Digital Commons Network^™

Expiration Of The Sunset Clause: Is The Clock Ticking For The Grutter Standard And Affirmative Action In Higher Education?, Simona Stodulkova

GGU Law Review Blog

Affirmative action, an active effort to provide access to educational and employment opportunities to historically underrepresented groups, is now in danger of being eradicated by the Supreme Court. While the Court upheld affirmative action in Grutter v. Bollinger in 2003, it suggested in its “sunset clause” of the opinion that the issue should be revisited in twenty-five years. Two cases concerning affirmative action in higher education are now before the current conservative-led Court, which has already indicated that it is prepared to overrule its precedent.

Affirmative action in higher education has been advanced as a solution to past discriminatory …

Attacks On Affirmative Action: Holistic Review Of College Applicants Under Fire, Jennifer Gomez

GGU Law Review Blog

The Supreme Court has upheld affirmative action in higher education recognizing that the consideration of race in a holistic review of a college applicant is narrowly tailored to obtain the compelling state interest of educational benefits associated with a diverse student body. However, recent cases are challenging this precedent and threaten to end the holistic review of college applicants. The Supreme Court has agreed to hear Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. These two cases will determine the future of race conscious admissions …

Constitutional Rights In The Time Of Covid-19: Sf Public Defender Sues Sf Superior Court, Alleging Violations Of Detainees’ Sixth Amendment Rights, Golden Gate University School Of Law

GGU Law Review Blog

“One of the most oppressive things a state can do is to take away your freedom and then deny you what’s necessary to win it back,” said Manojar Raju, San Francisco Public Defender, during a rally held on the front steps of San Francisco’s Hall of Justice.

On September 14, 2021, Raju filed a lawsuit against the Superior Court of California and the city of San Francisco. The lawsuit alleges that the San Francisco Superior Court has been routinely violating citizens’ Sixth Amendment right to a speedy trial.

In fact, as of August 30, 2021, there are about 429 people …

Democracy Is Fragile: Extreme Partisan Polarization Has Become Rampant In The World, Suzin Win

GGU Law Review Blog

The status of democracy once seemed irrelevant in discussions of government in the United States and other long-established democracies. However, with the rise of extreme partisan polarization and the contempt that each party shows for the other, maintaining constitutional democracy is now a major concern for people in America. There is no longer any ideological overlap between the most conservative Democrats and the most liberal Republicans. In the words of Professor Daryl J. Levinson and Professor Richard H. Pildes of NYU School of Law, the “separation of powers” has been replaced by a “separation of parties.” The actions of the …

Online Learning In A Global Pandemic, Intimate Details & Prying Government Eyes: When What Was Once Private Is Thrust Into The Public Sphere The Story Of Kamauri Harrison, Malissa Bowman

GGU Law Review Blog

A global pandemic has morphed the traditional in-person classroom into a virtual one, leaving vestiges of strict classroom rules and decorum clashing with home privacy expectations. So is the case of Ka’Mauri Harrison, a 9-year-old Louisiana boy suspended for moving a BB gun while on screen during online class. Ka’Mauri’s parents and attorney maintain the boy only moved the BB gun to prevent his little brother from accessing it. However, Ka’Mauri’s teacher thought the BB gun was a real gun and reported him to the principal. Ka’Mauri was not only suspended from school, but also recommended for expulsion.

I Call Rigamarole (Or Taradiddle) On 'Originalist' Justices, Rachel A. Van Cleave

Publications

Last week, while Supreme Court nominee Amy Coney Barrett was holding forth about how she applies originalism, invoking her mentor and former boss Justice Antonin Scalia, current Supreme Court justices were undermining an originalist opinion authored by Scalia. Nominee Barrett explained originalism: “I understand [the Constitution] to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Oral arguments in Torres v. Madrid make clear that, for some justices, originalism is appropriate, except when …

The 2020 Supreme Court Term In The Shadow Of Blm, Metoo, And The Notorious Rbg, Rachel A. Van Cleave

Publications

The upcoming Supreme Court term comes in the context of widespread protests about police violence, the criminal (in)justice system, continuing fallout from the #MeToo movement, and the death of iconic Supreme Court Justice Ruth Bader Ginsburg. The court has agreed to hear cases that involve the enduring white supremist legacy of a Louisiana law that allowed for non-unanimous jury criminal convictions, standards for evaluating excessive use of force by police, what is required to sentence a juvenile to life without parole, and military sexual violence.

It is imperative that the Court acknowledge the difficult truths that Black Lives Matter protesters, …

Eighth Amendment Protection In The 21st Century, Daniel Sorkin

GGU Law Review Blog

In Timbs v. Indiana the Supreme Court considered whether the Eighth Amendment’s bar on “excessive fines” is incorporated against the states under the Fourteenth Amendment. Timbs v. Indiana addressed another persistent question that has appeared on bar exams for years: “What provisions in the Bill of Rights have not yet been 'incorporated' against the States?”

