brought forward abili, the Development, Relief, and Education for Alien Minors (DREAM) Act,2 as the first building block toward future comprehensive immigration reform. As had been the case in 2007, when an earlier attempt had died in the Senate,3 the DREAM Act was tantalizingly close, and followed many public stories about undocumented college students in the media. These continued through the 2010 lameduck session, where once again the votes were not there. The "third time" may be the mythical "charm," but not in this subject matter Democratic backers of the legislation again fell short of the sixty Senate votes required to move the DREAM Act legislation forward in December 2010.4While the federal legislation option was the best known and most politicized, the action at the state level has increased substantially, and a number of developments have occurred since the December 2010 Congressional failure.5 Subsequent activities at the state level have included Wisconsin (repealed resident tuition statute),6 Maryland (passed resident tuition statute; "frozen" while certified for state ballot measure);7 Rhode Island (state board responsible for residency tuition policy enacted mie allowing residency tuition in 2012);s Illinois (passed state statute allowing schools to award non-state-mnded scholarships to the undocumented);9 California (passed three state statutes: allowing schools to award non-state-funded scholarships, providing state financial assistance, and making special provisions for undocumented student leaders);10 Connecticut (passed resident tuition statute).11 While Maryland placed the issue on the 2012 statewide ballot, there was an effort in California to do the same before the provisions of the new laws were to take effect in 201 3; when the signatures were counted in early January 2012, there were not enough legitimate signatures to certify the measure to the November 2012 ballot.12 In 2012, immigrant groups in Maryland were litigating the ballot measure issue, arguing that the statute had not even been put into effect.13 Rhode Island was the first state to enact residency tuition for undocumented college students by administrative action rather than by a statute, as tuition policy is set administratively in the state.14From 2010 through 2012, litigation occurred in California,15 Nebraska,16 and Texas17 - upholding state statutes against restrictionist efforts to eliminate the recent tuition provisions. In New Jersey18 and Florida,19 the states were sued due to policies that restricted even citizen residents from receiving residency or financial aid if their parents were out of status. Litigation also was filed in Maryland20 and New York21 on associated residency tuition issues. In addition to these expansive accomodationist initiatives, designed to incorporate undocumented college students into their communities, there have been states that have done the opposite: enacting statutes or policies to prevent the undocumented from receiving resident tuition (redundant, as Sections 1621 and 1623 require affirmative passage of state laws to accord the status)22 (see Table One), and a small number of states ban them outright, including Alabama,23 Indiana,24 and Ohio,25 which did so in 20 1 1 (for these, see Table Two). The 2011 Alabama bill would have restricted even refugees from enrolling, and was enjoined by the federal district judge.26 Additional Alabama provisions affecting K-1 2 students and requiring the state to "inventory" such children were not enjoined by the trial court, but by the Eleventh Circuit.27 Existing New Jersey policy denied state financial aid to a student who was a U. …

Teens, Sexts, & Cyberspace: The Constitutional Implications of Current Sexting & Cyberbullying Laws

Abstract: INTRODUCTION Over the past decade, technology has revolutionized the lives of modern teens.1 Indeed, for many teens it is hard to imagine a world without iPhones, Facebook, and Twitter.2 There is no denying that technology has improved teens' everyday lives in various ways, but technology is not without its drawbacks.3 In addition to the infinite benefits that accompany technological advancements, technology has also helped usher in an era of online predators, child pornography, and identity theft.4 The most recent additions to the growing list of the negative effects of technology are sexting and cyberbullying. Sexting and cyberbullying - practices by which teens exchange nude or semi-nude photos with each other or bully fellow teens using technology, respectively - are on the rise, and their rapid growth has both parents and schools up in arms.5 In response to the public's outcry for action, legislators across the nation are drafting laws that criminalize both sexting and cyberbullying.6 Many of these laws, however, have been met with opposition because of their infringement of the First Amendment right of minors to exercise freedom of expression and the Fourteenth Amendment right of parents to direct the upbringing of their children.7 This Note examines the modern trends of teen sexting and cyberbullying and considers the proper legislative response. Part I of this Note provides a precedential history of minors' First Amendment right to free speech and its application within the realm of public schools. Part I also gives a historical account of the Supreme Court's protection of parents' Fourteenth Amendment right to parental autonomy and explains when this fundamental right must yield to the educational interests of public schools. Next, Part ? of this Note defines sexting, analyzes its dangers, and examines current and pending legislation targeted at punishing and deterring sexting. Part III describes cyberbullying and explores its potential harms. Part III also looks at state and federal legislation aimed at policing cyberbullying. Part IV identifies the First and Fourteenth Amendment issues implicated by current sexting and cyberbullying laws and examines the constitutional hurdles these laws face. Finally, Part V explores the appropriate legislative response to sexting and cyberbullying. This Note argues that a partnership between parents and schools that is predicated on the concept of school connectedness is the most effective means of deterring teens' participation in sexting and cyberbullying because it allows parents and schools to combat these trends on multiple fronts, while also precluding courts' needs to address the constitutional issues that will inevitably accompany legislation criminalizing sexting and cyberbullying. I. HISTORICAL FRAMEWORK: THE FIRST AND FOURTEENTH AMENDMENTS One can hardly argue that sexting and cyberbullying are socially beneficial behaviors,8 and there is public demand for legislative action to combat them.9 Most of the current laws, however, do not account for technological advances, and are therefore not equipped to address sexting and cyberbullying.10 As state legislators attempt to create legislative solutions that will both deter and criminalize these behaviors, it is essential that lawmakers balance the need for consequences with the fundamental rights of expression and parental autonomy.11 This Part discusses and analyzes the Supreme Court's precedential protection of these rights. A. The First Amendment Rights of Minors In order to understand the constitutional impact of criminalizing sexting and cyberbullying, it is essential to understand the free speech protections presently afforded to minors under the Constitution and the cases that have paved the way for modern First Amendment jurisprudence with regard to minors. It is particularly important to understand students' right to free speech within the realm of schools because schools are one of the primary avenues recent legislation uses to address sexting and cyberbullying. …

Immigration and Civil Rights: Is the "New" Birmingham the Same as the "Old" Birmingham

Abstract: Over the past few years, state legislatures have passed immigration enforcement laws at breakneck speed.1 As one commentator characterized it:Immigration law is undergoing an unprecedented upheaval. The states . . . have taken immigration matters into their own hands. In response to the widespread perception that the federal government cannot or will not control the border, state legislatures are now furiously enacting immigration-related laws .... These attempts to wrestle control of enforcement decisions from the federal government have cast into doubt the doctrinal core of immigration law: federal exclusivity.2The architect of many of the state immigration enforcement laws, Kris Kobach, has stated that their aim is to encourage undocumented immigrants to "self-deport"3 by making their everyday lives as difficult as possible.4Perhaps the most famous version of these laws, Arizona's S.B. 1070, struck a nerve and provoked calls for an economic boycott of the state.5 The flood of state immigration enforcement laws comes at the same time that, in hopes of convincing Congress to pass immigration reform legislation, the Obama Administration aggressively pressed immigration enforcement, setting all-time records for the number of noncitizens removed from the United States.6 In 2012, the Supreme Court struck down core provisions of S.B. 1070. 7 However, it upheld one provision involving state and local immigration enforcement that may encourage like-minded states to copy Arizona.8In 20 1 1, Alabama, a state considered by some to be the heart and soul of Dixie, entered the national immigration debate, a surprise to many Americans given that the state is not ordinarily thought of as home to many immigrants. The Alabama legislature did not enact just any ordinary law but passed what some, including its supporters, claimed was the toughest state immigration enforcement law of them all.9 The Beason-Hammon Taxpayer and Citizen Protection Act, or H.B. 56, 10 built on Arizona's controversial S.B. 1070, but goes further by seeking to directly and indirectly limit access of undocumented students to public education.11This Article analyzes Alabama's foray into immigration enforcement. It looks at H.B. 56 with the basic understanding that the enforcement of immigration laws implicates the civil rights of immigrants and U.S. citizens. To show how the law responds to a growing Latina/o population, Part I of this Article briefly summarizes Alabama's immigration history. Part II contextualizes the events leading to the passage of H.B. 56 into the contemporary national debate over immigration. Part III generally considers the possible civil rights consequences of the law on immigrants and Latino/as. Finally, Part IV specifically focuses on Alabama's efforts to limit access to education by undocumented immigrants. As in the days of Jim Crow, ensuring educational access remains central to the struggle of outsiders for fundamental civil rights and full membership in American society.12In analyzing Alabama's H.B. 56, this Article identifies parallels between the state immigration enforcement laws and the racial caste system of the Jim Crow South. It contends that race, class, and caste, with significant social and economic (labor market) aspects, are integral to both episodes in U.S. history.13 In each instance, supporters of the racial caste system invoked a claim of states' rights, or the equivalent, in the defense of state-sanctioned discrimination.14 Both then and now, access to education is ground zero for the parallel civil rights movements of the two eras.15As the title of this symposium ("Noncitizen Participation in the American Polity") suggests, the public is deeply ambivalent about the proper place of immigrants, especially undocumented ones, in American social life.16 The struggle for hearts and minds in the national debate on the issue has come to a head in recent years, with much attention paid to the increasing deportations of long-term residents of the United States,17 combined with the fact that millions of undocumented immigrants remain in the country. …

