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Eighth Amendment Protection In The 21st Century, Daniel Sorkin May 2019

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 Oct 2018

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 Oct 2018

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.


Nordstrom V. Ryan: Inmate’S Legal Correspondence Between His Or Her Attorney Is Still Constitutionally Protected, Christina Ontiveros Apr 2018

Nordstrom V. Ryan: Inmate’S Legal Correspondence Between His Or Her Attorney Is Still Constitutionally Protected, Christina Ontiveros

Golden Gate University Law Review

Prison administrations have been given much deference as to the limitations of prisoners’ rights. Still, even though the courts have shown regard to the prison administration, they have also recognized that there are two important interests at play: those of the prison administration and that of the prisoners’ constitutional rights. Because there are two important interests at play when an issue arises as to a prison’s regulation and its effect on a prisoner’s constitutional right, the courts turn to the Turner standard to determine the regulation’s constitutionality. Recently, the Ninth Circuit used this standard in Nordstrom v ...


A Brief History Of Anglo-Western Suicide: From Legal Wrong To Civil Right, Helen Y. Chang Jan 2018

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 ...


Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen Jan 2018

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 ...


Supreme Court To Rule On Police Shooting Case: Excessive Force And Qualified Immunity, Natalie Lakosil Mar 2017

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 ...


California Supreme Court May Allow The Censoring Of Consumers’ Online Reviews, Jamie Cooperman Mar 2017

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 Feb 2017

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 ...


C.R. Ex Rel. Rainville V. Eugene School District 4j: Slowly Expanding A School’S Ability To Reach Off-Campus Speech, Mary R. Loung Jan 2017

C.R. Ex Rel. Rainville V. Eugene School District 4j: Slowly Expanding A School’S Ability To Reach Off-Campus Speech, Mary R. Loung

Golden Gate University Law Review

The United States Constitution guarantees equal protection under the law to all citizens regardless of race, color, religion, and gender. However, there are special circumstances when constitutional rights can be restricted. The First Amendment rights of public school students fall under one of these special circumstances. While parents have a responsibility to care for, protect, and discipline their child, the responsibility transfers to the school’s in loco parentis authority when the child becomes a student under their supervision. The salient issue then becomes how to determine when the school’s authority begins and ends. The Ninth Circuit’s decision ...


Jones V. Davis And The Critical Issue Of Time In California’S Capital Punishment System, Heather Varanini Jan 2017

Jones V. Davis And The Critical Issue Of Time In California’S Capital Punishment System, Heather Varanini

Golden Gate University Law Review

This Note argues that the Ninth Circuit should have affirmed the district court’s holding, thus invalidating California’s capital punishment system for three main reasons. First, citizens are losing confidence in the death penalty, which undermines its deterrent effect. Second, capital punishment is a critical issue for the State, and Californians and death row inmates alike must look to the judiciary for relief. Third, the Ninth Circuit avoided the constitutional issue of California’s capital punishment system by relying on Teague v. Lane. In doing so, the court deepened the problems the Defendant and the district court sought to ...


Peruta V. County Of San Diego: An Individual Right To Self-Defense Outside The Home And The Application Of Strict Scrutiny To Second Amendment Challenges, Kevin Ballard Jan 2017

Peruta V. County Of San Diego: An Individual Right To Self-Defense Outside The Home And The Application Of Strict Scrutiny To Second Amendment Challenges, Kevin Ballard

Golden Gate University Law Review

This Note will begin by examining the majority’s analysis in Heller. The Heller case, through historical interpretation, analyzed the language of the Second Amendment and settled a long-held dispute about the meaning of its actual language. This same historical analysis was also significant in the Supreme Court’s examination of McDonald, which affirmatively applied the Second Amendment to the States. Peruta used the same methodology as Heller and McDonald.

Next, this Note will argue that, based on the historical analysis in Heller, McDonald, and Peruta, courts addressing the Second Amendment should apply strict scrutiny review to the legal challenges ...


How Much Is Police Brutality Costing America?, Eleanor Lumsden Jan 2017

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 Apr 2016

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 Feb 2016

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 Apr 2015

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 ...


