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Articles 1 - 30 of 165
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Kazarian V. United States Citizenship And Immigration Services: Clarifying “Extraordinary Ability” Visa Qualifications, Jaimie Bombard
Kazarian V. United States Citizenship And Immigration Services: Clarifying “Extraordinary Ability” Visa Qualifications, Jaimie Bombard
Golden Gate University Law Review
In 2007, Dr. Poghos Kazarian appealed the United States Citizenship and Immigration Service’s denial of his application for an “extraordinary ability” visa. Prior to Kazarian v. US Citizenship & Immigration Services, the Ninth Circuit had never addressed the issue of how the statutory and regulatory requirements for the “extraordinary ability” visa should be interpreted. The Kazarian court determined that the regulations outlining the evidence sufficient to qualify for the “extraordinary ability” classification were extremely restrictive. The court then concluded that, since Dr. Kazarian had presented only two of the three types of evidence required to meet the eligibility criteria, the …
What's The Deference?: United States V. Hinkson Outlines A New Test For “Abuse Of Discretion”, William B. Jones
What's The Deference?: United States V. Hinkson Outlines A New Test For “Abuse Of Discretion”, William B. Jones
Golden Gate University Law Review
Prior to United States v. Hinkson, under the prevailing analysis used to determine whether the trial court had engaged in an “abuse of discretion,” there was arguably “no effective limit” on an appellate court’s power to substitute its own judgment for that of the district court. Rather, it was left to the appellate panel to decide whether it had a “definite and firm conviction that [a] mistake [had] been committed,” or whether a trial court’s factual finding was even “permissible.” But in Hinkson, an en banc panel of the Ninth Circuit took the opportunity to elaborate on the abuse-of-discretion standard. …
“When Can I Tase Him, Bro?”: Bryan V. Mcpherson And The Propriety Of Police Use Of Tasers, Sam W. Wu
“When Can I Tase Him, Bro?”: Bryan V. Mcpherson And The Propriety Of Police Use Of Tasers, Sam W. Wu
Golden Gate University Law Review
This Case Summary begins by detailing the factual and procedural history of Bryan. Next, it outlines the “reasonable use of force” analysis of the Ninth Circuit as applied to Tasers. Finally, it concludes by briefly discussing the broad implications of Bryan, both for law enforcement and for every individual who may someday find himself or herself facing a police officer armed with a Taser.
When Children Suffer: The Failure Of U.S. Immigration Law To Provide Practical Protection For Persecuted Children, Lisete M. Melo
When Children Suffer: The Failure Of U.S. Immigration Law To Provide Practical Protection For Persecuted Children, Lisete M. Melo
Golden Gate University Law Review
This Comment focuses on the need for statutory change in order to address the policy concerns of family unity and to protect asylee children. Part I looks at how the current state of immigration law stands in relation to derivative asylum claims. Part II examines how courts have interpreted current asylum law and the inconsistency and shortcomings of such judicial interpretations. Part III examines policy concerns associated with the child-parent derivative asylum issue, specifically family unity and practical child protection. Finally, Part IV makes two recommendations: 1) legislative change to current asylum law to allow derivative relief for parents of …
Considering Affective Consideration, Hila Keren
Considering Affective Consideration, Hila Keren
Golden Gate University Law Review
Focusing on the interaction of law and emotions, this Article unfolds in three parts. Part I illuminates the connection between the affective background of donative promises and their modem unenforceability. It hypothesizes that rejecting promises that are not supported by consideration can be seen as an effort to distance law from any association with irrational decisionmaking and to disassociate it from "emotional" spheres. Part II seeks to correct the erroneous way affective giving has been perceived by law in the gifts context. The law must carefully analyze each relevant emotion concretely and separately, rather than treating emotion as an undifferentiated …
Access To Justice In Times Of Fiscal Crisis, Chief Justice Ronald M. George
Access To Justice In Times Of Fiscal Crisis, Chief Justice Ronald M. George
Golden Gate University Law Review
Ronald M. George is the 27th Chief Justice of the California Supreme Court. He delivered this address at the Golden Gate University School of Law on October 20, 2009.