The Transformation of Immigration Federalism

Abstract: CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none ofthat in your brief.GENERAL VERRILLI: Where- that's correct, Mr. Chief Justice.CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.GENERAL VERRILLI: We're not making any allegation about racial or ethnic profiling in the case.1Thus began the Solicitor General's argument in the landmark case of Arizona v. United States? This might strike the casual observer as odd. After all, concerns about dscriminatory policing and unlawful harassment, detentions and arrest were the core of the criticisms lodged against Arizona's controversial Support Our Law Enforcement and Safe Neighborhoods Act3 (generally referred to as "S.B. 1070") from the moment Governor Jan Brewer signed the bill into law on April 23 , 20 1 0.4 The President of the United States criticized the law as "undermining] basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe."5 The Mexican American Legal Defense Fund decried the law as "a recipe for racial and ethnic profiling."6 Cardinal Mahoney of Los Angeles declared that the provisions requiring state and local officials to verify immigration documents were akin to Naziism.7 Liberal commentator Rachel Maddow quickly dubbed S. B. 1070 the "papers, please" law and criticized it on similar grounds.8 In their initial challenge to the Arizona law, many immigrants' rights and civil rights advocacy groups raised challenges to the law based on the Fourth Amendment's prohibition on unreasonable searches and seizures and the Fourteenth Amendment's guarantee of equal protection.9 Indeed, these challenges have been renewed in the wake of the Supreme Court's decision in Arizona v. United States}0The Solicitor General quickly clarified that those arguments were not before the Court in April of 2012. He framed his claim as a simple one: the state of Arizona had exceeded its authority in enacting S.B. 1070, and four sections of the legislation were preempted by federal immigration law.11 Arguably, however, the Solicitor General immediately ceded too much ground in the first few seconds of his argument. On the one hand, the facial preemption challenge mounted by the federal government did not and could not rest on individualized showings of racial and ethnic profiling. On the other hand, it is because the Arizona law was inconsistent with, among other things, the antidiscrimination principles embedded in the structure of federal immigration law that it was preempted. The structural certainty of racial and ethnic profiling in the enforcement of S.B . 1 070 is an important reason why the law was preempted, not a separate set of concerns that needed to wait for an as-applied challenge.The courts and the litigants were aware of individual rights issues that lurked behind the dispute over federal power. Preemption became a means through which the feared individual rights consequences of S.B. 1070 might be averted without the need to litigate the effects of the law on particular individuals.12 The preemption argument was therefore critically important for noncitizens present without authorization.13 As Professor Hiroshi Motomura has illustrated, preemption claims are one of several kinds of claims raised in litigation as a means by which unauthorized migrants "assert rights obliquely and incompletely."14 Identifying, detaining, and in some cases prosecuting unauthorized migrants are the express goals of S.B. 1070.15 Those goals are not constitutionally prohibited provided they are achieved through constitutional means. After all, the federal government does all of these things every day.16 Unauthorized migrants therefore could not challenge the law on the grounds of its intended results; they could only challenge the means by which those results would be achieved under the law. …

The Only Thing We Have to Fear is Fear Itself: Islamophobia and the Recently Proposed Unconstitutional and Unnecessary Anti-Religion Laws

Abstract: We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.1 INTRODUCTION On September 1 1, 2001, nineteen al-Qaeda terrorists hijacked four passenger airplanes with the intent to destroy American landmarks and inflict massive loss of life.2 All nineteen terrorists were adherents of the Muslim faith and members of the Islamist extremist group, al-Qaeda.3 In the aftermath of the attacks, popular evangelist Franklin Graham referred to Islam as "a very evil and wicked religion."4 Graham's comments were just the beginning of a slew of anti-Islamic sentiment in America following the 9/1 1 attacks.5 Hate crimes against Arabs and Muslims rose dramatically in the wake of the attacks.6 Fear and hatred of Islam in the United States reached a symbolic precipice when the mere belief that, then presidential candidate, Barack Obama, was a "secret Muslim" threatened his viability as a candidate.7 The election of President Obama spawned the birth of the Tea Party movement, a group of often angry, sometimes rude, ultra-conservatives distrustful of the Obama administration that has only contributed to the unusually scornful (even by American standards) modern political climate.8 In fact, former Republican presidential candidate and Speaker of the House Newt Gingrich recently stated that he believes "[Islamic law] is a mortal threat to the survival of freedom in the United States and in the world as we know it" and that he would only support a Muslim-American Presidential candidate if he or she renounced Islamic law.9 Former Senator and presidential candidate Rick Santorum has made similar statements.10 Religious phobia is not a new phenomenon in America. Discrimination against newcomers and their religious beliefs has been common throughout history.11 As recently as the early twentieth century, the Catholic Church was considered a "foreign menace" and dangerous to the United States.12 It was not until John F. Kennedy, a Catholic, was elected President in 1960 that irrational fears were quelled about the Pope taking over the nation if a Catholic were to become President.13 Catholics "went from the 'pilloried pariahs' of mid- 19th century America to the leaders of the nation and its Supreme Court - 150 years later."14 Most recently, Republican presidential candidate Mitt Romney has faced an increasing number of questions and concerns over his Mormon faith, a religion "persecuted for much of the nineteenth century."15 On the Islam front, Muslim scholars fear that America is now suffering from Islamophobia - an "unfounded and irrational fear of Islam as a religion and Muslims as a people."16 Despite the fact that Muslims make up only 0.6% of the American population,17 fear of Islam has inspired multiple states to consider anti-Sharia (Islamic law) provisions.18 While Sharia law has no specific definition, it is essentially Islamic law - an ever-evolving set of interpretations on how to practice the Islamic faith.19 While Islam has many proponents who point out that Islam is a peace-loving religion,20 a number of Americans only identify Islam with the smoldering ruins of the Twin Towers, and view the religion as inherently violent and un-American, leading many to support laws damaging to the Muslim community.21 Recognizing that laws specifically targeting Sharia are unlikely to survive judicial scrutiny, some anti-Muslim proponents and state legislators have proposed laws that ban court consideration of all religious law.22 On November 2, 2010, 70% of Oklahoma voters approved a measure, State Question 755, also known as the "Save our State Amendment," banning state courts from considering or using Islamic Sharia law. …

Urban Politics and the Assimilation of Immigrant Voters

Abstract: IntroductionIn the run-up to the contentious presidential election of 2012, the immigrant vote was once again a matter of political concern. There was growing alarm within the Republican Party that their platform on immigration alienated Latinos, the fastest growing demographic in the country.1 Conversely, Democrats hoped that their failure to enact comprehensive immigration reform would not dissuade immigrant supporters from going to the polls.2 All the while, efforts to mobilize immigrant voters were unveiled. A broad coalition of immigrant-advocacy organizations announced a massive naturalization drive to help immigrants apply for and gain U.S. citizenship, thus adding them to the voter rolls for the November election.3The lip service directed towards immigrant voters by both major parties shows just how much the latest wave of immigration has reshaped the demographic landscape of American politics. Yet, as the naturalization drive reveals, immigrants have not fully taken advantage of their political power, and political parties have not been all that active in mobilizing them. Immigrant groups today vote at lower rates than natives.4 They also vote at lower rates than earlier immigrant groups at the midnineteenth and turn of the twentieth century.5 Moreover, there is growing evidence to suggest that immigrant political participation in newer destination cities like Los Angeles, where the immigrant population has exploded in recent decades, is particularly depressed, especially when compared to older gateway cities like New York.6What accounts for these different rates of political participation? Explanations thus far have largely focused on the immigrants themselves. Legal scholars have turned their attention to how legal rules have redefined the political life of immigrants - from the obstacles they face in naturalizing,7 to the changing significance of citizenship in a world of globalization, temporary residency, and dual citizenship.8 At the same time, social scientists have offered a rich account of the political lives of immigrants by focusing on their individual and group characteristics. Level of education, proficiency with English, cultural norms, and even the political system of their home countries have been used to explain the voting behavior of immigrants today.9Each of these accounts offers important insights. Yet, the explanation they offer is incomplete. This is because the legal and social characteristics of immigrants today are only one half of the political equation. What has largely been overlooked is the political structure that immigrants face in the United States once they arrive. In other words, in our eagerness to identify how immigrants today are different from those in the past, we have failed to appreciate how the political system has changed as well.To address this gap, this essay foregrounds political structure in explaining the voting behavior of immigrants in the United States. In particular, it focuses on one aspect of the American political system that is closely intertwined with the political life of immigrants but is often ignored in the immigration literature: big city politics. Immigrant groups have long settled in concentrated residential patterns, and often in America's major cities.10 Moreover, since the early days of industrialization, big city governments have controlled a disproportionate share of the resources and opportunities in American society, raising the stakes of urban politics.11 Given these two dynamics, it is often in big cities that immigrant groups begin to wield political influence, and also translate that influence into tangible gains.12 It is therefore not surprising that few political institutions in the United States have evolved as much in response to immigrant political participation as those that govern the nation's major cities.Simply stated, my argument is that the disparate political behavior of immigrants corresponds with different eras in urban governance, each of which developed in response to the growing political power of immigrants. …

