Local Firms Sponsor Law Journal Orientation

ASU Law Online
The 2011-2012 Arizona State Law Journal kicks off the year with fall orientation.  The staff of the Arizona State Law Journal wish to thank the following firms, in alphabetic order, for sponsoring events during the orientation. Ballard Spahr Bryan Cave Gammage & Burnham Osborn Maledon Polsinelli Shughart Snell & Wilmer Steptoe & Johnson Tiffany & Bosco
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A “Collateral” Consequence: How Harrington v. Richter Ironically Undermines Deference to State Courts

ASU Law Online
This article was written by guest author Ruth A. Moyer, a 2008 cum laude graduate of Temple Law School. She currently practices criminal defense law in Philadelphia. Additionally, she has written an article, “Why and How a Lower Federal Court’s Decision that a Search or Seizure Violated the Fourth Amendment Should Be Binding in a State Prosecution: Using ‘Good Sense’ and Suppressing Unnecessary Formalism,” which will appear in Vermont Law Review. The January 2011 U.S. Supreme Court decision in Harrington v. Richter[i] ostensibly reaffirms the federalist principle that federal habeas courts should defer to state court adjudications of federal constitutional claims. As a more transcendent matter, however, Richter may ironically weaken an important justification for such deference. Pursuant to the federal habeas corpus writ, 28 U.S.C. § 2254,[ii] a state prisoner may challenge…
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Risk Assessment at Sentencing

ASU Law Online
This article was written by guest author, Dr. J.C. Oleson. Dr. Oleson is a Senior Lecturer in the Department of Sociology, University of Auckland. Prior to joining the University of Auckland in June of 2010, Dr. Oleson served as Chief Counsel to the Criminal Law Policy Staff of the United States Federal Courts. His full-length article on risk assessment in sentencing is forthcoming in the November 2011 issue of the SMU Law Review. The imposition of a criminal sentence is an excruciatingly difficult task, requiring sentencing judges to carefully balance different (and frequently competing) theories of punishment. In some jurisdictions, judges enjoy nearly unfettered discretion; in others, judges impose initial sentences but parole boards make the final determinations about when prisoners are ready for release; in other jurisdictions, judicial authority is…
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Determining Whether Legal Advice to Violate the Law Is Ethical

ASU Law Online
This article was written by guest authors Jon Reidy, a Houston-based litigator; Michael J. Stephan, Law Clerk on the United States Court of Appeals for the Ninth Circuit; and Guha Krishnamurthi, Law Clerk on the United States Court of Appeals for the Seventh Circuit. They are all graduates of The University of Texas School of Law, class of 2010. It is a well-known maxim that a lawyer shall not advise his client to violate the law.[i]  At the same time, the ground reality is that lawyers often tell their clients to engage in conduct that, at least technically, violates the law.[ii]  These lawyers likely characterize such communication not as advising their clients to engage in illegal conduct, but rather as merely informing their clients as to the consequences of such…
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Right to Defense in a Fair Trial

ASU Law Online
Guest author Tat Chee Tsui wrote this article. Mr. Tsui received his LL.M. from the University of California, Berkeley in 2010. First, it is appropriate to disclose that I was a student of Professor John Yoo at Berkeley Law School. However I believe it would not have any effect on my point of view below if I provide sufficient grounds. Professor Yoo was the Deputy Assistant Attorney General for former President George Bush. During his tenure, he made certain arguments (the so-called “Torture Memo” [1]) regarding the Guantánamo Bay detention camp. Professor Yoo has been criticized by the general public for this. Some professors and students at UC Berkeley, as well as people outside the school, urged Professor Christopher Edley, Jr., The Dean of Berkeley Law School, to remove Yoo…
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Rights of Medical Marijuana Users in the Workplace

ASU Law Online
This article has been written by guest author Stacy Hickox, Assistant Professor in the School of Human Resources & Labor Relations at Michigan State University. Wal-Mart employee Joseph Casias was discharged after testing positive for marijuana.  As a registered medical marijuana user for his sinus cancer & brain tumor, Mr. Casias thought that he was protected under Michigan’s Medical Marijuana Act (“MMMA”).[i]  Wal-Mart believes he is not, and the federal district court has agreed with them.[ii]  The MMMA, which came into effect in December 2008, provides that a qualifying patient “shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau.”  Although…
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The “Constitution of Man”: Reflections on Human Nature from The Federalist Papers to Behavioral Law and Economics

ASU Law Online
This article was written by guest author John Wood, J.D. Candidate, May 2011 at New York University School of Law. Studies of human nature in the context of legal policy tend to contrast the rational choice view against the more recent behavioral model of decision-making.[i]  This framework is misleading in that many of the latter school’s insights find expression in literature that predates it by centuries.  To illustrate this, I draw the following concepts from The Federalist Papers’ remarkably insightful discussion of human nature:  bounded rationality; bounded will-power; bounded self-interest; bounded ethicality; reactive devaluation; escalation of commitment; availability bias; self-serving bias; confirmation bias; optimism bias; myopia; endowment effect; loss aversion; prospect theory; collective action problems; rent seeking; free riding; groupthink and holdout situations.  I propose an etiological rather than binary approach…
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How Geotargeting Will Change Online Obscenity Jurisprudence

ASU Law Online
by J. Mason Kjar* I.  The Conflict Between Free Speech and Obscenity Law The First Amendment’s guarantee of free speech protects a lot of material from censorship and criminalization, including erotic material.  Thus, it is completely legal to both possess and distribute pornography publicly, so long as certain basic guidelines of age, location, or time are met.[i]  Laws against obscenity, however, have circumscribed the guarantee of free speech.[ii]  Thus, when pornography is deemed legally obscene, any distribution to the public faces stiff criminal penalties, regardless of whether it is legal to own in the privacy of one’s own home.  For the sake of clarity, the common forms of pornography showing nudity and fornication are not categorized as obscene.  Instead, obscene pornography typically refers to pornography that uses violence, rape, murder,…
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Happy Mother’s Day!

ASU Law Online
This article was written by guest author Rona Kaufman Kitchen, Assistant Professor of Law at Duquesne University School of Law. With May’s commemoration of Mothers upon us, this is an opportune time to contemplate whether our laws and policies honor and protect mothers and the care they provide. Is Mother’s Day a celebration of the value of mothers in our society and an affirmation of our national appreciation for their work, or is Mother’s Day just the momentary pause to applaud mothers by an otherwise ungrateful nation? On May 3, 2011, Save the Children published its 12th annual Mothers Index which found Norway to be the best place in the world to be a mother and Afghanistan to be the worst place in the world to be a mother.[i] The…
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The LSAT: An Inconvenient Truth

ASU Law Online
Guest author Douglas K. Rush, J.D., Ph.D., wrote this article. He is an Assistant Professor in the College of Education and Public Service at Saint Louis University where he teaches graduate research methods and statistics courses. He was formerly an assistant dean and member of the admission committee at Saint Louis University School of Law. His research interests include law school pedagogy, curriculum, admission, and factors which affect bar examination passage. On April 2, 2011, the Standards Review Committee of the American Bar Association’s Section of Legal Education and Admission to the Bar presented its controversial recommendation that ABA Standard 503[1] be eliminated.[2] The American Bar Association [ABA] has been designated by the U. S. Department of Education as the accrediting agency for American law schools.[3] The revision to the Standards…
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