The Federal Rules of Inmate Appeals

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 247 (2018). Catherine T. Struve. The Federal Rules of Appellate Procedure turn fifty in 2018. During the rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past fifty years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals. And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including…
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The Paradox of Implicit Bias and a Plea for a New Narrative

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 193 (2018). Michael Selmi. Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive, and uncontrollable. What has been overlooked, however, and this is the paradox, is that labeling nearly all contemporary discrimination as implicit and unconscious is likely to place…
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Overcoming the Opposition to a Third Verdict: A Call for Future Research on Alternative Acquittals

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 401 (2018). Hannah Phalen. In 1807, former Vice President Aaron Burr faced charges of treason. After a month-long trial, the jury deliberated for less than an hour. When they returned, however, they were not content with delivering one of the two traditional verdicts. Instead, the jury foreman declared, “[w]e of the jury say that Aaron Burr is not proved to be guilty under the indictment . . . submitted to us.” Defense attorneys protested the wording of the verdict but Chief Justice Marshall let it stand, recording the verdict as “not guilty.” Nearly 200 years later, President Bill Clinton faced impeachment in the United States Senate. Rather than voting guilty or not guilty, Republican Senator Arlen Specter announced that the charges against the President were “not proven.”…
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American Evil: A Response to Kleinfeld on Punishment

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 179 (2018). Andrew Koppelman. Joshua Kleinfeld argues that American moral understandings are reflected in its system of criminal justice. Far more than Europeans, Americans regard those who have committed crimes as irretrievably defective people whom it is appropriate to lock away for many years. Some Americans, Kleinfeld argues, hold this view in moralistic terms, regarding criminals as evil. Others are more instrumental, regarding criminals as irremediably dangerous. But the two sides come to the same policy conclusion: “[T]he crime problem is a criminals problem, and the solution is to separate criminals from ordinary people.” Full Article  
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Supreme Judicial Bullshit

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 141 (2018). Adam J. Kolber. While we have come to expect bullshit from politicians, there is no shortage of judicial bullshit either. After discussing Harry Frankfurt’s famous description of bullshit, I illustrate possible instances of judicial bullshit in a wide range of bioethics cases, mostly at the Supreme Court. Along the way, we see judges bullshit for many reasons including the desire to keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, make it seem like their hands are tied, and appear to address profound questions without actually staking out provocative positions. I pay particular attention to the discussion of reproductive rights in Planned Parenthood v. Casey where the joint opinion authors arguably used…
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“Heads We Win; Tails, Let’s Play Again”: The Split Over the Credit-as-True Rule in the Ninth Circuit

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 365 (2018). Luci Davis. In 2015, Social Security Disability Insurance paid out $143,282 million in cash benefits. Although one might balk at that amount, the average monthly benefit to the roughly nine million eligible recipients was only about $1,165—just “barely enough to keep a beneficiary above the 2014 poverty level ($11,670 annually),” or $972.50 a month. Over one million individuals are currently waiting for a disability appeals hearing decision from an administrative law judge (“ALJ”). Those individuals can expect to wait between nine to twenty-seven months to receive a decision once they file a petition for a hearing. If a claimant receives an unfavorable result from the Social Security Administration (“SSA”) and appeals to a federal district court, she can expect to wait between three to twelve…
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Navigating the Troubled Waters of the Public Forum: The Public Trust Doctrine as a Life Jacket

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 335 (2018). Guillaume J. Aimé. The First Amendment protection is failing in an important setting of our current society: advertising spaces in public transit systems. The United States courts of appeals are split as to how to characterize such spaces for purposes of First Amendment protection. Justice Alito and Justice Thomas made their intent to resolve that issue very clear in 2016 in their dissent from the denial of certiorari in American Freedom Defense Initiative v. King County. They “see no sound reason to shy away from this First Amendment case. It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals One of this Court’s most basic functions is to resolve this kind of question.”Despite the split between…
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Comparative Patent Quality

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 71 (2018). Colleen Chien. On June 8, 1999, the Patent Office (“USPTO”), like it does every Tuesday, published the names and numbers of newly issued patents. Among them was the 6,032,137 (“the ‘137 patent”), a patent that described a way of depositing a check by imaging and sending it, rather than physically transferring it to the bank. The inventor, Claudio Ballard, tried for several years to develop the invention. He failed, but the technology thrived. After unsuccessful talks with JP Morgan Chase, Ballard’s company, DataTreasury, sued a dozen or so banks and companies for patent infringement. In 2003, Congress passed the “Check 21” Act, clearing the way for check imaging to become standard. In February 2006, DataTreasury used the ‘137 patent and related patents to sue thirty banks. In 2010, after DataTreasury…
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Presidential and Judicial Politics in Environmental Litigation

2018, Past Issues, Print, Volume 50 (2018) Issue 1 (Spring)
50 Ariz. St. L.J. 3 (2018). David E. Adelman & Robert L. Glicksman. This Article assesses the impact of judicial review on one of the nation’s foundational environmental statutes, the National Environmental Policy Act (“NEPA”). Based on litigation spanning fifteen years, we find that the stringency of judicial review is driven by the interaction of judicial ideology and presidential politics. Our principal findings are two-fold: First, judicial ideology, here defined by political party affiliation, is most influential when NEPA’s environmental goals conflict with the politics of the presidential administration in power. Second, the influence of judicial ideology is mediated by the distribution of cases across federal circuits and the ideological balance of judges within them; specifically, the concentration of NEPA cases in the Ninth Circuit, where liberal appellate judges are in the…
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A Call for Probationer Data Privacy: Can States Require Cell Phone Search Waivers?

2017, Past Issues, 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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