Creating Hammer v. Dagenhart

Abstract: INTRODUCTION In a series of decisions in the early twentieth century, the Supreme Court recognized for the first time that Congress could use its power to regulate interstate commerce to promote the health, safety, morality, and general welfare of the nation. The decisions that recognized what was called a "federal police power" - Champion v. Ames,1 HipoliteEggCo. v. United States,2 ana Hoke v. United States3 - were celebrated by turn-of-the-century progressives who were increasingly looking to the national government to address social welfare problems, especially those created by "race to the bottom," degenerative competition among the States.4 In 1 9 1 8, however, the Court significantly limited that authority. In Hammer v. Dagenhart,5 the Court allowed Congress to exercise its federal police power only when prohibiting the interstate shipment of harmful goods.6 Congress, according to the Court, could prohibit the interstate shipment of intrinsically harmful goods, like immoral lottery tickets or impure food, but not items that were in themselves harmless, like the products of child labor.7 Since it was decided, Hammer and the harmless items limit it adopted have been subject to withering criticism.8 The decision is widely considered inconsistent with precedent, incoherent as policy, and the product of a backward looking, politicized commitment to a laissez faire economy.9 This paper challenges those claims. It argues that this conventional understanding is wrong in at least three respects: (1) it underestimates the coherence of the Court' s federal police power as it developed from Champion to Hammer, (2) it mischaracterizes the policies that produced the harmless items limit; and (3) it ignores the central role lawyers outside the Supreme Court played in shaping early federal police power doctrine. Given the prominent place of Hammer in the canon of constitutional law,10 and the central role it plays in supporting a contested understanding of the Lochner Court, those errors threaten to distort the profession's understanding of constitutional development.11 To support these claims, this Article looks beyond the traditional sources of judicial opinions and the papers of Supreme Court Justices, which provide little insight into the origins of the doctrine adopted in Hammer. It looks instead to the public career and rich private papers of the lawyer primarily responsible for establishing, propagating, and defending both the federal police power and the harmless items limit: Philander Chase Knox. Knox, though largely forgotten by lawyers, was a leading attorney of his day; who was asked to join the Court three times by two Presidents. 12 More importantly, he stood at the center of the doctrinal evolution that produced Hammer. As Attorney General, he shaped the establishment of the federal police power when he oversaw the litigation in Champion v. Ames;n as a United States Senator, he helped define the limits of the doctrine in debates over the legislation that led to the decision in Hipolite Egg;14 and as a Presidential candidate and nationally respected lawyer he defended the doctrine's limits in the legal literature.15 Knox, in other words, was a fine lawyer who knew more about the emergence of the federal police power and its limits than anyone of his time. Knox's work and ideas demonstrate that the harmless items limit was not invented in Hammer v. Dagenhart by a Supreme Court dedicated to promoting a laissez-faire economic order. It was instead an attempt by political moderates to reform Commerce Clause doctrine so that it could address the challenges of a new century while preserving what they saw as valuable in existing doctrine. Knox and his contemporaries constructed the harmless items limit more than a decade before Hammer in order to empower Congress to address the problems created by an increasingly integrated national economy while protecting traditional values of federalism, free trade, and freedom of contract. …

The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the U.S.A.

Abstract: Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States. I. THE CONFLICTING LEGAL RESPONSES 799 A. The Total Prohibition of French Law and Its Evaluation from the Point of View of Supranational Law 799 1. French Internal Law 799 2. The Case Law of the European Court of Human Rights ........ 804 3. European Union Law Perspectives 808 B. The Moderately Restrictive View of American Law 810 II. UNDERLYING PHILOSOPHY 825 A. Role of the State 825 1. The French "Rational" Republic 825 2. ... Versus the American Natural Rights Republic 831 B. The Role of the Law 836 1. The Legislator - Institutor of Civil Society in France 836 2. The American Conception of Checks and Balances 841 III. DOES THE BURKA BAN PROMOTE OR NEGATE LIBERTY? 844 CONCLUSION 850 We must support these women. Only France can do it, as it has a frame for this. Muslim women have a right to the respect and the protection of the Republic.1 Six years after banning the hijab2 for students in public schools,3 France enacted a law banning the burka in public places.4 Similar legislation was enacted in Belgium.5 In Denmark, according to a recent law, schools and public services are allowed to regulate the wearing of headscarves by employees.6 In the Netherlands, new draft legislation is being prepared to ban burkas and other face coverings.7 In Italy, a law of general applicability prohibiting the covering of the face in public places8 contains exceptions that apply to coverings for religious reasons,9 but members of Parliament are discussing lifting the exception.10 In Austria, the debate is still open.11 In Spain, the lower chamber of the Parliament rejected a legislative proposal to ban the burka.12 In Germany, "[e]ight out of 1 6 Lander introduced a headscarf ban" for teachers in public schools.13 The European Court of Human Rights has twice rejected applications concerning headscarf bans for teachers on admissibility basis and has deferred to the authority of the states regarding the regulation of students ' dress. 14 The European Union antidiscrimination legislation regarding access to employment does not provide a legal basis to invalidate legislation banning headscarves to state employees.15 In the United States, only two states have banned religious apparel worn by teachers.16 These prohibitions have been criticized as contrary to federal antidiscrimination legislation on the access to employment.17 Bans of the hijab directed at students have not been upheld.18 This Article aims to present some of the political ideas that led to the two laws in France. …

Shaping California's Prisons: How the Alternative Custody Program, Designed to Remedy the State's Eighth Amendment Violations in the Prison System, Encroaches on Equal Protection

Abstract: INTRODUCTION The United States of America has an addiction. The federal, state, and local governments collectively consumed over seventy billion dollars for its satiation in 2008. l Comparatively, just three decades ago, in 1982, it demanded less than twenty billion in expenditures.2 By 2008, it was directly affecting one out of every one hundred adults residing in this nation.3 Incarceration. The United States is addicted to its correctional facilities, and it boasts the greatest incarceration rate in the world.4 Most of these inmates are placed in State prisons and jails,5 where the deathly combination of population overcrowding and a dire lack of resources cultivate an atmosphere that can inhumanely infringe on inmates' Eighth Amendment rights.6 The State correctional facilities in California foster particularly heinous environments. So heinous, in fact, that in 2006, former California Governor Arnold Schwarzenegger announced that California was in a state of public safety emergency.7 It is no wonder then, that this state - the frontrunner in correctional system spending8 - has captured negative judicial attention.9 On May 23, 20 1 1 , the Supreme Court, in an opinion delivered by Justice Kennedy, held that California's state prisons were operating at such overcapacity as to directly inflict cruel and unusual punishment on California inmates, an Eighth Amendment violation.10 The Court therefore affirmed a lower court's order directing California to reduce its prison overcrowding by a specified percentage over the next two years. n The question plaguing the governor, legislators, wardens and civilians is how to bring the State into compliance with this order.12 Other states - including Virginia - that fear the imminence of similar judicial mandates of their own will be carefully observing California over the next two years, to see how America's guinea pig in prison reform will tackle its share of this national problem.13 However, these States would be ill-advised to adopt all of California's remedial plans in their current frameworks. Unfortunately, at least one of California's current proposals to remedy the Eighth Amendment violation in its penitentiary system is being executed in a constitutionally unacceptable manner and therefore is not, in its present enactment, a sufficient remedy to a problem fraught with economic, political and societal concerns.14 The proposal, titled the Alternative Custody Program, clearly runs afoul of the Constitution's guarantee of equal protection. This Note examines that initiative, and elucidates its constitutional flaws. Part I establishes the foundational basis with a discussion of inmate rights - as they are inherently limited in comparison to the free population's - and the Eighth and Fourteenth Amendments as they apply to State prisons. The section then discusses the conditions in California State prisons, as they have become the nation's testing ground for prison reform, and focuses on how one particular condition - prison overcrowding - was judicially deemed an Eighth Amendment violation by the California federal courts in Coleman v. Wilson,15 Plata v. Schwarzenegger,16 Coleman v. Schwarzenegger,11 and by the United States Supreme Court in Brown v. Plata.18 Part II conducts an overview of California's response to the overcrowding problem, and its much touted initiative, Public Safety Realignment of 201 1 ("Realignment"). One of California's current proposals, which falls under the umbrella of Realignment, is the Alternative Custody Program.19 The program is intended to remedy the Eighth Amendment violation, but it is constitutionally problematic in its own right. Indeed, it treads on the Fourteenth Amendment. Part III unfurls the program's constitutional shortcomings, specifically in the context of equal protection, and Part IV offers a recommendation for bringing the Alternative Custody Program into conformity with the Constitution. I. PROTECTION OF INMATE RIGHTS Prisoners are not afforded all of the constitutional rights that they enjoyed prior to incarceration. …

