Law Commons^™

The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen

San Diego Law Review

Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each …

Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti

San Diego Law Review

The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.

This …

Making The Grade: School-Based Telemedicine And Parental Consent, Emily G. Narum

San Diego Law Review

This Comment advocates for a uniform state-by-state regulation, requiring schools to obtain parental consent immediately before any telemedicine service is provided to their children at school. Alternatively, the constitutional issues could be eliminated if telemedicine consent forms enumerate a finite and limited list of what medical services may be provided. These reforms will ensure not only that parents’ and children’s constitutional rights are protected, but also that schools and doctors provide the most informed health care services. Part II describes a background of school-based health, as well as the benefits and risks of offering telemedicine in schools. Part III explains …

Sharpening The Tools Of An Adequate Defense: Providing For The Appointment Of Experts For Indigent Defendants In Child Death Cases Under Ake V. Oklahoma, Laurel Gilbert

San Diego Law Review

This Comment proposes that because of ongoing concerns regarding the reliability and validity of forensic science in the United States, the Due Process Clause constitutionally mandates the appointment of forensic experts for indigent defendants in criminal cases arising out of a child’s death if the prosecution relies on forensic evidence. Part II of this Comment provides an overview of the current law governing the admissibility of forensic expert testimony in criminal cases and explains why these admissibility standards create a need for the appointment of defense forensic experts to protect the rights of criminal defendants. Part III then discusses Due …

Pavlovich V. Superior Court: Spinning A World Wide Web For California Personal Jurisdiction*

San Diego Law Review

This Casenote questions the Pavlovich court’s holding. More

specifically, it argues that the exercise of personal jurisdiction in this case violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and that the court erred when it failed to quash service of process. Further, this Casenote posits that exercise of jurisdiction here not only eviscerates the mandates of International Shoe Co. v. Washington and its progeny, but also extends California jurisdiction to cover Internet users everywhere.

Curing The Ake Of An Incompetent Expert: A Separate Reviewable Issue, Kenneth S. Roberts

San Diego Law Review

The Supreme Court's mid-1980s decision in Ake v. Oklahoma established the defendant's constitutional right to "competent psychiatric assistance." Although many states had already provided indigent defendants access to psychiatric assistance in their defense, it was not until the Court decided Ake that this access was established as his or her constitutional right. However, whether this due process right to expert assistance was satisfied by the mere appointment of a psychiatrist or whether it included the requirement that the expert perform competently had remained unanswered as of 1992. This Comment attempts to address this issue in the affirmative and additionally develops …

Seizure Of Private Papers Pursuant To A Search Warrant: With Specific Application To Federal And California Bookmaking Prosecutions, Dennis G. Adams

San Diego Law Review

The federal exclusionary rule excludes evidence obtained by an illegal search and seizure. Recent U.S. Supreme Court decisions, such as Mapp v. Ohio and Malloy v. Hogan, have made the federal exclusionary rule and the Fifth Amendment's privilege against self-incrimination applicable to the states. Because this type of evidence usually forms the basis of bookmaking convictions, this article discusses whether such evidence can still be constitutionally seized in California. The author concludes that these Supreme Court cases have rendered California Penal Code § 1524, governing property validly seizable under a search warrant, unconstitutional.