Golden Gate University Law Review
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Open Access journal
ISSN (Print) 0363-0307
Published by Golden Gate University School of Law [3 journals]
- C.R. Ex Rel. Rainville v. Eugene School District 4J: Slowly Expanding a
School’s Ability to Reach Off-Campus Speech
Authors: Mary R. Loung
Abstract: 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 in C.R. ex rel. Rainville v. Eugene School District 4J addressed one incident where the First Amendment rights of a public school student were restricted even though the speech occurred off-campus and after school hours.
PubDate: Tue, 31 Jan 2017 11:26:46 PST
- State and Federal Powers Clash Over Medical Marijuana in United States v.
Authors: Cara E. Alsterberg
Abstract: The unanimous opinion in United States v. McIntosh held that a spending rider approved by Congress in 2014 and 2015 prohibits the United States Department of Justice (the Department) from prosecuting marijuana suppliers who fully comply with state laws allowing the use of marijuana for medicinal purposes. The Department argued that the rider only prohibits litigation against the states themselves, rather than prosecution of individuals who provide marijuana for medicinal purposes, because the language of the rider indicates that the Department may not use appropriated money to prevent states from implementing their medical marijuana laws.The three-judge panel of the United States Court of Appeals for the Ninth Circuit rejected this interpretation, holding that the rider prohibits the Department from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana, on the other hand, have engaged in conduct that is unauthorized. Thus, prosecuting individuals such as these does not violate the rider. However, if the Department wishes to continue these prosecutions, the defendants are entitled to evidentiary hearings at which they may demonstrate that their actions were authorized by state law. The Ninth Circuit’s ruling represents the highest judicial holding that this omnibus legislation does indeed curb federal crackdowns on state-legal medical marijuana programs.
PubDate: Tue, 31 Jan 2017 11:26:43 PST
- Jones v. Davis and the Critical Issue of Time in California’s
Capital Punishment System
Authors: Heather Varanini
Abstract: 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 alleviate.
PubDate: Tue, 31 Jan 2017 11:26:40 PST
- Peruta v. County of San Diego: An Individual Right to Self-Defense Outside
the Home and the Application of Strict Scrutiny to Second Amendment
Authors: Kevin Ballard
Abstract: 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 of the Second Amendment.
PubDate: Tue, 31 Jan 2017 11:26:37 PST
- DC Comics v. Towle: To the Batmobile!: Which Fictional Characters Deserve
Protection Under Copyright Law
Authors: Katherine Alphonso
Abstract: Section I of this Note presents the history and purpose of copyright law by giving a brief background of its origin. It discusses how courts have since expanded copyright coverage to individual fictional characters, and chronicles the various challenges faced in applying the law. Section I also provides relevant facts and procedural history for the case.Section II examines the Ninth Circuit’s discussion and holding. Section III discusses the inherent limitations of the three-part test used in the decision. It explains the importance of rejecting categorical protection and analyzing copyright for all fictional characters on a case-by-case basis. Section III also suggests three additional factors the court should consider when evaluating such issues.Finally, Section IV concludes that although the Ninth Circuit reached the appropriate result with regards to the Batmobile, the presented factors would better guide future courts to consistent and fair decisions.
PubDate: Tue, 31 Jan 2017 11:26:34 PST
Authors: The Hon. Carlos T. Bea
PubDate: Tue, 31 Jan 2017 11:26:31 PST
- Judges of the United States Court of Appeals for the Ninth Circuit
PubDate: Tue, 31 Jan 2017 11:26:29 PST
- How Reasonable Are Reasonable Efforts for the Children of Incarcerated
Authors: Courtney Serrato
Abstract: This article will discuss the development of the laws concerning children with incarcerated parents. Ultimately, the goal is to encourage states like California to (1) expand the law regarding reasonable efforts even further, (2) encourage California prisons to take into consideration exceptions for children and incarcerated parents in implementing prison policies, and (3) provide other states with a model for proposing new laws that can be put into practice. The background of this article will explain the federal implementation of The Adoption and Safe Families Act (ASFA) and the necessary changes California made to state law after the enactment of ASFA, as well as the policy behind California Department of Corrections and Rehabilitation’s (CDCR) visitation regulations. First, the article will discuss visitation as a reasonable effort and how visitation is viewed through the CDCR. Next, the article will examine the inconsistencies between California dependency law offering visitation and other reasonable efforts and CDCR’s view on visitation for incarcerated individuals. Finally, the article will provide recommendations for California dependency law and the CDCR to work together to create exceptions for the unique relationship between parent and child. This includes how the CDCR and state dependency laws can coexist to create a relationship, including visitation between children and incarcerated parents if it is within the best interest of the child.
