Arizona State Law Journal

Archive for February, 2011

This article has been written by guest author Erica Goldberg, B.A., Tufts University, 2002; J.D., Stanford University, 2005.

Earlier this month, the Foundation for Individual Rights in Education (FIRE), a nonpartisan nonprofit organization where I serve as the Justice Robert H. Jackson Legal Fellow, announced that Arizona State University (ASU) had become one of only 14 colleges and universities across the nation to receive our “green light” rating with regard to policies governing speech on campus. This distinction, earned by seemingly small revisions in ASU policy language, means that ASU no longer maintains any university policies that clearly and substantially restrict speech protected by the First Amendment. ASU joined the ranks of universities without unconstitutional speech codes by shifting its advertising policy applicable to student organizations from a mandatory requirement to an aspirational goal. Although the changes in verbiage were slight, they signify the difference between a constitutional and an unconstitutional speech policy.

ASU’s advertising policy formerly required that “[a]ll advertising must avoid the promotion of excessive use of alcohol and must make reasonable effort to avoid demeaning, sexual or discriminatory portrayal of individuals or groups.” (Emphasis added.) This policy was an unconstitutional speech restriction. Supreme Court cases dating back almost 40 years, including the recently decided Christian Legal Society v. Martinez, — U.S. —, 130 S.Ct. 2971 (2010), affirm that public universities like ASU, bound by the dictates of the First Amendment, must not promulgate speech restrictions that discriminate against students and student organizations on the basis of viewpoint. See Healy v. James, 408 U.S. 169, 187-88 (1972) (“The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent.”).  University policies, including those governing student organizations, must therefore be viewpoint-neutral.

ASU’s former policy restricted those who wished to espouse particular viewpoints or engage in controversial expression. For example, as FIRE wrote in a letter to ASU President Michael M. Crow, the student group “Voices for Planned Parenthood,” whose stated goals include “promoting sexual education and health,” might run afoul of this policy if its advertisements included sexual content–as they very well might. Moreover, because the policy’s restrictions are unduly vague, the university could selectively enforce the policy against groups with controversial viewpoints about, for example, religion and gender roles, or against groups with particular political stances. While ASU is legally required to prohibit and respond to instances of truly discriminatory harassment, and while universities may prohibit acts of discrimination in the form of exclusionary conduct on the basis of protected class status, ASU cannot prohibit student organizations from engaging in pure, protected speech that expresses “demeaning, sexual or discriminatory portrayal of individuals or groups.”

This does not mean that universities must endorse viewpoints that they deem objectionable. Although a public university cannot forbid certain types of protected speech on the basis of viewpoint, it may engage in its own speech that communicates a particular viewpoint. See Three’s a Crowd: Defending the Binary Approach to Government Speech, 124 Harv. L. Rev. 805 (2011). Universities may also create aspirational policies expressing the way it would prefer students to communicate. (For example, a university can articulate that it prefers students to treat each other with civility and respect). So long as these aspirational goals are not perceived as enforceable mandates, and so long as a university does not appear to be using its power to penalize or substantially chill particular points of view, a university can lawfully create policies that articulate the types of expression it would like to encourage.

Fortunately, ASU quickly appreciated the difference between mandatory requirement and expression of preference. Now, ASU’s advertising policy provides that advertising “should be consistent with ASU’s policy of discouraging demeaning, sexual or discriminatory portrayal of individuals or groups.” (Emphasis added.) ASU General Counsel José Cárdenas has assured FIRE that students cannot and will not be punished under the policy for engaging in speech protected by the First Amendment. Other schools, including Penn State University and the University at Buffalo, have also revised their speech policies to reflect the constitutionally significant difference between mandatory and aspirational policy.

Justice Robert H. Jackson, for whom my fellowship at FIRE is named, once eloquently wrote that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W.Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). That sentiment applies just as much to the unconstitutional school policy in Barnette, which required public school students to salute the American flag in order to promote patriotism during World War II, as to equally well-intentioned policies mandating how student organizations on university campuses represent themselves and advertise their activities. On university campuses comprised of adults, even more so than in high schools and lower levels of education, students must be free to voice dissenting or controversial views that may be unpalatable to their peers.

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This article has been written by guest author Russell G. Murphy, Professor of Law, Suffolk University Law School

EXECUTION WATCH is an FM radio show out of KPFT 90.1 Houston, Texas.  Its unique character is that it only broadcasts on the day that the State of Texas executes a death row inmate.  On Tuesday, February 15, one of these inmates, Michael Wayne Hall, was put to death by lethal injection.  EXECUTION WATCH was live and on the air that night.  Outside of the show and its listeners, no one really paid any attention.  Yet, this execution illustrates much of what is wrong with the practice of capital punishment in the United States.