Patently Obvious: A Dual Standard Solution To The Diverging Needs Of The Information Technology And Pharmaceutical Patent Industries, Andrew Moody
Golden Gate University Law Review
This Comment proposes the use of a specifically tailored obviousness standard as a new solution to the IT and pharmaceutical patent industries' divergent needs. Part I summarizes the obviousness standard's history in patent law. Part II illustrates how the IT and pharmaceutical industries have divergent needs. Part III describes why using a single standard for the obviousness inquiry is inadequate to meet the needs of both the IT and pharmaceutical industries. Part IV illustrates why the obviousness standard needs to be specifically tailored for the IT and pharmaceutical industries. Finally, Part V concludes that a dual standard for obviousness is …
The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane
The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane
Golden Gate University Law Review
The Ninth Circuit Court of Appeals issued three landmark decisions in 2007 that addressed how copyright protections apply to images that can be accessed over the Internet. Internet publisher Perfect 10 initiated these lawsuits based on allegations that its registered copyrights were infringed when unauthorized copies of its photographs appeared on third-party websites where they could be viewed, downloaded, and purchased without payment to Perfect 10. This Article briefly summarizes the facts of these three cases, explains the central holdings of each decision, and then concludes with a discussion of the collective impact that the three decisions have on enforcement …
Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World, David Schultz
Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World, David Schultz
Golden Gate University Law Review
The events of 9-11 presented western democracies with a challenge and a test. The challenge: respond to terrorism either by military or diplomatic means (such as criminal apprehension and prosecution) to address national security needs and to protect civilian populations, infrastructure, and commerce. The test: meet the terrorist and national security challenges while simultaneously respecting international law, human rights, domestic constitutionalism, rule of law, and individual rights and liberties of both citizens and non-citizens. Unfortunately, the report card on both the challenge and test reveal a mixed record, especially in the United States. This Article examines regime responses to international …
Patenting The Diagnosis Of A Disease: The Scope Of Patentable Subject Matter Based On Labcorp V. Metabolite Labs, Timothy J. Ohara
Patenting The Diagnosis Of A Disease: The Scope Of Patentable Subject Matter Based On Labcorp V. Metabolite Labs, Timothy J. Ohara
Golden Gate University Law Review
Currently, a method of diagnosing a disease can be broadly claimed in a patent. The United States Supreme Court initially granted certiorari in Metabolite Labs to decide whether the method-of-diagnosis claim was patentable. Later, the Court dismissed certiorari as improvidently granted. This Note asserts that the Court should have adjudicated the case because there is a great need to clarify what is patentable subject matter for method claims that do not entail a physical transformation of matter, particularly in view of the seeming inconsistency between Diamond v. Diehr and State Street Bank & Trust Co. v. Signature Financial Group.
An Integrative Alternative For America's Privacy Torts, Robert M. Connallon
An Integrative Alternative For America's Privacy Torts, Robert M. Connallon
Golden Gate University Law Review
Rugg and Smith encapsulate a transition between two approaches to tort protection of privacy. Rugg reflects the unitary-tort theory, which recognizes a single tort and seeks only to determine if the plaintiff's interest in privacy has been breached by the defendant's behavior. Smith reflects the multiple-tort approach that recognizes four torts, encompassing four ways in which privacy is breached, that have in common only an interference with a loosely defined understanding of privacy. This understanding of the privacy tort was lifted from the Restatement (Second) of Torts (1977), which adopted a construct first proffered by Dean William Prosser in a …
A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar
A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar
Golden Gate University Law Review
In Kenna v. United States District Court, the Ninth Circuit held that under the Crime Victim's Rights Act ("CYRA"), a crime victim's right to be "reasonably heard" during sentencing was not limited to written impact statements, but included the right to allocute at any public proceeding. This was an issue of first impression in the Ninth Circuit. "No court of appeals had addressed the scope of this particular CVRA right." Two district courts had considered this issue and had reached contrary decisions. The Ninth Circuit agreed with the United States District Court for the District of Utah that a plausible …
Voir Dire Racial Discrimination Under A "Comparative Juror Analysis" In Kesser V. Cambra, Andje Morovich