Looking For A Third Option: An Alternate Solution In The Gun Debate, Richard Miyasaki Oct 2014

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

GGU Law Review Blog

No abstract provided.


The Forgotten Children Of The Foster Care System: Making A Case For The Professional Judgment Standard, Andrea Koehler Sep 2014

The Forgotten Children Of The Foster Care System: Making A Case For The Professional Judgment Standard, Andrea Koehler

Golden Gate University Law Review

Part I of this Comment presents a brief look at the children in foster care and the maltreatment they experience, as well as the federal and state legislation enacted to provide for their safety. Part II explores § 1983 and Supreme Court precedent establishing the duty to protect persons from harm caused by private parties, with a focus on the special relationship doctrine. It also discusses the applicable standards of liability defined by the Court. Part III reviews and analyzes the various liability standards used in federal and state actions brought by foster children for failure to protect them from harm ...


Narrowly Restricting "Clearly Established" Civil Liberties: The Constitutional Ramifications Of A Family Member's [Under] Protected Federal Privacy Rights In The Dissemination Of Postmortem Images In Marsh V. County Of San Diego, Mahira Siddiqui Jun 2014

Narrowly Restricting "Clearly Established" Civil Liberties: The Constitutional Ramifications Of A Family Member's [Under] Protected Federal Privacy Rights In The Dissemination Of Postmortem Images In Marsh V. County Of San Diego, Mahira Siddiqui

Golden Gate University Law Review

In Marsh, the Ninth Circuit held that a prosecutor who photocopied and kept a child's autopsy photograph (and after retirement gave the copy to the press) was entitled to qualified immunity. The court reasoned that there was no "clearly established" law to inform the prosecutor that his earlier conduct in making and keeping the photocopy was unlawful. In so holding, the Ninth Circuit relied on American Manufacturers Mutual Insurance Co. v. Sullivan, which held that a plaintiff must prove that he or she was "deprived of a right secured by the Constitution or laws of the United States."' Moreover ...


Decoding Student Speech Rights: Clarification And Applica-Tion Of Supreme Court Principles To Online Student Speech Cases, Courtney M. Willard Apr 2013

Decoding Student Speech Rights: Clarification And Applica-Tion Of Supreme Court Principles To Online Student Speech Cases, Courtney M. Willard

Golden Gate University Law Review

This Comment identifies the underlying principles of Supreme Court precedent governing student speech rights and applies those principles, as appropriate, to analyze online student speech. Part I provides a background of the four Supreme Court cases governing student speech. Four factors are identified from the Supreme Court decisions that continue to guide the analysis of student speech rights: sponsorship, location, effect, and content. Part II explores lower courts’ confusion in applying the four factors to online student speech cases. Finally, Part III examines the factors applicable to online student speech and provides guidance for future courts to analyze online student ...


Castle In The Cloud: Modernizing Constitutional Protections For Cloud-Stored Data On Mobile Devices, Mark Wilson Apr 2013

Castle In The Cloud: Modernizing Constitutional Protections For Cloud-Stored Data On Mobile Devices, Mark Wilson

Golden Gate University Law Review

This Comment argues that the current state of Fourth Amendment law vis-à-vis searching cloud-stored documents on a mobile device is untenable. Part I of this Comment defines cloud storage and cloud computing, and it provides background information on the Stored Communications Act (SCA). Part II discusses the intricacies of applying the SCA to computers and email, which is to date the best analog for applying the SCA to cloud computing. Part III details the legislative and judicial solutions to the problems raised by new technology and concludes that, while new legislation is the most desirable response, in the meantime courts ...


Marriage And The Court: San Francisco's Role In The Debate, Kathleen Morris Apr 2013

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

Publications

No abstract provided.


