On January 30

On this day in ...
... 2011 (today), Californians will mark the 1st annual Fred Korematsu Day of Civil Liberties and the Constitution. Korematsu was born in Oakland on this day in 1919. Though an American citizen, he, like hundreds of thousands of other persons of Japanese heritage, was interned by the United States during World War II. As we've posted, his conviction for refusal of U.S. orders was sustained by the U.S. Supreme Court in 1944. It was set aside by write of coram nobis in 1984, and 4 years later Korematsu received the Presidential Medal of Freedom (left). (photo credit) The day in honor of Korematsu, who died in 2005, was established last fall following unanimous votes in both house of California's legislature.

(Prior January 30 posts are here, here, and here.)

Watch Prop 8 arguments live

From 10 a.m.-12:30 p.m. Pacific time today, a panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument on a trial court's August ruling that California's ban on same-sex marriage violates the U.S. Constitution.

Attorneys will argue in San Francisco before Judges Michael Daly Hawkins, N. Randy Smith, and Stephen Reinhardt -- the last of the 3 having denied the motion to disqualify himself filed by proponents of the ban, contained in the state's Constitution as a result of voters' approval of a 2008 ballot initiative, Proposition 8 (prior IntLawGrrls posts available here).

The Ninth Circuit has decided to permit live dissemination of the arguments in the case, Perry v. Schwarzenegger. The court's decision gives rise to any number of ways to watch the arguments live:

► It'll be streamed into auditoriums at many law schools (including my home institution, the University of California, Davis, School of Law); and

► It'll be broadcast on C-SPAN.

The appeals court also has set up a web database on the case. Quick skimming of briefs available there indicates one good bet: whatever the panel should decide, it's unlikely to cite foreign law or practice, as no litigant appears to have mentioned any.

Appearance puzzler answered

Answer to today's puzzler, tucked into our lead story on the underrepresentation of minorities and women among persons invited to speak on Sunday morning talk shows:
The only woman among the top 10 Congressional repeat guests is Dianne Feinstein (right) of California.
Feinstein shares many characteristics with the others on the list -- and with the vast majority of all guests on these reputedly important television programs, as the study by Alex B. Mitchell, described in the above post, details. (credit for 2008 photo of Feinstein appearing on CBS' "Face the Nation")
Feinstein is a U.S. Senator rather than a Representative. She is white, and she has held office since 1992, well over the 6-year point that Mitchell uses to mark seniority. A few characteristics set her apart, however: she is a Democrat, and a woman.

Nazi-looted art & California

(Delighted to welcome back IntLawGrrl alumna Jennifer Kreder, who contributes this On Art! guest post)

Latest developments in California respecting claims for recovery of artworks stolen by the Nazis in World War II: legislation that would ease the ligitation of looted-art-recovery claims awaits decision by California governor, and an en banc panel of the U.S. Court of Appeals for the Ninth Circuit has issued an interlocutory ruling in favor of one such claim.

Pending legislation

Some history is in order to understand the significance of A.B. 2765, the bill that California legislators approved at the end of last month.

► In 2009, in von Saher v. Norton Simon Museum of Art at Pasadena, a 3-member panel of the U.S. Court of Appeals for the Ninth Circuit struck down § 354.3 of the California Code of Civil Procedure. That law had attempted to extend, to December 31, 2010, the statute of limitations applicable to claims seeking restitution of Nazi-looted art against museums and galleries. But the Ninth Circuit held that the state statute was preempted under the foreign affairs doctrine.

The von Saher case involves Adam and Eve (right), a circa-1530 diptych painted by Lucas Cranach the Elder, which had undeniably been stolen from one of the most prominent art dealers in Europe, Jacques Goudstikker, whose Amsterdam gallery was aryanized after he fled for his life (and who died in an accident on the fleeing ship). The Dutch government seems to have mistakenly returned the paintings to the wrong family after the war, and the paintings were later sold by an art dealer to the museum. Under the American common law of property, an axiomatic rule is that title to stolen art does not pass except in limited circumstances involving bailments – although limitations periods could bar a claim.