The California Consumer Privacy Act Of 2018: Are Your Interests At Stake?, Golden Gate University School Of Law

GGU Law Review Blog

In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.

Restoring The Establishment Clause To The States; Restoring Religious Tolerance, Golden Gate University Law Review

GGU Law Review Blog

In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.

Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen

Publications

This Article seeks to understand and evaluate core elements of the past promise and present reality of Spain’s transformation from Francoist dictatorship to modern European democracy. It does this by investigating the role of the 1978 Constitution and the distinctive Spanish Model of relatively peaceful constitutional transformation in facilitating the key legal elements of Spain’s transition to democracy. Following a review of important historical developments related to Spanish constitutionalism in Part I, this Article scrutinizes the process by which Spain transitioned to democracy in the 1970s. Part II focuses particularly on the dominant characteristics of the Spanish Model, which facilitated …

A Brief History Of Anglo-Western Suicide: From Legal Wrong To Civil Right, Helen Y. Chang

Publications

This article will examine the history of suicide from antiquity, where certain types of self-killing were socially acceptable, to its evolution as a criminal wrong and its modern reincarnation as a moral and legal right. In the early Common Era, suicide was not a criminal wrong, but with the spread of Christianity, suicide became illegal. In the present day, a growing minority of states have legalized some forms of suicide or self-killing. In 2018, six states and the District of Columbia had legalized some form of physician-assisted suicide: California, Colorado, District of Columbia, Montana, Oregon, Vermont, and Washington. Twenty-three states …

Supreme Court To Rule On Police Shooting Case: Excessive Force And Qualified Immunity, Natalie Lakosil

GGU Law Review Blog

Currently, a circuit split exists regarding the Ninth Circuit’s Provocation Rule. The deputies argue that Graham applies and that officers need to be free to make split‑second choices to respond to threats of force without stopping to replay their prior actions and evaluate whether someone might later accuse them of provoking the situation. Although this is true, some argue that officers should also be required to follow the Constitution in the first place and held liable if they cause the force to be used. The holding in Scott supports this type of analysis. While Graham allows for qualified immunity by …

California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews, Jamie Cooperman

GGU Law Review Blog

The use of social media to leave reviews creates a medium in which “word of mouth” can reach many more individuals who are in search of a specific product or service that can meet their needs. The accessibility of these forums reaching vast numbers of consumers lead to both positive and negative effects. For consumers, the ability to read about others’ good, bad, and neutral experiences can help them determine if the particular business is a right fit for them. For business owners, both positive and negative reviews can indicate to a business what consumers appreciate and also what the …

Abortion Rights: “Ash Heap Of History” Or Surviving The Smoke?, Alicyn B. Whitley

GGU Law Review Blog

The possibility of further restrictions of abortion rights smolder on the horizon, but currently remain at bay. After Whole Woman’s Health, a Trump appointed nominee will likely swing the Court toward a 5‑4 majority in favor of upholding current abortion law. Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan voted to reaffirm Casey’s “undue burden” standard safeguarding a woman’s fundamental right to an abortion. Thomas, Alito, and Roberts were the three Justices to dissent to the opinion. If all the current justices were to remain on the bench until after the next president is elected, the potential threat to abortion rights …

How Much Is Police Brutality Costing America?, Eleanor Lumsden

Publications

The criminal law of the United States fails to stop the unlawful killing of minorities by law enforcement. In fact, it was never meant to do so. Civil tort law is also unequal to the task. The consequences of not correcting these legal failures are far-reaching for the United States and for our neighbors, and have so far been underreported. This article explores the direct and indirect costs of these failings, positive measures already underway, and makes further sugges-tions for reform.

Habeas For Homo Troglodytes, Aram Hauslaib

GGU Law Review Blog

The chimpanzee is the human’s closest living relative. In fact, chimps are closer to humans than to gorillas or orangutans. Given this, there are those who propose chimpanzees be reclassified to the human genus, Homo, giving them the scientific name Homo troglodytes. The change in the classification could prove critical, as the rights held by men and women today have repeatedly hinged on how they were defined.

Judge Halts End-Of-Life Decision-Making For Nursing Home Patients, Bob Egelko

Interviews

An Alameda County judge has ordered state health officials to stop allowing doctors at nursing homes to administer psychiatric drugs or make end-of-life decisions for patients the doctors consider mentally incompetent. An interview with Professor Mort Cohen

Ready For Marriage? Evaluating The Supreme Court's Obergefell Arguments Like A Pro, Eric C. Christiansen

Publications

Amateur constitutional law gurus, rejoice! Marriage equality advocates and marriage traditionalists, warm up your commenting keyboards! And, secret Supreme Court junkies, put on your “Notorious RBG” t-shirts and rehearse your favorite Justice Scalia quote! On Tuesday, the United States Supreme Court will hear two and a half hours of arguments on whether the U.S. Constitution permits states to exclude same-sex couples from the rights and responsibilities of marriage. The case, Obergefell v. Hodges, is the most eagerly anticipated case of the Court’s current term. And, unlike the last time this court faced the marriage issue, the Justices have very …

Looking For A Third Option: An Alternate Solution In The Gun Debate, Richard Miyasaki

GGU Law Review Blog

No abstract provided.