Distorting Democracy: Campaign Lies in the 21st Century

Abstract: INTRODUCTION By now, nearly everyone in the legal community has heard of Caperton v A, T Massey Coal Co, Inc,1 a case in which the United States Supreme Court held that a state supreme court justice should have recused himself as a matter of due process2 At the state level, Caperton involved an appeal of a $50 million judgment against a company whose chief executive officer (CEO) had contributed $3 million dollars to the justice's election campaign3 What most are not aware of, however, is the lies and distortions directed at the justice's incumbent opponent in order to defeat his relection Don Blankenship, Massey's CEO at the time, was the primary investor in a political organization formed under § 527 of the Internal Revenue Code4 named "And For The Sake Of The Kids"5 The organization was instrumental in the 2004 campaign for Justice Warren McGraw's seat on the West Virginia Supreme Court of Appeals, the highest court in the state6 The group made many inflammatory claims in advertisements, including the claim that Justice McGraw let "child rapists" go free7 This claim stemmed from the 2004 per curiam decision in State v Arbaugh* The Arbaugh case was far from letting a rapist go free Mr Arbaugh himself was the victim of long, systematic sexual abuse at the hands of two adult family members and one of his teachers9 As a result, he acted out sexually against his younger halfbrother, and a delinquency petition was filed when he was fifteen years old10 He was transferred to adult court and pled guilty to one count of first-degree sexual assault11 The Arbaugh case in question arose a few years later, when the West Virginia Supreme Court of Appeals ruled that the trial court had abused its discretion in not reducing Mr Arbaugh's sentence to probation so he could pursue a private rehabilitation program12 More problematic regarding the truth of the political ad was the fact that Mr Arbaugh had been previously placed on probation, although it had been revoked at the time of his petition13 Blankenship admitted that his real objections to Justice McGraw were his rulings against corporate defendants14 "Being the street fighter that I am," he said, he had instructed his aides to find a decision that would enrage the public When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, [he] said he knew he had hit pay dirt "That killed him," [he] said of Justice McGraw, smiling15 This case is an example of the abuse of money in politics; but more particularly, it represents the evils of lying in political campaigns, which can have a very distorting effect on election outcomes Unfortunately, it seems to be that because of the New York Times Co v Sullivan16 line of cases, requiring proof of actual malice in the form of knowledge of falsity or reckless disregard for the truth,17 there is virtually no remedy for this kind of deliberate deception Perhaps legally this should not be so I have argued elsewhere for the use of a negligence standard, at least in the case of media defendants18 But even if this is not possible in the political arena because of core First Amendment values, there is still room for New York Times liability In the Blankenship campaign against Justice McGraw, for example, Blankenship was certainly malicious in the subjective, emotional sense of the term It also can be argued on a number of fronts that he was malicious in terms of New York Times actual malice First, Mr Arbaugh was himself a juvenile at the time of his offense, and thus was not an adult "child rapist"19 Second, he had already been placed on probation by the trial court, but it had been revoked because of the consumption of drugs and alcohol at the time of his petition20 Third, Mr Arbaugh did not exactly "go free"; he was placed on tightly controlled supervision21 And fourth, Justice McGraw did not independently grant him relief; the justice was simply part of an unsigned three-judge ruling …

"Worse Than the Disease": The Anti-Corruption Principle, Free Expression, and the Democratic Process

Abstract: There are again two methods of removing the causes of faction: The one by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. - James Madison, THE FEDERALIST No. 101 INTRODUCTION A number of scholars and jurists have long deplored what they see as the corruption of the American political process.2 In their view, too much money is having too large and unsavory an impact on American politics, while simultaneously distorting political power towards the wealthy and seductively drawing politicians away from pursuit of the public interest.3 One of the leading scholars advocating such a view, Professor Zephyr Teachout, has gone so far as to suggest that there is actually an "anti-corruption principle" embedded in the Constitution,4 logically implying thatpolitical corruption rises to the level of a constitutional violation. This principle posits that, as a matter of American history and constitutional law, "office holders" are constitutionally obligated to act in the "public interest" and in pursuit of the "common good"; anything less is deemed to amount to "corruption."5 The Supreme Court's recent decision in Citizens United v. Federal Election Commission6 only intensified scholars' and jurists' concerns about the dangers of political corruption.7 In Citizens United, the Court held that the section of the Bipartisan Campaign Reform Act (BCRA) limiting direct corporate political expenditures for expression during a presidential campaign violated the First Amendment.8 In a strongly worded dissent, Justice Stevens relied on arguments grounded in the anti-corruption principle, as fashioned by Professor Teachout, to justify the BCRA's suppression of corporate political speech.9 Justice Stevens's dissent, like Professor Teachout's version of the anti-corruption principle, relied on a broad definition of corruption - one extending far beyond the simple act of bribery.10 According to Justice Stevens, "[t]here are threats of corruption that are far more destructive to a democratic society than the odd bribe."11 Justice Stevens's dissenting opinion in Citizens United is not the first time the Justices have sought to uphold restrictions on political speech in the name of anticorruption. In Austin v. Michigan Chamber of Commerce, the Supreme Court upheld a state law that restricted corporate political expenditures in state elections.12 The Austin Court considered Michigan's law to be "aimfed] at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form."13 The Court's decision in Austin, as Justice Scalia observed in his dissent, "endorse[d] the principle that too much speech is an evil that the democratic majority can proscribe."14 The Austin decision allowed for "anything the Court deemfed] politically undesirable [to] be turned into political corruption - by simply describing its effects as politically 'corrosive . . . .'"15 The anti-corruption principle developed by Professor Teachout provides important constitutional grounding for the theories relied upon by the Austin majority and Justice Stevens's opinion in Citizens United. Under the anti-corruption principle, if proposed legislation undermines the "public good," it is unconstitutional for a member of Congress to vote for it, even if she believes it would benefit her constituents.16 The anti-corruption principle requires that members of Congress always be motivated by the goal of advancing the "public good."17 Any political action not motivated by this goal is considered inherently "corrupt," and therefore unconstitutional.18 The most radical element of Professor Teachout's anti-corruption principle is its conclusion that private citizens, as well as public officials, are to be treated as "office holders" when they interact with the government. …

Constitutional Limits on the Right of Government Investigations to Interview and Examine Alleged Victims of Child Abuse or Neglect

Abstract: Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions from state and lower federal courts, particularly with respect to Fourth Amendment requirements in this context. This Article will examine whether court orders allowing searches and seizures in child abuse or neglect cases can be issued based on a standard lower than probable cause and still pass muster under the Fourth Amendment. Additionally, it discusses the special needs exception to the Fourth Amendment's warrant requirement and weighs arguments in favor of and in opposition to applying the special needs exception to child abuse and neglect investigations. Finally, the Article discusses whether searches without a warrant or other court order may be conducted in response to allegations of child abuse or neglect if the special needs exception does not apply. INTRODUCTION Government workers are tasked with investigating allegations of abuse or neglect of children. It is clear that the Fourth Amendment applies to most investigative options involving direct contact with the alleged victim.1 Interviews are searches,2 and taking children into custody - even temporarily for the purpose of interviewing them - involves a seizure.3 What is unclear is under what circumstances these searches or seizures violate the Fourth Amendment. There are cases that discuss rather extensively the right to remove children from their parents' custody without a warrant (requiring exigent or emergency circumstances and, in some cases, evidence that there was no time to get a court order).4 However, this Article focuses on the right to search or seize evidence. In other words, to what extent can social workers investigate child abuse allegations without consent or a warrant supported by probable cause? Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in the perfect position to prevent the alleged victims from getting access to the help they need to escape their abuser(s). In cases in which the reports of abuse or neglect are insufficient to meet the standard of probable cause necessary to issue a warrant, there may not be a meaningful investigation.5 Without the ability to interview or examine the children (both of which constitute searches under the Fourth Amendment to the United States Constitution),6 the government may be unable to assess whether the allegations of abuse or neglect can be substantiated, much less meet the burden of proof necessary to remove children from an abusive or neglectful environment. This can be particularly troubling in cases in which there is little or no opportunity to gather evidence because the children have limited contact with persons other than the alleged abusers. For example, children who live in a geographically isolated or culturally insular community may have limited contact with people who are willing and able to observe and report signs of abuse. If abuse is suspected, the information gathered may be insufficient to establish the probable cause necessary to obtain a search warrant. Even if the child regularly interacts with teachers, administrators, child care providers, or others who may be inclined or required to report suspected abuse, there may not be sufficient evidence to justify issuance of a warrant to search or seize the child. …

Hugo Black's Vision of the Lawyer, the First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State