A petition for certiorari is set to be considered by the U.S. Supreme Court at its conference on September 27.

► In 2007, another 3-member panel of the Ninth Circuit, in Orkin v. Taylor, had ruled both that federal law created no private right of action for Holocaust survivors and heirs to seek restitution of their art, and that the California conversion/replevin cause of action accrues when the “plaintiff discovers or reasonably could have discovered her claim to and the whereabouts of her property.” (credit for photo of Vincent Van Gogh painting in dispute in Orkin)

A number of courts across the country recently have been interpreting constructive notice standards in ways that do not account for the inability of Holocaust survivors and their heirs to truly discover until now their ability to reclaim artwork stolen or sold under duress or in a forced sale.

The Supreme Court declined the petition for certiorari filed in this case.

The California legislation that is awaiting signature or veto by Governor Arnold Schwarzenegger would:

► Require actual notice; and

► Double the length of time allowed between actual discovery and commencement of the cause of action, from three to six years.

The law would apply to all new and pending causes of action commenced on or before December 31, 2017. It also would include actions that were dismissed based on the expiration of the statute of limitations in effect prior to the date of enactment. Although the new standard would apply only to art in museums and galleries in California, it could pave the way for more state-level reform.

New ruling

While this statewide legislation was pending, an en banc panel of the San Francisco-based federal appellate court issued a ruling that permitted another recovery suit to go forward.

In Cassirer v. Kingdom of Spain, decided in mid-August, the en banc Ninth Circuit panel held 9-2 that Spain and its instrumentality, the Madrid-based Thyssen-Bornemisza Collection Foundation, are subject to U.S. jurisdiction under the expropriation exception of the Foreign Sovereign Immunities Act – even though it was the Nazis, not Spain, that engaged in the expropriation.

The court in Cassirer held that the plain language of 28 U.S.C. § 1605(a)(3), which states only that the property be “taken in violation of international law,” has no requirement as to who must actually engage in the taking. The court then found that the Foundation is engaged in sufficient commercial activity in the United States – advertising for tourism – to fall under the commercial activity exception in this section of the FSIA.

In light of the limited jurisdiction it possessed on interlocutory appeal, the Ninth Circuit in Cassirer declined to engage in an extensive review of defense arguments that the plaintiff was required to exhaust local remedies for jurisdiction to lie in the United States. It also declined to review the lower court’s denial of the motion to dismiss on grounds related to personal jurisdiction and the case-or-controversy requirement.

The plaintiff, Southern California resident Claude Cassirer, seeks recovery of Rue Saint-Honoré, après-midi, effet de pluie (below right). A Nazi agent allegedly (and in this author’s opinion certainly) confiscated this 1897 painting by the impressionist Camille Pissaro from the plaintiff’s grandmother, Lily Cassirer. (image credit) The Ninth Circuit in Cassirer reiterated the basic allegations as follows:

In 1939 Lilly decided she had no choice but to leave Germany. By that time – as the district court judicially noticed – German Jews had been deprived of their civil rights, including their German citizenship; their property was being “Aryanized”; and the Kristallnacht pogroms had taken place throughout the country. Permission was required both to leave and to take belongings. The Nazi government appointed Munich art dealer Jakob Scheidwimmer as the official appraiser to evaluate the works of art, including the Pissarro painting, that Lilly wished to take with her. Scheidwimmer refused to allow her to take the painting out of Germany and demanded that she hand it over to him for approximately $360. Fearing she would not otherwise be allowed to go, and knowing she would not actually get the money because the funds would be paid into a blocked account, Lilly complied.

