The Journal of Appellate Practice and Process

Volume 18 Issue 1 Article 7

2017

Of Great Use and Interest: Constitutional Governance and Judicial Power- The History of the California Supreme Court

Donald Warner

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Recommended Citation Donald Warner, Of Great Use and Interest: Constitutional Governance and Judicial Power- The History of the California Supreme Court, 18 J. APP. PRAC. & PROCESS 105 (2017). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss1/7

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 39639-aap_18-1 Sheet No. 57 Side A 11/15/2017 09:50:50 * magazine Time ]. OWER P Vol. 18, No. 1 (Spring 2017) 2017) (Spring No. 1 Vol. 18, CONSTITUTIONAL ROCESS P OVERNANCE AND The Supreme Court of California 1966–1967: California 1966–1967: Court of Supreme The NTRODUCTION I I. RACTICE AND P , this book offers more than the superficial than the superficial , this book offers more ) 10/24/2017 6:52 PM ELETE D OT PPELLATE N A O which would make almost any treatment of its almost any treatment which would make (D 1 , Peter Kay Westen, Note, The Journal DIT DIT appellate lawyers from every state, but again appellate lawyers from , 55 Cal. L. Rev. 1059, 1059 & n.1 (1967) (pointing out that 1059, 55 Cal. L. Rev. 1059, & n.1 (1967) 2 E XEC E The book will be of great use and interest to several groups The book will be of great use and Published under the auspices of Published under California Supremethe OURNAL OF See, e.g. J 1. 2. the Court from to the last This applies primarily which covers two thirds of the book, ARNER HE T * Harry N. Scheiber ed., 2016 [hereinafter G [hereinafter 2016 ed., N. Scheiber * Harry history interesting to at least a few readers.history interesting every Fortunately for reader of expect in the typical commemorative that one might information to the contribution whole, a valuable It is, the volume. on legal history. literature of American those in the twenty-plusof potential readers: jurists, especially California ballot initiative; by states that provide for legislation lawyers; OF GREAT USE AND INTEREST: USE AND OF GREAT JUDICIAL POWER—THE AND GOVERNANCE COURT SUPREME OF THE CALIFORNIA HISTORY Donald Warner** W **Donald Warner, a member of the California Bar, has been an Adjunct Professor at at Professor Adjunct an been Bar, has California the of a member Warner, **Donald Angeles. Loyola Law School—Los Court Historical Society, thisCourt Historical is a substantial and valuable effort a is also the editor) to provide whom of by six authors (one history of the first 160 years—from 1850 comprehensive Court has Court. This Supreme through 2010—of the California influential of the state courts the most of among been, at times, last resort, had in the mid-1960s referred to the California Supreme Court as “thehad in the mid-1960s referred to the California nation’s most aggressive and progressive state court”who and quoting then-Chief Justice Earl Warren, once observed that the California of litigationSupreme Court handled “a wider range than most other States”). in is to be found 1964 on. Introduction 39639-aap_18-1 Sheet No. 57 Side A 11/15/2017 09:50:50 A 11/15/2017 57 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 57 Side B 11/15/2017 09:50:50 ROCESS P HAPTERS C RACTICE AND EVEN P S PPELLATE PPELLATE A ISTORY IN H note *, at 24. at 24. note *, EAR supra , After chronicling the work of the Court After chronicling the work of the OURNAL OF OURNAL 3 J ) 10/24/2017 6:52 PM 160-Y HE OWER S P ’ A. Chapter One: 1849–1879 A. Chapter One: B. Chapter Two: 1880–1910 ELETE D OT N O OURT (D C DIT DIT E HE T XEC OVERNANCE AND E The last part of the century was in California a nineteenth This chapter begins with the establishment of the Court and with theThis chapter begins establishment The text is divided into seven chapters, each covering a each covering seven chapters, is divided into The text II. 3. G ARNER time of huge political turmoil that was reflected in the work of that was reflected in the work turmoil of huge political time the Court. Depending on one’s outlook, any one of a panoply of and for that upheaval villains can be deemed responsible during its earliest years, theduring its earliest years, chapter ends with the passage of the state’s second—and present—Constitution. 