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Law Review: Volume III


Issue 1 Articles: Arizona Government

Issue 2 Articles: Legal Education

 

(Click on a title below to view the full article)

 

Issue 1 - Arizona Government

A History of Arizona Courts
Rebecca White Berch

This article provides a history of the Arizona Courts from territorial times through the present, a century after statehood, and details the influences that shaped Arizona's judicial system.  Arizona's legal system has progressed from its "wild west" roots into a respected court system whose adjudicators continue to demonstrate a commitment to ensuring the continued efficiency and integrity of Arizona's judicial system.

The 1910 Arizona Constitutional Convention:  The Daily Proceedings and the Question of Original Intent as an Interpretive Guide
George T. Anagnost

This article chronicles the daily process by which delegates conceptualized, debated, created and passed a new framework of government for Arizona and its statehood.  The records of the Convention proceedings represented both a voice and written source that continues to guide us into a better understanding of what occurred one hundred years ago.

Arizona House of Representatives:  Role of the Majority Research Staff
Kitty Decker & Ralene Whitmer

This article gives an inside look to the lawmaking process by the people who participate and assist lawmakers in law making-the Majority Research Staff at the Arizona House of Representatives.  The Arizona House of Representatives employs the Majority Research Staff Analysts on a full-time year-round basis as an in-house research services organization for all members of the House.  The Analysts furnish the information on substance contained in each law; they also supply any information on the law as it changes during the process.

Accessing Arizona's Government:  Open Records Requests for Metadata and Other Electronically Stored Information After Lake v. City of Phoenix
David W. Degnan

This article compares the Arizona Court of Appeals and Arizona Supreme Court decisions in Lake v. City of Phoenix, which dealt with whether open records laws require the production of metadata and other electronically stored information (ESI) along with the requested document.  Although the court of appeals' opinion was vacated, this article discusses both decisions, as both provide differing approaches in judicial philosophies on statutory interpretation and open records laws.  This article also presents the relevant case law for open records requests across the nation, finally proposing a program for the Arizona State Legislature.

Education and the Arizona Constitution
Timothy M. Hogan, Donald M. Peters & Kristin Mackin

The Arizona Constitution established a comprehensive framework for the establishment and maintenance of a public school system in Arizona.  This article provides an overview of the relevant constitutional provisions while addressing three issues that have received significant attention from the courts:  the requirement that the public school system be general and uniform; the requirement that instruction as nearly free as possible; and the limitations on the State's ability to assist religious and other private schools.

The Local Liberty Charter:  Restoring Grassroots Liberty to Restrain Cities Gone Wild
Nick Dranias

This article proposes a "Local Liberty Chapter" by which Arizona citizens would be guaranteed enforceable individual rights through local government agencies; this is aimed at restraining local governments gone wild.  It furnishes the theoretical basis for advocating this set of individual rights and furnishes a detailed road map for implementing its recommendations, spotting some issues that may be encountered along the way.

Arizona Notice of Claim Statute:  Guidance on Clearing This Procedural Hurdle and Suggestions for Its Improvement
Dawinder S. Sidu

This article navigates through Arizona's notorious notice of claim statute, which grants special, pre-filing procedural protection to public entities and employees.  Although this statute is perhaps "regressive" in that it privileges the state by providing it with a shorter statute of limitations, early discovery, mandatory settlement offer, and an ongoing "trap of the unwary citizen-plaintiff."  However, the article both roadmaps and provides checklists to navigate the statute's requirements providing a vision for a better statute.

The Groundwater/Surface Water Dilemma in Arizona:  A Look Back and a Look Ahead Toward Conjunctive Management Reform
Allison Evans

This article analyzes the distinguishable types and sources of water in Arizona comparing it to neighboring states and their various approaches to regulating water rights.  Arizona's options regarding how to preserve and regulate these scarce water resources are compared to Arizona's progressive historical traditions.

 

Issue 2 - Legal Education

Lawyering Skills Education in the Irish University
Diarmuid Rossa Phelan

Diarmuid Rossa Phelan describes a new module in the Taught LL.M. Postgraduate Masters of Law Program at the School of Law in Trinity College entitled "Advanced Lawyering Techniques." The module concentrates on the sorts of skills training where universities have an instructional comparative advantage over professional training schools. The module is also responsive to concerns about the sufficiency of the training of future legal practitioners in Ireland. Some of these concerns have close parallels to those frequently raised in conversations about legal education reform in the United States.

Bang Goes the Theory-Debunking Traditional Legal Education
Scott A. Taylor

Scott A. Taylor compares the Socratic-case method with the lesser known problem method of legal education. Specifically, he explains several problems with the Socratic-case method and how it fails to provide law students with a complete and adequate legal education.

Response to Bang Goes the Theory-Debunking Traditional Legal Education
Ruth V. McGregor

Ruth V. McGregor responds to Professor Taylor's assertion that the Socratic case-method needs to be replaced by the problem method. She describes how the Socratic case method has been used for 150 years and that it takes just as much effort on the instructor's part as the students to make it successful. She compares the problem method to a well written judicial opinion which presents the problem and the legal analysis in resolving it. She also acknowledges that with a focus on student outcomes, constant re-evaluation of teaching styles is mandatory.