The court explained how the painting made its way to the collection of the Thyssen-Bornemisza Collection Foundation:

Schweidwimmer traded the painting to another art dealer, who was also persecuted and fled Germany for Holland. After Germany invaded Holland, the Gestapo confiscated the painting and returned it to Germany, where it was sold at auction to an anonymous purchaser in 1943. It turned up at a New York gallery in 1952 and was sold to a St. Louis collector; it was sold again in 1976 to a New York art dealer who, in turn, sold it to Baron Hans-Heinrich Thyssen-Bornemisza. Bornemisza lived in Switzerland and was a preeminent private collector.

A petition for certiorari almost certainly will be filed with the Supreme Court.

On August 11

On this day in ...
... 1965 (45 years ago today), in the "deeply impoverished African American neighborhood in South Central Los Angeles" known as Watts, "the largest and costliest urban rebellion of the Civil Rights era" began when a white patrol officer arrested an African-American man on suspicion of driving while intoxicated, and violence erupted between onlookers and police. Just a day into the turmoil The New York Times reported: "Officials called it the worst racial incident in the city's history." Rioting went on for 6 days (photo credit), prompting the mobilization of 14,000 National Guard troops and imposition of a curfew over a 45-mile area. In the end, 34 persons were dead, 1,000 persons were injured, nearly 4,000 persons had been arrested, and more than $40 million worth of property was damaged. According to the Civil Rights Digital Library:

Throughout the crisis, public officials advanced the argument that the riot was the work outside agitators; however, an official investigation, prompted by Governor Pat Brown, found that the riot was a result of the Watts community's longstanding grievances and growing discontentment with high unemployment rates, substandard housing, and inadequate schools. ... [F]ollowing the riot, city leaders and state officials failed to implement measures to improve the social and economic conditions of African Americans living in the Watts neighborhood.

(Prior August 11 posts are here, here, and here.)

U.S. court overturns state marriage ban

An e-mail just received from my Law Librarian, Erin Murphy, identifies the pith of the trial court judgment against Proposition 8, the voter initiative that made a prohibition on same-sex marriage part of California's Constitution. (Prior IntLawGrrls posts available here.) With a hat tip to Erin, here's the money quote by U.S. District Judge Vaughn R. Walker, Northern District of California:

'Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.'

By those words and many others contained in the 138-page ruling in Perry v. Schwarzenegger, available in pdf here, Walker ruled that the ban on same-sex marriage violates the equal protection and due process guarantees of the U.S. Constitution. (photo credit)

In a curious aside to unsuccessful efforts to have the Perry trial televised -- on which IntLawGrrl Kathleen A. Doty posted -- the court webpage includes not only links to the ruling, but also to YouTube videos of evidence to which the ruling refers.

More litigation sure to follow.

Nuff said

(Taking context-optional note of thought-provoking quotes)

'Marriage is a right which extends fundamentally to all persons, whether they're capable of producing children, incarcerated or behind in their child-support payments. ...
'Why don't those same values apply to gay couples and lesbian couples loving one another?'

-- Chief Judge Vaughn R. Walker (below right), U.S. District Court for the Northern District of California, questioning counsel for proponents of Proposition 8, the initiative that amended California's Constitution to outlaw same-sex marriages. Walker's query came in the course of yesterday's closing arguments in the federal trial that commenced 6 months ago at the U.S. courthouse in San Francisco. Plaintiffs in Perry v. Schwarzenegger -- among them the couple above, Kristin Perry and Sandra Stier of Berkeley -- allege that this new provision of the state constitution violates the Equal Protection Clause of the U.S. Constitution. (credit for 2009 AP photo by Jeff Chiu) (Prior IntLawGrrls posts on events in California here, here, here, here, here, here, here, and here).The case is now submitted, and litigants await Walker's decision.