Abstract: INTRODUCTION 691 I. THE COURT AND ATTORNEY GOVERNANCE 698 II. THE COURT, THE COLD WAR, AND CHALLENGES TO THE HISTORIC MODEL OF ATTORNEY GOVERNANCE 712 A. Anticommunist Legislation 715 B. Federal Law on Economic Regulation and the Criminalization of Speech 718 C. Dennis v. United States 721 D. The Court Under Attack 727 E. United States v. Sacher 728 F. In re Isserman 738 G. Other Prosecutions: Black's Fears of a Double Standard ......... 742 1. Rosenberg Trial 743 2. Cammer v. United States 744 H. State Loyalty Programs Affecting Public Employment 745 III. THREE PETITIONERS, FOUR DECISIONS: THE COURT DETERMINES ITS ROLE IN ATTORNEY LICENSING AND BLACK DEFINES THE IMPORTANCE OF ATTORNEYS IN PRESERVING DEMOCRACY 748 A. Konigsberg I 752 B. Schware v. Board of Bar Examiners 759 C. Interregnum: In re Sawyer 766 D. Konigsberg II 770 E. In re Anastaplo 774 CONCLUSION 784 INTRODUCTION Between 1957 and 1961, the Supreme Court issued four attorney licensure decisions involving three separate petitioners and three state bar admissions processes. The decisions, Konigsberg v. State Bar of California Konigsberg I),1 Schware v. Board of Bar Examiners2 Konigsberg ?. State Bar of California Konigsberg II),3 and role of attorneys in a democratic society. Decided at the height of the Cold War - when In re Anastaplo,4 evidenced how the Justices on the Warren Court viewed the fears of Communist espionage, subversion, and the potential for atomic warfare were keenly felt in the three branches of government and society as a whole - the Justices sought to influence the ability of the legal profession to determine who was eligible for bar admission, and, therefore, what might be the role of the zealous advocate. In particular, state bar associations had begun to restrict admission of people who had been affiliated with the Communist Party of the United States (CPUSA),5 but the CPUSA was not the only political entity targeted for bar exclusion.6 Within the Court, two opposing camps led by Justice Hugo Black and Justice John Harlan sparred over the ability of state judicial branches to determine bar admission based on political affiliation and loyalty oaths.7 One recent study characterized In re Anastaplo as "exemplif [ying] the conflict between those who, like Justice Black, placed absolute faith in the First Amendment, and others who, like Justice John Harlan, felt that its freedoms had to be balanced against societal needs."8 The same could be said for all four decisions. Harlan's belief in the necessity of balance was not wholly original. He was guided and coached by Justice Felix Frankfurter,9 and his approach was a continuation of Justice Robert Jackson's jurisprudence.10 In the firsttwo cases decided in 1 957, Black appeared to prevail.1 1 But Harlan's ideology formed the majority, and, therefore, the law in the second two cases, which were also decided together.12 Although Black was an absolutist in First Amendment jurisprudence, he believed the four attorneys' admission decisions represented more than the Amendment.13 He argued that the independent bar was the guardian of the Bill of Rights, and judicially imposed restraints on bar admission based on political belief was a tenuous path to the erosion of those rights. …

Needed: More Than a Paper Shield

Abstract: [I\t is essential to the democracy of the United States that journalists may report important information to the public without fear of intimidation or imprisonment.1 INTRODUCTION "When governments repress their people, press freedom is among the most powerful vehicles for exposing misdeeds," declared United Nations Secretary-General Ban Ki-moon on World Press Freedom Day 2011.2 "Today it is the peoples of North Africa and the Middle East mobilizing for their democratic rights and freedoms," Secretary Ban continued, "[a]nd they are doing so with a heavy reliance on new media."3 WikiLeaks could not have been far from the Secretary's mind. The website's slow release of 25 1,287 diplomatic cables from the U.S. State Department, beginning in November 2010,4 has been cited as a contributing cause of the 2011 "Arab Spring" uprisings in Tunisia, Egypt, Libya, Syria, and elsewhere.5 For those interested in shield laws for journalists, WikiLeaks exemplifies the new, complex reality facing the legal community.6 The website maintains a policy of protecting its sources, even from news outlets with which it collaborates on document releases.7 But protecting it from whom? WikiLeaks ' servers are located worldwide,8 so it has no real home. One scholar termed it "the world's first stateless news organization."9 And protecting WikiLeaks against what? WikiLeaks' founder, Julian Assange,10 has not clearly stated how he received1 i the diplomatic cables - nor the Brobdingnagian caches of military reports from the Afghanistan12 and Iraq13 wars released in July and October 2010 - so it is not clear that he or WikiLeaks would qualify as "j ournalists" under existing shield laws.14 The situation in the United States, which lacks a federal shield law, is equally thorny. WikiLeaks' release of the War Logs arguably affected support for a federal shield law.15 According to Washington Post reporter Paul Farhi, "news organizations thought they were cruising toward a long-cherished goal: Congressional passage of a federal shield law to protect journalists from being forced to reveal confidential sources. Then came WikiLeaks."16 WikiLeaks "complicated, and possibly imperiled," passage of a shield law, he said.17 But supporters of a shield law say it would not cover WikiLeaks, anyway, because WikiLeaks is a 'Virtual" organization, devoid of a physical address or "country of origin."18 WikiLeaks has collaborated with the New York Times and the Washington Post*9 Those relationships have become rockier over time, starting with a debate among the newspapers and WikiLeaks over redacting names from the Afghanistan documents.20 Although WikiLeaks ultimately attempted to scrub documents for informants' names, Assange at first was reluctant to do any redaction, and the "harm minimization" process, as Assange called it, was not totally successful.21 Some vulnerable people were still exposed, and less than forty-eight hours after publication of the Afghan War Logs, according to Nick Davies, an investigative reporter at the Guardian, competitors of "The Guardian and The New York Times ran big stories saying, 'We've been on the WikiLeaks Web site. We found material which could get people killed.'"22 The New York Times said that its search through a sample of the WikiLeaks documents found "the names of dozens of Afghans credited with providing credible information to American and NATO troops" and that the Times, Guardian, and Der Spiegel had only posted a selection of redacted WikiLeaks documents containing no identifying information that could jeopardize informants' safety.23 Martin Smith said that the New York Times "lost trust" in Assange's redaction process and would not link to WikiLeaks.24 Could the United States government order Assange to identify his source? Leaving aside jurisdictional considerations, Assange could not be ordered to name a source if indeed his software design prevented him from gaining that knowledge. …

The Internet at 20: Evolution of a Constitution for Cyberspace

Abstract: INTRODUCTION In 1995, this Journal published my1 article arguing for broader public access to government-generated information, explaining that the Internet provided the potential for a new window into government operations and decisions.2 That article, summarized more thoroughly in Part I.C below, focused on only one aspect of the then-neophyte Internet's capacity to revolutionize how people interact with each other, participate in democratic political systems, conduct commerce, and create and communicate art.3 The Internet is now about twenty years old - measured from the time that the federal government decided to release it from its governmental sponsorship and control in the research and national security communities and launch it into the private sector as a global information infrastructure. Some of the earliest battles over the Internet were fought over access to government information. Gradually, the battlefield broadened, encompassing a wide range of federal and state constitutional issues, federal common law, and private international law. The same core issues and principles explored in my 1995 article, however - deferring to competitive markets and encouraging them to produce a diversity of products and services, ensuring access to the marketplace by all consumers and producers, and providing a mechanism to compensate for injury4 - now frame the full range of legal and policy questions arising from the Internet's ubiquity. The combination of technological characteristics defining the Internet, regulatory philosophies first articulated by the Clinton administration, statutes addressing particular problems, judicial decisions, and market-driven commercial practices form the Internet's "constitution." As with the British Constitution, no overarching constitutional document exists; rather, [Safeguards of human rights and freedoms are not the rigid Iegalism and paper guarantees of written constitutions and Bills of Rights but the benevolent exercise of discretion by public officials, who are accountable through their political masters to the legislature and the people, accompanied by the efficiency and careful scrutiny of the legislative process.5 Further, [T]here is no single, identifiable document that is widely accepted as a systematic statement of the basic tenets of British constitutional law. But this is not the only possible definition of a "constitution." . . . [A] constitution [is] "the whole system of government of a country, the collection of rules which establish and regulate or govern the government."6 The same can be said about the Internet's constitution. It is not expressed in a single document. Instead, it comprises the open architecture inherent in the Internet's technological protocols together with a collection of governmentpolicies, legislative enactments, and judicial decisions that seek to protect the basic architectural philosophy, ensure space for entrepreneurial freedom, and guard against the abuse of economic or political power. This Article looks back over the Internet's first twenty years, highlighting the crucial legal decisions by the executive, legislative, and judicial branches that have led to the Internet's success, and that now frame its constitution. I participated in many of these decisions and wrote more than a dozen law review articles and reports suggesting directions for public policy and law. This Article uses this foundation to consider the future, focusing on major legal controversies, the resolution of which will define the Internet's third decade - either strengthening or undermining its constitution. I. DEVELOPING A LEGAL FRAMEWORK During the 1990s and early 200Os, policymakers and entrepreneurs developed a "constitution" for the Internet that succeeded in balancing a number of overlapping and conflicting objectives: * ensuring open access to the physical infrastructure;7 * ensuring that intermediaries flourished and that content originators had free access to them; * developing the tools for expansive e-commerce; * developing rules for transborder jurisdiction so that the burden of enforcement did not cause intermediaries to shut out controversial content; and * managing security, intelligence, and law enforcement goals so that people were not afraid to use the Internet. …