I was asked to appear on the February 15 program to talk about my book VOICES OF THE DEATH PENALTY DEBATE: A CITIZEN’S GUIDE TO CAPITAL PUNISHMENT (Vandeplas Publishing 2010).  One of the goals of the book, which describes the 2004 – 2005 New York hearings that resulted in the elimination of capital punishment in that state, was to promote a reasoned and unemotional conversation on the pros and cons of the death penalty.  The opposite happened to me during this program  – by the time the show, and my comments, ended, Michael Wayne Hall was dead.  I could not look at the facts of Hall’s case without condemning his execution.  The neutrality that characterizes VOICES was gone.  Here’s why.

In 1998, when Hall and his codefendant Neville (also executed  by Texas) killed their young victim, Amy Robinson,  Hall’s IQ was 67.  He had trouble reading the hands of a clock, could not make monetary change, and lacked numerous adaptive skills.  Hall’s contribution to the murder was shooting the victim with a pellet gun.  Even the prosecution’s expert at trial conceded that Hall was “borderline” mentally retarded.  On the other hand, the state’s evidence suggested that Hall could function in society.  Hall foolishly gave an interview to Fox News in which he appeared rational and articulate.  The interview was later shown during sentencing.  More than 10 years of appeals resulted in the conclusion that Hall was not mentally retarded.

U.S. Supreme Court case law prohibits the states from executing a mentally retarded killer.  (Atkins v. Virginia).  However, the Court left it up to each state to define mental retardation and apply it in individual cases.  The Court refused to review Hall’s case.  After studying the case, talking about it on EXECUTION WATCH, and considering it in the light of the Court’s rationale for immunizing the mentally retarded, I concluded that executing Michael Hall achieved nothing, whether or not he was technically mentally retarded.

None of the classic justifications or standards for a constitutional death penalty were met.   Hall’s execution can have little or no deterrent effect t on the universe of possible killers covered by his crime.  The mentally slow or retarded are unlikely to learn a lesson from Hall’s execution.  Unless its purpose was to frighten all citizens by its arbitrary character, his death was simply cruel.  It is true that Hall was permanently incapacitated by his death, but it is hard to see why society would not have been equally protected by keeping the inmate called “halfdeck” in prison for the rest of his life.  Societal retribution was not accomplished; the death penalty is restricted to the very “worst of the worst” killers and killings.  Without moral equivalency between society’s revenge and the murderer’s crime, retribution is not a proper basis for an execution.  Hall simply was not the worst of the worst.  While it is possible that the victim’s family experienced a sense of retribution, that alone seems a thin basis for the death penalty.  Finally, EXECUTION WATCH pointed out that it cost Texas at least $3 million more to execute Hall than it would have cost to keep him in prison forever.  The death penalty is never cheaper than life without parole.  Was it worth it in Hall’s case?

In the end, I could only conclude that, in Justice Stevens words, the lethal injection of Michael Wayne Hall was nothing more than “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

Arizona State Law Journal is previewing its upcoming articles in the spring publication.  This article is written by third-year student, Rob Gordon.

This article proposes a series of amendments to the Federal Arbitration Act (FAA) (9 U.S.C. §§ 1-16) to increase consumer protection. The article is drafted, in part, to address abuses designed to exploit loopholes in the FAA.  These abuses were spotlighted by the Minnesota Attorney General in a lawsuit against the National Arbitration Forum (NAF), formerly, the nation’s largest consumer arbitration firm. The Minnesota lawsuit alleged that the NAF partnered with consumer debt firms to perpetuate a “rigged-game” against the American consumer. Allegedly, the NAF colluded with the debt-collection industry by accepting a massive capital infusion, paying commissions to business leaders to include mandatory arbitration agreements in consumer contracts, soliciting creditors to refer disputes to binding arbitration,  ruling against consumers in nearly ninety-six percent of disputes, and routinely de-listing individual arbitrators who ruled in favor of consumers.

Because of the abuses identified in the lawsuit, academia, industry, and practitioners have called for major changes in consumer arbitration law. Most proposed legislative reform has centered on the simple elimination of consumer arbitration by creating a per-se invalidation of binding arbitration agreements inserted in consumer contracts. However, this draconian call for the destruction of consumer arbitration ignores that systemic reform can achieve the goal of consumer protection.

This article first examines the history and legal framework of consumer arbitration in the United States; tracing the judicial history of the Federal Arbitration Act and identifying the deficiencies in the current law. The article concludes that reform—not repeal—of consumer arbitration is appropriate. The article proposes that Congress should codify ethical rules for neutral-party arbitrators based on the ABA’s proposed model rule for lawyer-neutrals, amend 9 U.S.C. § 10 to permit the invalidation of arbitration agreements upon evidence of arbitrator bias, and create a per-se presumption of bias when arbitrators have a financial entanglement with one of the parties. These reforms close the holes in the existing law exploited by the NAF and preserve consumer arbitration as a useful tool for resolving legal conflicts.

Arizona State Law Journal is previewing its upcoming articles in the spring publication.  This article is written by third-year student, Sara Cummings.

