Arizona’s Civil Asset Forfeiture Scheme: Distorted Justice

2015, Past Issues, Print, Volume 47 (2015) Issue 2 (Summer)
Phillip Londen. At the age of nineteen, Shamoon Yousif moved from Iraq to Mesa, Arizona, where he opened two grocery stores. After his wife was diagnosed with metastatic breast cancer, Yousif asked his brother Sami to manage one of his grocery stores. Unbeknownst to him, Sami began to stock Yousif’s store with stolen goods purchased from “boosters” for resale. In May 2008, police seized much of Yousif’s assets—including his home, his car, his two stores, his bank accounts, and his recently-deceased wife’s jewelry. Police seized the property pursuant to an ex parte seizure warrant based only on probable cause. His property was seized without prior notice, and he was denied a prompt post-seizure hearing to challenge the seizure. Yousif was charged with a number of racketeering offenses, including trafficking in stolen property, fraudulent schemes and artifices, and illegally conducting an enterprise.…
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Voter Madness? Voter Intent and the Arizona Medical Marijuana Act

2015, Past Issues, Print, Volume 47 (2015) Issue 2 (Summer)
Daniel G. Orenstein. American marijuana policy is evolving at a breakneck pace, politically speaking. After decades of strict criminal penalties, functional holds on much research, and political and popular demonization (exemplified by the epigraph above from propaganda-film-turned-cult-favorite, “Reefer Madness”), changes are now coming surprisingly quickly. With the leash of federal policy loosening of late, many states are taking bold policy steps to adopt new approaches to marijuana that range from evolutionary (limited medical use) to revolutionary (legalization and taxation of adult recreational use). Medical marijuana laws in particular have spread quickly, with twenty-three states and the District of Columbia now allowing some form of lawful medical use. Like many of these states, Arizona’s medical marijuana  program is experiencing policy growing pains as conflicts arise between the new program’s legal framework and other laws. Among other issues, Arizona’s medical marijuana law raises difficult…
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Twenty-Five Years of Victims’ Rights in Arizona

2015, Past Issues, Print, Volume 47 (2015) Issue 2 (Summer)
Steven J. Twist & Keelah E.G. Williams. On November 6, 1990, Arizona voters approved an amendment to the state constitution3 granting specific procedural and substantive rights to victims of crime. Known as the “Victims’ Bill of Rights” (VBR), the amendment will celebrate its 25th anniversary on November 27, 2015. At the time of its passage, Arizona became one of only six states to afford crime victims’ rights protected by state constitutions. The VBR was enacted as part of a national movement that began with the publication of the Report of the President’s Task Force on Victims of Crime (“Final Report”). Full Article
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Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
Susan A. Bandes & Jessica M. Salerno. The current framework for sorting the probative from the prejudicial considers emotion to be the hallmark of unfair prejudice. Emotions elicited by evidence are thought to “inflame” the jury and “cause them to abandon their mental processes.” This inaccurate view of emotion as the enemy of rationality is problematic for evidence law. We argue for a more sophisticated and nuanced view of emotion’s role in evaluating proof and prejudice. We use two types of evidence to illustrate our argument: gruesome photos and victim impact statements. As some scholars have noted, emotional responses to evidence are not necessarily prejudicial responses. But this observation captures only a small part of the problem with the current evidentiary framework. Emotions do not always lead to prejudice, but they can lead to prejudice in more complex and subtle ways…
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How the Unitary Patent will Fragment European Patent Law

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
David Medina. Innovation in the European Union (“E.U.”) has been lagging behind innovation in the United States for many years. Many European business leaders have cited the cost of obtaining a patent, the complexity of navigating the patent process, and the lack of uniform patent enforcement as causes of the slow growth of European innovation. The European Patent Office (“EPO”)—the E.U.’s governing patent body—recently announced significant changes to make patenting in the E.U. less expensive and less complex. On December 17, 2012, twenty-five E.U. member states—which counts for most, but not all of the E.U. member states—banded together to enact two regulations for the purposes of creating a unitary patent and agreeing on the languages required to obtain a unitary patent. Approximately two months later, most of the same countries…
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The Government’s Right to Destroy

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
Kellen Zale. Every year, in cities and towns across the country, tens of thousands of property owners attempt to destroy their homes, offices, or other buildings that they own. Whether to clear space for new construction or to rid themselves of unwanted maintenance and expense, property owners often seek to take the proverbial wrecking ball to their property. Yet despite Blackstone’s exhortation that a property owner has “sole and despotic dominion . . . over the external things of the world,” an owner seeking to demolish a building will face numerous legal obstacles. A wide range of common law and statutory rules—ranging from arson laws and the doctrine of waste, to historic preservation regulations and zoning ordinances, to private contractual agreements such as deed restrictions—operate to limit an owner’s right…
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Standing Our Legal Ground: Reclaiming the Duties Within Second Amendment Rights Cases

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
Christopher N.J. Roberts. The Supreme Court is likely to hear another contentious Second Amendment gun case in the near future. This Article argues that focusing exclusively on rights—the dominant mode of legal analysis in such cases—is, ironically, not the appropriate foundational starting point. By pitting competing personal interests and incompatible rights claims against one another, this legal issue is likely to devolve into a dispute over politics and ideologies rather than law. If we are to prevent the next Second Amendment Supreme Court case from drifting away from its legal moorings into another ideological contest, this Article suggests that the appropriate starting point begins with recognition of one of the most basic, yet widely overlooked legal propositions: For every right there is a correlative duty. Interestingly, although every legal right…
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It’s About Time: Modernizing the Federal Employers’ Liability Act of 1908

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
Kyle Orne. Under the Federal Employers’ Liability Act (“FELA”), lawyers win and everyone else loses. Essentially, FELA fails on two accounts: time and money. FELA is the exclusive remedy for claims by railroad employees against employers for injuries suffered on the job; it supersedes all state laws. While one study showed that almost 99% of FELA cases are settled and 85% are settled without the help of an attorney, if not settled, FELA cases take an average of five-and-a-half years to be resolved. Moreover, when Congress reviewed FELA in 1988 for possible repeal, the administrator of the Federal Railroad Administration testified that almost a quarter of all employees who went to trial with claims of $500,000 or more actually received no compensation. Of those employees who did receive a judgment,…
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The Local Rules of Patent Procedure

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
Megan M. La Belle. Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it easier to shift fees based on patent litigation misconduct. In the meantime, federal district courts have been addressing the patent litigation situation for years through procedural…
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Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law

2015, Past Issues, Print, Volume 47 (2015) Issue 1 (Spring)
Melissa Hamilton. A new arena inviting collaboration between the law and sciences has emerged in criminal justice. The nation’s economic struggles and its record-breaking rate of incarceration have encouraged policymakers to embrace a new penology which seeks to simultaneously curb prison populations, reduce recidivism, and improve public safety. The new penology draws upon the behavioral sciences for techniques to identify and classify individuals based on their potential future risk and for current best evidence to inform decisions on how to manage offender populations accordingly. Empirically driven practices have been utilized in many criminal justice contexts for years, yet have historically remained “a largely untapped resource” in sentencing decisions. One reason is that sentencing law in America has for some time been largely driven by retributive theories.The new penology clearly incorporates utilitarian goals and…
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