Category: Opinion

To preserve our constitutional democracy we must teach civics

To preserve our constitutional democracy we must teach civics

Our nation faces a problem: as civil discourse becomes more partisan and heated, with fewer spaces available for neutral debate and collaborative discussion, more people will become discouraged and react by turning away from civic engagement. That’s especially true for students, who often search in vain for meaningful ways to be effective change agents. Both adults and students can become disillusioned and cynical about the democratic process when opportunities for civic engagement and conversation are lacking. But it’s far worse when a student tunes out — that’s our future turning away. The solution is not less engagement, but more; not...

California could have a parliamentary government

California could have a parliamentary government

Overview California can and should adopt a parliamentary system. This article analyzes how a hypothetical initiative measure (Proposition X) that proposes converting the state government to a parliament would interact with the existing political structure and constitutional doctrine, and reaches two primary conclusions: a state parliamentary government would survive constitutional scrutiny, and it would provide overdue political reform to California. Proposition X would survive legal challenges, including the amendment–revision and separation of powers doctrines, and the federal constitution’s guarantee clause. And Proposition X would unlock the benefits of a parliamentary system: empowering minority parties and checking the governor’s power. Analysis...

Stop hunting snarks and win elections

Stop hunting snarks and win elections

In the wake of President Trump’s capture of the federal judiciary, and the prospect of an enduring 6–3 conservative majority at the U.S. Supreme Court, liberal voices have proposed several plans to radically revise our system of government. Among these ideas are abolishing the Electoral College, expanding the nation’s high court, and calling a convention to rewrite the federal constitution. All of those options are impractical or undesirable, and creative solutions like this are snark hunts that distract from winning elections. The political process, not judicial intervention, should be the primary means of enacting a policy agenda, because political policy-making...

The California Attorney General’s constitutional authority over criminal justice reform during the COVID-19 pandemic

The California Attorney General’s constitutional authority over criminal justice reform during the COVID-19 pandemic

Overview The COVID-19 pandemic has transformed nearly every aspect of life in California, including our criminal justice system.[1] It also may portend economic dire straits.[2] These circumstances will compel California to make difficult choices, including in the capital case arena — which has always been “the antithesis of efficient and effective use of government time and resources.”[3] The state Attorney General can mitigate some of these issues by using that office’s constitutional authority to exercise leadership in criminal justice reform. This can be done by acknowledging errors in capital and other criminal cases, arguing for changes in existing law where...

The pandemic exposes the need to fix the federalism debate

The pandemic exposes the need to fix the federalism debate

Overview During the 2008 financial crisis, President-elect Obama’s Chief of Staff, Rahm Emanuel, famously said, “You never want a serious crisis to go to waste.”[1] The present pandemic is no exception. Examples of political and economic opportunities abound: the debates over the appropriate legislative response to the pandemic,[2] schemes to defraud frightened consumers and merchants,[3] the emergence of a “coronavirus economy,”[4] and even the mad dashes to hoard ordinary goods like toilet paper,[5] groceries,[6] and personal protective equipment.[7] And given the human propensity to forget our vulnerabilities between crises, the more negative of these examples will likely repeat themselves. Yet...

Emergency diploma privileges are not the solution to coronavirus-caused bar exam delays

Emergency diploma privileges are not the solution to coronavirus-caused bar exam delays

As the number of states electing to delay the July bar exam in response to the coronavirus pandemic increases, so too have the calls for state bar associations to waive the exam requirement altogether.[1] Such an “emergency diploma privilege” would allow new graduates to practice law without first passing a state-administered bar examination. As the explanation goes, allowing a law degree to substitute for a bar exam this year would not only resolve current uncertainty over when bar exams can be safely administered (especially in harder-hit states like California and New York), but also allow these new attorneys to offer...

Parcel taxes are likely unconstitutional. The legislature should fix that.

Parcel taxes are likely unconstitutional. The legislature should fix that.

Overview Local governments have increasingly relied on parcel taxes — taxes on property that are assessed independent of a property’s value — to generate revenue and avoid longstanding tax reform measures like Proposition 13. The California Supreme Court’s recent decision in California Cannabis Coalition v. City of Upland lowered the threshold for voters to pass such taxes, so they are likely to increase. Parcel taxes, however, are legally suspect and largely unregulated: statutes barely mention parcel taxes,[1] and almost no judicial decisions or legal scholarship discuss them.[2] The current unregulated parcel tax system is untenable and requires judicial and legislative...

Recapping Diversity Summit 2020: The Issues, Solutions, and What’s Next

Recapping Diversity Summit 2020: The Issues, Solutions, and What’s Next

Overview On January 21, I attended “Diversity Summit 2020,” a program convened by the Bar Association of San Francisco, Berkeley Law’s California Constitution Center, and California ChangeLawyers. The conference explored two questions to address the state of diversity in the legal profession: Where are the leaks in the pipeline? And what can we do to fix them? As I recently wrote in the Daily Journal, legal profession surveys show that the profession has a persistent, systemic inclusivity problem. This conference brought together key stakeholders — including California’s Chief Justice Tani G. Cantil-Sakauye, leaders from the Bar Association of San Francisco,...

Proposition 13 is broken. Annually reassessing commercial properties will fix it.

Proposition 13 is broken. Annually reassessing commercial properties will fix it.

[Editor’s note: this is part one of a two-part series debating Proposition 13 in light of a possible ballot measure in 2020 to “split the tax roll” by changing the commercial property tax provisions and leaving residential tax assessments as is.] Overview Proposition 13’s promise of helping residential property owners remains unfulfilled 41 years after its passage. By freezing property tax rates on commercial properties, Proposition 13 shifted California’s property tax burden from commercial to residential properties. This has harmed consumers and contributed to tax inequality, while delivering windfalls to corporations. By reinstating annual reassessments on commercial properties, voters could...