April 2011

ASU Law student Dan Orenstein was selected as a Burton 2011 Distinguished Legal Writing Award winner for his article, "Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome." His article was published in the Winter 2010-2011 issue of the Arizona State Law Journal, available at 42 Ariz. St. L.J. 1305. A summary of his article is available here. Dan will receive his award at a ceremony held in the Library of Congress in Washington, D.C. on June 13, 2010. The event includes guest speaker Supreme Court Justice Sonia Sotomayor and honored guest Supreme Court Justice Stephen Breyer. Dan served as the 2010-2011 Executive Note & Comment Editor of the Arizona State Law Journal. He graduates from the Sandra Day O'Connor College of Law in May 2011.

Laura Curry’s student comment, The Elusive Right to Cross-Examine Individuals Presenting Victim Impact Statements in Arizona Capital Sentencing Proceedings, will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary. During the late 1970s and early 1980s, victim impact statements emerged as a topic of national significance as part of a broader Victims’ Rights Movement.  Many states heard the call for victim impact statement legislation, and followed by passing statutes and constitutional amendments guaranteeing victims the right to be heard at sentencing.  Of the thirty-four states with the death penalty, thirty-two currently allow victim impact evidence to be heard at capital sentencing proceedings. Arizona, however, is the only state that has adopted and applied a statute explicitly stating that victim impact statements…

More than a year later, Citizens United v. FEC, 130 S.Ct. 876, the United States Supreme Court’s notorious decision on corporate free speech, remains bitterly controversial. Many (including me) view it as a disastrous decision. In essence, by equating money with speech and corporations with citizens, it allows corporations, with potentially unlimited wealth, to buy up speech, to corner the market on speech and the very means of communication, and so to determine political outcomes. Totalitarian regimes, such as Nazi Germany and Stalinist Russia, were well aware that control of the media was one of the key prerequisites for gaining and retaining power. The Supreme Court’s refusal to allow appropriate, necessary regulation of corporate speech opens the door to corporate control of speech—and political power. Naturally, Citizens United follows earlier…

Federal law enforcement officials have been tracking the movements of criminal suspects since before technology would allow. The original form of government tracking was simply to follow suspects, either on foot or by vehicle. Next, law enforcement agencies, such as the FBI, would install their own tracking equipment on or inside a vehicle, plane, boat, or other object to monitor and track a suspect’s location. Today, the cell phone has provided law enforcement officials a priceless investigative tool for monitoring the movement of individuals. Can You Find Me Now?: The Federal Government’s Attempt to Track Criminal Suspects Using Their Cell Phones discusses the timely, relevant, and hotly debated topic of whether the government should be able to track cell phones upon a showing of anything less than probable cause. This article…

This article has been written by guest author Maritza Reyes, Assistant Professor of Law, Florida A&M University College of Law. Most Americans agree that we need comprehensive immigration reform. The failure of the President and Congress to act in this regard has been cited as a reason for the passage of S.B. 1070 in Arizona. The arguments that S.B. 1070 is unconstitutional will be addressed in the federal courts. But, some states are not waiting for a U.S. Supreme Court ruling; instead, states like Florida are following Arizona’s lead and proposing similar or harsher immigration enforcement legislation. However, Florida should claim its own leadership position and make a decision based on the best interests of its state’s diverse population and its economy. Let’s begin by pointing out two crucial facts:…

Megan Scanlon's student comment will be published in the upcoming summer 2011 edition of the Arizona State Law Journal. Here is a brief summary. From Theory to Practice: Incorporating the “Active Efforts” Requirement in Indian Child Welfare Act Proceedings The Indian Child Welfare Act (“ICWA”) recently turned thirty-three. The ICWA is a fascinating law because it has remained unchanged since its inception, and its terms have only reached the United States Supreme Court in a single case. Yet, the ICWA is frequently applied to thousands of cases across the country without consistency. In particular, the “active efforts” requirement within the ICWA continues to plague both state and tribal courts. Confusion surrounding the meaning of active efforts and what the term requires is a challenge confronting judges, attorneys, social workers, and…

[gallery link="file" orderby="rand"] On March 31st, 2011, ASU Law student Cody Huffaker was presented with an award during the Scribes Dinner at the 2011 National Conference of Law Reviews, hosted by the Thomas Jefferson School of Law in San Diego. The award was for the best student-written article in a law review or journal in the country. Cody's article, “A New Type of Commandeering: The Bypass Clause of the American Recovery and Reinvestment Act of 2009 (Stimulus Package),” was published in the Fall 2010 Issue of the Law Journal. It is also available on Westlaw at 42 Ariz. St. L.J. 1055. Past winners are listed here: http://www.scribes.org/law-review-award. Congrats, Cody!!

Caroline J.S. Picart[i] Well before George Balanchine (1904-1983), Loïe Fuller (1862-1928), Isadora Duncan (1877-1927), Ruth St. Denis (1879-1968), and Martha Graham (1894-1991) pioneered American modern dance.  They were white women working in male-dominated and visually racially-mixed theatrical markets (while maintaining the dominance of whiteness).  Balanchine, a Russian émigré, was the first U.S. choreographer to acquire copyright protection for his choreographic works through his will,[ii] and eventually, it was through his estate that the first copyright infringement claim occurred.[iii] Balanchine created the “standard look” of the hyper-whitened, ethereally slim ballerina, and with that, the history of copyrightable American modern dance choreography began.  Balanchine’s choreography became institutionalized as “property”—one that the law regards as “whitened” enough to delimit from the public domain.  And it is through Balanchine’s copyrighted choreography that his estate…

This article has been written by guest author Scott Shackelford, Assistant Professor of Business Law and Ethics, Indiana University. Defining Privacy in the Information Age Privacy is the subject of literally thousands of scholarly and popular books and articles.[i] Despite this great effort, the old challenge of protecting civil liberties while also providing public safety, including cybersecurity, remains a critical question, especially in the Information age.  Civil libertarians push for preserving Internet freedom, while many countries are increasingly anxious to protect critical national infrastructure, stop cyber espionage and cybercrime, and even prepare for cyber war.[ii] But does this inevitably mean the end of anonymity for Internet users?  Not necessarily.  According to Colonel Charles Williamson, “each nation has to strike a balance between cybersecurity and civil rights, especially privacy.”[iii] How nations accomplish…

The Arizona State Law Journal will soon publish an article by Brett McDonnell, Professor of Law at the University of Minnesota School of Law. Professor McDonnell's article, Setting Optimal Rules for Shareholder Proxy Access, surveys recent state and federal changes concerning the shareholder proxy access and the "altering rule," whereby shareholders can propose a change to the bylaws about proxy access. Prior to the SEC promulgating a new rule, shareholders did not have access to the corporate proxy materials to make board nominations in any state except one. Further, boards could also exclude a proposal to the bylaws by shareholders to allow such access. While shareholders could run their own candidates, without access to the proxy materials sent out to all shareholders by the corporation, this was prohibitively expensive. This restriction…