In the summer of 2009, a crime of sexual violence took place in Phoenix that sent shock waves into the local community. Tragically enough, the victim was an eight year old girl, but the assailants who raped her were also alarmingly young: four boys ranging in age from nine to fourteen. The crime raised implications far beyond Phoenix. Both the victim and her attackers were refugees from Liberia, a country with a troubled history marked by violent atrocities, including fourteen years of recent civil war in which rape and sexual violence were used by factions on all sides as tools for terror and control.

Whatever may have motivated the crime in Phoenix, news of it brought international attention to a problem that persists in post-conflict Liberia. While Liberia’s civil war ended in 2005, rape and sexual violence continue to persist at epidemic levels, primarily endangering very young girls. In my Comment, Liberia’s “New War”: Post-Conflict Strategies for Confronting Rape and Sexual Violence, I chose to investigate this ongoing issue. I look at what Liberia’s post-war government, under the leadership of President Ellen Johnson-Sirleaf, together with the help of the international legal community, has done to promote the rule of law in Liberia. I also explore what more must be done to bring about lasting change in Liberia, particularly in this critical and sensitive area.

While I chose to focus on Liberia, my Comment has broad relevance to the question of how to confront a high incidence of rape and sexual violence in any post-conflict country. Most articles dealing with post-conflict countries focus on how best to confront war crimes and other atrocities committed during the time of conflict, itself, largely proposing and discussing the relative advantages and disadvantages of war crimes tribunals and truth and reconciliation commissions. I make reference to this debate, and I discuss in some detail the nature and consequences of Liberia’s years of violent conflict. My primary focus, however, is on how to promote the rule of law going forward, especially when the criminal justice system requires major rebuilding, and when years of conflict involving widespread sexual violence has fostered a culture where such crimes are widely perpetrated and tolerated in day-to-day life. I argue that in addition to taking steps to extend the reach and effectiveness of its criminal justice system, Liberia must incorporate strategic community-based, restorative justice programs in order to effectuate widespread and culturally integrated responses to sexual violence.

Liberia makes for a particularly relevant case-study of this issue for a number of reasons. First of all, with assistance from the United Nations, Liberia’s post-conflict transitional legislature passed a new law against rape in 2005. Liberia is also the first African country to elect a female head-of-state, and, as part of her inaugural address, President Ellen Johnson-Sirleaf pledged to make enforcement of this law a national priority. Still, Liberia has failed to make much progress in this area, and rape and sexual violence remain at epidemic levels, indicating that much work still needs to be done.

After establishing the historical background, including the violence of war, informing Liberia’s current political and cultural context, I discuss basic rule of law reforms, including improvements to law enforcement, health-care, and the judicial system, required to enable Liberia to confront rape and sexual violence as a criminal issue. My Comment’s most unique contribution, however, is its recognition that well-integrated, community-based justice programs must also play a role if Liberia is to confront rape and sexual violence on the local level. I draw upon restorative justice literature, as well as models practiced in South Africa, Ireland, and India, to propose ways that Liberia can tailor community-based, restorative justice programs to supplement its response to rape and sexual violence within the traditional justice system. I think my Comment is important because it recognizes the on-the-ground realities of confronting a serious criminal law/international law issue that is especially common in post-conflict settings, and it goes beyond discussing and evaluating the methods of reconstruction traditionally imposed by the international law community to proposing culturally-integrated restorative justice approaches that I believe are equally crucial to confronting these crimes.

Friday, February 18, Judge Hawkins and a panel of his former and current clerks will discuss the clerkship experience. The event will begin at 12:15pm in room 105. Career Services will provide clerkship application information. The Judge and panelists will take questions from students.

Thursday, March 10, the MCBA Diversity Committee is hosting a panel on the importance of Journal experience. The event will begin at 12:15pm in room 105. The MCBA panelists will take questions from students. Lunch provided by Quarles and Brady.

Thursday, March 24, the Arizona State Law Journal is hosting an open house. Interested in learning more about Law Journal? Come visit the Law Journal office and meet with current members. The open house will begin at 12:15pm. Lunch provided.

Thursday, April 7, the Arizona State Law Journal is holding a MANDATORY MEETING about the Write-On Competition. The meeting begins at 12:15pm in room 116. Any student interested in participating in this year’s Write-On Competition must attend.

The Write-On Competition is scheduled for May 12 and May 13.

Questions about joining Law Journal? Please contact stephanie.p.king@asu.edu.

Arizona State Law Journal is previewing its upcoming articles in the spring publication.  This article is written by third-year student, Melissa Bogden.

Fixing Fixation: The Ram Copy Doctrine explores what it means for a copy to be sufficiently “fixed” to a constitute a “copy” within the meaning of the Copyright Act in the Digital Age.  Particularly, are temporary copies created in RAMalways sufficiently fixed to constitute infringing copies under the Copyright Act?  This Comment questions how courts, administrative agencies, and scholars have interpreted the Ram Copy Doctrine over the last two decades to reveal a fundamental misunderstanding of early Supreme Court precedent.  Drawing on recent court decisions from the Fourth Circuit and Second Circuit Courts of Appeals, this Comment reinterprets the Ram Copy Doctrine and crafts a standard that balances the need for protection of digital works against the public’s interest in access.