On June 6

On this day in ...
... 2005 (5 years ago today), Californians Angel McClary Raich (below, far left) and Diane Monson (below, near left) lost their bid to invoke state law as a means to avoid prosecution when the U.S. Supreme Court held 6-3 that the Constitution's Commerce Clause granted Congress authority to make use of marijuana for medicinal purposes a federal crime. (credit for AP photo by J. Scott Applewhite) Reading a statement on his Opinion for the Court from the bench, Justice John Paul Stevens said:

The case is extremely troublesome because respondents have made such a strong showing that they will suffer irreparable harm if denied the use of marijuana to treat their serious medical illness.
But the question before us is not whether marijuana does in fact have valid therapeutic purposes, nor whether it is a good policy for the Federal Government to enforce the Controlled Substances Act in these circumstances.
Rather, the only question before us is whether Congress has the power to prohibit respondents’ activities.
California law does not really affect our answer to that question for it is well-settled that the outer limits of congressional power under the Commerce Clause are defined exclusively by federal law.
The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.

(Prior June 6 posts are here, here, and here.)

Once & future U.S. Attorneys

The surprise in President Barack Obama's nomination for U.S. Attorney for the Northern District of California was not that he'd chosen Melinda Haag (left), a litigation partner at San Francisco's Orrick Herrington and former federal prosecutor. Based not only on her sterling profile, but also on my experience working with her as joint defense counsel in a transnational criminal case before the U.S. Court of Appeals for the Ninth Circuit, I'm confident that Melinda will prove an excellent leader for an office long in need of excellent leadership.
Nor was it a surprise to read these words in The Chronicle's story on the nomination:

She would become the first woman to hold the job in San Francisco ....

The surprise was how that sentence ended:

... since Annette Adams, who served from 1918 to 1920.

The 1st woman was appointed in 1918? Two years before passage of the 19th Amendment?

This news prompted further inquiry.

According to a contemporaneous New York Times article, "Mrs. Annette Abbott Adams of San Francisco" was appointed an Assistant U.S. Attorney on September 29, 1914. Noting that Adams (below right) thus became "the first woman in the United States to occupy such a position," The Times recounted that U.S. Rep. John E. Raker of California considered the appointment "a recognition of woman suffrage." (Raker, Adams' mentor and the suffragist husband of a suffragist, was referring to the passage of women's suffrage in California in 1911.)

The Times appears not to have reported on Adams' appointment 4 years later as San Francisco's lead federal prosecutor. Happily, though, the website for California's courts and a paper from Stanford's women's legal history project provide biographical details. Here's the story those sources tell:

Born the daughter of a Gold Rush 49er on March 12, 1877, in the Sierra Nevada town of Prattville, Annette Abbott earned a bachelor in law degree from the University of California, Berkeley, in 1904, but could not find a job in law. So she entered marriage and a teaching career. Both turned out to be brief, though she did serve as 1 of the 1st women school principals in California.

Adams then went back to Berkeley, where in 1912 she was among the 1st women to receive her J.D. and to be admitted to the state bar.

She served as San Francisco's lead U.S. Attorney for 2 years, then moved to Washington, D.C., to serve a stint as Assistant U.S. Attorney General that included work on 5 U.S. Supreme Court cases. Again, she was the 1st woman to hold the position.

She then returned home and practiced law. In 1942, California's governor appointed her the 1st woman Presiding Justice of the Court of Appeal, for the San Francisco-based Third Appellate District. In 1950, by special assignment, she presided over 1 case on the state's highest court, and so became the 1st woman to sit on the Supreme Court of California. She died in 1956, at age 79.

Adams shared her thoughts on the challenges facing women in a 1922 foreword to Who's Who Among Women in California:

Conviction, courage and co-operation should be our watchwords: conviction in the justice of our cause, courage born of that conviction and a growing consciousness of our power, and, above all, co-operation in order that our combined forces may constitute an influence worthy to be reckoned with.

Adams surely is a fitting foremother for Melinda Haag, to whom we offer heartfelt best wishes for a speedy confirmation as San Francisco's U.S. Attorney.

