California's supreme court first reasserts an arbitrator power…

The Framers' election to preserve the common law right to civil jury trial in the Bill of Rights means that businesses may not remove this right from citizens by making its waiver a precondition to delivery of goods, services or employment. This conclusion is compelled by two considerations. First, the decision by the Framers to include this right in the Bill of Rights designates it as the kind of fundamental right waiver of which must be protected from any form of coercion, including the coercion imposed when a business makes waiver of the right a non-negotiable condition to delivery of a good, service or employment. Second, looking to the text of the Constitution, the decision by the Framers to protect the civil jury trial right with Article V's strong supermajority amendment requirements evinces their intent that the scope of the right's applicability not be subject to reduction by a less restrictive amendment mechanism - be it a majoritarian statutory amendment process (something the Framers contemplated) or what amounts to private legislation through standardized contractual waivers, a future development that the Framers, understandably, failed to anticipate. Pursuant to the Supreme Court's unconstitutional conditions doctrine, the state may not seek advance waiver of a citizen's Sixth Amendment criminal jury trial right in favor of bench trials in return for some unrelated benefit such as subsidized public housing or college tuition assistance. The coerciveness of such an offer becomes clear when one realizes that if the benefit offered were sufficiently valuable the citizen would readily waive her criminal jury trial right even if she strongly preferred jury trials over bench trials. Symmetrically, the Seventh Amendment civil jury trial right should enjoy the same protection against coercive removal as that provided the Sixth Amendment criminal jury trial right. Thus, a business should not be permitted to require that a citizen waive his jury trial right as a take-it-or-leave-it precondition to delivery of goods, services or employment. Coercion is coercion whether imposed by the state or a private party. Properly understood, it is protection against this form of coercion that constitutes the core minimum distinction between fundamental Constitutional rights and ordinary property interests. Viewed from a slightly different perspective, the very fact that lawmakers set forth an individual right applicable against other private parties in a constitution instead of a statute signals an intent that such right trump other persons' standard property rights where necessary to preserve citizens' ability to invoke such constitutional right. For example, in PruneYard Shopping Center v. Robins, California's Supreme Court held, and the Supreme Court unanimously affirmed, that California shopping centers may not make waiver of a customer's reasonably exercised state constitutional free speech and petition rights a condition to entry. Thus, the California Supreme Court found that the inclusion of these individual rights in California's constitution signals an intent that such rights trump a shopping center owner's common law rights to exclude people from its property and to control the activities permitted thereon. Following the same logic, the decision by the Framers to preserve in the Bill of Rights rather than in an ordinary statute (or not at all) the common law civil jury trial right signals an intent that such right trump the otherwise operable common law right of a business to make waiver of this or any other right a condition to delivery of goods, services or employment.

