Law Commons^™

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, …

Native Village Of Eyak V. Blank: Fish Is Best Rare; Justice, Not So Much, William H. Howery Iii

Golden Gate University Law Review

For the purposes of the litigation discussed in this Note, the Chugach peoples comprise five native villages in the State of Alaska: Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham ("the Villages"). The Villages must fight for a right to the natural resource they depend upon most for survival, fish. At the end of the twentieth century, the Villages sued the federal government to assert claims of aboriginal title, and along with it, exclusive rights to the resources of their ancestral fishing grounds on the Outer Continental Shelf (OCS). A panel of the United States Court of Appeals for the Ninth …

The Political Question Doctrine In The Ninth Circuit And Why It Should Not Have Barred The Adjudication Of Corrie V. Caterpillar, Kristina Maalouf

Golden Gate University Law Review

This Comment argues that the Ninth Circuit should not have affirmed the dismissal of Corrie v. Caterpillar. Although Rachel's death occurred in the context of the highly politicized Israeli-Palestinian conflict, the court's failure to find justiciable a cause of action between a U.S. citizen and a U.S. corporation was grounded on an undue application of the political question doctrine. The Ninth Circuit could have allowed the district court to adjudicate Rachel's family's claims under a narrow tort-liability framework without interfering with U.S. foreign policy. Rachel's family deserved the opportunity to litigate its case against Caterpillar, the company whose product …

Monge V. Maya Magazines, Inc.: The Demand For Celebrity Gossip And The Doctrine Of Transformative Use In The Ninth Circuit, Alyce W. Foshee

Golden Gate University Law Review

Despite the decreased circulation of traditional newspapers, celebrity gossip magazines continue to flourish in the publishing world. In June 2012, People Magazine reached a paid circulation of over 3.5 million copies, putting the publication at number nine on the top U.S. consumer magazines list for the first half of the year. Public demand for celebrity news and gossip is unwavering. With this popularity come problems - especially for those celebrities whose images end up supplying that high demand. In Monge v. Maya Magazines, Inc., the Ninth Circuit presided over a copyright battle between celebrities and a gossip magazine regarding fair …

Maya V. Centex: Potential Liabilities For Developers Related To Speculative Injuries, Alexander Cheung

Golden Gate University Law Review

The Ninth Circuit’s decision in Maya v. Centex addresses the impacts of the sub-prime mortgage crisis on fiscally responsible homeowners. Maya is the first appellate decision to potentially permit homeowners to assert claims against developers for injuries related to market-wide decline in property values. In Maya, the Ninth Circuit decided only the narrow question of whether plaintiff-homeowners have constitutional standing to pursue claims against defendant-developers for injuries that were allegedly caused by the defendants’ high-risk marketing and financing behaviors. Although the Ninth Circuit did not resolve the plaintiffs’ claims, it held that the plaintiffs have constitutional standing to assert …

An Argument For Child Pornography Victim Restitution In The Ninth Circuit: United States V. Kennedy, Amber Pruitt

Golden Gate University Law Review

This Note argues that the Ninth Circuit erred in United States v. Kennedy by vacating restitution damages for the victims to be paid by the possessor of their images, because denying victims such restitution offends traditional understandings of the limits of proximate cause and the legislative intent behind § 2259.44 There are alternative legal tests currently used by other circuits that establish proximate cause in child-pornography-possessor cases that the Ninth Circuit should have applied in Kennedy to ensure that those responsible for harming children would not escape due liability.

