Author: David A. Carrillo and Brandon V. Stracener

We need to clarify the cogent reasons standard

Overview California courts need a better way to evaluate California constitutional provisions that have federal analogues. Some California decisions have erroneously required that “cogent reasons” must exist before a California court construing a California constitutional provision may depart from the U.S. Supreme Court’s construction of the analogous federal provision. That legal standard is suspect: it has no historical or doctrinal support, it is poorly reasoned, and it is inconsistently applied. We read the appropriate legal standard for interpreting analogous constitutional provisions as requiring reference to federal law only in a limited circumstance: when a long history exists of California courts...