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Lino A. Graglia. Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation as the central issue to be decided despite the apparent fact that the Constitution plays very little role in the Supreme Court’s so-called constitutional decisions. Constitutional law is the product of judicial review, the extraordinary power, suspect in a democracy, of unelected judges to overturn social policy choices made by elected legislators and other officials of government ostensibly on the ground that they are prohibited by the Constitution. The reality is that our very old and very brief Constitution, even as amended, does not and cannot provide answers to contemporary controversial social problems. It precludes very few policy choices. The Supreme Court’s rulings of unconstitutionality are, therefore, necessarily almost always…

Arden Rowell. Do people know the law? On the one hand, it is a brocard, sometimes traced to Aristotle, that nemo censetur legem ignorare: “nobody is thought to be ignorant of the law.” The same intuition underlies the classic maxim that ignorance of the law is no excuse. The intuition behind these principles has both doctrinal and theoretical heft: it underlies important common law doctrines, including those of excuse and mistake, and informs theoretical accounts of law that presume that law guides behavior. Full Article

Alexander B. Lemann. After spending four days dumping an unprecedented quantity of water on the Houston area, Hurricane Harvey finally slid off the coast to the south, leaving the city to begin the gradual process of wringing itself out and evaluating the damage. Major storms are often treated as showing us something we should have known all along. For many, Hurricane Harvey’s lesson was that the era of climate change—the Anthropocene—is well under way. By the time Harvey reached Houston it was no longer a particularly powerful storm, by the traditional measure of sustained wind speed. But, thanks to the fact that warmer air can hold more moisture, the quantity of water it dropped was truly immense. Multiple rainfall gauges in Houston recorded quantities of water that exceeded previous records…

50 Ariz. St. L.J. 1265 (2018). Lindsey Bulloch. The Americans with Disabilities Act protects individuals with disabilities from discrimination in places of public accommodation, like restaurants or hotels. At the same time, the Fair Housing Act protects buyers and renters of a dwelling from discrimination by sellers or landlords. It is unclear which area of the law should govern disability discrimination in types of temporary housing like extended-stay hotels. This Comment suggests that for the purposes of service and emotional support animals, extended-stay hotels should be governed by the Fair Housing Act, which allows for more broad inclusivity of assistance animals. Full Article

50 Ariz. St. L.J. 1171 (2018). Allan H. (“Bud”) Selig and Matthew J. Mitten. This article analyzes leading baseball-related judicial decisions, arbitration awards, and federal legislation regarding the Major League Baseball (MLB) commissioner’s “best interests” power, baseball’s antitrust exemption, and labor relations with MLB players as well as the scope of league, club, and players’ intellectual property rights. As the first law review article authored or co-authored by a current or former commissioner of a North American major professional sports league, it provides a unique insider perspective regarding baseball jurisprudence and its effects on the historical development and business affairs of MLB and its member clubs as well as their relationships with baseball players and their union, fans, and others. It also briefly considers how baseball jurisprudence has influenced the…

50 Ariz. St. L.J. 1009 (2018). Brian Galle. Unemployment insurance is almost universally recognized as one of a government’s best tools for fighting recessions, as well as an important source of relief for working-class families suffering temporary hardship. Unfortunately, as commentators and Congress have recognized, the U.S. system of financing its unemployment insurance program is seriously dysfunctional. Reform proposals, however, do not fully diagnose the causes of current failures. In particular, other commentators neglect the role of fiscal myopia in state officials’ failures to save for future UI needs. For instance, reformers mostly propose offering rewards or penalties that will take effect far in the future. These incentives have only small effects on myopic officials. Building on work in behavioral economics by myself and others, I propose a set of…

50 Ariz. St. L.J. 1113 (2018). Peter R. Reilly. Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district courts express misgivings about having to approve, in accordance with recent appellate court rulings, DPAs they would otherwise have likely rejected…

50 Ariz. St. L.J. 1067 (2018). Summer Kim. One of the most persistent debates among corporate law scholars has been whether the competition among states for corporate charters produces a race to the top or a race to the bottom. Some argue that the competition leads to the most efficient state emerging as the winner of the race. Others argue that the competition rewards the states that put the interests of managers—who have the power to choose the corporation’s state of incorporation (the “home state”)—ahead of the interests of shareholders and other stakeholders of the corporation. In this Article, I show how corporate long arm statutes could be used to facilitate a race to the top and mitigate the negative spillovers from a race to the bottom that may result…

50 Ariz. St. L.J. 791 (2018). Christopher Koester. The GPLET—controversial in both pronunciation and practice—has played a major role in financing some of Arizona’s most prominent commercial developments, including Phoenix’s CityScape and Renaissance Square and the Hayden Ferry Lakeside office complex in Tempe. The Arizona Legislature enacted the GPLET, officially the Government Property Lease Excise Tax, primarily as an economic development tool. The GPLET incentivizes development by reducing developers’ tax burdens by removing incentivized projects from the property tax rolls. Instead, developers pay an excise tax to the local government based on the type of project, and eligible projects in central business districts can be completely exempt from the excise tax for eight years. This period of exemption is called an “abatement.” Full Article

50 Ariz. St. L.J. 951 (2018). Kimberly Kessler Ferzan. There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent. This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the involuntariness of the consenter’s choice. To deny the latter is not to deny the former. Because these are two disparate functions,…