Volume 55, Issue 2

Public Interest in Legal Education: Evaluating Arizona’s Early Bar Initiative

The Arizona Supreme Court recently considered a petition from the three Arizona law schools asking the court to modify the rule that regulates admission to the Arizona State Bar. The petition proposed that the court allow students to sit for the Arizona Bar Examination during the second semester of their third year of law school. The court provisionally approved the change for two years. This Essay attempts to evaluate what interests the Arizona Supreme Court should consider in 2015, when it reevaluates its decision. The Essay examines how and why the American Bar Association’s accreditation objectives provide a useful framework for evaluating the amendment’s effect on the public interest in quality legal education, and asserts that only after the public interest is satisfied should the court consider individual interests.

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Winking at the Jury: “Implicit Vouching” Versus the Limits on Opinions About Credibility

This Article presents empirical data about a common kind of testimony: descriptions by professionals of what alleged child-abuse victims said to them in interviews. The data suggest that these professionals tend to identify with the children they interview and often believe they can recognize truthful statements. These beliefs likely affect how the professionals testify, to produce “implicit vouching” for the children’s statements despite evidence law’s general prohibition of opinion testimony about the truthfulness of a victim’s statement. Allowing explicit testimony about credibility would resolve this conflict by permitting examination of the reasons for the witness’s opinion about the child’s credibility. This could make fact-finding more authentic and more reliable.

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Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives

According to the incentive theory of copyright, financial rewards are what the public trades for the production of creative works. To know whether this quid pro quo is working, one needs to know how much the creators are getting from the bargain. Based on an original, nationwide survey of more than 5,000 musicians, this Article addresses one of the key links in the incentive theory’s chain of logic. For most musicians, copyright does not provide much of a direct financial reward for what they are producing currently. The survey findings are instead consistent with a winner-take-all or superstar model in which copyright motivates musicians through the promise of large rewards in the future in the rare event of wide popularity.

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Avatars, Scarlet “A”s, and Adultery in the Technological Age

As the law struggles to keep pace with technology, this Article addresses a relatively new and quickly escalating twist on the age-old problem of adultery—namely, online infidelity—and questions whether victim spouses should be allowed to secure a fault-based divorce. The Article surveys the current and predicted future opportunities for online sexual gratification and provides an overview of the history of divorce and adultery and the legal effects of fault-based
divorce. It goes on to examine the current law of adultery and questions whether that law should be expanded to include online infidelity. The Article considers the evolution of marriage and infidelity, acknowledging that infidelity and adultery are not interchangeable terms. Thus, after establishing that online infidelity is infidelity, it considers whether this particular form of infidelity should be equated with adultery. Finally, the Article concludes that the definition of adultery should be extended to capture certain forms of online infidelity and offers a proposal for legislators and decision-makers.

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Reviving the Federal Crime of Gratuities

The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.

This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s position rather than leaving the crime to cover only gifts because of particular official acts. The danger to bias-free government because of gifting based on official positions is demonstrated in recent research on influence and reciprocity. The rule for reciprocity is powerful and hard to fight because participants are generally unaware it is operating on them. Gifting officials based on their positions is not adequately controlled by mandated disclosure or ethics prohibitions. This Article urges Congress to amend the gratuities crime to expand it and avoid the dangers of overcriminalization by inserting mens rea terms into the crime. The appropriate mens rea terms are knowledge of the facts for donees and knowledge of the facts and law for donors. Congress should also address the overbreadth of the crime by taking one situation, when donors transfer value to donees because of future official acts, out of the gratuities crime because it is indistinguishable from the crime of bribery. This Article proposes amendments to implement these changes in terms familiar to the federal criminal law.

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Zoning Religion Out of the Public Square: Constitutional Avoidance and Conflicting Interpretations of RLUIPA’s Equal Terms Provision

The Religious Land Use and Institutionalized Person Act (“RLUIPA”) provides statutory relief where the constitutional right to free exercise of religion is impinged by restrictive zoning ordinances. This Note examines the “Equal Terms” provision of RLUIPA, which forbids governments from treating “a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” Seven circuit courts have addressed the meaning of the Equal Terms provision. While those cases can be described as falling into two approaches—the strict scrutiny requirement and the similarly situated requirement—courts are further split within those approaches, and some courts have avoided endorsing either. This Note argues that this is not because of any ambiguity in the text itself. The different interpretations arise from the limitations that the circuit courts have read into the statute on the basis of constitutional avoidance. The Note then proposes a straightforward, broad reading of the statute—wherever governments allow secular assemblies and institutions, they must also permit religious assemblies and institutions on no less than equal terms. This reading, without any caveats, would be more consistent with the text, history, and purpose of the Act. It would also provide a rule that is easier to administer without violating existing constitutional principles.

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Righting the Ship: Implications of J. McIntyre V. Nicastro and How to Navigate the Stream of Commerce in its Wake

A foreign manufacturer attempts to develop a market in the United States and, to that end, hires a U.S. distributor to sell its products across the United States. The manufacturer excludes no region or state from the market it seeks to reach, but, if possible, prefers to avoid personal jurisdiction in the United States. Has the manufacturer escaped an assertion of personal jurisdiction in a state where its product causes injury? The U.S. Supreme Court considered this question in J. McIntyre v. Nicastro and answered yes. While leaving several questions unresolved, this decision has several disconcerting implications for international products-liability litigation. After reviewing the Nicastro decision and analyzing its several troubling aspects, this Note proposes a reasonable-commercial-expectations test, derived from World-Wide Volkswagen and Asahi and adapted for modern international commerce, that lower courts should utilize to navigate the stream of commerce moving forward.

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Making Sense of the Linchpin to Medical Malpractice Litigation: Expert Medical Witness Qualification

Section 12-2604 of the Arizona Revised Statutes governs the qualification of expert witnesses in medical malpractice cases. Although section 12-2604 requires the testifying physician to share the specialty of the treating physician, “specialty” is left undefined. In Baker v. University Hospital, the Arizona Supreme Court interpreted specialty to mean a practice area in which a physician may obtain board certification. This Note examines the implications of that interpretation, and argues that defining specialty to align with the pretrial affidavit requirements in medical malpractice claims would better achieve the legislative purpose of expert witness qualification in those types of actions.

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