By Cinder Ella Cancilla on November 5, 2019

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Like the dawn of a new era is both lit and dark, the cannabis space in California is both revered and barred. Although endorsed by state law, cannabis remains federally prohibited.[1] With conflicting laws operating within California, an attorney’s adherence to professional responsibilities becomes hazy. This Comment provides clarity on how conflicts between state and federal laws significantly affect the duties of an attorney advising a client engaged in commercial cannabis activities (where adherence to those duties is problematic), particularly the associated risks of federal liability. Continue reading “Taking the High Road: An Attorney’s Professional Responsibilities in the Cannabis Industry” →

By Ryan Louie O. Manuel*

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Introduction

Sam is an attorney at a midsize firm in San Francisco, California. A potential client, Mr. X, meets with her to hire an attorney who will help him get his business started, a business accelerator and crowdfunding platform that will help finance early-stage startups by using cryptocurrency and blockchain technology. Bitcoin, like other “cryptocurrency,”[1] is leading the change in the startup business community. Mr. X was an early adopter, initially investing millions of dollars in Bitcoins in June 2011, when they were worth $15.59 each.[2] Today, a Bitcoin is worth $ 5,267.14. Mr. X’s wealth is tied to cryptocurrencies and he wants to hire Sam’s firm. Mr. X offers to pay five Bitcoins ($30,752.15) per month for an indefinite period of time. The senior partner James is ecstatic and wants to go for it. Sam offers to conduct extensive research to ensure there are no conflicts or potential violations of an attorney’s professional responsibilities. James contends that he saw no issues with accepting Mr. X’s cryptocurrency and argues that two consenting adults are free to contract and decide on the form of payment. Sam sits idly, and utters the words, “reasonableness of fees under American Bar Association’s Model Rules of Professional Conduct (“Model Rule”) 1.5.”  James pauses and asks for a memo.

This article discusses Model Rule 1.5 and the various concerns associated with accepting cryptocurrencies as a form of payment.

Continue reading “Today’s Guide for Practicing Attorneys: Accepting Cryptocurrency for Attorney’s Fees” →

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Religious Liberty, Rural Identity, and Same-Sex Marriage

By Luke A. Boso

In November of 2016, Donald Trump stunned the world by winning the U.S. presidential election. Post-election analysis reveals that Trump rode a populist wave fueled by economic and cultural anxieties in America’s rural working-class. Exit polls showed that sixty-two percent of rural voters went for Trump, while only thirty-five percent of urban voters did so.[1]

What made Donald Trump so appealing to rural voters? And what role do LGBTQ rights play in the populist, conservative moment that has seized Congress and the Presidency? Social science research suggests that many people who live in rural areas share a strong collective culture rooted in place. I suggest in a forthcoming Article, Rural Resentment and LGBTQ Equality,[2] that this culture is organized around three core tenets: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms. Heterosexuality and biologically congruent gender expression are interwoven into all three tenets.

When the Supreme Court in 2015’s Obergefell v. Hodges[3] decision held that same-sex marriage bans violate the U.S. Constitution, an already troubled relationship between rural America and the LGBTQ rights movement was further complicated. After Obergefell, rural communities were suddenly required by law to accept public manifestations of gay, lesbian, and bisexual identities in the form of state-sanctioned same-sex marriages. Obergefell granted gay individuals the perceived “special right” to be publicly different in rural communities that demand sameness.[4] Obergefell encouraged gay individuals to both ask and tell in defiance of community solidarity values that counsel silent obedience to the religiously informed norms of heterosexuality and gender-conformity.

Continue reading “Religious Liberty, Rural Identity, and Same-Sex Marriage” →

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By Jerry P. Coleman, USF Adjunct Professor (Evidence, Trial Advocacy, Criminal Externships) and San Francisco Special Assistant District Attorney

September, 2018

Ask any second-year law student just finishing Evidence class and they can tell you all about the hearsay rule and its many exceptions, which serve to establish the reliability of second-hand evidence in trials. From 1980 until 2004 (which constituted the lion’s share of my prosecutorial practice in San Francisco), criminal trial attorneys seeking to introduce an out-of-court statement by an unavailable declarant only had to contend with finding the appropriate firmly-rooted hearsay exception to demonstrate that such statement had adequate “indicia of reliability”.[1]But beginning with his seminal opinion in Crawford v. Washington(2004) 541 U.S. 36, Justice Antonin Scalia penned a jurisprudential oeuvre that created significant hurdles for prosecutors only in eliciting even reliable hearsay, by requiring the state to deal with an additional defense objection based on the defendant’s Sixth Amendment right to confront witnesses.[2]  Now, nearly a decade and a half later, not only has this growing body of Sixth Amendment law continued to evolve and provide new avenues for the defense to object to out-of-court statements, but it has also required law school evidence professors to add at least an entire class of essentially constitutional law and criminal procedure to their curricula.

Continue reading “How a Conservative Supreme Court Justice Rocked the Criminal Evidence World by Giving Defendants New Constitutional Rights: The Legacy of 2004’s Crawford v. Washington” →

Women in Special Operations: A Battle for Effectiveness Amidst the Pursuit of Equality

By Brittany L. Walter*

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[The] Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.

– Justice Ruth Bader Ginsberg[1]

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity . . . such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.