ONCE rare, amicus curiae or friend the briefs are now filed in the majority appellate cases heard by the United States Supreme Court and various state supreme courts. In the United States Supreme Court, amicus briefs were filed in thirty-five percent the Court's cases in the 196-566 term; by 1995, one or more amicus briefs were filed in nearly ninety percent the Court's cases. (1) An analysis the 1999 to 2008 terms showed that in civil cases the average filing rate for amicus briefs was 92.4% (with a high 100% amicus participation in all civil cases in the 2007 term). (2) The number civil cases before the Court each term ranged from thirty-nine to sixty-one; the total number amicus briefs filed each term in those cases ranged from 344 to 627. (3) Historically, state courts were more likely than the U.S[.] Supreme Court to limit the role amicus participation in appeals. (4) Nonetheless, the number amicus briefs filed in state high courts tripled in the 1980s. (5) The growth in use amicus briefs has not been uniform across all states, however. The frequency amicus participation between 1960 and 2000 was highest, according to one study, before the Florida, Massachusetts, North Carolina and Washington high courts; two previous studies revealed the top five states for amicus participation to be California, Michigan, New Jersey, New York, and Ohio. (6) My own survey amicus filings in the California Supreme Court reveals high amicus participation in the past decade. The amicus filing rate was 59.7% from 2000 to 2009 in civil cases; out 707 cases decided by the court, 422 had one or more amicus briefs. (7) The average number amicus briefs filed in each case is also increasing. In the California Supreme Court, 1,868 amicus briefs were filed in 422 the 707 civil cases decided by the court between 2000 and 2009. (8) Indeed, the California Supreme Court has even invited the submission amicus briefs in some cases. (9) With increased amicus participation has come increased amicus influence. Amicus briefs have repeatedly provided the United States Supreme Court with information and legal theories that have influenced the Court's decisions. The majority opinion in Roe v. Wade (10) expressly referred to positions urged by amicus groups and relied heavily on historical, social, and medical data provided by amici. In the companion case Doe v. Bolton, (11) the majority expressly relied on data provided by amici showing that facilities other than hospitals are adequate to perform abortions, and rejected the state's contrary argument. In Grutter v. Bollinger, (12) the Court upheld the race-based admissions policy the University Michigan Law School; at oral argument and in the Court's decision, the justices referred to and relied on the amicus brief retired military officers. (13) And, in the 2013 term, the Court advised counsel for parties in a case in advance oral argument that they should be prepared to address an argument made in an amicus brief filed in the case. The Court's citation amicus briefs has also increased. According to one study, United States Supreme Court justices directly mentioned at least one amicus brief in eighteen percent the cases in which amicus briefs were filed between the 1969 and 1981 terms. (14) Another study reveals that, of all [United States Supreme Court] opinions published between 1986 and 1995, approximately fifteen percent cited at least one amicus brief by name, and thirty-seven percent referred to at least one amicus brief' without citing or naming it. (15) More than sixty-five percent the amicus briefs filed in the United States Supreme Court in 1992 contained information not found in the briefs the direct parties. (16) A survey amicus brief filings in State supreme courts showed that amicus briefs were acknowledged or cited in thirty-one percent cases, and arguments made in amicus briefs discussed in eighty-two percent the cases sampled. …

California's Constitution has been one of the most influential state constitutions historically and has been amended and interpreted in many different ways. This definitive and easy-to-use reference by a former justice of California's Supreme Court and two colleagues at Hastings College of Law should be a standard guide for lawyers, students, scholars, and for the citizenry to use in considering how to vote on ballot questions. The volume opens with an overview of the development of the constitution since the early days and then provides an article-by-article and section-by-section analysis and full text of this body of law under which the state is governed. A selected bibliography, a table of cases, and a full index make this invaluable reference useful to a broad interdisciplinary audience for varied use.

In an expansion of a December CPR Web site report, a new California Supreme Court opinion on mediation confidentiality is analyzed

There are two competing approaches to determining the admissibility of expert testimony, including scientific evidence. Under the traditional, Frye approach, the question is whether the expert is relying on a theory or technique that is generally accepted in the relevant specialty fields. At one time that test was employed by the federal courts as well as 46 states. However, in 1993 in its celebrated Daubert decision, the Supreme Court construed the Federal Rules of Evidence as impliedly overturning Frye. The Court derived a new validation test from the text of Federal Rule 702. As of 2013, only a minority of courts continue to adhere to Frye while a majority of states have embraced some version of the Daubert standard. Although most states have adopted a version of the Daubert test, until recently the California Supreme Court continued to staunchly follow Frye. The California Supreme Court initially adopted the Frye test in 1976. In 1994, the year after the United States Supreme Court rendered Daubert, the California Supreme Court declined the invitation to abandon Frye. However, as more jurisdictions shifted to Daubert, in a growing number of cases advocates urged the California courts to modify their position and incorporate some elements of the Daubert approach into California jurisprudence. In November of 2012, the California Supreme Court handed down its decision in Sargon. Sargon certainly represents a step toward the Daubert approach. In Sargon, the court approvingly cited Daubert as well as the two later cases in the Daubert trilogy, Joiner and Kumho. Moreover, in its opinion the court followed many of the essential teachings of Daubert, Joiner, and Kumho. Most importantly, the substance of the analysis in Sargon is strikingly similar to the Supreme Court’s analysis in Joiner. In this light, some commentators are now declaring that California has joined the ranks of the Daubert jurisdictions. The purpose of this article is cautionary; the thesis of this article is that it is premature to proclaim that California is now a Daubert jurisdiction. To begin with, in footnote the Sargon court affirmed its commitment to Frye. Moreover, the facts in Sargon were so extreme that in future cases, attorneys will have a plausible argument for distinguishing Sargon. Finally, in Sargon the court emphasized that it was authorizing trial judges to conduct a carefully circumscribed inquiry. The court stopped well short of tasking trial judges to conduct the sort of probing inquiry that Daubert empowers federal trial judges to conduct under Federal Rule of Evidence 104(a). The California courts may have embarked on a gradual, incremental movement toward Daubert, but California is not there yet.