On March 15

On this day in ....
... 1852, one Ellen Clark married, and taking her groom's surname, became Ellen Clark Sargent (left), the name by which she would become a leading suffragist. She allied with IntLawGrrls foremother Susan B. Anthony and others. Ellen's wedding day is among the few precise dates in her life to be found online; many accounts subsume mention of her in stories principally about her husband, U.S. Senator Aaron Augustus Sargent (R-Calif.), who introduced into Congress the text of what would become 19th Amendment, guaranteeing women's suffrage. Yet when she died in 1911 Ellen -- a president of the California Woman Suffrage Association -- was prominent enough that a memorial service was held in her honor in downtown San Francisco's Union Square.

(Prior March 15 posts are here, here, and here)

Prop 8 trial: No YouTube, but still real-time

As I posted at the time, last May the California Supreme Court upheld Proposition 8, which limited marriage to a man and a woman. That validation of the voter-approved initiative moved the challenge to federal court.
Trial in the case brought under the U.S. Constitution, Perry v. Schwarzenegger, got under way this week at the federal courthouse in San Francisco (above).
With the onset of the trial came a U.S. Supreme Court ruling of "impermissible" respecting a request for a YouTube live or delayed broadcast. Yesterday the Court confirmed its refusal to allow broadcasting by a 5-4 vote. One thus might think the only option is to march down to the courthouse.
Wrong.
For those of you interested in following the trial in real time, there's a range of blogs and tweets emanating from the courtroom:
► For close to real-time blogging, check out Prop8trialtracker.
► For anti-Prop 8 folks tweeting from the gallery, follow NCLRights, AmerEqualRights, FedcourtJunkie, and RickJacobs on Twitter.
► For pro-Prop 8 coverage, follow protectmarriage, also on Twitter.
Happy reading.

On January 4

On this day in...
... 1904, Mary Ellen Pleasant (right) died in San Francisco, California, in nearly her 90th year of life (her exact birth year is uncertain). She claimed to have been "born a slave to a Voodoo priestess and the youngest son of a Governor of Virginia." As a preteen she made her way to Massachusetts, where she finished a bond contract and "became a family member and lifelong friend" in a family committed to the abolition of slavery. Pleasant aided escaping slaves on the Underground Railroad. She moved in the mid-19th C. to San Francisco, where she filed a lawsuit, Pleasant v. North Beach & Mission Railroad Company, which resulted in an 1867 California Supreme Court decision outlawing segregation on the city's public vehicles. For this she's called on her gravestone the "Mother of Civil Rights in California."

(Prior January 4 posts are here and here.)

Children's rights against violence

This month the world duly marked the 20th anniversary of the Convention on the Rights of the Child (prior post), to which my country of residence, France, and all countries except Somalia and the United States, are states parties. Article 19 of that Convention provides:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

The Convention says nothing specifically about protecting children from such violence when they are out on the street. But one of its overall goals, as stated in the preamble, is to ensure that children are

fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular the spirit of peace, dignity, tolerance, freedom, equality and solidarity.

In a radio program here last weekend, a link was vaguely made between protecting children both from suffering violence and from becoming violent. In particular, there was a discussion of whether watching violent films or playing violent video games makes children/adolescents violent.
This reminded me of a study I read over 20 years ago, which concluded that after watching a violent film, adolescents are de-sensitized to violence. I suspect this effect is more widespread than that of actually becoming violent, and should be cause for greater concern.
The psychologist interviewed on the radio said all societies need to represent violence.
But consider the recent attack on a 15-year-old girl in California's Bay Area (which I describe here in haiku in honor of a friend's new "Haiku Friday" kick):

After the school dance
For two and a half hours
They watched her gang raped.

The attack is an indicator that current representations of violence (beyond videos and films specifically labeled "violent") are not having any positive socializing effects. Indeed, they seem to run counter to the above-mentioned goal of the Children's Convention, and perhaps thus deny children their right to be raised and live in a manner that meets that goal.