– Justice Ruth Bader Ginsberg[2]

“She does not belong here.” Five simple words. The five words that served as my introduction to the gendered occupation of military life. Despite the fact that I entered the United States Air Force Academy in the 25^th class to accept women, it soon became abundantly clear that many of the traditional beliefs about a woman’s place in such an occupation persisted. The words were spoken, not by a seasoned officer set in his ways and the product of a different time, but by a fellow basic cadet. Further, they were not in response to an evaluation of my abilities as compared to my peers. Instead, they were a cursory observation based solely on a stereotype and perhaps preserved by a culture accepting of such. Continue reading “Women in Special Operations: A Battle for Effectiveness Amidst the Pursuit of Equality” →

A Colorable Showing of a Hybrid Rights Claim Under Strict Scrutiny: A Legal Analysis of What Would Happen when Transgender Identity Clashes with Free Exercise of Religion in California Public Schools

By Anika Hosseini*

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Introduction

California is one of the leading states in enacting antidiscrimination laws that provide broad protection to Lesbian, Gay, Bisexual, Transgender, and Queer and/or Questioning (“LGBTQ”) youths.[1] In 2013, California passed Assembly Bill No. 1266 (“AB 1266”),[2] the first law of its kind in this country.[3] AB 1266 adds a provision to the California Education Code that establishes a right for transgender public school students to access sex-segregated public school facilities and creates programs to recognize their selected gender identity.[4]

According to the National Transgender Discrimination Survey, students who expressed a transgender identity while in grades K-12 “reported alarming rates of harassment (78%), physical assault (35%), and sexual violence (12%).”[5] Compared to their non-transgender peers, a disproportionate share of transgender students—nearly one-sixth—drop out of school at some point in their lives.[6] To alleviate such harm, California exercised its police power by enforcing legislative initiatives that prescribed equal treatment of LGBTQ students.[7] However, some argue AB 1266 infringes on the liberty interests of other students—namely their free exercise of religion.[8] AB 1266 brings to light one of the biggest tensions within our Constitution: liberty versus equality. What happens when a transgender youth, exercising his right to access facilities of the gender he identifies with, clashes with another student’s religious beliefs?[9] This paper details previous assertions of the Free Exercise clause and how courts have reconciled conflicts between the free exercise of religion and other constitutional interests. Continue reading “A Colorable Showing of a Hybrid Rights Claim Under Strict Scrutiny: A Legal Analysis of What Would Happen when Transgender Identity Clashes with Free Exercise of Religion in California Public Schools” →

Bias and the Business of Show

Employment Discrimination in the “Entertainment” Industry

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By Kathleen A. Tarr[1]

I can’t mount a film of this budget . . . and say that my lead actor is Mohammad so-and-so from such-and-such. I’m just not going to get it financed. So the question [of casting non-White actors] doesn’t even come up.

– Ridley Scott, Director[2]

You would think Actors’ Equity Association (“AEA”)—of all unions—would remember its Shakespeare: “A rose by any other name . . . .” Yet, despite decades of casting notices that, in calling for Caucasians, implicitly excluded people of color, it wasn’t until a production of Hamilton sought auditions from “non-White” talent that AEA took noticeable issue.[3] While AEA refuses to release its demographic data regarding employment under its contracts, statistics published by The Asian American Performers Action Coalition (“AAPAC”) show an overwhelming preference for White talent in stage productions, [4] underscored by casting calls in which 69% of available on-camera roles are reserved for Whites.[5] Continue reading “Bias and the Business of Show – Employment Discrimination in the “Entertainment” Industry” →

Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience

By Sherri Lee Keene*

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Legal documents are not read for the purpose of entertainment or even to provide the reader with general information. Rather, legal writing serves the purpose of helping its readers—often judges—make legal decisions.[1] Moreover, a legal writer must determine how best to deliver her message to persuade the reader to reach a particular decision.[2] As such, a legal writer’s ability to consider and incorporate the legal audience’s needs into her written work is of the utmost importance.

Writing a legal document that will respond to an audience’s needs and achieve its desired purpose, however, is no small task. When making an oral argument, an attorney has the opportunity to hear the listeners’ thoughts and witness the listeners’ reactions, and to adjust the argument accordingly. To the contrary, when an attorney writes, she lacks the opportunity to observe the listener, and then correspondingly to adjust the text. Thus, in order to persuade in writing, the legal writer must anticipate how her audience will respond to the argument presented and then use this information to make her writing more effective.[3] Continue reading “Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience” →

Jury Trials and Their Ineffective Role within a Retributivist Legal System

By Sharoia Taylor*

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Introduction

The United States has established itself as a front-runner in criminal punishment by having one of the highest per capita incarceration rates in the world. One of the more prominent features of the American criminal justice system is that it relies on a theory of punishment known as retributivism. Under this theory, punishment is doled out under the belief that a criminal deserves punishment proportional to their crime.[1] Within this theory, punishment is premised on what wrongdoers deserve, whether or not it leads to beneficial consequences.[2] And yet, these retributivist motivations are often stoked by a sense of moral outrage.[3] The severity of a crime and the evaluation of its proportional punishment rely heavily on the societal norms of the community and the institutions that enforce it.[4]

Unlike other theories of punishment, retributivist theory is a backwards-looking system which seeks justice through punishing deserving offenders—regardless of the offender’s justification—and is seen as an act of public justice.[5] In the United States, retributivist theory operates within two main domains of the legal system: a general domain and a specific domain. The general domain operates on a larger societal level, whereas the specific domain operates in the courtroom on individual members of society. Continue reading “Jury Trials and Their Ineffective Role within a Retributivist Legal System” →

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By Stephen E. Smith*

Introduction

Legal readers have expectations for the writing we consume. This is especially true of judicial writing, the opinions that take up so much of our attention. We expect a certain format. We also expect rigorous honesty, attention to detail, and other qualities.[1] Among these expectations is consideration of the state of the law, both within and without the jurisdiction. We expect an opinion to manifest not only the bare act of law-making, but also sufficient attention to an issue’s context and history. We expect the whole story.

Continue reading “Glatt v. Fox Searchlight and the Rhetorical Value of Inter-Circuit Dialogue” →