106 T 106 W of the State government, starting at the time of the first of the starting at the time of the State government, in the full heat was negotiated and ratified Constitution, which series of three- It continues with the story of a of the gold rush. annually. changed almost membership Justice Courts whose Through the actions of those Courts, the judiciary sorted itself of the gold rush. effects wake of the tremendous out in the civil society as as well as the rest of the government, Meanwhile thing. Severala whole, was doing the same of these early the label rough-and-tumble for whom would Justices were men extreme) one (admittedly As be, if anything, an understatement. Terry, an early Chief Justice, who in the take David S. example, and jurist: (1)course of a long career as lawyer was imprisoned by the San Francisco Vigilance murder attempted and tried for in a duel; (2) killed a sitting United States Senator Committee; killed by a United States Marshal who was and (3) was himself Field ofStephen acting as the bodyguard for Justice the United Court. States Supreme particularly those in the initiative states; and teachers and and and teachers states; the initiative those in particularly history. of American legal students periods time The of the Court. history period in the separate as (but not always, are generally in each chapter covered below) well chosen. described 39639-aap_18-1 Sheet No. 57 Side B 11/15/2017 09:50:50 B 11/15/2017 57 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 58 Side A 11/15/2017 09:50:50 , , see see Compare, e.g. Compare, , Perry v. Brown, Brown, , Perry v. . 659 (2011); . 659 (2011); EV Review of Initiatives 107 see also, e.g. see L.A. L. R OWER abrogated on other grounds abrogated 999, 999–1004 (2001). (2001). 999–1004 999, P . , Wickard v. Filburn, 317 U.S. 111 U.S. 111 Filburn, 317 v. , Wickard EV OYOLA L. R , Gerald F. Uelman, F. Uelman, , Gerald UDICIAL with, e.g. J , 44 L The California variant of this 6 LARA C ANTA Handling Hot Potatoes: Judicial ReviewHandling Hot Potatoes: of California See generally, e.g. See generally, ) 10/24/2017 6:52 PM ELETE OVERNANCE AND AND OVERNANCE C. Chapter Three: 1910–1940 C. Chapter Three: D G OT N O (D Senate v. Jones, 41 S 41 Senate v. Jones, , Cal. Farm Bureau Fed’n v. State Water Res. Control Bd., 247 P.3d 112 P.3d Control Bd., 247 Res. v. State Water Bureau Fed’n , Cal. Farm DIT DIT E , Gerald F. Uelman, , Gerald Strauss v. Horton, 207 P.3d 48, 78–101 (Cal. 2009) (surveying the history of the the (surveying (Cal. 2009) 78–101 48, P.3d Horton, 207 Strauss v. XEC This chapter also covers the Great Depression, which This chapter also covers the E 5 The progressive revolution of the 1910s hit California as revolution of the 1910s hit California The progressive See See, e.g. 4 5. 4. 6. during battles well, Court as United the States Supreme going on in This process was ONSTITUTIONAL ARNER of National Industrial Recovery Act unconstitutional as attempts to delegate legislative of National Industrial and to regulate both intrastatepower to President and local matters that had commerce only connection to interstatean indirect commerce), (Cal. 2011) (involving fees on appropriative water rights); Nat’l Audubon Soc’y v. Super. Super. v. rights); Nat’l Audubon Soc’y fees on appropriative water (Cal. 2011) (involving water). diversion of lake proposed (involving (Cal. 1983) 709 Ct., 658 P.2d by the California Supreme Court, 2000–2010 Court, by the California Supreme Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015); Ct. 2584 S. 135 U.S. ___, ___ Hodges, Obergefell v. as “well 2011) (characterizing established” n.16 (Cal. the principle 1145 265 P.3d 1002, to liberally construe the provisions of the obligation that “California have an courts initiative process is to assure that the power California Constitution relating to the initiative about the initiative learning more annulled”). Readers interested in not directly or indirectly process in California might consult any of the myriad scholarly works summarizing the history of its various aspects. trend would culminate decades later in the culminate trend would so-called liberal and Five. Courts covered in Chapters Four began the process of the slow grinding down of the Court’s of the Court’s grinding down began the process of the slow traditional conservative stance. C ballot initiative, and brought with it the hard as it did anywhere, on one’s viewpoint. or a poison pill, depending bullet a magic on that question, down comes Wherever the reader has the Court term, after term with the initiative during had to wrestle century-plusthroughout the the since its first appearance in state. W also, e.g. Initiatives after over the constitutionality