Reflections on the Changes in Indian Law, Federal Indian Policies and Conditions on Indian Reservations since the Late 1960s

2014, Past Issues, Print, Volume 46 (2014) Issue 3 (Fall)
Reid Peyton Chambers. I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me over the past two decades for coming to listen to me once again, particularly in this context where I get to talk uninterrupted for an hour and they can only speak during the question period. Lastly, I want to thank Judge Canby for several things. First, for your continuing scholarship in Indian law during your busy and long tenure on the Ninth Circuit.…
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Carpe Omnia: Civil Forfeiture in the War on Drugs and the War on Piracy

2014, Past Issues, Print, Volume 46 (2014) Issue 3 (Fall)
Annemarie Bridy. This article explores the evolution of the federal government’s civil asset forfeiture practices from the war on drugs in the 1980s and 1990s to the currently escalating war on intellectual property piracy. I argue that recent developments in the war on piracy provide strong proof that legislative reform of the federal civil forfeiture system in 2000, which was intended to make the system fairer to property owners and less prone to abuse by law enforcement agents, did not substantially succeed in achieving either goal. The constitutional problems that remain in the federal civil forfeiture system are most acute with respect to the ex parte seizure of property alleged to facilitate crime—so-called facilitation property. Within that category, Internet domain names allegedly tainted by copyright crime present unique problems. “Property”…
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Complex Decision-Making and Cognitive Aging Call for Enhanced Protection of Seniors Contemplating Reverse Mortgages

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Debra Pogrund Stark, Dr. Jessica M. Choplin, Dr. Joseph A. Mikels & Amber Schonbrun McDonnell. It was the best of loans, it was the worst of loans. For many seniors who are living on an inadequate fixed income with a home value that far exceeds any mortgage debt on it, a “reverse mortgage” might be a good method to address chronic cash shortages. Under this type of mortgage, the lender makes payments to the borrower that are not generally due until the senior passes away or moves from the home. Many seniors have expressed interest in this unique type of financing, and this number has grown exponentially in recent years, as there were ten times the number of seniors entering into reverse mortgages in 2007 as there were in 2001. But,…
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Class Dismissed: Rethinking Socio-Economic Status and Higher Education Attainment

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Omari Scott Simmons. Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K–12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the…
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Numeracy and Legal Decision Making

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Arden Rowell & Jessica Bregant. This Article presents an empirical study of how numeracy—or math skill—relates to legal decision making. We describe three findings. First, the study shows a surprisingly high level of math skill among law students, especially given the common folk wisdom that lawyers are bad at math. Second, although prior research in non-legal contexts has shown that people with low numeracy are particularly susceptible to cognitive bias, we detect no significant relationship between law students’ math skills and their susceptibility to bias or framing effects. Finally, and perhaps most strikingly, our findings show that the substance of legal analysis varies with math skill for at least some subset of cases. In particular, we find that law students with lower numeracy make decisions that are less consistent with…
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How Affidavit of Merit Requirements are Ruining Arizona’s Medical Liability System

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Mary Markle. The purpose of the civil justice system is to compensate those who were wrongfully injured and deter unreasonably risky behavior. More specifically, tort claims for medical malpractice aim to compensate patients who are injured due to negligent care and improve health care by deterring doctors from engaging in negligent care in the future. Despite these noble goals, the medical malpractice legal regime has come under attack in recent years. Opponents of the system claim medical malpractice cases are to blame for skyrocketing health care costs and a shortage of physicians. In response to these accusations, many state legislatures—including Arizona’s—have passed regulations to reform medical liability. Proponents of these regulations hope that limiting medical liability will lead to decreased insurance premiums, which will ultimately lead to lower health care costs and…
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Principled Prevention

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Timothy F. Malloy. Is an ounce of prevention really worth a pound of cure when it comes to the regulation of chemicals? If you believe the aspirational statements of legislators, regulators, public health scientists and others, the answer is a definite “yes.” Yet when you look at the structure of regulatory programs and actual practices on the ground, that ounce is hard to find. Chemical policy in the United States essentially relegates prevention of chemical exposures to voluntary programs and initiatives. Mainstream regulation focuses instead on managing exposures, largely relying on control technologies to capture or destroy emissions and discharges of hazardous chemicals. This article asks what a mainstream prevention-based regulatory system would look like. It presents a typology of prevention-based regulatory approaches and a set of principles for evaluating…
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Whose Sovereignty? Tribal Citizenship, Federal Indian Law, and Globalization

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Stacy L. Leeds & Erin S. Shirl. This Article is adapted from a speech given by Stacy Leeds at the Sixth Annual Canby Lecture Series held at Arizona State University’s Sandra Day O’Connor College of Law. Stacy Leeds is the Dean of the University of Arkansas Law School, which recently launched a new Indigenous Food and Agriculture Initiative to complement their long-standing LL.M. Program in Agricultural and Food Law. In her presentation, Dean Leeds draws on her experience both as an Indian Law professor and tribal judge to reflect on how tribal governments are viewed from the outside and how tribes might evolve the dialogue and interact with external audiences including other sovereigns across jurisdictional lines. Full Article
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Why Serve Your Country When You Can Lie About It?–This Message Brought to You by the United States Supreme Court

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
William D. Hathaway. “The [Medal of Honor] is the highest and most prestigious U.S. military medal.” The criteria for awarding the Congressional Medal of Honor are strict and similar to the standard that must be met by a prosecutor’s evidence in a criminal proceeding. Military honors have a long history of being conferred to individuals who distinguish themselves from the ranks. In America, the first honor of this type was established by General George Washington, who proclaimed in his general order that “[s]hould any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished. On the other hand it is expected those gallant men who are thus designated will on all occasions be treated with particular confidence and consideration.” Full Article
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Regulators as Market-Makers: Accountable Care Organizations and Competition Policy

2014, Past Issues, Print, Volume 46 (2014) Issue 1 (Spring)
Thomas L. Greaney. Of the many elements animating structural change under health reform, Accountable Care Organizations (ACOs) have drawn the greatest attention. Supported by scholarship from health policy experts and positioned as the Affordable Care Act’s centerpiece for systemic reform, the concept came to represent a potential cure-all for the disorders plaguing American health care. While the program, entitled the Medicare Shared Savings Program (MSSP), focuses on Medicare payment policy, its objectives extend much farther. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence-based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. Because the law entails seismic…
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