EPA grants California's Clean Air Act waiver

From the press release issued by the U.S. Environmental Protection Agency:

EPA is granting California’s waiver request enabling the state to enforce its greenhouse gas emissions standards for new motor vehicles, beginning with the current model year. Using the law and science as its guide, EPA has taken this action to tackle air pollution and protect human health.

“This decision puts the law and science first. After review of the scientific findings, and another comprehensive round of public engagement, I have decided this is the appropriate course under the law,” said EPA Administrator Lisa P. Jackson [left]. “This waiver is consistent with the Clean Air Act as it’s been used for the last 40 years and supports the prerogatives of the 13 states and the District of Columbia who have opted to follow California’s lead. More importantly, this decision reinforces the historic agreement on nationwide emissions standards developed by a broad coalition of industry, government and environmental stakeholders earlier this year.”

Although this resolution of the waiver dispute was expected and has a somewhat limited impact as the Obama administration brings federal standards in line with California ones, the dispute itself highlighted complex federalism issues at the heart of the Clean Air Act and efforts to regulate climate change. (Prior IntLawGrrls posts on California and climate change here, here, here, and here.) I have written about the dynamics of the waiver dispute as an example of what I term diagonal regulation (cross-cutting efforts that are simultaneously horizontal and vertical), and am currently working on an article attempting to operationalize the concept of diagonal regulation and explore its implications for the Obama administration through an in-depth analysis of motor vehicles emissions regulation.

(Cross-posted at Teaching Climate Change Law & Policy blog)

California's worst & best $-saving ideas

Worst idea for addressing California's budget crisis (a particularly acute symptom of global economic meltdown) (prior post):
Cut off all funding for the state's oldest law school, the University of California, Hastings College of Law, San Francisco. As posted here and here, Governor Arnold Schwarzenegger -- no particular friend of education budgets ever since he took office from a voter-recalled governor in 2003 -- gets a very loud raspberry for that one.

Best idea for addressing California's budget crisis:
"Eliminat[e] capital punishment, which is rarely carried out anyhow," and "would save the state $125 million a year." (Prior IntLawGrrls posts on California capital punishment here, here, here, here, and here.) Applause for this idea to John Van de Kamp, formerly the state's Attorney General and Los Angeles County's District Attorney. Himself once a candidate for Governor of California, Van de Kamp ended his Los Angeles Times op-ed calling for death penalty abolition with words pointed squarely at the man who now holds that seat:

A courageous governor facing an unprecedented budget crisis would take this step and use the taxpayer money saved to preserve some of the vital services now on the chopping block.

D-Day: California's Proposition 8

In this case, D is for decision. And yesterday morning, the California Supreme Court made a big one: it ruled that Prop 8, the voter-approved initiative limiting marriage to a man and a woman, was a valid change to the California Constitution. (Prior IntLawGrrls posts available here.)(photo credit). While activists and disappointed LGBT people are taking to the streets in their hometowns and blowing up the social networking sites, it is worth pointing out that there is still hope after Strauss v. Horton.
Positively, the court held that:
► The fundamental constitutional rights of same-sex couples as previously announced by the court in In re Marriage Cases remained unchanged by Prop 8, which was narrow in that it only restricted the use of the term "marriage" to opposite sex couples.
► Prop 8 only applies prospectively; the 18,000 marriages that occurred prior to November 5, 2008, remain valid.
► The court did not decide whether same-sex couples that were lawfully married in other states would have their marriages recognized by the State of California.
In the aftermath of the otherwise disappointing decision, the key is to remember that this case was about "the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process." The issue was not whether same-sex marriage should be legal in California. Of course, common sense says the two issues can hardly be separated, yet with our legal blinders, we can, and must separate such issues.
Ultimately, the decision is not fatal to same-sex marriage in California; it punts the issue back to the voters to decide whether to repeal Prop 8 in the same way it was passed, via ballot initiative, in the coming years. It also opens the door for a federal challenge, which is reportedly already underway. And for many Californians, it begs the question whether a clear revision to the state Constitution should be considered that would modify the state's initiative system.