Procedural due process is a guarantee of fairness. It is fundamental to the rule of law to protect individuals from arbitrary state action by requiring – at least – notice and opportunity to be heard. Procedural protections vary according to the context of a particular case, and protections in administrative actions are distinct from those provided in a formal judicial proceeding. The administrative state developed to address a pressing need: how to govern and regulate when none of the three branches of government are fully equipped to administer an ever-evolving society. Consequently, administrative law is concerned with how to govern effectively and efficiently. But, as society has developed and expanded over the years, increased individual interaction with the administrative state has necessitated expanding procedural due process into an area of law that prioritizes efficiency over individual rights. Both the United States Supreme Court and the California Supreme Court addressed this tension, but with different emphases. Where the United States Supreme Court applies a constitutional threshold for rights implicating procedural protections, the California Supreme Court applies a broader, statutorily-conferred interest or benefit threshold and balances the interests at stake in the case. Where the United States Supreme Court uses a three-factor balancing test for procedural adequacy, the California Supreme Court asserts a four-factor balancing test, specifically recognizing a person’s dignitary interest in procedural protections against the state. However, California’s due process analysis has, at best, been applied haphazardly, leading to confusion amongst lower courts. The uneven application of the doctrine demeans an affected individual’s dignitary interest in asserting their position before and being heard by the pertinent state actor. Though there is significant confusion about the nature of the due process trigger, this Note focuses on the dignitary interest in due process procedures as highlighted by the California Supreme Court. After outlining the development of the federal and state frameworks and explaining the misapplication of the California test by the state’s courts, this Note argues for a more vigorous application of the dignitary interest and a truer appreciation and protection of an individual’s position before a state actor.

California Court Bans Emergency Physician Balance Billing: Emergency Physicians Decry Major Blow to Beleaguered Emergency Care Safety Net

Association for Accessible Medicines (AAM) warns that if this Court does not enjoin California's drug-patent settlement legislation, AB 824, there will be no more settlements, drug prices will rise, and patent law will be decimated. These claims offer no shortage of drama. But for at least three reasons, they are not justified. First, AAM ignores payment. The key issue in the antitrust analysis of settlements is whether a brand-name drug company pays a generic firm to delay entering the market. Precedent of the U.S. Supreme Court, California Supreme Court, and other courts draws an unmistakable distinction based on payment. Settlements without payment, such as those in which the parties settle based on the strength of the patent, do not threaten antitrust concern. But if the brand pays the generic to delay entry, that is a different story. For then, the generic is excluded from the market based not on the patent but on the payment. That is an antitrust violation. Despite this consensus view in the courts, the distinction between settlements with and without payment is missing from AAM’s motion. Second, AAM mischaracterizes AB 824. This legislation primarily codifies U.S. and California Supreme Court law, while modestly extending it in ways consistent with the caselaw. In particular, its approach of presumptive illegality for settlements involving payment and delayed entry is consistent with the streamlined Rule of Reason the Supreme Court adopted in FTC v. Actavis, which assumed anticompetitive effects and market power from a large and unjustified payment and which limited the defendant’s justifications to two: payments no higher than litigation costs and for generic services. It also is consistent with the structured Rule of Reason the California Supreme Court adopted in In re Cipro Cases I & II. In fact, AB 824 is even more protective of the settling parties than these two decisions in specifying six types of arrangements that do not provide “anything of value,” in other words, payment. Third, AB 824 is not preempted by the Hatch Waxman Act or patent law. The legislation promotes the Act’s purposes of expedited generic competition by reducing the number of settlements in which brands pay generics to delay entry, in the process inducing generics to abandon the patent challenges that Congress intended. Nor is patent law directly relevant to the antitrust analysis of settlements. As the U.S. Supreme Court made clear in Actavis, “it is normally not necessary to litigate patent validity” to assess the antitrust merits of settlements because the brand firm offers a “workable surrogate” on a silver platter: a large payment that cannot be justified as anything other than buying delay.