of the various measures of Roosevelt’s New Deal. measures of Roosevelt’s New over the constitutionality of the various A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding provisions U.S. (1935) United States, 295 495 Poultry Corp. v. Schechter A.L.A. instability: Chinese laborers and launderers, too-dominant launderers, and laborers Chinese instability: mining or polluting hydraulic politicians, demagogic railroads, almost turmoil all of that its cause, Whatever companies. legal this period the In way to the Court. its to make seemed water, resource, valuable State’s most the issues surrounding the Court—and litigation before in never they have emerged left. (1942) (upholding provisions of Agricultural Adjustment Act covering local actions Agricultural Adjustment Act local actions covering provisions of (1942) (upholding deemed to affect intrastate commerce). California Supreme Court’s initiative-review process), California Supreme Court’s initiative-review 39639-aap_18-1 Sheet No. 58 Side A 11/15/2017 09:50:50 A 11/15/2017 58 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 58 Side B 11/15/2017 09:50:50 at ROCESS P decision decision see also id. that were 11 10 charitable 7 Dillon v. Legg, 441 P.2d P.2d 441 Dillon v. Legg, RACTICE AND P at 267 (Traynor, J., concurring) concurring) J., (Traynor, at 267 see also It was out in front in It was out in front to indicate negligence); 14 . PPELLATE PPELLATE Shelley v. Kraemer A see also id. and held the State’s anti- and held the and products liability 9 12 res ipsa loquitur OURNAL OF OURNAL J ) 10/24/2017 6:52 PM HE ELETE D. Chapter Four: 1940–1964 1940–1964 Four: D. Chapter D Loving v. Virginia OT nineteen years before the United States Supreme Supreme before the United States nineteen years N O 13 (D emotional distress, 8 DIT DIT E XEC E In the year 1940, the elevation of a new Chief Justice, Phil Chief Justice, Phil of a new 1940, the elevation In the year 8. that “charitable (holding J.) (Traynor, 1951) (Cal. 247 241, 232 P.2d Malloy v. Fong, 9. (Traynor, J.) 1952) Ass’n v. Siliznoff, 240 P.2d 282 (Cal. State Rubbish Collectors 7. (Gibson, C.J.) 440 (Cal. 1944) 436, P.2d Bottling Co., 150 Escola v. Coca-Cola ARNER (“In my opinion the findings of the trial court . . . also fail to consider whether enforcement to consider . also fail whether enforcement (“In my opinion the findings of the court trial . . in the interest to the public use contrary would be race] on [of restrictive covenants based in limited areas”). are concentrated where people communities urban of land in 13. as Perez v. J.) reported (also (Cal.1948) (Traynor, 17, 29 198 P.2d Perez v. Lippold, (holding that California’s anti-miscegenation statutes 2d 711 (1948)) Cal. Sharp, 32 the equal protection of“violate[d] Constitution by clause of the United States the laws and by arbitrarily and alone impairing the right of race of individuals to marry on the basis groups”). racial certain against unreasonably discriminating 14. 1 (1967). U.S. 388 corporations are liable for their a torts whether or not plaintiff has paid particular for the charity received”). involving(discarding physical-injury requirement in case threats and intimidation that amounted to intentional infliction of emotional distress); 912 (Cal. 1968) (recognizing negligent infliction of emotional distress). infliction negligent 1968) (recognizing 912 (Cal. 10. (recognizing 897, 1963) 900 (Cal. P.2d Co., 377 Prods. Yuba Power v. Greenman that “[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that to a human being”). causes injury 11. covenants enforcement of restrictive (holding state-court 334 U.S. 1 (1948) unconstitutional). 12. covenant to enforce restrictive (declining (1944) 260 v. Raines, 151 P.2d Fairchild of neighborhood); character due to changed 440–44 (Traynor, J., concurring) (outlining theory of strict liability). (outlining J., concurring) (Traynor, 440–44 (holding that plaintiff could rely on Court decided 108 T 108 W the laws to be in violation of miscegenation Fourteenth Amendment, about restrictive covenants,about restrictive S. Gibson, was followed quickly by the appointment to his the appointment quickly by was followed S. Gibson, of a Justice seat Associate vacated California–University of Their Roger Traynor. law professor, Berkeley appointments Court, under the a period of thirty years when the jump-started became two men, these leadership of the intellectual and liberal the area of tort state courts of last resort. In bellwether of the Gibson and