Marriage And The Court: San Francisco's Role In The Debate, Kathleen Morris

Publications

No abstract provided.

Transformative Properties Of Fdr's Court-Packing Plan And The Significance Of Symbol, Laura A. Cisneros

Publications

In this Article, I begin by laying a basic theoretical foundation for understanding how language choice provides contextual cues to direct interpretation. Next, I analyze cases that use the "Court-Packing Plan" language. I argue that these references are intended to trigger a response in the reader that is sympathetic to judicial independence and, in some instances, to judicial incursions into policymaking. I then analyze references to the "switch in time" language, extracting the arguments about constitutional methodology and judicial activism embedded in that phrase. Here, I argue that the phrase "switch in time" is deployed to remind the reader of …

Youngston Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

Publications

My goal in this Article is not to provide a comprehensive survey of the Court's separation of powers cases from 1952 to the present. Rather, I want to present a modest-sized account of this shift from humility to arrogance and to do so not by the direct method of scrupulous narration, but through a combination of stealth and selectivity, with the idea that less could be more. With this model in mind, I have focused on the language of a few representative opinions: Jackson and Frankfurters concurrences in Youngstown, Chief Justice Rehnquist's majority opinion in Dames & Moore v. Regan, …

Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany Glidden

Publications

Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that …

Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner

Publications

The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

Justice Carter’S Dissent In People V. Gonzales: Protecting Against The “Tyranny Of Totalitarianism”, Rachel A. Van Cleave

Publications

People v. Gonzales involved an issue that continues to divide lawyers, judges, scholars, politicians, as well as the general public: how best to protect individuals from law enforcement conduct that violates constitutional protections? This question is particularly controversial in the context of a criminal case, since the exclusion of illegally obtained evidence often results in the alleged criminal going free. In Gonzales, the California Supreme Court was asked to adopt the exclusionary rule as a remedy for violations of constitutional rights. A majority of California Supreme Court justices answered this in the negative. Justice Carter disagreed, and his analysis provided …

Justice Carter’S Dissent In People V. Crooker: An Early Step Towards Miranda Warnings And The Expansion Of The Fifth Amendment To Pre-Trial Confessions, Helen Y. Chang

Publications

By the middle of the 20th century, police interrogation of criminal suspects had developed into a fine art designed to extract confessions. The use of the “third degree,” otherwise known as the infliction of physical or mental suffering, was not uncommon. “[T]he most frequently utilized interrogation techniques have involved mental and psychological stratagems—trickery, deceit, deception, cajolery, subterfuge, chicanery, wheedling, false pretenses of sympathy, and various other artifices and ploys.” As the United States Supreme Court noted in its famous Miranda v. Arizona decision, this type of police interrogation involved “inherent compulsion,” was “inherently coercive,” “exact[ed] a heavy toll on individual …

Payroll Guarantee Association, Inc. V. The Board Of Education Of The San Francisco Unified School District: Denying Hecklers The Right To Veto Unpopular Speech, David Zizmor, Clifford Rechtschaffen

Publications

Payroll Guarantee Association, Inc. v. The Board of Education of the San Francisco Unified School District dealt with a difficult balancing question in First Amendment jurisprudence: to what degree are the rights of a speaker espousing unpopular views protected when such speech engenders disruptive protests— protests which themselves constitute a form of speech? Are the free speech rights of the unpopular speaker paramount? Do opponents have the right to protest such speech to the point at which the protests are so disturbing that the speech cannot go forward, in effect giving opponents a “heckler’s veto?”

“The Hysteria Of Our Times”: Loyalty Oaths In California, Marc Stickgold

Publications

In the years following World War II, the United States government, as well as many of the states, including California, enacted an almost endless stream of laws designed to weed out, isolate, sanction, and punish anyone thought to share any ideas or associations that could be labeled subversive. This historical period, called the “American inquisition,” saw the enactment and enforcement of a wide variety of laws meant to accomplish these purposes. People were subject to criminal prosecution for their beliefs, associations or advocacy; denial of, or discharge from, employment; denial of government benefits or licenses; and exclusion from publicly funded …

Transformative Constitutionalism In South Africa: Creative Uses Of Constitutional Court Authority To Advance Substantive Justice, Eric Christiansen

Publications

In this Article, I will first discuss some easily overlooked constitutional tools for promoting greater social justice: the procedural provisions of the South African Constitution related to jurisdiction, access, remedies and constitutional interpretation. Following that, I will use three recent Constitutional Court cases to demonstrate the Court's creative (and promising) use of its judicial authority to advance substantive justice. By way of conclusion, I will elaborate on the meaning of these recent developments for the transformative agenda of South Africa and for other nations.