When I served as Governor of California from 1959 to 1967, I considered my most important single responsibility to be that of appointing able and dedicated judges at every level of our judicial system. That responsibility, of course, carried special weight in the appointment of justices of the California Supreme Court. It reached its apex when I had the opportunity to appoint a new chief justice of the Supreme Court of California upon the retirement of Chief Justice Phil Gibson in 1964. I take great pride and satisfaction in having then appointed Roger J. Traynor to the highest judicial office in this State. Roger Traynor and I graduated from our respective law schools and were admitted to the California State Bar in the same year, 1927. I began my career as a private practitioner in San Francisco. As a young trial lawyer I learned firsthand the need to have well-qualified judges in this state. I followed with interest Roger's career as a member of the law faculty at Boalt Hall from 1929 to 1940, and consultant to the California Board of Equalization and the United States Treasury Department during those years. I was pleased when Governor Cuthbert Olson appointed Roger Traynor as an associate justice of the California Supreme Court in 1940. As I turned to public life, serving as District Attorney for the City and County of San Francisco from 1944 to 1950, and as Attorney General from 1951 to 1959, I observed closely Roger Traynor's work as a supreme court justice. That observation, together with my discussion of the court and its work with lawyers, judges, law professors, and citizens of California, made me increasingly aware that Justice Traynor was making an outstanding record as a jurist in his work on the court. Roger Traynor contributed enormously to both the analysis and development of constitutional law, criminal law, and the law of contracts, torts, and evidence, among other subjects. His opinions were both scholarly and well-written, and he did not hesitate to bring fresh, critical analysis to bear on outworn legal doctrine. Moreover, he brought an integrity, perspective, and style to his work that made him an effective member of a court consisting of able jurists not lacking in respect for their own views. Because of these qualities and his dedication to the responsibilities of his office, Associate Justice Roger Traynor both

Logically, it would seem that capital juries must be at least as fair, im partial, and representative as juries that sit in ordinary criminal prose cutions. But there is much evidence to suggest that this is not the case. In Witherspoon v. Illinois, the Supreme Court examined the process of "death qualification" used to impanel capital juries. The Court approved the exclusion of prospective jurors whose opposition to the death penalty would make it impossible for them to decide upon guilt fairly and im partially, but left open the question of whether the exclusion of others who would not consider imposing the death penalty under any circum stances violated the defendant's constitutional rights.Since Witherspoon, death qualification has been extensively studied. It has been found to affect both the composition of the jury panel that re sults and, through the process itself, jurors who are exposed to the pro cedure. The exclusion of characteristics or attitudes linked with opposi tion to the death penalty h...

A new ultraconservative supermajority on the United States’ top court is undermining science’s role in informing public policy. Scholars fear the results could be disastrous for public health, justice and democracy itself. A new ultraconservative supermajority on the United States’ top court is undermining science’s role in informing public policy. Scholars fear the results could be disastrous for public health, justice and democracy itself.

In 1917, California's Supreme Court upheld the Eastern Pomo man Ethan Anderson's right to vote. The court recognized that Anderson lived and worked like his white neighbors and, most importantly, did not live in “tribal relations” and was subject to local jurisdiction. But Anderson, his lawyers, the opposing counsel, and the court never denied that he was a member of an Indian community. In fact, local authorities and the federal government had long acknowledged that Indian communities existed in Lake County, and they had both legitimized small Indian community landholdings as the homes of self-sufficient Indian laborers. Now, as Indian citizenship seemed to signal to local and federal authorities more claims on the state, both denied responsibility for those communities. Although citizenship seemed to stand as the categorical opposite of “Indians, not taxed,” Anderson's vindicated voting rights was not an end point of a successful program of assimilation, but one aspect of Indians’ ongoing pursuit of community security through their engagements with local and federal authorities.

