GOLDEN GATE UNIVERSITY LAW REVIEW VOLUME 35 - 2005

GOLDEN GATE UNIVERSITY LAW REVIEW Main Page

EDITORIAL BOARD
Analisa Pratt	Editor-in-Chief
Claire Hulse	Managing Editor
Ida Martinac	Editor - Environmental Law
Karen Minor	Editor - 9th Circuit
Dominic Porrino	Editor - Forum on Law & Social Change
Jeanette Haggas	Outside Articles Editor
Ben Humphreys	Research Editor

SENIOR EDITORS
Katie York
Angela Lipanovich
Lydia Crandall

EDITORS
Stephen Bosse	Greg Golino	Chris Gu
Todd Handler	Livia Hsiao	Kathlene (Katie) Kunzman
Sandra Le	Jennifer Lewis	Roger Lin
Samantha Schwartz	Sandra Sepulveda	Mike Silveira

MEMBERS
Roger Bonakdar	Stephanie Butori	Clarissa Cannavino
Lynn Damiano	Bryanne Dare	Daljit Dhami
Christopher Donewald	Jessica Erlandson	Erin Frazor
Susana Garcia	Ian Hansen	Reuben Hart
Heidi Hofmann	Kara Holzwarth	Megan Kelly
Devon King	Kirsten Kwasneski	Conor Mack
Jenny Maier	Ashling McAnaney	Reid Miller
Andrea Moore	Andje Morovich	Sahana Murthy
Dije Ndreu	Julia Perelman	Miranda Pringledressler
Paula Rasmussen	Elizabeth Seals	Joshua Shey
Gwynneth Smith	Roxana Smith	Sarah Ruby Steinbrecher
Rebecca Stuart	Owen Tipps	Michael Vidmar
Katherine Watts	Michael Wendlberger	Meredith Wood
Raymond Yu

(The following links are to Westlaw articles; a Westlaw account and password are required to view them.)

Issue 1 - Ninth Circuit Survey Preface

An Unreasonable Online Search: How a Sheriff's Webcams Strengthened Fourth Amendment Privacy Rights of Pretrial Detainees. Note, page 1
Wood, Ian
Ian Wood reviews the Ninth Circuit's decision in Demery v. Arpaio, in which the Court held that a Sheriff's use of webcams to stream live images of pretrial detainees over the Internet amounted to unconstitutional punishment. While the Court's decision centered on the Due Process rights of detainees under the Fourteenth Amendment, Ian contends that the decision also impacts detainee privacy rights under the Fourth Amendment.

Dangerous Balance: The Ninth Circuit's Validation of Expansive DNA Testing of Federal Parolees. Note, page 31
Hulse, Claire S.
Claire Hulse addresses the Ninth Circuit's decision in United States v. Kincade, where an en banc court held that federal DNA testing of certain persons on parole is not an unreasonable search and seizure under the Fourth Amendment. In reaching this conclusion the court employed a balancing test, weighing a reduced expectation of privacy against the government's interests in preventing and solving crimes. Claire argues, however, that this balancing test sets dangerous precedent that could lead to expansive DNA testing under the guise of expanding government interests.

What Does Diversity Mean in Seattle?: Parents Involved In Community Schools v. Seattle School District Number 1 Strikes Down the Use of a Racial Tiebreaker. Note, page 51
York, Katie
Katie York reviews the Ninth Circuit decision in Parents Involved in Community Schools v. Seattle School District Number 1, in which the Court concluded that the School District's use of a racial tiebreaker to place students into oversubscribed schools was a violation of the Equal Protection Clause. Katie analyzes the Parents Involved cases in relation to the most recent Supreme Court decisions concerning affirmative action in education. She explores the differences surrounding race-conscious admissions policies for universities and public high schools.

Posthumously Conceived Children and Social Security Survivor's Benefits: Implications of the Ninth Circuit's Novel Approach For Determining Eligibility in Gillet-Netting v. Barnhart. Note, page 85
Minor, Karen
Finally, Karen Minor reviews the Ninth Circuit decision in Gillet-Netting v. Barnhart, in which the court concluded that a 'surviving' child born years after their parent dies, as a result of a pregnancy using frozen sperm or embryos, is entitled to survivor benefits under the Social Security Act. Traditionally, when a parent dies, their children were usually entitled to such survivor benefits even if that child wasn't born until several months after the parent's death. Karen states that neither the Social Security Act nor the majority of state laws have adjusted to this new reality. Her note explores the difficulties that occur when changes in reproductive technology outpace the law.

Issue 2 - Law and Social Change Preface

Symptoms For Scalia and Texas: Gay Rights and American Nationalism. Comment, page 111
Gordon, Daniel
Professor Daniel Gordon reviews Justice Scalia's dissent and the Texas Court of Appeals' opinion in Lawrence v. Texas through the lens of Matti Bunzl's recent publication, Symptoms of Modernity: Jews and Queers in Late Twentieth Century Vienna, and urban religion sociologists to expose the symbolic meaning of Justice Scalia's and the Texas Appellate Court's negativism toward gays and lesbians. Professor Gordon argues that for Justice Scalia and the Texas legal system, gays and lesbians served as symptoms of modernity and modern urban growth. Professor Gordon closes his article looking toward a brighter tomorrow where he projects that globalization will help to end the animus directed at American gays and lesbians.