On May 17

On this day in ...
... 2004 (5 years ago today), Massachusetts became the 1st state in the United States to legalize same-sex marriage. The New York Times' story began:

Hundreds of gay and lesbian couples streamed into city halls from Boston to the Berkshires on Monday as Massachusetts became the first state to allow same-sex marriages.
Weddings were held on a hill overlooking a park, in churches and synagogues, in the shoebox quarters of justices of the peace, and on a Christmas tree farm with peacocks, pigs, turkeys and Icelandic sheep nearby.

States today permitting such marriages are Connecticut, Vermont, Iowa, and Maine -- making the issue a likely grilling-point for the next Supreme Court nominee, as the Washington Post reports in today's paper:

[I]n the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.

California, as we've posted, has gone there and, for now at least, back again.

... 1959 (50 years ago today), "at a televised ceremony in the Sierra Maestra," Fidel Castro, who in February had been appointed Prime Minister of Cuba, announced an agrarian reform law that resulted in massive redistribution of large landholdings. "The declaration of agrarian reform," according to a political science text, "began the revolutionary transformation of Cuba's economy and, as a consequence, of Cuban society." (credit for Cuban government photo of Castro signing the new law)

(Prior May 17 posts are here and here)

On February 18

On this day in ...

... 1965, Gambia gained independence from Britain. Today this sliver of a West African republic (left), less than half the size of the state Maryland, has 1.7 million people. Its capital, Banjjul, was the site where the African Charter on Human and Peoples' Rights was adopted in 1981.

... 1972, in People v. Anderson, California's Supreme Court held 6-1 that the state's death penalty violated the ban on "cruel or unusual punishment" contained in California's Constitution, and commuted the sentences of all death row inmates to life imprisonment. Later in the same year the state's voters approved a constitutional amendment reinstating capital punishment. Since this time the state has executed 13 persons; another 667 are on death row (right). (photo credit)

(Prior February 18 posts are here and here.)

California Greenhouse Gas Waiver

The New York Times reports that Obama is poised to grant California's waiver under the Clean Air Act that will allow it to regulate motor vehicle emissions more stringently than the federal government does. This action will have a major impact because at least thirteen other states plan to follow California's standards if the waiver is granted. The Obama campaign had said that they would take this action, and this announcement will be part of a number of environmental actions planned for Monday. As I have analyzed in depth in a forthcoming article, the California waiver dispute provides an interesting example of the battles over the scale of climate regulation and the diagonal regulatory role that climate change litigation can play.

California marriage equality back in Court

'I think people are beginning to look at it differently, I know it’s happened for me. I started out not supporting it. The longer I’ve lived, the more I’ve seen the happiness of people, the stability that these commitments bring to a life. Many adopted children who would have ended up in foster care now have good solid homes and are brought up learning the difference between right and wrong. It’s a very positive thing.'

-- U.S. Sen. Dianne Feinstein (D-Cal.), quoted yesterday in Maureen Dowd's column. Feinstein (above right) was among the precious few high-ranking politicians who cut a television ad against Proposition 8, the ballot initiative that aimed to limit marriage in California to opposite-sex couples. (Prior posts here and here.)
Prop 8 passed by a margin of 52.1% to 47.9%. But it remains to be seen whether it will take effect. The California Supreme Court (below) has agreed by this order to hear petitions contending that the simple-majority-rules initiative process cannot be used to take a fundamental right like marriage away from a group that the Court has declared a suspect class -- as the Court did for same-sex couples in In re Marriage Cases (May 2008) (prior post). Invoking the Equal Protection Clause, petitioners argue that the only way to effect such a deprivation is by the state's more cumbersome, super-majority-needed "revision" process.
Throughout the course of this new round of litigation, filings by litigants and the many amici curiae may be found here.