PubDate: Tue, 13 Dec 2016 14:31:36 PST
- Default License Revocation in California Administrative Law
Authors: Jacob Reinhardt
Abstract: This article will examine default license revocation in California and the extremely difficult process for overturning such a determination. In Part I, the article will provide background information regarding the principles of notice and default. Part II will continue with a chronological examination of the administrative set aside process, noting recommendations for improvements that can be made at each stage. Part II will be divided into three sections: A) the timelines and service procedures used in license disciplinary actions; B) how administrative set aside requests are decided at the agency level; and C) judicial review of the agency’s decision. Finally, Part III will review the article’s findings and recommendations, concluding that California administrative law does not provide professional licensees with adequate recourse in the event of a default decision.
PubDate: Tue, 13 Dec 2016 14:31:33 PST
- Paved with Good Intentions: Title IX Campus Sexual Assault Proceedings and
the Creation of Admissible Victim Statements
Authors: Sara F. Dudley
Abstract: This Comment argues that campuses should, in the course of their Title IX proceedings, ensure that anyone who takes a potentially admissible statement from a survivor has received trauma-informed interview training. Trauma-informed interviewing acknowledges the physiological effect of trauma on survivors, the impact that it can have on their ability to recall facts and details, and the limits and possibilities of obtaining information from such witnesses. In addition, campuses should limit the number of individuals who take statements from survivors and record the victim’s statements. These improvements will create statements of higher evidentiary quality. It will also mitigate the emotional harm to survivors, helping to ensure their continued cooperation with prosecutors and law enforcement. To understand the process of investigating Title IX complaints and how the procedures that started on campus can impact a future criminal investigation, experts on both sides of the “ivory tower” were interviewed, including law enforcement officers, prosecutors, and an expert in Title IX jurisprudence.Part I describes the research methodology utilized, the process of finding and interviewing the research subjects selected, and the research subjects’ credentials. Part II reviewsTitle IX disciplinary proceedings and applicable laws. Part III explains a typical interview process, and how it does not account for the trauma inherent in sexual assault or the unique context in which a campus sexual assault occurs. This creates admissible statements of dubious value and quality, which can be used to impeach a victim in a future criminal case. Part IV outlines a new way forward, which allows survivors to participate in the campus disciplinary process while mitigating the harm to both to themselves and to a future criminal prosecution. Here, advances in trauma-informed interviewing, the need to mandate such training for all personnel who conduct a Title IX proceeding on campus, and the necessity of accurately documenting the survivor’s statement, are explored. In addition, recent federal actions that support trauma-informed interview practices as a necessary component of Title IX compliance are described.
PubDate: Tue, 13 Dec 2016 14:31:30 PST
- A New War on Drugs: Fighting State-Sponsored Overmedication of
California’s Foster Youth
Authors: Jessie Conradi
Abstract: California desperately needs to amend the law pertaining to the administration of psychotropic medication to foster youth. State policy affecting foster youth impacts many lives, as California is home to fifteen percent of foster youth in the United States. While California began offering such protections, a comprehensive amendment to California’s law should address consent, case review for troublesome cases, monitoring, and a standard of review that matches the current standard used when prescribing involuntary medication to adults. Anything less than this falls short of the state’s duty to act, under the state’s parens patriae power, as the foster youth’s parent.This Comment will discuss the current problem with overmedication of foster care youth, specifically in California. Part I outlines the immediate problems facing foster youth in the California dependency system who have been prescribed psychotropic medication and examines the federal and state laws that have attempted to address the issue. Part II explains what federal law requires and several states’ interpretations, specifically focusing on the definition of “oversight” and “monitoring.” Part III proposes an amendment to California’s law that addresses consent, case review, monitoring, and an adequate standard of review.