A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement. Comment, page 139
Rosen, Michael M.
Michael Rosen looks at the doctrine of qualified immunity as it applies to the constitutional tort of excessive force. Mr. Rosen's article addresses several criticisms of the qualified immunity doctrine, namely that conduct cannot be "reasonably unreasonable," that qualified immunity is ill-suited for summary adjudication, and that the doctrine's requirement that law be clearly established to be actionable is anything but clear. Mr. Rosen defends the doctrine, through an examination of the key cases and commentary thereon, as a reasonably coherent and effective mechanism of sorting out worthy from unworthy litigation. Mr. Rosen also identifies some important shortcomings in the doctrine and suggests improvements that would increase the doctrine's functionality.

To Be or Not To Be a Penalty: Defining the Recovery Under California's Meal and Rest Period Provisions. Comment, page 175
Cole, Scott Edward; Bainer, Matthew R.
Attorneys Scott Cole and Matthew Bainer address a hot debate in California wage and hour law. Under the California Labor Code, employees are provided meal and rest periods. Violations of the meal and rest period requirements result in employers owing their aggrieved employees an hour of pay at their regular hourly rate. The classification of this recovery as a wage or a penalty controls the applicable statute of limitations, making this a hot topic for plaintiffs and defendants engaged in litigation over meal and rest period violations. Mr. Cole's and Mr. Bainer's article challenges the analysis of the Department of Labor Standards Enforcement, which it provided as part of its efforts to promulgate new regulations defining the recovery provided by the California Labor Code Section 226.7 as a penalty. Through the tenets of statutory interpretation, Mr. Cole and Mr.Bainer, argue that the pay provided for under Labor Code Section 226.7 is in fact a wage.

A Call for Uniformity in Appellate Courts' Rules Regarding Citation of Unpublished Opinions. Comment, page 195
Pratt, Analisa
Analisa Pratt explores the history of appellate court rules forbidding the citation of unpublished opinions, the current debate among the circuits about whether to allow citation to unpublished opinions, and the implications of proposed Appellate Rule 32.1. She suggests that the proposed rule should incorporate a requirement that courts apply persuasive value to unpublished opinions when cited. Such a rule would increase uniformity among the circuits regarding citability and ensure that appellate courts provide all people their Fifth Amendment rights to due process of law.

MercExchange v. eBay: Should Newsgroup Postings Be Considered Printed Publications as a Matter of Law in Patent Litigation? Note, page 225
Gu, Zhichong
Zhichong Gu looks at the trial proceeding of a patent case, MercExchange, L.L.C. v. eBay, Inc. et al., where the United States District Court, Eastern District of Virginia, ruled that a posting in an internet newsgroup did not qualify as a printed publication within the meaning of section 102(b) of the patent statutes. As this ruling was inconsistent with the trend of the Federal Circuit cases on the issue of printed publications, examining unique factors associated with internet newsgroups, Zhichong argues, however, that courts should consider a newsgroup posting a printed publication under the relevant patent statutes.

The Cold Decision of Coldwell Banker: A California Court Ends the Evolution of Broker Liability With One Decision. Note, page 259
Porrino, Dominic H.
Dominic Porrino criticizes the California court's decision in Coldwell Banker Residential Brokerage Company, Inc. v. Superior Court, in which the court concluded that the statutory inspection and disclosure duties of residential real estate brokers did not impose on the broker a duty of care toward a minor. He analyzes the statutory standard the court used to establish duty and, when considering the circumstances of the case, argues that it was read too strictly. As an alternative, he provides that the common law balancing test to establish duty in which the court could have analyzed the broker's duty to the minor child could have been incorporated into the language of the statute and that this approach would have ultimately come to a more equitable result

Issue 3 - Environmental Law Journal: City Rivers

The Urban Bankside: In Introduction to the Issue. Page 285
Kibel, Paul Stanton

A Perpetual Experiment to Restore and Manage Silicon Valley's Guadalupe River. Page 291
Roos-Collins, Richard

Re-Envisioning the Los Angeles River: An NGO and Academic Institute Influence the Policy Discourse. Page 321
Gottleib, Robert; Azuma, Andrea Misako

Daylighting Salt Lake City Creek: An Urban River Unentombed. Page 343
Love, Ron

Deep Tunnels and Fried Fish: Tracing the Legacy of Human Interventions on the Chicago River. Page 377
Theriot, Christopher; Tzoumis, Dr. Kelly

The Detroit Riverfront Conservancy: A Public-Private Partnership Striving to Reclaim the Detroit River. Page 395
Hemming, Betsy

Recapturing the Anacostia River: The Center of the 21st Century Washington, DC. Page 411
Brandes, Uwe Steven

Smoke Before Oil: Modeling a Suit Against the Auto and Oil Industry on the Tobacco Tort Litigation is Feasible. Page 429
Lipanovich, Angela

Considering Environmental Justice in the Decision to Unbundle Renewable Energy Certificates. Page 491
Martinac, Ida