Court opinions under Supreme law, California negligence, new rules for Traynor established immunity, the prefigured other states. The Gibson Court often followed in Court’s United States Supreme 39639-aap_18-1 Sheet No. 58 Side B 11/15/2017 09:50:50 B 11/15/2017 58 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 59 Side A 11/15/2017 09:50:50 , L ’ NT I and and 15 superseded superseded RESS P superseded by superseded by NITED , U 109 when referring to when referring 17 OWER P People v. Hill, 839 P.2d 984, 1017 (Cal. (Cal. 1017 P.2d 984, Hill, 839 v. People superseded by constitutional amendment by constitutional superseded UDICIAL J 18 for violations of the search and seizure provisions People v. Saille, 820 P.2d 588, 592 (Cal. 1991) 592 (Cal. 1991) People v. Saille, 820 P.2d 588, In its twenty-four years the Gibson twenty-four years In its had by 1991 itself been disapproved)). disapproved)). itself been 1991 by had remedy 16 ) 10/24/2017 6:52 PM Wells as recognized in, e.g., in, e.g., as recognized , E. Chapter Five: 1964–1987 Five: 1964–1987 E. Chapter ELETE OVERNANCE AND AND OVERNANCE D G OT N O In re Lance W., 694 P.2d 744, 752 (Cal. 1985) (en banc) (explaining that (Cal. 1985) (en 744, 752 P.2d 694 In re Lance W., (D , People v. Conley, 411 P.2d 911 (Cal. 1966) (Traynor, C.J.) (assessing (assessing C.J.) 1966) (Traynor, (Cal. 911 P.2d 411 Conley, v. , People DIT DIT E People v. Anderson, 493 P.2d 880 (Cal. 1972) People v. Anderson, 493 (en banc), XEC E In 1977 came Governor Jerry Brown’s controversial controversial Brown’s Governor Jerry In 1977 came This long chapter is the heart of the book, and a small a small is the heart of the book, and This long chapter 22, http://www.upi.com/Archives/1985/03/22/Former-California-Chief-Justice 1985), Former California Chief Justice Who Angered Reagan Dies California Chief Justice Who Angered Former See See, e.g. See, ONSTITUTIONAL ARNER by statute as recognized in, e.g., by statute as recognized in, e.g., (recognizing in addition that (recognizing in addition 16. 1955), 905 (Cal. P.2d People v. Cahan, 282 constitutional amendment of the federal or Constitutions,state so obtained, except through the exclusion of evidence compelled”exclusion remains federally (emphasis in original)).to the extent that 17. his ‘worst (noting that Reagan “called Wright -who-angered-Reagan-dies/8541480315600/ appointment’”). 18. (Mar. 15. (1949), 53 Wells, 202 P.2d of People v. diminished-capacity defense in context in as recognized then-recent change in State Constitution left state exclusionary rule intact, but “eliminate[d] a judicially created appointment of Chief Justice Rose Bird. In the nine-yearChief Justice Rose of appointment period of reaction to the accumulated in the form thereafter, nemeses of death-penaltyCourt’s consistent overturning verdicts. This of Bird and two Associate Justices in removal in the culminated all of the opposition to Bird the retention election of 1986. Not But through the period, was Republican or arch-conservative. politics—including party politics—impinged on the Court’s degree.major California in This was not surprising: activity to a not the stable,the 1960s, 1970s, and 1980s was predictably C elevation Justice Traynor’s the table for Court set Chief to 1964. Justice in by the book’s Written of legal historical writing. masterpiece Scheiber, it playseditor, Harry N. Greek tragedy. The out like a years Court’s six more have begun with the Traynor hubris may seven years under Then followed leadership. of Gibson-like Ronald Reagan who Governor Wright, Chief Justice Donald appointment” as his “worst later described W the exclusionary rule. the exclusionary criminal law, as well, in the areas of diminished capacity diminished of the areas in as well, law, criminal the California Supreme that first held the state’s Court decision death penalty unconstitutional. 1992). 39639-aap_18-1 Sheet No. 59 Side A 11/15/2017 09:50:50 A 11/15/2017 59 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 59 Side B 11/15/2017 09:50:50 ROCESS 20 P RACTICE AND P ., May 1996, at 29 (explaining at 29 (explaining ., May 1996, Aside from that, not that, Aside from 19 AW .L AL PPELLATE PPELLATE , C A note *, note at 550. supra , OURNAL OF OURNAL J ) 10/24/2017 6:52 PM The Lucas Legacy The Lucas HE OWER F. Chapter Six: 1987–1996 F. Chapter Six: 1987–1996 P ELETE G. Chapter Seven: 1996–2010 D OT N O (D DIT DIT E Gerald F. Uelmen, F. Gerald XEC OVERNANCE AND E This chapter ends the book on a high note, from the a high note, from This chapter ends the book on For some reason, the writers carved off the term of Chief the writers carved off the term reason, For some invisible almost Lucas had for three years been an member It would be tempting, writing writing to focus about this period, be tempting, It would See ARNER that “[u]nder Lucas, ‘harmless error’ became a mantra, as the court dramatically dramatically lowered error’ became a mantra, as the court Lucas, ‘harmless that “[u]nder cases”). in capital demanded competence and defender prosecutorial, judicial, the level of 20. G 19. 