PubDate: Tue, 13 Dec 2016 14:31:26 PST
- United States v. Fidel Castro-Verdugo: Unlawfully Sentenced Defendant Is
Procedurally Barred From Relief
Authors: E. Rose London
Abstract: In United States v. Fidel Castro-Verdugo, the Ninth Circuit held that the court lacks the jurisdiction to correct an underlying unlawful sentence imposed by the district court in the context of a probation revocation appeal. Despite clear error on the part of the sentencing judge, Defendant-Appellant (Defendant) did not timely file a petition for a writ of habeas corpus; therefore, no remedy was available to him. The dissenting opinion asserted that the court did have jurisdiction to correct the error because Defendant appealed from a later sentence erroneously based on the underlying unlawful sentence. Noting that it is the role of appellate courts to correct errors made by lower courts, the dissent disagreed strongly with the majority’s decision to uphold a known error.
PubDate: Mon, 07 Mar 2016 11:10:51 PST
- United States v. Rodriguez: Fresno Laser Pointer, A “Knucklehead” But
Not A “Bin Laden”
Authors: Rosalyn A. Jamili
Abstract: In United States v. Rodriguez, the Ninth Circuit overturned a harsh conviction sentencing Sergio Patrick Rodriguez to five years in prison for aiming a laser pointer at a Fresno Police helicopter, in violation of 18 U.S.C. § 39A, and an additional fourteen years in prison for attempting to interfere with its operation, in violation of 18 U.S.C. §§ 32(a)(5) and (8). The panel reversed the conviction, finding that Rodriguez did not act with reckless disregard for the safety of human life by shining the laser pointer at the helicopter, and remanded his conviction for aiming the pointer itself for resentencing.
PubDate: Mon, 07 Mar 2016 11:10:44 PST
- Garcia v. Google, Inc.: The Ninth Circuit’s Refusal to Extend Copyright
Protection to an Actor’s Performance, Reinforcing the Letter of
Authors: Anna Nicolopulos
Abstract: Copyright protection is rooted in the Intellectual Property Clause of the United States Constitution, which sets boundaries for the subject matter that can be protected by federal copyright law. The Ninth Circuit’s 2014 decision in Garcia v. Google, Inc., marked the first time a court ruled that an individual actor with a minor role in a film has a copyright interest in her own performance.In Garcia v. Google, Inc., the Ninth Circuit originally held that the actor likely had a copyright interest in the film because she was “duped into providing an artistic performance that was used in a way she never could have foreseen.” The court reasoned that Garcia established she was likely to succeed on her copyright claim due to the serious threats against her life, and the balance of the equities and public interest that were in her favor. The Ninth Circuit applied the standard for a mandatory preliminary injunction and found that Garcia, as an actor, had a copyright interest in the film because she evinced a minimal degree of creativity in her performance.The court should have only ruled that the district court abused its discretion by failing to grant Garcia’s copyright interest, if the facts and law clearly favored issuing a preliminary injunction. The court assumed Garcia was an author and created its own law to provide her — as an actor — a copyright interest in a film. Nothing about Garcia’s performance or what she demonstrated provide that the facts and the law “clearly favor her claim of a copyrightable interest” in her acting performance. The court demanded YouTube remove the film, a request that was subjected to the incorrect degree of scrutiny. The court should have applied a higher degree of scrutiny and reversed the district court’s decision only if the decision was illogical or implausible. Garcia did not clearly satisfy the requirements to claim copyright infringement, thus the district court’s decision was not illogical or implausible, and the district court did not abuse its discretion.Part I of this Note presents a background of the factual history of the case and the relevant history of copyright law. Part II focuses on the procedural history of Garcia v. Google, Inc., focusing on the Ninth Circuit’s misapplication of copyright law and the en banc court’s restoration of copyright law’s intention. Part III presents possible remedies that Garcia may have had outside of an action asserted under copyright law. The Note concludes by emphasizing that the expansion of technology could have substantial implications for copyright interests, and that such expansion may force the United States to adopt more specific laws going forward.
PubDate: Mon, 07 Mar 2016 11:10:37 PST