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…

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…

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…

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…

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,…

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…

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…

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…