Voir Dire Racial Discrimination Under A "Comparative Juror Analysis" In Kesser V. Cambra, Andje Morovich
Golden Gate University Law Review
In Kesser v. Cambra, the en banc Ninth Circuit panel held that a California State Prosecutor's justifications for peremptory challenges during jury voir dire were pretexts for purposeful discrimination. The Ninth Circuit concluded that the California Court of Appeal failed to apply the proper Supreme Court test under Batson v. Kentucky to determine whether the prosecutor's nonracial motives were pretextual. Applying a "comparative juror analysis" (comparing the characteristics of a stricken juror with an impaneled juror), the Ninth Circuit majority held that the California Court of Appeal improperly relied solely on the prosecutor's own self-serving testimony as to his race-neutral …
Career Criminals Targeted: The Verdict Is In, California's Three Strikes Law Proves Effective, Naomi Harlin Goodno
Career Criminals Targeted: The Verdict Is In, California's Three Strikes Law Proves Effective, Naomi Harlin Goodno
Golden Gate University Law Review
This Article reviews the impact of the Three Strikes law over the last decade and concludes that, based on data that have been collected and the manner in which the law has been applied, it has proved effective. The first section of this Article explores the history behind the legislation and the law itself. The second part of this Article sets forth three reasons why the Three Strikes law has proved effective: (1) The Three Strikes law is carrying out its goals by incapacitating career criminals and deterring crime. Since its enactment California's crime rate has dropped, and, for the …
The Entitlement Of Chimpanzees To The Common Law Writs Of Habeas Corpus And De Homine Replegiando, Steven M. Wise
The Entitlement Of Chimpanzees To The Common Law Writs Of Habeas Corpus And De Homine Replegiando, Steven M. Wise
Golden Gate University Law Review
In this Article, I claim that humans enslave chimpanzees and thereby deprive them of their bodily liberty and that chimpanzees should be entitled to use the common law writs of habeas corpus and de homine replegiando and to bring their common law claims to bodily liberty before courts. In Part I, I demonstrate that chimpanzees are genetically highly similar to humans and quite cognitively and socially complex. In Part II, I argue that flexibility is part of the common law's basic structure, that legal personhood is one of the common law's basic values, that the structure of the common law …
The Time Has Come For Law Enforcement Recordings Of Custodial Interviews, Start To Finish, Thomas P. Sullivan
The Time Has Come For Law Enforcement Recordings Of Custodial Interviews, Start To Finish, Thomas P. Sullivan
Golden Gate University Law Review
Throughout the United States, more and more law enforcement officials are coming to realize the tremendous benefits they receive when the questioning of suspects in police facilities is recorded from beginning to end, starting with the Miranda warnings and continuing until the interview is completely finished. Recordings put an end to a host of problems for detectives: having to scribble notes during interviews and later type reports; straining on the witness stand weeks and months later, trying to describe what happened behind closed doors at the station; becoming embroiled in courtroom disputes about what was said and done during custodial …
Exoneration And Wrongful Condemnations: Expanding The Zone Of Perceived Injustice In Death Penalty Cases, Craig Haney
Exoneration And Wrongful Condemnations: Expanding The Zone Of Perceived Injustice In Death Penalty Cases, Craig Haney
Golden Gate University Law Review
In this article I argue that despite the very serious nature and surprisingly large number of these kinds of exonerations, revelations about factually innocent death-sentenced prisoners represent only the most dramatic, visible tip of a much larger problem that is submerged throughout our nation's system of death sentencing. That is, many of the very same flaws and factors that have given rise to these highly publicized wrongful convictions also produce a more common kind of miscarriage of justice in capital cases. I refer to death sentences that are meted out to defendants who, although they may be factually guilty of …
Anatomy Of A Miscarriage Of Justice: The Wrongful Conviction Of Peter J. Rose, Susan Rutberg
Anatomy Of A Miscarriage Of Justice: The Wrongful Conviction Of Peter J. Rose, Susan Rutberg
Golden Gate University Law Review
This Article examines one case in which students and lawyers from Golden Gate University's Innocence Project won the exoneration of Peter J. Rose, a man who served nearly ten years of a twenty-seven year State Prison sentence for the rape and kidnap of a child before DNA proved his innocence. The analysis of this case focuses on how the conduct of two police detectives, the prosecutor and the defense attorney contributed to this miscarriage of justice.
Innocence Lost ... And Found: An Introduction To The Faces Of Wrongful Conviction Symposium Issue, Daniel S. Medwed
Innocence Lost ... And Found: An Introduction To The Faces Of Wrongful Conviction Symposium Issue, Daniel S. Medwed
Golden Gate University Law Review
No abstract provided.
