Arizona State Law Journal

Archive for January, 2011

The Annual Shoen Lecture Series, published in the current Journal Winter Issue, features articles written by our first two Shoen Lecture Speakers. Our third annual Shoen Speaker, New York University’s Professor Jeremy Waldron  will publish his article along with commentary from scholars around the country in our Winter 2011-2012 Issue.

Scholarly discourse, at its best, is always about dialogue. If we think of any great discovery, from scientific breakthroughs to voyages to new lands, to emerging ideas of law and governance, those innovations have always arisen through sustained efforts of multiple people over multiple years and sometimes even generations. Indeed, I believe it is safe to say that no great idea is ever the product of one mind alone. We all stand on the shoulders of giants. As Victor Hugo so eloquently wrote in describing the great cathedrals of Europe, in some fundamental sense time is always the architect and the community is the builder.

The Edward J. Shoen Leading Scholars Series was designed with that ideal of dialogue and reasoned discussion in mind. Each year, we bring to the Sandra Day O’Connor College of Law a leader on some important topic of law, policy, or jurisprudence. We then invite scholars from around the country to comment on the lecture. The scholarly debate is then published in the Arizona State Law Journal and added to the world of ideas.

This issue of the Law Journal brings together the first two sets of Shoen lectures and responses. Both Paul Robinson and Theda Skocpol are among the most interesting and provocative thinkers alive today, and each made an important intervention into legal and political discourse with their presentations. The scholarly discussions memorialized in this issue accordingly fulfill the highest ambitions of academic debate: reasoned, thoughtful discourse on major challenges facing our world.

It is my hope that as the years progress the Shoen lectures and responses will continue to maintain that standard and contribute to the great human discussions of this world, discussions that inevitably know no beginning and no end.

Arizona State Law Journal is previewing its upcoming articles in the winter publication.  This article is written by third-year student, Natalya Ter-Grigoryan.

Since 2007, Arizona has been among four states experiencing the highest foreclosure rates in the nation.  This proliferation in residential foreclosures is reflected in the increased volume of litigation involving homeowners who contest foreclosure actions in an effort to retain their homes.

Relying on section 3309 of Arizona’s Uniform Commercial Code, homeowners assert that the party attempting to enforce a secured mortgage loan agreement must produce the original promissory note in order to initiate a foreclosure.  Such cases highlight a problematic provision in section 3309, which governs enforcement of lost, destroyed or stolen negotiable instruments.  The statute can be interpreted to require a holder pursuant to section 3301 to have had physical control of the instrument before the loss occurred and explain why the note could not be produced.

In fact, at least one court construed the statutory language currently in effect in Arizona to require a holder to have had physical possession of the promissory note before its disappearance.  In the 1997 case Dennis Joslin Co. v. Robinson Broadcasting Corp., Dennis Joslin tried to collect on a debt after purchasing rights in a loan.  The loan, however, had been sold and transferred multiple times before Dennis Joslin acquired it from a seller who never had the note.  The court held that the possession requirement precluded Dennis Joslin from recovering on the underlying debt, spurring a revision to the Uniform Commercial Code.

In 2002, the National Conference of Commissioners on Uniform State Laws, in collaboration with the American Law Institute, issued an amended version of Article 3.  The proposed changes to section 3-309 suspend the possession requirement by extending enforcement rights to a person who does not have the physical instrument but “has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.”  The official comment to this section explicitly states that the amendment is “intended to reject the result” reached in Joslin.

Arizona has not enacted the 2002 revisions and the state supreme court has never addressed the “show me the note” argument.  Consequently, district courts applying Arizona law grapple with the uncertainty surrounding this discrete issue.  This comment explores these courts’ treatment of the presentment defense, which is consistently deemed meritless and dismissed.  The article also compares how courts interpreting other states’ laws have answered this question and discusses two states’ reasons for adopting the 2002 amendments.

This article urges adoption of the proposed changes to Article 3 in Arizona in order to clarify state law and provide notice to struggling homeowners that the presentment argument is not a viable defense to foreclosure if the terms of the loan agreement and the assignee’s ownership of the note are not in dispute.  In addition, enacting the amendments will promote the objective of the Uniform Commercial Code by standardizing the commercial law governing negotiable instruments.  Lastly, the revised text is advantageous because it is compatible with technological advances that suggest paper-intensive mortgage processes are becoming increasingly obsolete.

Arizona State Law Journal is previewing its upcoming articles in the winter publication.  This article is written by third-year student, Dan Orenstein.

For decades, the theory of Shaken Baby Syndrome (SBS) has been an accepted scientific reality – one many Americans first became aware of in the late 1990s during the highly publicized trial of British au pair Louise Woodward. SBS is the diagnosed etiology for perhaps thousands of injuries or deaths each year in the United States, and it remains the basis for hundreds of criminal convictions annually.  According to the theory, shaking an infant produces a unique and readily identifiable pattern of symptoms from which the cause, time, and non-accidental nature of injury can all be extracted. This theory has been the sole basis for many criminal trials where there were no witnesses, no other injuries to the child, and no acceptable alternative explanations offered by the accused, such as a car accident or significant fall.

Recently, however, many in the scientific and medical communities have come to question the scientific underpinnings of SBS theory, and some have produced evidence indicating that the injuries previously thought to be uniquely associated with shaking could also be produced by minor falls, infections, or other non-intentional means. This change in opinion has begun to have a ripple effect through the criminal justice system. Some persons accused of shaking a child to death are now having their cases dropped by the prosecution before trial due to a lack of evidence. Courts are struggling with admitting SBS evidence under Daubert.  Other nations have launched investigations into old criminal convictions premised on SBS theory.  In this environment, there are serious questions to be answered regarding how the American criminal justice system can and should address the issue of post-conviction relief in cases premised on science now called into question.

In my comment, Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome, I trace the recent decline of the scientific theory of SBS from nearly unquestioned medical and legal dogma to hotly debated hypothesis. In the context of recent changes in scientific evidence generally (e.g., DNA exonerations, questions about forensic fire science),  I examine the legal ramifications of this dramatic change in scientific opinion, with emphasis on what developing questions regarding the reliability of the theory mean for those already convicted and serving prison sentences solely on the basis of ambiguous scientific evidence. I also propose a testing model (based on forensic science methodology recommendations from the National Academy of Sciences) that begins to address the uncertainties that continue to plague SBS science and stand in the way of meaningful resolution of the issue in the legal sphere. To learn more about the history, current developments, and potential future avenues of scientific research and legal challenge regarding Shaken Baby Syndrome, please see my comment in the Winter Issue of the Arizona State Law Journal.

January 13th & 14th

Air quality, climate change, and sustainability present major challenges to the future of Arizona.  This conference will feature leading experts proposing practical solutions to the evolving legal, scientific and policy dimensions of the air quality, climate change and sustainability problems facing Arizona.

Register by clicking here. ASU faculty and students, $10; public and non-profit attorneys, $50; non-governmental attorneys, $100.