Part I of this Note explains why the possession of child …

Ninth Circuit Rules Against Scientology Ministers' Forced-Labor Claims In Headley V. Church Of Scientology International, Jeffrey W. Tye

Golden Gate University Law Review

In Headley v. Church of Scientology International, the Ninth Circuit faced a particularly sensitive question involving the limits of the TVPA and the application of the ministerial exception. In Headley, former ministers brought TVPA forced-labor claims against the Church of Scientology (the “Church”). The Church argued before the district court that the plaintiffs’ labor was not forced, and that the ministerial exception applied to effectively bar the plaintiffs’ claims. The district court agreed, holding that the instances of physical abuse alleged did not raise a triable issue of fact as to the Headleys’ forced-labor claims. The court also …

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, …

If You Give A Mouse A Cookie: California's Section 11135 Fails To Provide Plaintiffs Relief In Darensburg V. Metropolitan Transportation Commission, Kate Baldridge

Golden Gate University Law Review

This Note examines Darensburg and the evidentiary problems faced by plaintiffs entangled in the bus-versus-rail controversy that are inherent to disparate-impact litigation. Part I discusses the factual background of Darensburg and relevant federal and state law concerning claims of both intentional and disparate-impact discrimination. Part II examines disparate-impact jurisprudence in the context of the unequal distribution of municipal services as background to the complexity of the issues presented in Darensburg. Part III analyzes the Darensburg opinion in light of that background and shows that the burden-of-proof issues faced by plaintiffs are illustrative of the lack of effective guidance to …

Mediating Disputes Arising Out Of Troubled Companies - Do It Sooner Rather Than Later, The Hon. Randall J. Newsome

Golden Gate University Law Review

Over the last several years, there has been much academic debate on the subject of “vanishing trials”—whether the settlement rate in bankruptcy and other courts is accelerating, and whether that is a healthy trend for our justice system. A more interesting question is why disputes in chapter 11 cases are not resolved sooner. Why does it take so much time and so much money for parties to settle their differences and arrive at a consensual chapter 11 plan?

Cite as 42 Golden Gate U. L. Rev. 661 (2012).

Obtaining The Release Of Grand Jury Evidence In Ponzi Cases, The Hon. Steven Rhodes

Golden Gate University Law Review

Evidence that law enforcement authorities obtain through the grand jury process is generally secret. Nevertheless, case law can provide a powerful basis for a trustee, a receiver or any party in a Ponzi case to obtain evidence that the government has in its possession as a result of its investigation of a Ponzi scheme. This Article considers the extent to which parties in a Ponzi scheme insolvency proceeding might be able to obtain evidence presented in a criminal grand jury proceeding relating to the Ponzi scheme.

Cite as 42 Golden Gate U. L. Rev.657 (2012).

Overcoming Administrative, Procedural And Evidentiary Hurdles In Ponzi Scheme Litigation, Sharon Z. Weiss, Natalie B. Daghbandan

Golden Gate University Law Review

The unfortunate reality that comes with a Ponzi scheme case in bankruptcy is a mass of deceived unsecured creditors clamoring for their money back, and few, if any, present assets within the bankruptcy estate with which to pay them. The sheer size of most Ponzi schemes cases necessarily presents unique evidentiary, procedural and administrative challenges to professionals seeking to sort out the failed Ponzi enterprise. Ponzi scheme cases are riddled with litigation, which generally falls into four categories: (1) litigation against the Ponzi scheme operator(s), (2) litigation against parties who enabled the scheme to continue (such as professionals), (3) litigation …

Black Swans, Ostriches, And Ponzi Schemes, Nancy B. Rapoport

Golden Gate University Law Review

Cite as 42 Golden Gate U. L. Rev. 627 (2012).

The Collapse Of Financial Fraud: Measuring Bankruptcy Avoidance Action, Jessica D. Gabel, Isaac Asher, Mary Beth Byington

Golden Gate University Law Review

Ponzi schemes lay their foundation on fraud. Once the con is exposed, the culprits are usually stripped of their pilfered millions and sent off to jail. Unfortunately for the victims, the process of recovering any portion of the money they lost in the scam is, to put it mildly, complicated. The challenge rests, in part, in differences between federal forfeiture statutes and Bankruptcy Code principles in determining what assets can be recovered and who is entitled to a portion of the Ponzi pie. What is a Ponzi scheme (as defined by the courts rather than the media)? The Second Circuit …

Handling Claims In Ponzi Scheme Bankruptcy And Receivership Cases, Kathy Bazoian Phelps

