October 2019

By Harman Dhanoa. On October 7th, 2019, the justices returned to the bench for what has been called “the most significant Supreme Court term in a decade.” The docket of 59 cases is set to cover high-profile matters including abortion, gun rights, LGBT+ rights, presidential power, and more. While Chief Justice John Roberts has long sought to maintain an image of the Court as an apolitical institution, all eyes will be on the conservative-leaning Court as it rules on divisive issues ahead of the 2020 presidential election. A brief overview of the issues on the docket this term: Abortion In June Medical Services v. Gee, the Court will assess the constitutionality of a Louisiana law requiring abortion providers to have admitting privileges at a hospital within 30 miles of the…

By Chase Colwell. By 1986, it was clear that computers were becoming an inextricable component of modern society. However, this new and developing technology was ripe for abuse in various ways. At the time, there were not any adequate legal remedies for victims of these abuses, so Congress saw fit to create a criminal statute addressing those concerns. Thus, The Computer Fraud and Abuse Act (CFAA) of 1986 was born. The CFAA’s primary concern was to prevent “hacking.” As such, the CFAA made it a crime under § 1030(a)(2)(C) for an individual to “intentionally access[] a computer without authorization or exceed[] authorized access” to obtain “information from any protected computer.” The CFAA defines “exceeding authorized access” in § 1030(e)(6) as accessing a computer with authorization and using such access to…

By Madelaine Bauer. For many years, there has been a crucial debate circulating the college athletics world—whether college athletes should be compensated, specifically, for their name, image or likeness. Circling back to 2009, the National Collegiate Athletic Association (“NCAA”) faced their first uproar of the controversy on college athlete compensation with the release of their EA Sports NCAA Basketball ’09 video game. The NCAA found themselves as the defendants of a class action lawsuit headed by former UCLA basketball player, Ed O’Bannon. The claim of this class action was for a violation of the Sherman Antitrust Act and denying the athletes’ right of publicity—by using the athletes’ name, image and likeness in the production of their games without permission or compensation. After a long-awaited trial, the court ruled the NCAA’s use of the college athletes’ name, image and likeness without the athletes’…

Jessica Berch, Lecturer, Arizona State University Sandra Day O’Connor College of Law; Member of the Arizona Advisory Committee on the Rules of Evidence The Arizona Rules of Evidence largely mirror the Federal Rules of Evidence, and Arizona state courts often look to federal precedent in interpreting the Arizona Rules. This parallelism between the two rule sets is purposeful. In fact, on June 11, 2012, the Arizona Supreme Court established the Advisory Committee on the Rules of Evidence with an express purpose of maintaining conformity with the federal rules: The Committee shall periodically conduct a review and analysis of the Arizona Rules of Evidence, review all proposals to amend the Arizona Rules of Evidence, compare the rules to the Federal Rules of Evidence, recommend revisions and additional rules as the Committee…

By Mike Brown. In October 2001, Lezmond Mitchell confessed to the murder of sixty-three-year-old Alyce Slim and her nine-year-old granddaughter. A jury convicted Mitchell and sentenced him to die for his crimes. Now, eighteen years after the killings, the Ninth Circuit has stayed Mitchell’s execution. The reason—potential racial bias by the jury who convicted him. Lezmond Mitchell is a citizen of the Navajo Nation, as were his victims. The killings occurred on tribal land, and thus fell under federal jurisdiction. The details are gruesome. Ms. Slim and her granddaughter were headed to New Mexico when they were violently carjacked by Mitchell and another man, Orsinger. Mitchell and Orsinger forced the elderly woman out of her GMC pickup and stabbed her thirty-three times before placing her lifeless body back in the…

By Cory Bernard. Post-hearing briefs filed last week in a matter before the Arizona Corporation Commission (ACC), plus a recent Federal Energy Regulatory Commission (FERC) Notice of Proposed Rulemaking, highlight fierce debates over a key weapon in solar developers’ arsenal. The Public Utility Regulatory Policies Act (PURPA) became law in 1978 with goals that included encouraging renewable energy development and reducing consumer energy prices. It established a class of renewable energy producers that could achieve “qualified facility” (QF) status from the Federal Energy Regulatory Commission (FERC) and thus enjoy certain benefits. Chief among these benefits is a QF’s ability to unilaterally force a utility to buy its power at the utility’s “avoided cost,” i.e. the cost the utility would have incurred by generating the power itself or purchasing it elsewhere.…

By Marissa Gibbens. On March 28, 2019, the Supreme Court of Arizona issued the opinion for City of Surprise v. Arizona Corporation Commission and the decision impacts more than just the parties involved. Indeed, the court held that while the Arizona Corporation Commission has statutory authority to approve the sale or disposition of a public service corporation’s assets, the Commission does not have authority to require a utility to apply for approval of a city’s proposed condemnation of the utility’s assets. The decision could have major implications for Arizona municipalities, developers, utilities, and renewable energy advocates alike. The facts are these: In 2017, City of Surprise documented its intent to condemn the assets of Circle City Water Company. A residential developer contended that “Circle City [was] obliged under an existing…

By Nicholas Ansel. On September 19, the British Supreme Court held oral arguments over the legality of Prime Minister Boris Johnson’s suspension of Parliament. The Prime Minister prorogued Parliament in order to sidestep any opposition to his plan for Brexit. The Court, in a landmark ruling on constitutional common law and separation of powers, held that the suspension was unlawful. Equally interesting was that over four million people livestreamed the first day of oral arguments, surely interested in an issue that has dominated public discourse. The British Supreme Court has been in existence for a decade, all the while permitting video recordings of its proceedings. So too has the Canadian Supreme Court permitted video recordings for about three decades. But in America, our Supreme Court does not allow any video.…

Paul Bender, Professor of Law, Dean Emeritus, and Former Deputy Solicitor General of the United States The United States and the State of Arizona both have laws that prohibit businesses that serve the public from refusing to serve customers because of the customers’ race, sex, religion, national origin, or disability. Neither law includes sexual orientation among the bases for refusal of service that are prohibited. Phoenix, Tucson, Tempe, and Flagstaff, however, have each adopted anti-discrimination public‑accommodations ordinances that do apply to discrimination on the basis of sexual orientation. On September 16, in a decision that has received national attention, the Arizona Supreme Court decided Brush & Nib v. City of Phoenix—a case raising the question whether Phoenix’s Ordinance could be used by the City to penalize the owners of a…

By Jake Abrahamian. In March 2019, the Northern District of California decided the much-anticipated case in re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (NCAA Athletic Grant-in-Aid). Plaintiffs in the case were current and former Division I college football and basketball players who sued the NCAA, the governing body for college athletics. Plaintiffs alleged that the NCAA violated antitrust laws by artificially capping the compensation that member athletes receive for their athletic services to NCAA schools. The court held that, although the NCAA did violate antitrust law, the appropriate remedy is uncapping only compensation related to education. This is a far cry from the remedy sought by the student-athletes who were hoping to lift all limits on compensation. For years now, student-athletes have taken to the courts to…