Overturning a same-sex marriage ban: California's Supreme Court cites APA brief in its ruling

Being Held Accountable:On the Necessity of Intersectionality Jennifer Ho (bio) When I wrote the first entry on May 4, 2007 for my blog Mixed Race America, I began by asking the rhetorical question "Why blog about race?" and closed with the following musings: "Perhaps I want to talk about race in popular culture and general American culture (like the upcoming presidential race). Or perhaps I want to blog in public because I'm embarking on a 15 month project of finishing my book manuscript on passing. At any rate, whether it's a conversation with random or known people in cyberspace or simply a way for me to get my thoughts on paper in a public way, I'm going to use this space to jot down my miscellaneous musings about race. And I invite you to join in the conversation."1 Over two years later, I no longer ask why I blog about race; instead, I wonder why more academics don't pursue blogging as a form of intellectual inquiry and epistemology. Maintaining a blog has enriched my scholarship, kept me in touch with new media that has enhanced my understanding of my students' youth culture, and most importantly, it has held me accountable in numerous ways. And although my blog is called Mixed Race America, my interests in race are not simply limited to the borders of the U.S. nor are they separate from my identity as a feminist. In other words, my blog like my scholarship always had an interest in the intersections of critical race theory and feminist theory, and I envisioned my blog as a place where those two discourses would naturally come together. Accountability is the topic I wish to write about for this essay because I began my blog as a means of holding myself accountable to a writing schedule for my current manuscript on passing and racial ambiguity. My initial blog entries were a form of pre-writing for my book chapters. Yet the sense of accountability that the blog inspired quickly grew beyond one of writing accountability to one of community accountability. While I initially wrote only for myself, as I started to gather a group of readers beyond the friends and family in my address book, I began to see my blog writing as not merely free writing for my book but fundamental writing for issues about which I care deeply. And I began to see that my academic writing and my blog writing enrich and enhance one another; they both speak to the feminist ideals I believe in speaking truth to power and equality for all people. Both types of writing keep me accountable to the advancement of knowledge by and about women, and to a commitment to ending oppression in whatever form it appears. [End Page 190] As a feminist scholar committed to social justice activism, I want my blog to reflect the kind of intersectionality that I bring to my research, writing, and teaching—to demonstrate that issues of race must be understood alongside and intersecting with issues of gender and sexuality, not to mention class, region, religion, education, political orientation, and a host of other factors. While the demands of being a tenure track faculty member (particularly an untenured one) too often preclude me from writing about topical issues of intersectionality, I have found that my blog provides a discrete space where theory meets praxis and current events can be used to illustrate the intellectual questions I find most immediately provocative.2 For example, I have charted the same-sex marriage movement in California, writing posts that compared the struggle to overturn anti-miscegenation laws with the current struggle to allow gay and lesbian partners to marry. I celebrated in May 2008 when California's supreme court overruled a previous ban prohibiting gay marriage.3 I mourned in November 2008 when California voters passed Proposition 8 by a 4% margin.4 And a talk that Catherine McKinnon5 gave at my university inspired me to write a post in February 2009 urging readers to support the Courage Campaign's6 fight not to nullify the 18,000 same-sex marriages sanctioned by the state...

Over the past six decades, the right of publicity has been developed almost as quickly as the world around it. As major advances in film and computer technology have allowed content producers to depict real people in their works in a plethora of new ways, the people depicted have used the right of publicity to challenge many of these uses. As a result, courts have been faced with constantly remolding the right of publicity to account for these technological advances. As a creature of state law, the development of the right of publicity has varied across the country, with little guidance from the Supreme Court or Congress. However, courts across the circuits have consistently recognized that the property right granted by the right of publicity must be balanced against the First Amendment rights of the creators of expressive works. Ultimately, courts have developed a number of tests to balance the right of publicity against the First Amendment. One such test, the “transformative test,” was developed by the California Supreme Court and has been used in a number of circuits. This Comment argues that though the transformative test may have been appropriate when used in the context it was created, traditional still artistic depictions, it has been overextended and is ill-suited for the analysis of interactive media such as video games. Specifically, this Comment takes issue with a standard announced by the California Supreme Court, in No Doubt v. Activision Publishing Inc., and then followed by the Ninth Circuit in Keller v. Electronic Arts. This standard, now used by courts when applying the transformative test to video games, states that literal depictions of celebrities within works will not be protected under the First Amendment if the celebrity is depicted doing what they became famous for. This Comment demonstrates that this standard is in direct conflict with case precedent in a variety of contexts including: art, film, and literature. Ultimately, this Comment contends that a new test must be crafted to balance the right of publicity with the First Amendment. Such a test must possess the flexibility to analyze both simple artistic depictions and depictions within more complex interactive media. This Comment offers one such test, which borrows and adapts language from the transformative test and the Rogers Test, to create a method of analysis that is better suited for application to both simple and complex media of expression.