Golden Gate University Law Review

The end game for defrauded investors and other creditors in a Ponzi scheme case is the recovery of the maximum amount on their claims. Depending on whether the Ponzi perpetrator has landed in a bankruptcy case or a receivership proceeding, the rules governing the allowance and distribution priorities for claims filed in Ponzi scheme cases may vary. This Article discusses the treatment of the defrauded investor’s claim in both bankruptcy and receivership cases. This Article also contrasts relatively rigid provisions in the Bankruptcy Code for the allowance, priority and distribution of claims in Ponzi scheme cases with the more flexible …

Friction In Reconciling Criminal Forfeiture And Bankruptcy: The Criminal Forfeiture Part, Sarah N. Welling, Jane Lyle Hord

Golden Gate University Law Review

The federal government uses two general types of asset forfeiture, criminal and civil. This Article addresses criminal forfeiture, which allows the government to take property from defendants when they are convicted of crimes. It is “an aspect of punishment imposed following conviction of a substantive criminal offense.” The goal of this Article is to give an overview of the forfeiture process, specifically in relation to claims victims and creditors might assert as third-party claimants.

Cite as 42 Golden Gate U. L. Rev. 551 (2012).

Keynote Address: Stories In The Development Of Bankruptcy Law, Gerald F. Munitz

Golden Gate University Law Review

Cite as: 42 Golden Gate U. L. Rev. 539 (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 exist …

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, could …

Rescuing Expedited Discovery From The Commodity Futures Trading Commission & Returning It To Fed. R. Civ. P. 26(D)(1): Using A Doctrine's Forgotten History To Achieve Legitimacy, Jesse N. Panoff, Esq.

Golden Gate University Law Review

For over a decade, judicial decisions have “authorized” the CFTC to conduct expedited discovery irrespective of 26(d)(1)’s structure and text. Instead, courts typically allow discovery because either: (i) “good cause” exists, or (ii) for no articulated reason at all. Consider that the so-called Good-Cause Test merely proclaims, “[g]ood cause exists for the plaintiff [CFTC] to conduct expedited discovery . . . .” Hence, judicial decisions have developed the doctrine in ways that are attenuated from 26(d)(1). The overall result is if the Commission asks for accelerated discovery, then courts will grant such relief. This is somewhat unsurprising because the very …

Using Game Theory And Contractarianism To Reform Corporate Governance: Why Shareholders Should Seek Disincentive Schemes In Executive Compensation Plans, Elias Pete George

Golden Gate University Law Review

Employing a model of game theory, this Article shows how current judge-made law in areas of the duty of loyalty does not adequately prevent corporate managers from violating their fiduciary duty. This Article presents a solution, advising shareholders to reform corporate governance through executive compensation contracts that would properly incentivize corporate managers to comport with their duty of loyalty. Part I examines the rise of contractarianism, the prominent legal academic view of a corporation that helps to guide judicial interpretation of corporate law pertaining to managers’ fiduciary duties. Part II examines agency costs, a subset of transaction costs, and the …

Third Annual Golden Gate University School Of Law Chief Justice Ronald M. George Distinguished Lecture: Chief Justices Of Color, Drucilla S. Ramey

Golden Gate University Law Review

Transcript of the panel discussion at the Ronald M. George Distinguished Lecture: Chief Justices of Color held October 18, 2011, featuring guest lecturer Chief Justice Tani Cantil-Sakauye of the California Supreme Court.

Epa Shoots Down Lead Shot Regulation: Lead Ammo's Unreasonable Risk To Human Health And The Environment, And The Special Situation Of The California Condor, Rachel Hawkins

Golden Gate University Environmental Law Journal

This Comment argues that the EPA has the authority to ban lead ammunition nationwide under The Toxic Substances Control Act (TSCA), because lead ammunition poses an unreasonable risk to human health and the environment that is not adequately addressed by other laws. Further, the EPA retains the authority to ban lead ammunition nationwide under TSCA because a national ban would not be preempted by other federal laws. Part II of this Comment explores the problematic history of lead regulation as well as the devastating effects of lead poisoning on humans. Part III begins with an in-depth explanation of the harmful …