110 T 110 W much new law was As this made. it, the Lucas chapter puts not revolution.” to be “retrenchment, seemed Court’s aim appointment of Ronald George as Chief through of Ronald George appointment his fourteen and a Justice highly competent years in office. George was a His Court had to wrestle with the ballot- brilliant administrator. Justice Malcolm Lucas into a separate chapter. Far better would better would into a separate chapter. Far Lucas Justice Malcolm followed by Five on Traynor and Wright, have been a Chapter is because the transition This Chapter Six on Bird and Lucas. of the latter’s aspect important the most Bird to Lucas was from and of three liberal Justices In a wink, with the removal term. ones, with three conservative replacement the Court should their Yet that did not happen,right wing. have become staunchly or not entirely. to the fore, and Chief, he came of the Bird Court. After 1986, as was a very active writer of opinions. But the new Court’s only was to reverse the trend established by the Bird legacy important penalty. Court with regard to the death liberal state that it now appears to be. Politically it was all over it was all Politically to be. appears that it now state liberal years, was even in the Wright the Court, contrast By the place. liberal. stubbornly, even decidedly, whichon the death penalty, entirely principal the certainly was But contention. bone of covers it all, Scheiber Professor least) issue of fascinating (to scholars, at including the Court used to adequate state grounds, which the independent and conservative United States the more try to shield its rulings from Court. the Warren followed Courts that Supreme 39639-aap_18-1 Sheet No. 59 Side B 11/15/2017 09:50:50 B 11/15/2017 59 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 60 Side A 11/15/2017 09:50:50 AW IN AW , 1900– This L RONTIER 22 F was itself USTICES OF J Horton ALIFORNIA OURT AW IN AW C C L 111 Sadly, Professor Sadly, Professor 23 EVELOPMENT OF DITOR D UPREME OWER E S USTICES OF P J RACTICING HE ,T ,P OURT superseded by statute in as recognized superseded IOGRAPHIES C B UDICIAL J AKKEN AKKEN B B ISTORY OF THE UPREME S UDICIAL ORRIS ORRIS J UTHORS AND THE M M A HE ) 10/24/2017 6:52 PM HE and 2010, the end of George’s incumbency. incumbency. the end of George’s and 2010, ELETE ORDON , 207 P.3d 48 (2009). Of course, the decision in 48 (2009). Of course, , 207 P.3d ORDON OVERNANCE AND AND OVERNANCE 21 ISTORY OF THE D III. T (1985). G G OT IV. T N II H O (D DIT DIT , 1963). ed., Johnson Edward (J. 1850–1900 (1991); G ALIFORNIA E C XEC E Half of the writers here are affiliated in some way with the in some Half of the writers here are affiliated The book is replete with capsule biographies of certain of biographies capsule with The book is replete See generally See generally See generally ONSTITUTIONAL ARNER ALIFORNIA ALIFORNIA RONTIER 23. 1950 (J. Edward Johnson ed., 1966); I H ed., 1966); Johnson 1950 (J. Edward eventually abrogated by the United States Supreme Court’s decision in v. Obergefell Supreme United States by the eventually abrogated (2015). S. Ct. 2584 135 ___, U.S. ___ Hodges, 22. 21. In re Marriage 184 (2008), Cases, 183 P.3d C C F Horton v. Hollingsworth C about a centrist in just Republican, was appointed by a George, and out of period, through a stormy the Court every way, and led intact. largely and thus its power, it, with its reputation, W debt is indicated by the frequent citations to that work to frequent citations debt is indicated by the here, but Since then, a new volume it was produced in the mid-1960s. the Court after 1950 has been covering Justices who were on produced.needed, but has not been The biographical in this recent Justices about more comprehensive information toward filling that gap. way history of the Court goes some of the book. the development ill and died during Bakken became University of California–Berkeley. Others have ties to Stanford. University