Keeping Bad Science Out Of The Courtroom: Why Post-Daubert Courts Are Correct In Excluding Opinions Based On Animal Studies From Birth-Defects Cases, Dije Ndreu
Golden Gate University Law Review
This Comment argues that courts should keep animal studies out of the courtroom in birth-defects toxic-torts cases. This will not only result in proper exclusion of unreliable evidence, but will also lead to valuable resources being directed to more worthy alternative tests, ultimately reducing human and animal suffering as birth defects are eradicated. Part I sets forth the evidentiary standards used to determine the admissibility of evidence and then presents background information on birth defects and how they are studied. It also discusses the problems inherent with animal tests and the contrasting value of human data. Part II explores the …
Remembering The Spirit Of The Endangered Species Act: A Case For Narrowing Agency Discretion To Interpret "Significant Portion" Of A Species' Range, Ashling P. Mcananey
Remembering The Spirit Of The Endangered Species Act: A Case For Narrowing Agency Discretion To Interpret "Significant Portion" Of A Species' Range, Ashling P. Mcananey
Golden Gate University Law Review
Part I of this Comment addresses the importance of biodiversity and the need to protect endangered and threatened species. A lack of an understanding of, and respect for, the manner in which all species improve our quality of life can make it difficult to support the ESA when it conflicts with the interests of property owners or the federal government. Part II briefly details the history of the 1973 ESA and its predecessor statutes. Part III provides a summary of the relevant portions of the ESA. Part IV outlines the substantive guidelines and procedural safeguards to be adopted by the …
China's New Renewable Energy Law: The California Connection, Jan Hamrin
China's New Renewable Energy Law: The California Connection, Jan Hamrin
Golden Gate University Law Review
No abstract provided.
California's Hydrogen Highway Reconsidered, Joseph Romm
California's Hydrogen Highway Reconsidered, Joseph Romm
Golden Gate University Law Review
This Article begins with an assessment of anticipated climate change and sea rise impacts on California. Next, the contribution of greenhouse gas emissions from gasoline-powered vehicles to climate change is explained. This is followed by an analysis of the Hydrogen Highway proposal put forth by Governor Schwarzenegger, and a comparison of the potential economic viability and environmental benefits of hydrogen vehicle technology vis-a-vis gasoline-electric hybrid vehicles.
Renewable Energy In United States Foreign Policy, Daniel Karnrnen
Renewable Energy In United States Foreign Policy, Daniel Karnrnen
Golden Gate University Law Review
This article examines the root-causes of the United States' oil-induced myopia, and highlights the synergies that could exist between a low-carbon and a high-security national energy policy and how such synergies might reshape foreign policy dynamics and options.
"No Child Left Behind" In Need Of A New "Idea": A Flexible Approach To Alternate Assessment Requirements, Erin G. Frazor
"No Child Left Behind" In Need Of A New "Idea": A Flexible Approach To Alternate Assessment Requirements, Erin G. Frazor
Golden Gate University Law Review
This Comment explores many constitutional issues raised by recent federal assessment policies regarding students with disabilities. Part I summarizes the federal statutory scheme for funding and thereby regulating both public education and the assessment of students with disabilities. Part II discusses federal policy changes to assessment standards and the ambiguity these changes present. Part Ill examines potential constitutional issues raised by evolving federal assessment requirements under both spending power and federal coercion theories. Part IV proposes that states be relieved from traditional penalties for noncompliance to avoid any constitutional violation and to promote states as laboratories of ideas to meet …
Making-Up Conditions Of Employment: The Unequal Burdens Test As A Flawed Mode Of Analysis In Jespersen V. Harrah's Operating Co., Megan Kelly
Golden Gate University Law Review
Part I of this Note reviews Title VII and foundational caselaw, including cases regarding sex discrimination and appearance standards. Part II examines the Ninth Circuit's Jespersen opinion. Part III compares the Supreme Court decision in Price Waterhouse v. Hopkins, which expanded Title VII protection to include gender stereotyping, with the Jespersen holding. Part III also explores a Seventh Circuit case, Carroll v. Talman Federal Savings and Loan Association of Chicago, and Judge Thomas's dissent in Jespersen, which both argue for inclusion of less tangible factors such as gender stereotyping in the unequal burdens test. Part III finally contends that the …
Newton V. Diamond: When A Composer's Market Is Not The Average Joe: The Inadequacy Of The Average-Audience Test, Reid Miller
Newton V. Diamond: When A Composer's Market Is Not The Average Joe: The Inadequacy Of The Average-Audience Test, Reid Miller
Golden Gate University Law Review
This Note will discuss how the Ninth Circuit incorrectly adopted the average-audience test because the test has become overbroad in its application, is ill-equipped to deal with the issues of complex modern music, and has drifted from the fundamental purpose of copyright law. The Ninth Circuit should have adopted the intended- audience test, which looks to the reaction of those with the expertise required to understand the language of the work and more truly reflects the fundamental purpose of copyright law: the protection of the creator's market.