Farallon Poison Paradox: The U.S. Fish And Wildlife Service's Attempt At Saving One Species While Subjecting Others To Probable Death, Vadim Sidelnikov

Golden Gate University Environmental Law Journal

This Comment examines the failure of the U.S. Environmental Protection Agency (“EPA”) to adequately protect this country’s unique wildlife from highly toxic rodenticides like brodifacoum, and particularly the EPA’s broad exemption for the FWS’s use of brodifacoum in island conservation. Part II explains the problem of non-native mice at the Farallon National Wildlife Refuge and the FWS’s proposed plan to eradicate the mice. Additionally, this Part describes the federal legal framework that governs pesticide application and use within the United States.

Part III evaluates the EPA’s narrow scope in determining to reregister brodifacoum, focusing on the EPA’s decision to allow …

Climate Change Litigation In The Wake Of Aep V. Connecticut And Aes V. Steadfast: Out To Pasture, But Not Out Of Steam, Cecilia O'Connell Miller

Golden Gate University Environmental Law Journal

On April 19, 2011, two courts heard oral arguments in cases that will define the future of climate change litigation for decades to come. In American Electric Power Co. v. Connecticut (hereinafter AEP), the United States Supreme Court considered whether environmental advocates can use a federal common-law nuisance claim as a vehicle for seeking redress for climate change accruing from greenhouse gas (hereinafter GHG) emissions. Just a hundred miles south that same day, the Virginia Supreme Court heard oral arguments in AES Corporation v. Steadfast (hereinafter Steadfast), in which Virginia’s highest court considered whether a commercial general liability …

Montana V. Wyoming: An Opportunity To Right The Course For Coalbed Methane Development And Prior Appropriation, Michelle Bryan Mudd

Golden Gate University Environmental Law Journal

Part I of this Article provides a brief background on the Yellowstone River Compact and the Montana v. Wyoming litigation. This part further explains the Special Master’s analysis of the CBM issue, as well as the Supreme Court’s recent ruling on improved irrigation efficiency. When viewed together, these decisions provide an important framework for determining how the parties’ regulation of CBM development should proceed. Part II then describes the magnitude of the CBM groundwater pumping issue and asserts that the posture of the Montana v. Wyoming case provides a unique opportunity not only to set Powder River Basin CBM development …

A Water Story With Original Jurisdiction And A Doctrine For Changing Uses, Melosa Granda

Golden Gate University Environmental Law Journal

This is a story of how two rivers in the remote reaches of Wyoming and Montana, and the underlying water, became a federal case before the United States Supreme Court. It is an account of a local water dispute whose resolution will likely impact the course of water law, and more importantly, water throughout the entire country.

Bargaining In The Dark: Why The California Legislature Should Render “No Damage For Delay” Clauses Void As Against Public Policy In All Construction Contracts, Melinda Sarjapur

Golden Gate University Law Review

The purpose of this Comment is to urge the California legislature to revise section 7102 of the Public Contract Code in order to render an NDFD ("no damage for delay") clause void as against public policy in every construction contract when delay is caused in whole or in part by the acts or omissions of the owner or its agents.

Part I of this Comment provides the reader with a brief explanation of how construction contracts are formed and describes the nature of liability associated with delay in the construction industry. Part II includes a brief overview of the general …

Settling With Your Hands Tied: Why Judicial Intervention Is Needed To Curb An Expanding Interpretation Of The Foreign Corrupt Practices Act, Pete J. Georgis

Golden Gate University Law Review

This Comment argues that the broad interpretation of the FCPA’s business nexus requirement, which criminalizes payments that both directly and indirectly “obtain or retain business,” encourages prosecutorial abuse and deviates from the intended purpose of the Act. The Justice Department’s expansive approach to FCPA enforcement has cost companies tremendously, even though the Act’s drafters intended for a more balanced approach. Part I of this Comment will discuss the history and background of the Foreign Corrupt Practices Act of 1977 and its amendments in 1988 and 1998. Part II will examine the application of the business nexus requirement in United States …

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 carefully …