The Values of an Old Crank: A Response to Professor Taylor's Critique of the Case Method
Brigham A. Fordham

Brigham A. Fordham responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. Professor Fordham agrees that the traditional model of legal education is inadequate. He also agrees that the case method-particularly when narrowly defined and rigidly applied-fails to give students the skills and values they need to be effective and ethical lawyers. However, he thinks we should be careful not to throw out the Langdellian baby with the bathwater. While it may be convenient to attack the case method as the source of everything that is wrong with legal education, this complaint is, by itself, too vague and overbroad to guide us in overhauling the way we train lawyers.

Debunking the Socratic Method?: Not So Fast, My Friend!
Dainel J. Dye

Daniel J. Dye responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. Professor Dye thinks that Professor Taylor's call to abandon the Socratic method goes too far. He does not believe that delivering functional legal education and using the Socratic method are mutually exclusive propositions. Instead, he believes that the Socratic method is a tool whose results depend on its proper application. The same is true of the problem method.

Just Because Everyone is Doing It, Doesn't Make it Right: A Response to Professor Taylor's Lecture on Legal Education
Jarrod T. Green

Jarrod T. Green responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. He believes the legal academy must look at every available method and to take new modalities seriously. There are some merits and strengths, believe it or not, to the traditional method. There are definitely merits and strengths for the problem method, and there are places in law school where lecture is appropriate.

The Reports of [Socrates'] Demise Have Been Greatly Exaggerated: A Response to Bang Goes the Theory-Debunking Traditional Legal Education
Marea de Nice Moseley

Marea de Nice Moseley responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. Ms. Moseley respectfully disagrees with Professor Taylor's assertion. Ms. Moseley believes that by deciphering why the court interpreted the law in light of the particular facts, and then reasoning how the court might apply the same law to a different set of facts, the student builds his or her problem-solving and analytical skills. One observer explains: "Advocates of the case method [contend] that" it teaches "the ability to think like a lawyer"; teaches students to apply the law; demonstrates that the law is dynamic; promotes "active" learning; and, is "pedagogically stimulating and interesting." The case method is, and should remain, a vital part of the law school curriculum.

A Year of Magical Briefing: Contemplating Legal Education and the Solution to the Problem of the Traditional Method
Andreanna C. Smith

Andreanna C. Smith responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. She considers the relative effectiveness of the well-worn case method through her eyes as a student and identifies a few of its tenets that work both to the benefit and detriment of its proponents. In addition, she offers a compromise that she hopes will refurbish the waning traditional method, in large part by supplementing it with principles from the problem method.

Breaking with Tradition: A Two-L's Perspective on the Case Method
L. Shawn Whiting

L. Shawn Whiting responds to Professor Taylor's assertion that the Socratic case-method in legal education needs to be replaced by the problem method. She agrees with Professor Taylor's arguments and conclusion: the problem method does offer a solution to the lack of preparedness many new lawyers realize when they start their careers. Nevertheless, the problem method does not necessarily address other important hurdles that must be overcome in the arena of legal education: the perceived discrimination against women and minorities and the varied learning styles of students. For these reasons, law professors need to adopt a mixed, comprehensive approach to teaching students. This approach would include the traditional method, the problem method, cooperative learning, and experiential learning. This comprehensive approach can address the needs of a diverse law student body, while any single-method approach reinforces the stagnant, traditional views that law school education should have outgrown because of diversity.

Freshman Professor: The First Year; The First Semester; The First Day
McKay Cunningham

McKay Cunningham provides a short perspective that includes an account of freshman mistakes, lucky breaks, and the beginnings of a teaching philosophy. He suggests some rather obvious and immediate objectives for a new professor's first day of class-like, don't forget to wear pants. address the fundamental disconnect between legal education and the actual practice of law. Legal education needs to shift so graduating students have "toolboxes" that make them valuable to their clients. He focuses on lessons learned the hard way, and finally identifies a few strategies for improvement given the struggles inherent in the first year.

Law School's Role in Building the Future Practitioner: A Perspective
Dan Morris with Andrew Mazoff

Dan Morris and Andrew Mazoff analyze the goal of having to deemphasize the casebook and the Socratic methods and teach more application of skills. As long as the bar exam is required, law schools will need to continue preparing students to pass that exam. In addition to a focus on bar passage, law school curricula must be enhanced to include more practical skills; skills that deal with the basics of practicing law in the real world with real clients.

Perish the Thought of Publication?: Scholarship's Critical Role in Effective Teaching
Michael P. O'Connor

Michael P. O'Connor explores the role scholarship plays in ensuring that teachers effectively train students for the practice of law. PhoenixLaw has adopted a set of policies and practices, which if properly developed, implemented, and maintained, can become a model for the effective integration of faculty scholarship and teaching. Continued development and adherence to this model will increase the practice-readiness of our students, provide greater services to underserved communities, and achieve other desirable outcomes.