Long Live The King: United States V. Bagdasarian And The Subjective-Intent Standard For Presidential "True-Threat" Jurisprudence, Kyle A. Mabe Feb 2013

Long Live The King: United States V. Bagdasarian And The Subjective-Intent Standard For Presidential "True-Threat" Jurisprudence, Kyle A. Mabe

Golden Gate University Law Review

This Note argues that the Ninth Circuit found the proper balance between protecting speech and the President by interpreting the true-threats doctrine and the construction of presidential-threat statutes to require a subjective intent to threaten, in addition to one of the traditional objective standards for true threats. The application of a solely objective standard to threats against the President leads to unsettling results that punish speech without need. Harmless but misguided individuals have been held criminally responsible for ludicrous statements based on the sensitivities of the fabled “reasonable person,” regardless of the speakers’ actual motivations for their statements. More importantly ...


Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith Jun 2012

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards ...


3d Printers, Obsolete Firearm Supply Controls, And The Right To Build Self-Defense Weapons Under Heller, Peter Jensen-Haxel Jun 2012

3d Printers, Obsolete Firearm Supply Controls, And The Right To Build Self-Defense Weapons Under Heller, Peter Jensen-Haxel

Golden Gate University Law Review

This Comment describes how 3D printers will render current firearm regulations obsolete by allowing individuals to easily produce firearms—production that, when exercised by law-abiding citizens, may be protected under the Supreme Court’s decision in District of Columbia v. Heller. The regulatory system will be undermined in two phases. First, printers will be able to produce the only regulated piece of a firearm, the frame. Second, the printing of complete guns may be realized as 3D print technology advances or firearm design evolves. These developments, which could cause substantial changes in how both criminals and legitimate consumers obtain firearms ...


State Bankruptcy: Surviving A Tenth Amendment Challenge, David E. Solan May 2012

State Bankruptcy: Surviving A Tenth Amendment Challenge, David E. Solan

Golden Gate University Law Review

During February 2011 the prospect of creating a state-bankruptcy chapter burst into the national conversation. This debate largely centered on the necessity of state bankruptcy as a means of averting state bailouts, and leading commentators emphasized the need to tread gingerly on state prerogatives under the Tenth Amendment. The constitutionality of bankruptcy for states demands closer scrutiny, given that the Supreme Court’s recent Tenth Amendment jurisprudence has evolved toward protecting state sovereignty.

The principles handed down from a pair of cases in the 1930s involving the constitutionality of municipal bankruptcy would likely support upholding a state-bankruptcy chapter that is ...


Coyote Publishing, Inc. V. Miller: Blurring The Standards Of Commercial And Noncommercial Speech, Nicole E. Wolfe Jan 2012

Coyote Publishing, Inc. V. Miller: Blurring The Standards Of Commercial And Noncommercial Speech, Nicole E. Wolfe

Golden Gate University Law Review

In Coyote Publishing, Inc. v. Miller, the Ninth Circuit considered the constitutionality of a Nevada statute that regulates commercial advertising of legal brothels. The Ninth Circuit held that severe restrictions on brothel advertising, even in counties where brothels are legal, are valid under the First Amendment. The court concluded that Nevada Revised Statutes sections 201.430(1) and 201.440, which largely prohibit the advertising of licensed brothels, met the four prongs of the Central Hudson test. Although the Ninth Circuit held that Nevada Revised Statutes section 201.430(1) was constitutional, the facts of the case did not apply ...


"Reasonable Suspicion Plus": A Framework To Address Chief Judge Alex Kozinski's Concerns Of Mass Surveillance Without Compromising Police Effectiveness, Tyler R. Smith Jan 2012

"Reasonable Suspicion Plus": A Framework To Address Chief Judge Alex Kozinski's Concerns Of Mass Surveillance Without Compromising Police Effectiveness, Tyler R. Smith

Golden Gate University Law Review

Global Positioning Systems (GPS) provide law enforcement with a powerful tool to covertly investigate criminal networks. These networks, however, are often themselves technologically sophisticatedand thus able to elude police surveillance. GPS monitoring has drawn substantial criticism recently as police, in many jurisdictions, may utilize the technology without a search warrant; the issue has boiled down to whether the Fourth Amendment requires a search warrant in the first place.

This Comment argues that the Supreme Court should establish a new rule, “Reasonable Suspicion Plus,” that would require police to state in a sworn declaration particularized reasoning for use of a GPS ...


Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany Glidden Jan 2012

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 ...


Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner Jan 2012

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 ...