Bridging the Liability Gap: How Kowalski's Interpretation of Reasonable Foreseeability Limits School Liability for Inaction in Cases of Cyberbullying

Abstract: Introduction Does the administration of a public school system have the power to punish a student for engaging in "Internet bullying" outside the walls of a school? The Fourth Circuit answered this question in the affirmative with its recent opinion in Kowalski v. Berkeley County Schools.1 With the emergence of social media, the free speech rights of students and school systems' ability to punish students for engaging in speech over the Internet have become increasingly prevalent issues.2 As the instances of what has been coined "cyberbullying" are increasing, so are the detrimental effects that this behavior has on the student population.3 Despite the increasing number of "Internet bullying," or "cyberbullying" cases, federal courts have differed in their views on the issue, and to date, the United States Supreme Court has yet to weigh in.4 These differences have been brought to light after several other high profile opinions in the federal circuits were issued over the summer of 201 1.5 In Kowalski, the Fourth Circuit decided to use the "substantial disruption" test established by Tinker v. Des Moines Independent Community School District.6 The Third Circuit previously relied on the "vulgar and offensive" exception to student speech, which was established as another exception to students' rights to free speech in Bethel School District v. Fraser.1 This test, however, has its limitations, as it has been interpreted to apply only when students engage in speech on school premises.8 Only very recently did the Third Circuit reconsider the issue of whether schools can regulate targeted and offensive off-campus speech when it reheard J.S. ex rei. Snyder v. Blue Mountain School District9 during the summer of 20 1 1 . In its final Snyder decision, the Third Circuit brought itself in line with the Second and Fourth Circuits by holding that Tinker does in fact apply in situations involving the off-campus cyberspeech of a student.10 Despite its agreement with the applicable test in these circumstances, the Third Circuit's most recent Snyder opinion created a circuit split with the Second and Fourth Circuits, because the Third Circuit has interpreted Tinker's, "substantial disruption" test to mean something else in its application}1 In Tinker, the Supreme Court held that school administrators may regulate speech "which might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities."12 The Third Circuit's view of the "substantial disruption" test severely limits the scope of the "reasonably foreseeable" component of the test, which in turn limits a school district's power to regulate off-campus speech.13 Other federal district courts have also followed the Third Circuit's approach,14 limiting school administrators' power to regulate off-campus speech as a result Other courts, much like the Fourth Circuit in Kowalski, have "concluded mat school admuiistrators' authority to regulate student speech extends, in the appropriate circumstances, to speech mat does not originate at the school itself; as long as the speech eventually makes its way tome school in a meaningful way."13 What we are left with are two interpretations of a legal standard that governs off-campus Internet speech mat are in conflict with each other. Furthermore, courts that deal with this issue as a matter of first impression are left with little guidance. Because cyberbullying is a relatively new phenomenon, cases that implicate off-campus speech "present a real conundrum for courts trying to balance students' First Amendment rights against the need to maintain order in schools."16 Should the Supreme Court weigh in on mis issue, it should favor Kowalskis interpretation of the "substantial disruption'' test for the reasons articulated below. A number of commentators argue mat decisions analogous to Kowalski essentially destroy students' right to engage in protected speech.17 This Note argues mat despite the alternative standards that federal courts have applied to determine the constitutionality of regulating the off-campus speech of students, the "substantial disruption*' test, as applied in Kowalski (and similar cases), makes the most sense. …

"Alien" Litigation as Polity-Participation: The Positive Power of a "Voteless Class of Litigants"

Abstract: Well-funded illegal alien activists in Southern California have found a new way to attack Americans fighting for secure borders and enforcement of current immigration laws. The fight has moved from the streets where they wave the [sic] their Mexican flag to America's civil courtrooms.- Quote from an article posted on Ron Paul Forums, Feb. 9, 20101Immigration policy shapes the destiny of the Nation.- Arizona v. United States2Again and again, the cure for corruption, withdrawal, and alienation is . . . aliens.- Bonnie Honig, Democracy and the Foreigner3IntroductionThe framing title of this Symposium - Noncitizen Participation in the American Polity - seems to present an obvious contradiction: How can noncitizens, who are by legal definition "aliens"4 and often seen as "outsiders;"5 who are frequently de scribed as lacking full "membership" in society;6 and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented - who by definition have violated U.S. law, who face the existential epithet of being "illegal aliens," and who have been well-described as living under "a regime of enforced invisibility"7 - possibly do so? Are they even part of the polity? And if they do somehow manage to participate, how should we assess such actions?The apparent contradiction is largely illusory. Noncitizen participation in the American polity (including the participation of undocumented noncitizens), though mostly undertaken by means other than voting, has long been a reality in the United States.8 This historical fact remains true notwithstanding such current initiatives as Arizona's cynical policy of "attrition through enforcement."9This Article examines such participation and considers a provocative normative claim: noncitizen polity-participation is a crucial, positive engine of constitutional evolution and, as such, an essential component of politico-legal legitimacy. Justice Kennedy's opinion was clearly right, in Arizona v. United States, to affirm that "[immigration policy shapes the destiny of the Nation."10 This is equally true of noncitizen polity-participation in its various forms.11 Litigation by noncitizens is a surprisingly large - and surprisingly under-appreciated - aspect of the deep truth also noted by Justice Kennedy, that "[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here."12Litigation by noncitizens is always a controversial topic, especially when cases are brought by the undocumented or their advocates. As a prominent retired ICE agent has put it:Allow me to understand this correctly. Illegal aliens, people who have committed a crime by entering this country illegally, and who continue to commit additional crimes by using counterfeit documents to project a status they are not entitled to, are suing cities and citizens for disrupting their RIGHT to work in the US, even though they have no such right? ... It's time for the good citizens of this country to fight back through the courts . . . .13An online commenter responded, "They do have nerve. How on earth can anyone living in a country illegally have the audacity to sue for ANYTHING. . . . Only in America."14Such sentiments have percolated up into legislative proposals. In 2010, Texas State Representative Leo Berman (R-Tyler) introduced a bill that sought to prevent people who are in this country illegally from filing lawsuits or other claims in Texas courts.15 "If he is in the United States illegally, he shouldn't have access to our courts," explained Berman.16 Even federal judges have expressed concerns of this type. In 2010, the District Court for the Northern District of Oklahoma considered challenges to the Oklahoma Taxpayer and Citizen Protection Act of 2007, which had sought to prohibit various forms of polity-participation by noncitizens. …

'Property' in the Constitution: The View from the Third Amendment

Abstract: During World War II, after Japan attacked the Aleutian Islands off Alaska's coast, the United States forcibly evacuated the islands' natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what the term "property" means in the United States Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles, such as books, to intangibles, such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Caselaw and commentary do not speak as plainly, however, raising troubling questions about what "property" means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property to a lesser extent than it does real property. The unjust treatment of Aleutian natives during World War II illustrates the risk of giving constitutional property so peculiar and narrow a definition. This Article describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving "property" a plain, generous, and consistent meaning throughout Constitution. INTRODUCTION: THE SEARCH FOR CONSTITUTIONAL PROPERTY 1244 I. "PROPERTY" IN THE CONSTITUTIONAL TEXT 1247 A. The Property Clause of Article IV, Section 3, Clause 2 1248 B, The Due Process Clause of the Fifth Amendment 1248 C. The Takings Clause of the Fifth Amendment 1249 D, The Due Process Clause of the Fourteenth Amendment 1249 ?. PROPERTY, GENERALLY 1250 ??. CONSTITUTIONAL PROPERTY IN CASELAW AND COMMENTARY ....... 1252 A, The Property Clause of Article IV, Section 3, Clause 2 1252 B, The Due Process Clause of the Fifth Amendment 1255 C. The Takings Clause of the Fifth Amendment 1256 1. Stretching "Private Property" to Include Public Property ...... 1256 2. Protecting Personal Property Less than Real Property ........ 1257 D, The Due Process Clause of the Fourteenth Amendment 1261 IV. THE PROBLEM OF CONSTITUTIONAL INCONSISTENCY 1265 V. THE VIEW FROM THE THIRD AMENDMENT 1269 CONCLUSION: CONSTITUTIONAL PROPERTY BY COMMON CONSENT ....... 1275 INTRODUCTION: THE SEARCH FOR CONSTITUTIONAL PROPERTY In 1942, as Japanese forces swept toward the mainland, the United States government forcibly evacuated natives from the Aleutian Islands off the southwest coast of Alaska.1 In some cases, United States military officials pursuing a "scorchedearth" policy razed entire villages.2 In other cases, the natives suffered vandalism of their empty homes, destruction of their irreplaceable craftwork, and theft of their religious icons.3 Most significantly for present purposes, a few of the Aleuts had United States soldiers quartered in their homes.4 Though it hardly ranked among the worst wrongs inflicted on the residents of the Aleutian Islands in the early 1940s, that hitherto unremarked instance of quartering offers a telling example of how constitutional interpretation affects real people. Why were the Aleuts not protected against the trespasses of their own government? The Constitution plainly required better control over the occupying forces and compensation for the property rights they violated,5 yet it took decades for the federal government to admit to having maltreated the Aleutians, apologize, and pay damages. …

