The Arizona “Private Affairs” Clause

2019, Past Issues, Print, Volume 51 (2019) Issue 2 (Summer)
Timothy Sandefur The Arizona Constitution says “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This language is notably different from that used in the federal Constitution’s Fourth Amendment and analogous provisions in other state constitutions. It is found in only one other constitution: that of Washington State, from which it was copied, and where courts have developed a robust and protective Private Affairs jurisprudence. Yet Arizona courts have not done the same. On the contrary, despite repeatedly acknowledging that the Arizona Constitution can and should protect a broader range of rights than the federal Constitution, they have largely failed to give effect to that principle and have so far developed virtually no significant protections of private affairs that differ from federal…
Read More

From Wine to Water: Wet Markets for Dry Times

2019, Past Issues, Print, Volume 51 (2019) Issue 2 (Summer)
Lauren Podgorski One of the last healthy flowing rivers in Arizona, the Verde River, contributes substantially to the Verde Valley’s high quality of life. The Verde River supplies fresh drinking water to more than two million people in Maricopa County. But the river, its springs, and its tributaries face a serious threat from groundwater pumping in the Verde Valley. Arizona’s complicated, bifurcated water laws leave groundwater appropriation in the valley effectively unrestricted. As with many other water bodies, multiple parties hold rights to use the same Verde River water under separate legal regimes. These competing water rights, coupled with the valley’s rapid population growth, threaten to dry up the Verde River just like many other Arizona rivers. But a growing conservation effort strives to avoid that fate, with winemakers and…
Read More

The Role of State Emergency Powers in Curbing the Opioid Epidemic: A Case Study in Lessons Learned

2019, Past Issues, Print, Volume 51 (2019) Issue 2 (Summer)
Jeffrey Locke & Lauren Dedon The United States remains embroiled in a national opioid epidemic. “More than 70,200 Americans died from drug overdoses in 2017, including illicit drugs and prescription opioids—a [two]-fold increase in a decade.” From 1999 to 2016, more than 350,000 people died from an overdose involving any opioid, including prescription and illicit opioids. On average, 130 Americans die every day from an opioid overdose. Full Article
Read More

Discrimination by Design?

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Naomi Cahn, June Carbone & Nancy Levit. We increasingly live our lives in a digital world, buying textbooks, groceries, and travel on internet platforms, offering our own services as drivers or organizers or lawyers in the gig economy, and looking for professional connections and dating options on the Web. Computer programs oversee the transactions. They link parties in accordance with their preferences—whether for the cheapest e-reader or the right intimate partner. Full Article
Read More

Hey, Big Spender: Ethical Guidelines for Dispute Resolution Professionals when Parties Are Backed by Third-Party Funders

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Elayne E. Greenberg. This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are flourishing, in large part, by operating below the regulatory radar.4 The funders’ behavior has been allowed to proceed invisible and unchecked because courts and dispute resolution providers…
Read More

Presidential Pardon Power: Are There Limits and, if Not, Should There Be?

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Paul F. Eckstein, Mikaela Colby. Among the more specific and significant powers in the United States Constitution vested in the President is the power to pardon found in Article II, Section 2, Clause 1, which provides in relevant part that the President: shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. Although the Founders considered several limitations on the pardon power, such as requiring full consent of the Senate and prohibiting pardons in cases of treason, ultimately they adopted only one: prohibiting the President from issuing pardons in cases of impeachment. Full Article
Read More

Put Up or Shut Up: L. Xia v. Tillerson and the Government’s End Run Around Judicial Denaturalization

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Kathryn Boughton. The facts read like a movie plot: a broker with multiple aliases, a corrupt government employee, and a man with a stack of cash meet outside of Washington, D.C.1 They arrange how to funnel hundreds of thousands of dollars to purchase forged documents.2 But this was the not the opening scene of a political conspiracy blockbuster. It was the height of Robert Schofield’s multi-year scheme to produce fraudulent immigration and citizenship paperwork for hundreds of individuals. Full Article
Read More

Rewriting Arizona’s Revenge Porn Statute to Fill the Gap in Sex Crime Punishment

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Hayden Hilliard. More and more often, women are stumbling across their own nude images on various websites, posted without their permission, and without their knowledge. Many women have come forward, sharing their personal stories, finding images taken several years ago, posted by past lovers who were long forgotten. One of the primary web services offering this lewd content is Anonymous Image Board, or Anon-IB. Websites like Anon-IB not only allow the public to post nude images without the depicted person’s consent, but also facilitate solicitation for images of certain people, known as “wins.” Anon-IB recently attracted widespread attention due to the discovery of specialized internet threads targeting and displaying nude images of female military members, taken by their male peers and posted online. Scandals like these serve as a public…
Read More

Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Joshua D. Wright, Elyse Dorsey, Jonathan Klick, Jan M. Rybnicek. For antitrust practitioners, scholars, and economists—those who work with antitrust in agencies, courts, or law firms—the development of the antitrust laws over the past half century has been a remarkable and positive development for the American economy and consumers. Over the last fifty years, antitrust has developed into a coherent, principled, and workable body of law that contributes positively not only to American competitiveness and societal well-being, but also helps to export the culture of market competition around the world. Although a healthy diversity of views governs the intellectual landscape in antitrust, and there is no shortage of ideas on how to improve its performance around the margins and within the paradigm of existing doctrine, there is consensus that modern…
Read More

Book Review: A Space Traveler’s Guide to Business Litigation

2019, Past Issues, Print, Volume 51 (2019) Issue 1 (Spring)
Reviewed by Jeffrey Willis. Is it possible to create a work that could inform virtually every aspect of any commercial case? The goal of the Fourth Edition of this treatise is exactly that. As explained by Editor-in-Chief Robert L. Haig: [T]his treatise is a step-by-step practice guide that covers every aspect of a commercial case, from the investigation and assessment that take place at the inception, through pleadings, discovery, motions, trial, appeal, and enforcement of judgment. Great emphasis is placed on strategic considerations specific to commercial cases. Full Article
Read More