A Call for Probationer Data Privacy: Can States Require Cell Phone Search Waivers?

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1487 (2017). Alexandra Crandall. Ninety-one percent of adults own a cell phone, making it the most quickly adopted technology by consumers in history. Cell phones have become so ubiquitous that they are indispensable to modern life. Once unlocked, call logs, addresses, emails, and text messages reveal the owner’s professional and personal interactions with coworkers, friends, and family. Many smartphones track the owner’s movement, pinpointing stops, timing routes, and listing previous location searches. Applications on cell phones can count steps, record voice memos, track meals, schedule appointments, make lists, deposit checks, place food orders, and display political party-specific news. The intimate information made accessible through technology is expansive and has presented courts with new Fourth Amendment search and seizure issues. Full Article
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Enemy Construction and the Press

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1301 (2017). RonNell Andersen Jones & Lisa Grow Sun. When the President of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the President’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric…
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Exculpation as Inculpation

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1141 (2017). Russell L. Christopher. Should a criminal defendant who contrives, creates, or causes the conditions of her own defense forfeit the defense? For example, suppose a provocateur taunts a provocatee into unlawfully attacking so that the provocateur may justifiably kill in self-defense. There are two competing approaches. Under the principle that defense-contrivers have “unclean hands,” the predominant approach of the criminal law is to bar the defense (the Legal approach). Disagreeing, most criminal theorists advocate both granting the contrived defense and, seemingly paradoxically, imposing criminal liability for culpably contriving the defense (the Theoretical approach). That is, seeking exculpation is itself inculpatory. The Theoretical approach raises the following puzzle: how does coupling the intent to act lawfully (justifiably) with an independently lawful act (taunting) that causes a…
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Overclaiming Is Criminal

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1417 (2017). Oskar Liivak. For some time patent law has been criticized for a flood of bad patents. Patents of questionable validity are being issued with overly broad, often nebulous boundaries. A majority of the blame for these bad patents has fallen on the shoulders of the Patent and Trademark Office (PTO). Bad patents exist, so the argument goes, because the PTO has improperly issued them. In response the PTO has launched a major initiative to improve patent quality. Our singular focus on the PTO though threatens to overlook the other major player responsible for patent quality—patent applicants. Currently patent applicants are not seen as having any particular duty to seek only good patents. Today applicants can seek excessively broad claims if they want to. It is…
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A Balancing Act: Providing the Proper Balance Between a Child Sexual Abuse Victim’s Rights and the Right to Personal Cross-Examination in Arizona

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1453 (2017). Tyler Carlton. A victim of child sexual abuse takes the stand, and the abuse begins again—this time with the sanction of law. In some cases, abusers exercise the right of self-representation to personally cross-examine their victim. One fifteen-year-old victim of sexual abuse stated: “It made it harder. He would give me that look and question me and dig into me . . . . It makes you feel like you’re the victim again. It hurt a lot.” Many victims share this feeling of distress in response to a defendant’s decision to personally cross-examine them. In fact, the issue has even reached popular culture. In the acclaimed crime drama Law & Order: Special Victims Unit, when an adult victim of sexual assault learns of the defendant’s plan to personally cross-examine her, she replies: “First…
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Lost Art and the Public Domain

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1257 (2017). Alan L. Durham. Because a patentable invention must be novel, and it must embody an advancement that would not have been obvious to persons of ordinary skill, the invention must be compared to the “prior art.” Prior art, in the language of the current Patent Act, includes anything that was already “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public.” With certain qualifications, patent law has always required that prior art have been available to the public. A manuscript describing the claimed invention that had never left its author’s desk drawer would not qualify as a printed publication. But what of prior art that was accessible, but ignored; or that was available at one time, but…
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Government Employee Religion

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1193 (2017). Caroline Mala Corbin. Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I…
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Forensics or Fauxrensics? Ascertaining Accuracy in the Forensic Sciences

2017, Current Issue, Print, Volume 49 (2017) Issue 4 (Winter)
49 Ariz. St. L.J. 1369 (2017). Jonathan J. Koehler. Forensic science—which includes such techniques as DNA analysis, fingerprint examination, and firearms comparison—plays a crucial role in our criminal justice system by helping to convict the guilty and acquit the innocent. However, our confidence in forensic science conclusions must be tempered by the odds that those conclusions are wrong. What are those odds? Nobody knows the answer because no disinterested researchers have conducted the appropriate studies in any of the forensic science disciplines. This is a serious problem because, without this information, legal decision makers cannot properly assess the validity or probative value of forensic evidence. In this paper, I examine the institutional forces and misunderstandings that are responsible for our ignorance about the accuracy of forensic science conclusions. I then…
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What Can Europe Tell Us About the Future of American Federalism?

2017, Past Issues, Print, Volume 49 (2017) Issue 3 (Fall)
Ernest A. Young. It is humbling for an American scholar of federalism to admit that the most interesting developments in federalism are happening in Europe, not the United States. But this has been true for some time. Kicking off the European Union’s convention to draft a constitutional treaty in 2001, former French president Valéry Giscard d’Estaing compared the proceedings to “the famous convention of Philadelphia of 1787.” The comparison was apt, in that the fundamental relationship between Brussels and the EU’s Member States has been under renegotiation for much of the past decade and a half. Since the unsuccessful constitutional convention,  the EU has seen the world’s most significant contemporary crisis of fiscal federalism, foundational disagreements between the European Court of Justice and the constitutional courts of the Member States over judicial…
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Judicial Review and the Future of Federalism

2017, Past Issues, Print, Volume 49 (2017) Issue 3 (Fall)
Jonathan F. Mitchell. Modern judicial review poses a unique threat to federalism, because it enables the Supreme Court to preempt state law and impose nationwide policies by a simple majority vote and without the assent of any other institution. And the current Supreme Court has shown little interest in adopting formalistic interpretive methodologies that would constrain its powers to override state law in the name of constitutional interpretation. Modern judicial interpretation of the Constitution is rooted primarily in court-created doctrines and precedents rather than constitutional language, and many of these doctrines and precedents could never have obtained the formal supermajoritarian assent needed to entrench a constitutional rule. These judicial interpretive practices are in tension with the Constitution’s efforts to protect federalism and state prerogatives by making it difficult for federal institutions…
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