Looking Back at Cohen v. California: A 40 Year Retrospective from Inside the Court

Abstract: This case may seem at first blush too inconsequential to find its way into our booh, but the issue it presents is of no small constitutional significance. l In April 1 968, at the height of the Vietnam War, when campuses from Columbia to Berkeley were in upheaval and many cities in America were on fire due to racial discord as well as antiwar sentiment, a young man named Paul Robert Cohen engaged in a comparatively quiet act of protest. Summoned to appear as a witness, Cohen walked through a corridor of the Los Angeles County Courthouse wearing a jacket on which "Fuck the Draft" was written.2 For that act, Cohen was convicted of "maliciously and willfully disturb[ing] the peace or quiet . . . by . . . offensive conduct . . . ."3 Three years later, by a 5-4 vote, the Supreme Court of the United States reversed that conviction and attendant thirty-day jail sentence by issuing an opinion, with which I was intimately involved, that concluded that the California decision could not withstand First Amendment scrutiny.4 Cohen ?. California is now over forty years old.5 In this Article, I revisit and reexamine Cohen. The opinion makes some rather bold pronouncements about freedom of speech and its importance to American society.6 Cohen also sets out a series of almost-hornbook law statements about certain aspects of time, place, and manner speech regulation.7 1 ask whether, with the hindsight of these past decades, Cohen looks today more like an enduring contribution to First Amendment law and theory, a relic or period piece of the early 1970s, or a jurisprudential quixotic sport. I conclude that both parts of Cohen - Part I, with its treatment of time, place and manner regulations, and Part ?, with its analysis of offensive public speech - even from a perspective of forty years, are important parts of a sound and robust First Amendment jurisprudence and deserve continuing attention. Candor, if not modesty, requires that I state at the outset that my perspective is not (solely) that of a disinterested academic. During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan's law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.8 I thought the opinion in Cohen v. California was right when Justice Harlan filed it, continued to believe it was right during the thirty years that I taught constitutional law at several law schools, and still think the opinion achieves a proper outcome and rests on sound reasoning. Thus, I am more certain of my ability to revisit Cohen than I am of my claim to be able to reexamine it; nevertheless, I am going to try to do both and have set forth a series of retrospective criticisms of Cohen in Part IV. A. Finally, in some of the footnotes, I will explain some of the internal deliberations that led the Court to its resolution of the case and Justice Harlan to his filing of this opinion.9 Occasionally, I confront mysteries about certain aspects of the case, mysteries that I think will never be "solved."10 I. "F . . ." The facts that gave rise to Cohen are quite simple. In one respect, deceptively so. Cohen did wear his jacket, knowing what was written on it.11 He wore that jacket in a courthouse, where, as observed below, "[t]here were women and children present . . . ."12 Cohen was charged under an archaic, catch-all "offensive conduct" statute13 and, at trial, testified that he wore the jacket "as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."14 Readers today probably have a sense, even if only from their history courses, of the depth of divisions within American society over the war in Vietnam, especially during the period - 1968-1971 - between Cohen's arrest and the reversal of his conviction. Americans were not only deeply divided over the conduct of the war, but by this time all were accustomed to, if not necessarily supportive of, vigorous public antiwar protests. …

Introduction: Noncitizen Participation in the American Polity

Abstract: In 2010 there were 22.5 million noncitizens residing in the United States.1 These noncitizens accounted for 7.3% of the American population.2 Within this population there is great diversity. Some entered as lawful permanent residents, others as nonimmigrants, and others entered without inspection. Some were raised in the United States and have spent the majority of their life here, while others are recent arrivals. Some intend to stay for long periods of time, others plan on only a short stay. Some plan on becoming citizens while others are content to remain noncitizens. The ways in which this diverse population participates in American society is the topic of this Symposium Issue. The Symposium participants explored the various ways in which law, policy, and politics shape how noncitizens participate in American society, and how noncitizen participation shapes American law, policy, and politics.Within the sociology literature on immigration, a "context of reception" approach has been utilized to describe and explain immigrants' integration within society.3 This approach emphasizes the ways in which the "structural and cultural features" of society influence immigrants' opportunities for participation and integration "above and beyond the role played by their own individual characteristics or motivations."4 A key component of immigrants' context of reception is government policy.5 For example, immigration law and policy detennine who is able to enter a country, how long they can stay, which of them can become citizens, when they can be kicked out, and how they will integrate within society. The answers to these questions determine an immigrant's legal status, a status which dictates the security of one's residence and opportunities for employment, political participation, and post-secondary education. Thus, the answer to these and related questions shape immigrants' participation within a society. Professor Stephen H. Legomsky's Artide, Immigration Policy from Scratch: The Universal and the Unique,6 highlights the importance of these and related questions. This Article outlines the questions that every society must confront when developing immigration policy. The questions focus on defining the mission, citizenship, admission, integration, illegal immigration, expulsion, and decision-making authority. While the questions are universal, the answers will vary across societies due to the unique "histories, cultures, forms of government, social structures, economic realities, age and labor demographics, values, and ultimately even different missions."7 The answers that each society arrives at reveal what it is that the society truly believes.8The remaining articles in this Issue explore what the answers to these questions reveal about what the United States truly believes about noncitizens. The articles approach this issue through three themes. The first set of articles examines the ways in which laws regulating immigration and the lives of immigrants shape noncitizen participation in the United States, and the ways that such participation shapes American society. The second group of articles explores what nonimmigration rights tell us about the membership status of noncitizens. The final two articles offer new insights on the growth of sub-federal immigration enforcement and the implications of such enforcement strategies on immigrant communities.Professors Kevin R. Johnson, Rick Su, and Michael A. Olivas each explore the ways in which social structure, in the form of law or politics, shape noncitizens' participation in the United States. In Immigration and Civil Rights: Is the "New" Birmingham the Same as the "Old" Birmingham? ? Johnson argues that there are parallels between Alabama's protection of civil rights during Jim Crow and today. During both eras Alabama used law to limit access to education. During Jim Crow segregation, law limited African Americans' access to educational institutions and Alabama's 201 1 Beason-Hammon Taxpayer and Citizen Protection Act limits undocumented students' access to K- 12 public schools. …

The Natural Flow of Ideas: Why the Fifth Amendment Takings Clause and an Obscure Water-Rights Decision Might Thwart Attempts at Streamlining the Patent Queue

Abstract: introduction as abraham lincoln once said, "in the world's history certain inventions and discoveries occurred of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. of these were the art of writing and of printing, the discovery of america, and the introduction of patent laws."1 certainly, the american patent system has tremendously facilitated american inventiveness, and has therefore benefitted the american economy and improved standard of living.2 however, this system is currently faced with a significant problem: a massive backlog of unexamined applications.3 as a result, patent applications often languish for long periods of time, thereby decreasing the rate at which technology progresses and reducing the incentive to invest in innovation.4 against this backdrop, the united states patent and trademark office (uspto) may grant "petitions to make special," which allow applications to be examined out of turn.5 the uspto has also proposed formalizing this procedure by creating three separate patent application tracks.6 This Note will examine the question of whether a place in the patent application queue of the USPTO could be considered property. This is an important question, because if it could be considered property, then granting a petition to make special could be considered a taking under the Fifth Amendment to the United States Constitution, and therefore require the payment of "just compensation."7 This is an especially relevant time to answer this question because, under the Leahy-Smith America Invents Act, the USPTO is currently in the process of replacing the current one-queue-for-all model with the aforementioned three-track model.8 Consequently, advancement out of turn is becoming a part of the normal application system, rather than a sporadic occurrence.9 When answering the question of whether a place in the patent queue could be property, it is important to keep in mind Justice Holmes's assertion that law is nothing more than "[t]he prophecies of what the courts will do in fact."10 Thus, the important question is not whether, in the abstract, a petition to make special would be considered a taking. Instead, the important question is whether a future Court of Federal Claims might find a petition to make special to be a taking, and whether such a decision is likely to be overruled.11 To answer this question, this Note will describe the Court of Federal Claims's decision in Tulare Lake Basin Water Storage District v. United States,12 which dealt with water rights and endangered species in California.13 This decision has been heavily criticized,14 but has not been overruled.15 Part II will give an overview of the Fifth Amendment's Takings Clause and describe the Tulare decision. Part III will then go through a hypothetical case in which a plaintiff attempts to use this decision persuasively to seek just compensation for the loss of priority in the patent queue. Part III.C will explain why it is rational to apply the reasoning from a water rights decision to one concerning patent rights by showing how modern water rights law and modern patent rights law both evolved to solve the same problems, and how both have the same symbolic underpinnings. Part ni.D will then address the four biggest counterarguments. This Note will conclude that the USPTO can likely go ahead with the new system without worrying about a constitutional problem, and will provide suggestions about what the USPTO can do to minimize the threat of litigation. I. THE USPTO APPLICATION PROCESS AND THE PROPOSED CHANGE A, Background Information on the Current USPTO Application Process Under the current system, anyone may apply for a United States patent.16 The USPTO normally examines applications on a first-come, first-served basis,17 although an application may be assigned a filing date that is earlier than the actual date the paperwork was received by the USPTO. …

