In a series of publications, Cass Sunstein & Richard Thaler, and Colin Camerer et al., have proposed an approach to legal policy that encourages individuals to pursue actions that will maximize their expected utility while not imposing on those individuals’ decisional autonomy. I contend that this policy approach – which has been called “libertarian paternalism” […]
In recent years, several controversial new intellectual property treaties have been adopted, most importantly the World Trade Organization’s TRIPS Agreement. Proponents argued that TRIPS would promote global trade and innovation by requiring developing countries to adopt western-style IP protection. Critics allege that the Agreement has potentially devastating implications for developing countries, particularly with regard to […]
Rules governing attorney conduct in cases of inadvertent disclosure of privileged or protected materials must strike an appropriate balance between two competing bedrocks of American jurisprudence: an attorney’s ethical duty to represent her client zealously, and the evidentiary shield from discovery afforded privileged or protected documents. The California Supreme Court’s holding in Rico v. Mitsubishi […]
Since 1978, fiscal limitations imposed by the California Constitution have curbed the ability of local governments to raise revenue. Recently, the California Supreme Court made one of the most important of these limitations even more restrictive. In Silicon Valley Taxpayers Association, Inc. v. Santa Clara County Open Space Authority, the court held that a property […]
The California Supreme Court recently took a key step toward protecting the due process rights of prisoners. The court required the governor or Board of Parole Hearings (the “Board”) to present “some evidence” indicating that an inmate is currently dangerous to withstand judicial review of a decision denying parole. This outcome affects approximately twenty-three thousand […]
Ever since reproductive technology became widely available to treat fertility problems, some physicians have tried to limit access to this technology for various reasons, including the age, marital status, and sexual orientation of patients. In a landmark ruling, the California Supreme Court recently held that clinic physicians may not deny lesbians access to fertility treatment […]
It has been very gratifying to see one of the finest law schools in the nation conclude that state courts, and specifically the California Supreme Court, deserve closer study because of the significant position they occupy in the legal fabric of the United States. I propose here to touch upon the broad significance of the […]
The California Supreme Court has replaced the New York Court of Appeals, the federal Court of Appeals for the Second Circuit, and the U.S. Supreme Court as the court at the cutting edge of many issues in American public law. The process of displacement probably began long ago, perhaps as early as 1948, when the […]
By any measure, the California Supreme Court’s decision in In re Marriage Cases is the most significant in the last year and in recent memory. Chief Justice George’s opinion thoroughly and forcefully explains why gay and lesbian individuals have the right to marry under the California Constitution. This conclusion is founded on basic principles of […]
This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It offers a conceptual framework for violations of 18 U.S.C. § 1001 and related false statement charges by drawing distinctions between harmful deception and the typical investigative interaction and describing the range of lies that fall within the wide margins of […]