of California–Berkeley. formerly at CaliforniaAnd one, Gordon Bakken, State on was the author of two seminal volumes University–Fullerton, in frontier California. practice, law, and law Justices, as it naturally would be. The job of writing would be. The job of Justices, as it naturally those through Four One easier in Chapters was made biographies the an earlier work of all biographies that contains because of 1950. the Court between 1850 and sat on Justices who initiative law many times, and did a good job overall. Much of Much of overall. good job did a times, and law many initiative hot-button premier to do with the this had issue of the time, an electorate performed California The equality. marriage first came when this issue between 2004, policy U-turn amazing Court, before the 39639-aap_18-1 Sheet No. 60 Side A 11/15/2017 09:50:50 A 11/15/2017 60 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 60 Side B 11/15/2017 09:50:50 ROCESS P 24 see Constitutional (n.d.), https://my.cschs (n.d.), Y ’ RACTICE ANDRACTICE OC P S ... AND H ISTORICAL ISTORICAL PPELLATE .H A T THER .C O UP .S AL 25 N THE , C OURNAL OF OURNAL J ) 11/8/2017 7:11 PM HE V. O ELETE D OT N O 1(D ESEND R And one big criticism. The authors do a good job of And one big criticism. Which brings us back to the editor, Professor Scheiber. His Scheiber. the editor, Professor us back to Which brings contains listings of the A few nits. The index is large and ARNER .org/product/court-history-book (indicating that both versions are available). available). (indicating that both versions are .org/product/court-history-book Governance and Judicial Power and Governance 24. personal note: years ago, Professor Bakken kindly helped this A author gain access to collections of the Huntington the restricted precincts of the Rare Books and Manuscripts California. Marino, Library in San 25. The book was issued in both hardcover and paperbound versions, relating important events in, and aspects of, the California the California aspects of, and important events in, relating Court—the one to that other Supreme Court’s relations Supreme however, little to nothing is D.C. Surprisingly, in Washington, or indeed about the four included about the Ninth Circuit, has The federal system in California. federal district courts Court, life of the California Supreme always, throughout the litigation. Forum shopping by existed as a parallel avenue for issues that some courts meant litigants who preferred the federal when it might Court, even never reached the California Supreme of this example The premier be argued that they should have. 112T not and does is excellent Two, Chapter contribution, his Still, event. of that unfortunate negative effects display any Praise is noted. has been Chapter Five the terrific of authorship only because which, not of a volume for the editing due as well of scope because of the time but also of authors, of the number job. One evidence of the have been a challenging the work, must text references in the many be found in work may of that quality when certain decisions of the Court, effect of to the downstream of era, or in the prefiguring place in a later such effects took an in acting Court by the set precedents the in certain decisions not have of the book. That must segment era set in an earlier task. been an easy a table of cases cited decisions, but important Court’s more go-to valuable as a future book more the would have made of well over volume reference. Moreover, a single paperbound handling and for resistance to 600 pages is just too large for easy would have been better, at least for wear and tear. Two volumes the paperbound version. W 39639-aap_18-1 Sheet No. 60 Side B 11/15/2017 09:50:50 B 11/15/2017 60 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 61 Side A 11/15/2017 09:50:50 See The ALIFORNIA C decision decision case itself case itself 27 AR OF but were of B 31 113 Brown Mendez flowed through both flowed through OWER plaintiffs decided to decided to plaintiffs ENCH AND 28 P B Mendez v. Westminster Westminster v. Mendez , 21 ABA J. 351 (June 1935); 1935); (June 351 ABA J. , 21 seriously impacting seriously impacting the 29 Mendez UDICIAL J , 161 F.2d 774 (9th Cir. 1947). 