The Arizona Commission on Access to Justice: A Progress Report

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Hon. Lawrence F. Winthrop “Equal justice under law is not merely a caption on the fa ade of the Supreme Court building. It is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists.” –Justice Lewis Powell “Can there be justice if it is not equal? Can there be a just society when some do not have justice? Equality, equal treatment is perhaps the most fundamental element of justice.” –Justice Antonin Scalia “Trust in the rule of law—the foundation of American democracy—depends upon the public’s faith that government seeks equal justice for all. . . . But without equal access to justice, the promise of equal justice under law rings hollow.” –Merrick Garland, U.S. Attorney General Noting the increasing poverty…
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Tortious Speech in the Digital Age

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Judge Peter B. Swann & Sarah Pook The First Amendment to the United States Constitution provides unambiguously and without exception that “Congress shall make no law . . . abridging the freedom of speech.” Read literally, there is no room under the First Amendment for legislation protecting the public from any abuse of the right to free speech—including shouting “fire” in a crowded theater, child pornography, or manipulation of the public through vigorous disinformation campaigns. Yet before the First Amendment was incorporated against state law, the drafters of the Arizona Constitution took a more cautious approach: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” Full Article.
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“You Can Observe a Lot by Just Watching”: A Perspective on the Contributions of Judge Andy Hurwitz

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
G. Murray Snow For this edition of the Arizona State Law Journal (Journal), the editors have invited prominent Arizona judges (both state and federal) to write on topics they know about. All of the authors are jurists of experience and insight. Their articles range from soup to nuts, all of them interesting and relevant to practitioners and academics alike. The result is something most unique—a practical, useful, and interesting issue of a law review that, at the same time, recognizes some of the members of Arizona’s outstanding judiciary. Full Article.
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Arizona Redistricting History and Litigation

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Roslyn Silver Today, the right to vote in this country and the state of Arizona is a fundamental right of citizenship. The act of voting is one of the most elemental forms of democratic participation. But participation in our democracy is more than the act of casting a vote. The vote must be meaningful in the sense that it can be aggregated with voters having compatible goals. As Justice Powell said in Davis v. Bandemer, “The concept of ‘representation’ necessarily applies to groups: groups of voters elect representatives, individual voters do not.” If you live anywhere in the United States, you live in geographic districts from which all federal, state, and some local officers are elected. The geographic dimensions of those districts have always affected electoral outcomes, but they have…
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Present at the Conception

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Mary Schroeder Title VII of the Federal Civil Rights Act of 1964 was nearly ten years old before Arizona lawyers realized their state law needed to ban sex discrimination in employment. Indeed, major Phoenix law firms were openly refusing to hire women in 1969, five years after the federal law went into effect. As the mid-1970s approached, the women’s movement was getting into full swing, and women were graduating from law schools in numbers that could no longer be ignored. In 1974, several women graduated from the Arizona State University School of Law, including Ruth McGregor, who later became Arizona’s Chief Justice. She recalled that 1974 was the first year that major Phoenix law firms hired ASU women straight out of law school, though many attorneys were hostile, and, she…
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The Arizona Constitution and the Right to Vote

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Andrew D. Hurwitz Recent challenges to Arizona legislation impacting elections have typically invoked the federal Voting Rights Act (“VRA”) of 1965. But a trilogy of Supreme Court decisions has diminished the sweep of that legislation. In Shelby County v. Holder, the Court struck down the preclearance provisions of Section 5 of the VRA, which subjected changes in electoral procedures in states with a history of discrimination, including Arizona, to review by the Justice Department. In Crawford v. Marion County Election Board, the Court upheld against a Section 2 VRA attack a state ID requirement, holding that even if it affected protected populations disproportionately, voting necessarily requires some effort and compliance with some rules, and the concept of a voting system that is “equally open” and that furnishes equal “opportunity” to…
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Arizona’s Duty Framework in Negligence Cases

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Andrew W. Gould & Erica Leavitt Arizona’s courts, like most courts, have wrestled with the limits of tort liability in negligence cases. Two basic frameworks have been developed to address this issue: duty and causation. Under a duty framework, a court determines, as a matter of law, whether a defendant owes a duty of care to a plaintiff before the specific facts of the case are considered. If the court determines the defendant owed no duty of care to the plaintiff, “an action for negligence cannot be maintained.” In contrast, under a causation framework, the basis for limiting liability is whether a plaintiff can prove that the defendant’s wrongful conduct was a proximate cause of her injury. This causation determination is generally a factual question for the jury. Full Article.
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Death Penalty 101: The Death Penalty Charging Decision in Arizona. Is There a Better Way?

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Kent E. Cattani & Paul J. McMurdie Arizona’s procedure for determining whether to seek the death penalty—a decision by an elected County Attorney—was established when Arizona became a state in 1912. At that time, however, a decision to seek the death penalty began a process that bore little resemblance to what we have today. For example, between 1912 and 1960, in the 63 cases in which a death sentence was imposed, the average time from the date of the murder to the date of execution was less than two years. In fact, in 10 of those cases, less than a year passed between the crime and the execution.2 The current process, in contrast, often lasts more than 30 years, consuming significant resources at both the local and state level. And…
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Principles of State Constitutional Interpretation

2021, Past Issues, Print, Volume 53 (2021) Issue 3 (Fall)
Clint Bolick State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to provide greater protections for individual rights than the federal constitution. When they do so, their decisions are not subject to review by federal courts absent a federal issue. Full Article.
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Decarceration and Default Mental States

2021, Online, Past Issues, Volume 53 (2021) Issue 2 (Summer)
Benjamin Levin On June 14, 2013, the House Judiciary Committee’s Overcriminalization Task Force convened a hearing on “Defining the Problem and Scope of Over-Criminalization and Over-Federalization.”1 The hearing featured testimony from four witnesses: George J. Terwilliger, III, a white-collar defense attorney and former U.S. Attorney and Acting Attorney General, William N. Shepherd of the American Bar Association, John G. Malcolm of the Heritage Foundation, and Steven D. Benjamin of the National Association of Criminal Defense Lawyers. Full Article.
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