Category: Analysis

Overview The fact that most California criminal cases end in plea bargains presents an unconstitutional conditions problem.[1] Plea bargains involve prosecutors exchanging charging leniency for a waiver of constitutional rights.[2] Yet California’s unconstitutional conditions doctrine limits the government’s “authority to condition . . . a privilege or benefit” on waiving constitutional rights.[3] Whether plea bargains satisfy California’s unconstitutional conditions doctrine depends on whether the doctrine itself remains viable. It also depends on a local jurisdiction’s idiosyncrasies, complicating possible reforms. Because litigation around this issue is not feasible, legislative reforms are the best path toward solving this unconstitutional conditions problem. Analysis...

Overview The California Supreme Court should overrule its decision in Michel v. Smith, which granted police supervisors immunity for their officers’ misconduct.[1] Michel was wrong in 1922 and has become more wrong since. Worse, courts have interpreted Michel so that its exceptions — which were necessary to its holding — no longer exist. Overruling Michel would give plaintiffs remedies when police violate their constitutional rights and increase pressure on police supervisors to end inhumane and unconstitutional practices. Analysis It is nearly impossible to pursue police misconduct claims under federal law Congress adopted 42 U.S.C. section 1983 to authorize suits alleging...

Overview As has been extensively covered, California’s once-toothless housing law has grown some fangs — at long last. More housing looks very likely to get built around the state. This housing will put big demands on local infrastructure. In this short essay, we will consider one approach to fund some of this infrastructure. It is not wholly novel, but combines reasonable (and permissible) steps that we believe have not previously been combined. This approach is desirable because, ultimately, it requires the approval of a majority rather than a supermajority of the electorate. Policy and History Infrastructure (roads, bridges, sewers etc.)...

Overview California water law has significantly evolved since the state first constitutionalized the doctrine of riparian rights in 1928. Although the article X, section 2 principle of reasonable and beneficial use remains the backbone of California water law, the law has shifted away from priority rights and toward prioritizing efficiently exploiting water sources to their “fullest extent.” Priority rights are still an important factor courts consider in dispute resolution, but courts now increasingly recognize how the limited availability of California water sources forces the law to match the volume of a water right to its reasonable and beneficial use. The...

Overview In some ways this was a big year for the California Supreme Court, with two retirements and two new justices, which included a chief justice retiring and a new chief justice ascending. It was a small year from another perspective: the court issued the fewest opinions in the past 24 years. In this annual review we move away from past concerns about a Brown-Newsom split. Our past research shows that the appointing governor blocs make little difference on this court, and there is now a plurality: three Browns (Liu, Kruger, Groban), three Newsoms (Guerrero, Jenkins, Evans), and one Schwarzenegger...

Overview In an emergency, California’s governor can commandeer the county sheriffs and make them part of the state’s emergency response. The COVID-19 pandemic showed that local law enforcement can impede the state’s emergency response, as when some county sheriffs refused to enforce Governor Gavin Newsom’s emergency orders. Governor Newsom could have used constitutional tools to compel sheriffs to enforce his orders: by assuming constitutional power to supervise sheriffs or through judicial orders to compel compliance. Future governors could consider those paths in California’s next emergency. Analysis Patchwork enforcement of gubernatorial emergency orders is problematic To combat the nascent COVID-19 contagion,...

Overview In September 2022 Senator Lindsay Graham proposed a federal law that would ban abortions after 15 weeks into pregnancy.[1] This sets up a constitutional conflict with states that now have express state constitutional protections for abortion rights (California, Michigan, and Vermont). This article considers whether congressional power under the U.S. Constitution’s commerce clause “to regulate commerce” among states allows the federal government to override statewide abortion protections and enact a nationwide abortion ban. The answer is unclear because the U.S. Supreme Court’s commerce clause cases are inconsistent. Past decisions read congressional power over economic activity expansively, which suggests that...

Overview In theory, crime survivors in California have a constitutional right to restitution and a robust statutory framework to enforce their right to restitution. Yet in practice, the vast majority of crime survivors receive little or no restitution. And last-resort public compensation programming (such as the California Victim Compensation Board) fails to make up the difference. This article examines problems in the current restitution framework and proposes a spectrum of solutions to help survivors fulfill their right to restitution: from creating a legislative task force to study restitution outcomes to establishing a publicly funded restitution system that does not rely...