1947). Cir. (9th 774 F.2d , 161 . The Hill-Sharon saga included a high-profile included a Hill-Sharon saga The . North Bloomfield Gravel-Mining ISTORY OF THE aff’d H supra in , A California Drama ) 10/24/2017 6:52 PM ELETE the late-1940s school-segregation case that case that late-1940s school-segregation the These were decided at about the same time These as decided at about the same were OVERNANCE AND AND OVERNANCE D 26 30 G , OT N O (D , N. Bloomfield Gravel-Mining Co. v. United States, 88 F. 664 (9thC.C. Gravel-Mining Co. v. Bloomfield , N. , Edmund W. Pugh, Pugh, Edmund W. , , N. Bloomfield Gravel Min. Co. v. Keyser, 58 Cal. 315 (1881) (addressing (1881) Cal. 315 58 Keyser, Min. Co. v. Gravel N. Bloomfield , , Cunningham v. Neagle, 135 U.S. 1 (1890) (ending federal-court litigation); U.S. 1 (1890) Neagle, 135 , Cunningham v. cases. DIT DIT E text accompanying note 3, text accompanying XEC E There were also times when important matters, when important such as times There were also See, e.g. See, e.g. See, e.g. See ONSTITUTIONAL ARNER the dumping of mine tailings). mine the dumping of Tragic History of the Sharon Cases Tragic History of the Sharon 173 (Oscar T. Shuck ed., 1901). 1901). ed., T. Shuck 173 (Oscar 29. litigation). state-court 1890) (ending (Cal. P. 1100 23 Sharon v. Sharon, 30. debris). discharge of mining and the dumping 1898) (addressing 31. 26. 1946), D. Cal. (S. 544 Supp. 64 F. C prefigured and significantly preceded the Company and Court’s rulings on hydraulic mining the California Supreme environments, the destruction of downstream W sort of parallel progressthis on And meant in each. outcomes the work of the overshadowed federal outcome occasion that the the federal case with the Court, as was California Supreme courts’ 1880s rulings in its greater impact on actual events thereafter. In recent years the actual events thereafter. In recent years on greater impact have and the Ninth Circuit Court continued California Supreme of law, and in so doing have to be active in the same areas that the precedent. Given created conflicting lines of sometimes two courts, despite having a greatly overlapping geographic the state and federal systems, the state and was the Ninth Circuit’s decision in decision Circuit’s the Ninth was District School the later. Because seven years the and school districts and because the court, federal begin in of Education state Department the not to appeal from decided issue never order, the school-desegregation Ninth Circuit’s and the Court reached the California Supreme Court. States Supreme United never reached the Sharon that against William claims Hill’s Sarah Althea in the death of Justice Terry, culminated 27. 483 (1954). U.S. 347 Educ., Bd. of v. Brown 28. politician, a socialite,substantial amounts of cash, an alleged secret marriage, at least one diagnosis of insanity. affair, a fortune-teller, and—eventually—a extramarital e.g. generally, 39639-aap_18-1 Sheet No. 61 Side A 11/15/2017 09:50:50 A 11/15/2017 61 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 61 Side B 11/15/2017 09:50:50 ROCESS P RACTICE AND P OTE N PPELLATE PPELLATE , Armendariz v. Found. Healthcare Servs., v. Found. Healthcare Servs., , Armendariz A ERSONAL AT&T Mobility LLC v. Concepcion, ___ U.S. U.S. ___ Concepcion, Mobility LLC v. AT&T P see, e.g. see, 32 INAL OURNAL OF OURNAL J ) 10/24/2017 6:52 PM AF abrogated by abrogated HE ELETE VI. D OT N O (D DIT DIT E XEC E In 2005 I started teaching a I started teaching In 2005 in California law school course ARNER ___, 131 S. Ct. 1740 (2011) (holding, in case originating in the United States District Court in the United States case originating (holding, in (2011) S. Ct. 1740 ___, 131 California of California, Arbitration Act preempts that the Federal for the Southern District decisions on unconscionability of class arbitration waivers), enforcement of post- and the employment covenants not to compete, as the Supreme Court generally enforces California courts. federal the the state’s restraint-of-trade statute than do more completely Inc., 6 P.3d 669 (Cal. 2000), 2000), 669 (Cal. P.3d Inc., 6 32. in areas in which the to arbitrate of agreements are the enforcement examples Two power, unequal bargaining have parties 114 T 114 W legal history. The materials for that course were made from from that course for were made materials legal history. The If this untold in the making. professor-hours scratch, consuming have years ago, that burden would had existed twelve volume and that is a we have it now, least But, at removed. been largely good thing. jurisdiction, are parts of two different systems, these conflicts conflicts these two different of are parts systems, jurisdiction, hard to resolve. have been 39639-aap_18-1 Sheet No. 61 Side B 11/15/2017 09:50:50 B 11/15/2017 61 Side Sheet No. 39639-aap_18-1