The Path to Resilience: Integrating Critical Thinking Skills into the Family Law Curriculum
Penny L. Willrich

Penny L. Willrich discusses the practice of critical thinking and analysis as a habitual function of lawyers. She uses concepts of learning as well as deductive and inductive reasoning. She feels this helps Family Law come alive as a viable practice area in which the skills of lawyering, particularly the skills of writing, analysis, and critical thinking, all play a vital role in ensuring access to justice for Family Law clients. Finally, she uses the term resilience to mean flexibility in one's thinking and resistance to forming judgments about the practice area or the clients.

Looking Forward: Challenges Facing Legal Education in the 21st Century
Eugene Clark

Eugene Clark reflects on his experiences in playing a leading role as dean of two new law schools in the United States, Phoenix School of Law and Charlotte School of Law. He discusses nine trends or developments that will influence the nature of legal education in the decades ahead, combined with some reflections about how these forces have played out in a new law school environment.

An Externship Program: Start It, Grow It, Improve It
Michael A. Yarnell

Michael A. Yarnell describes his experience in creating and developing the PhoenixLaw externship program and provides guidelines for doing the same at other schools. This article also details his vision for the future of the PhoenixLaw externship program and explains why having such a vision is important. In addition, he provides some comment on the scope and nature of externship programs. His hope is to provide some assistance to those tasked with starting programs at their schools.

This Will Only Hurt For . . . Ever: Compulsory Vaccine Laws, Injured Children, and No Redress
Kimberly J. Garde

Kimberly J. Garde asserts that mandatory vaccines put children's health at risk and their parents' rights violated. She therefore concludes that because of these problems, laws mandating vaccinations are unconstitutional and must be reformed.

Adoption Law: It May Take a Village to Raise a Child, But It Takes National Uniformity to Adopt One
Lisa M. Simpson

Lisa M. Simpson proposes a solution to the problems caused by the disparity in state laws regarding adoption. Her solution is to implement Uniform Adoption Laws in all fifty states. She asserts the reasons for this are because there are no uniform laws, there are no clear answers to questions, such as who may place a child for adoption, whose consent is required, how much money should be appropriated to the birthmother for living expenses, and how much information can be disclosed to the birthparent and the child.

Victim Impact Statements: A Balance Between Victim and Defendant Rights
Christine A. Trueblood

Christine A. Trueblood discusses answers to the following questions: How does society balance the rights of the accused to a fair and impartial trial with victim rights, including the victim's family, who needs to have a voice in this process to demonstrate the true impact of the crime? If criminal defendants are afforded rights and protections under the law, should the victims of crime also be afforded similar rights and protections? If both groups have protected rights, how do the courts assure protection for both the defendant's and the victim's rights?

When Life Gives You the Lemon Test: An Overview of the Lemon Test and Its Application
Amy J. Alexander

Amy J. Alexander reevaluates the use of the Lemon test, particularly in cases where government officials place religious objects in public locations. She looks into the history of Lemon test jurisprudence and examines the origination and evolution of the Lemon test. She discusses the future of Establishment Clause jurisprudence and how the Lemon test should be used. She also suggests a return to the original wording of the test while avoiding the revised versions. Finally, she concludes that despite its flaws, the Lemon test is too useful to discard.

International Travelers Beware: No Reasonable Suspicion Needed to Search Your Electronic Storage Devices at the Border
Bret E. Rasner

Bret E. Rasner examines the border search doctrine, a fourth amendment exception used by the federal government to the secure the nation's international borders, as it pertains to the search of laptop computers and other electronic storage devices, with attention to the effect of these searches on attorney-client privileged data. He proposes particularized individual suspicion should be required before United States citizens, and their electronic storage devices, be subjected to as intrusive a search as is allowed today at our international borders and also suggests a policy for handling attorney-client privileged material during those searches.

The Effects of Free Trade on the Environment: Conserving the Environment While Maintaining Increased Levels of Economic Prosperity for Developing Countries
Matthew L. Lopez

Matthew L. Lopez provides a general overview of globalization and its effects on the environment, as well as the actions taken by global organizations and developed countries to improve environmental quality. Further, this he identifies several roadblocks that developed countries face in their efforts to make environmental contributions on a global scale. He argues that effective environmental policies depend on the ability of lawyers, policy makers, and leaders of developed countries to find ways around these barriers.

A Common Thread to Weave a Patchwork: Advocating for Testamentary Exception Rules
Andrew B. Mazoff

Andrew B. Mazoff addresses testamentary waiver issues specific to the State of Arizona, and explores criticisms of the testamentary waiver approach. Throughout his article, he urges that a uniform testamentary exception is necessary to effect testator intent in modern probate matters.

"The Play's the Thing": World of Warcraft and Legal Philosophy
Brian Partridge

Brian Partridge argues that World of Warcraft and other virtual worlds offer a front-row seat for the study of legal rule creation and modification. He asserts that virtual worlds are especially amenable to modeling likely developments of legal change in multiple legal systems and based on different law-making models. He contends that virtual worlds, games with complex environments and millions of players, provide a laboratory fertile for experimentation and exploration for "novel social and economic experiments without risk to the rest of the country" or any of its constituent states.