A Clarification of the Constitution’s Application Abroad: Making the "Impracticable and Anomalous" Standard More Practicable and Less Anomalous

Abstract: INTRODUCTION 172 I. THE PRECEDENTIAL LINEAGE OF THE "IMPRACTICABLE AND ANOMALOUS" STANDARD 179 A. Why Justice Harlan 's Invocation of the "Impracticable and Anomalous " Standard in Reid Was Dictum 180 B. Whether Justice Harlan Was Right in Reid in Imputing the "Impracticable and Anomalous " Standard to the Insular Cases .... 182 1. The State of the Law Before the Insular Cases 182 2. The Insular Cases 183 a. The Precedential Status of the Incorporation Doctrine .........184 b. The Precise Content of the Incorporation Doctrine, 185 c. The Relationship Between the Incorporation Doctrine and the "Impracticable and Anomalous " Standard 187 d. Whether the "Impracticable and Anomalous " Factors Justified or Limited the Incorporation Doctrine 191 C. The Contexts in Which Justice Kennedy Invoked the "Impracticable and Anomalous " Standard in His Verdugo-Urquidez and Boumediene Opinions 195 1. United States v. Verdugo-Urquidez 195 2. Boumediene v. Bush 200 III. WHAT DOES THE "IMPRACTICABLE AND ANOMALOUS" STANDARD MEAN? 204 A. What Does "Impracticable" Mean? 204 1. How the U.S. Supreme Court Has Applied the "Impracticable" Prong 204 2. How Lower Courts Have Applied the "Impracticable" Prong ... 210 3. How Courts Should Now Apply the "Impracticable" Prong ......213 B. What Does "Anomalous" Mean? 217 1. How the U.S. Supreme Court Has Applied the "Anomalous" Prong 217 2. How Lower Courts Have Applied the "Anomalous" Prong .........220 3. How Courts Should Now Apply the "Anomalous" Prong 222 a. Gerald Neuman 's Proposal: Its Strengths and Weaknesses . . . 222 b. My Proposal: Its Strengths and Weaknesses 227 C. Is the "Impracticable and Anomalous " Standard a Conjunctive or Disjunctive Test? 233 CONCLUSION 38 INTRODUCTION Two controversial and pressing issues in U.S. constitutional law are the extent to which courts should consult foreign constitutions and the extent to which courts should interpret the U.S. Constitution to apply to U.S. conduct abroad. Indeed, the first issue divided the U.S. Supreme Court in Lawrence v. Texas1 and Roper v. Simmons,2 prompting various senators to question Court nominees on this subject in the confirmation hearings3 and generating various resolutions and bills forbidding courts to consult foreign law in interpreting the U.S. Constitution.4 And the second issue has recently received significant scholarly,5 media,6 and policy7 attention, largely due to its significant implications for the War on Terror and its relevance to the Guantanamo Bay decisions.8 This Article engages both of these issues by using comparative constitutionalism to inform the Constitution's transnational applicability.9 This Article thus extends a previous piece in which I explored the transnational applicability of the Establishment Clause,10 and in so doing, derived from the Supreme Court's precedents the following framework for the transnational applicability of all provisions11 of the Constitution: If a constitutional claim arises in a land over which the United States exercises absolute control or exclusive jurisdiction, and if the court deems that the claim involves a "fundamental meaning"12 of the Constitution, then the court should apply the same standard abroad as would apply if the claim had arisen domestically. …

Immigration Policy from Scratch: The Universal and the Unique

Abstract: Immigration, as all are surely aware, is the subject of feverish debate in countries throughout the world. From traditionally high-immigration nations like the United States, Australia, Canada, and Singapore to the traditionally homogeneous, lowimmigration societies of Japan and South Korea - as well as in States as different as New Zealand, Israel, and the Member States of the European Union - governments are actively rethinking previously sacrosanct tenets of their immigration policies.1 In many ofthose countries, the impetus for immigration reform largely reflects declining birth rates among the native-born, aging populations, and thus a felt need for young workers - especially professional and skilled workers.2 At the same time, those efforts have hit a wall of social, cultural, economic, and environmental resistance. Meanwhile, the new mobility fostered by modern advances in technology, transportation, and information have only enhanced the appeal of immigration for people adventurous and motivated enough to stake out new lives in distant and unfamiliar lands.3 All of this has only made the immigration issue more pressing.In this world on the move, migration and globalization are requiring all of us to think creatively about how to encourage, how to restrain, and how to manage international migration. As some policymakers draft new immigration legislation from scratch and others revisit existing law, it seems time to think generically about the overall shape and the critical elements that make up a comprehensive immigration policy.The premise of this Article is that there exist certain universal issues that immigration policymakers in every receiving country must address, certain decisions that will always have to be made. In saying this, I appreciate that the countries of the world come in vastly different shapes and sizes. They have different histories, cultures, forms of government, social structures, economic realities, age and labor demographics, values, and ultimately even different missions. All of these national attributes, and others, rightly influence a nation's immigration policy.Several disclaimers, therefore, are required. First, I make no claim of completeness. No doubt there are additional universal issues or decisions. Second, conversely, there will always be additional issues that are not universal - issues that are unique to the host country. Third, I stress that I am positing only universal questions, not universal answers. How a country chooses to resolve these issues will reflect all the relevant characteristics that make the country distinctive.This Article, then, provides a kind of immigration policy checklist or roadmap. It is offered as a starting point for anyone involved in either the formulation or the wholesale alteration of a country's immigration policy. Reflecting my perception of the key pieces of the immigration puzzle and how they fit together, this Article urges a comprehensive approach. This means simultaneously addressing not only the narrow question of who should be admitted into the country's territory, but also several other subjects that are joined at the hip - citizenship, integration, illegal immigration, and expulsion.I. THE PRELIMINARIES: DEFINING THE MISSIONSA visionary immigration policy demands some conscious philosophical choices. Policymakers need to think hard about what they see as the missions - and I use the plural deliberately - of their immigration policy. At the highest level of generality, is the goal solely to maximize the overall welfare of the country's existing and future citizens, as is often assumed? Or, is there a moral obligation to take into account the interests of the prospective immigrants as well? Finally, what if those two sets of interests conflict? On these moral questions there is no consensus.4But even an exclusive focus on the national welfare of the receiving State and its citizens leaves multiple, sometimes conflicting, missions to reconcile. …

"Give Me a Few More Minutes!": How Virginia Violates Due Process by Hitting the Snooze Button on a Timely Declaration of Death

Abstract: I. Background 983 A. Defining "Death" 984 B. "Irreversibility" 986 A. Variation Among States in Determining Death 988 A. Uniform Determination of Death Act Majority Process 988 B. Virginia 's Process, and Another Outlier 990 III. Due Process 993 A. Right to Privacy 994 1. Privacy as a Fundamental Right 994 2. Privacy in Organ Donation 997 3. Compelling Interest 1000 4. Constitutionality 1001 B. Right to Die 1002 1. Death as a Fundamental Right 1002 2. Death in Organ Donation 1005 3. Compelling Interest 1009 4. Constitutionality 1011 IV. Recommendations 1011 A. Joining the Majority 1011 B. Public Policy 1012 Conclusion 1015 Stealing five minutes of extra sleep in the morning is not an unusual way for someone to begin his day. The alarm simply rings again, he gets up, carries on his routine at an accelerated pace, and is no worse for the wear. But sitting back idly while the second hand makes five slow rotations is not always so innocuous. In many instances, minutes - and even fractions thereof - are critical. One context in which snoozing is less acceptable is organ donation. Organs are sustained by the oxygen and nutrients they receive from circulating blood. When an organ donor dies and his heart stops pumping blood, doctors have mere minutes to remove his organs before they are irreparably degraded by lack of blood flow.1 With that in mind, most states have drafted their deam-determination statutes to allow for speedy organ harvesting.2 Not Virginia; Virginia hits the snooze button on organ procurement. Virginia's codification of what constitutes death is very different in one respect from most other states' death statutes.3 Though every state embraces both cardiopulmonary and neurological definitions of death, and every state respects legitimate Do Not Resuscitate (DNR) orders, Virginia has a requirement most states do not have. Virginia commands that before an individual can be declared dead, a physician must determine that artificial cardiopulmonary resuscitation (CPR) would not be successful in resuscitating the individual.4 This is the case even when the individual has a valid DNR order.5 Virginia's law has a tremendous impact on the effectiveness of harvesting organs and implicates potential donors' fundamental rights to privacy and death. Part I of this Note describes the mechanics of and laws pertaining to organ transplantation. This sets the stage for understanding why Virginia's law ought to undergo a constitutional analysis. It examines how the meaning of "death" has evolved over time and scrutinizes critical language within these definitions. These details directly impact the rate at which organs can be recovered. Part II focuses on how Virginia's death-determination criteria differ from the way in which the majority of states interpret the Uniform Determination of Death Act. Part III analyzes the constitutional implications of Virginia's law as compared to the requirements endorsed by the rest of the country. Here, the Note examines the right to privacy and how death-determination statutes affect this fundamental right. …