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Land Development: A Super-Wicked Environmental Problem

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Blake Hudson. Hurricane Harvey dropped fifty-two inches of rainfall in the Houston, Texas area over only a few days in the summer of 2017 (the average annual rainfall in Houston is forty-five inches ). This was a record for any single storm event in the United States. At one point, a foot and a half of water covered seventy percent of Harris County, and one-third of the city of Houston was under water. So much water covered the region that it depressed the earth’s crust two centimeters. Ten thousand people were rescued from their homes as the floodwaters rose. Over 203,000 homes were damaged, with over 12,000 homes completely destroyed. 2017 was the third year in a row that Houston had suffered a “500 year flood”—floods in 2015 and 2016…
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Professionally Responsible Artificial Intelligence

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Michael Hatfield. A young mother visited her obstetrician, hoping for help losing weight. Her doctor turned to a computer program to determine what should be prescribed. The prescription killed the mother. Is this a case of professional irresponsibility? Or is it a case of product liability? Who is at fault: the doctor or the program developers? The New Jersey courts are deciding. Full Article
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Fighting Overcharged Bills from Predatory Hospitals

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Frank Griffin. Hospitals routinely expect patients to pay different prices for the same services and often ask the most vulnerable patients to pay ten to twenty-five times as much as the hospital routinely accepts as payment in full. For a service that the government allows participating hospitals to charge its patients $117 in 2019 dollars, some hospitals may charge patients up to $3254 for the same service, and most hospitals charge almost $500 for that same $117 service. Excess hospital charges or “markups” pose a significant financial burden (including frequent bankruptcies) on uninsured and out-of-network patients and cause some people to avoid necessary emergency or urgent care leading to unnecessary deaths and disabilities. Vulnerable patients in times of crisis enter a hospital believing they are in a safe haven—similar to…
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International Arbitration and Attorney-Client Privilege—A Conflict of Laws Approach

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Susan D. Franck. International arbitration is a lynchpin of international economic activity. Yet concerns linger about the integrity of international arbitration and recent critiques cast doubt on whether it properly provides rule of law adjudication or whether arbitrators engage in improper decision-making. Despite the enhanced public scrutiny, international arbitration is nevertheless on the rise for the resolution of commercial and investment disputes. Full Article
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The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Robert T. Anderson. This essay tells the story of the struggle by upper Ahtna people to protect their way of life and their access to a traditional fishery in modern Alaska. Because of the perseverance of Katie John, Doris Charles, other Ahtna people, and the larger Alaska Native community, their right to fish at a traditional fishing site survives. It is a battle that continues to this day––after nearly thirty-five years of litigation in various forums and in successive related cases that illustrate the complex legal and political issues. The rich history, culture, and modern activism of the Ahtna people motivate the litigation to protect an important local fishery, and along with it, the subsistence fishing rights of all rural Alaska Natives. The latest legal chapter is centered on a…
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Is Your LinkedIn Profile Safe? After a Brief ‘hiQ’-up, Data Analytics Company hiQ Can Continue Scraping LinkedIn Accounts for Personal Data Under the CFAA

Arizona State Law Journal Blog
By Caitlin White. On September 9, 2019, the Ninth Circuit affirmed the Northern District Court of California’s decision to grant a preliminary injunction forbidding LinkedIn from denying plaintiff hiQ access to publicly available LinkedIn member profiles. As a result of HiQ Labs, Inc. v. LinkedIn Corp., hiQ may continue scraping data from public LinkedIn profiles to provide data analytics to its clients under the Computer Fraud and Abuse Act (CFAA). LinkedIn has over 660 million members on its professional networking website. LinkedIn members own the content they post to LinkedIn but grant LinkedIn a non-exclusive license to “use, copy, modify, distribute, publish, and process” their personal information. hiQ is a data analytics company that uses automated bots to “scrape” information from public LinkedIn profiles. This information yields analytics identifying employees…
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Counterfactual Causation

2019, Past Issues, Print, Volume 51 (2019) Issue 3 (Fall)
Hillel J. Bavli. Factual causation is the element of a legal claim that requires a plaintiff to link the defendant’s conduct to the plaintiff’s injury—to show that the former did not merely coincide with the latter but rather produced it. It is intended to reflect “natural” or “actual” cause and effect, a “scientific” causal connection between conduct and injury. It aims to capture “our common understanding of causation” and “deep-seated intuitions about causation and fairness in attributing responsibility.” Developing an appropriate standard, or even definition, of causation is a perennial problem across many areas of the law. Strangely, however, although courts frequently look to statistics and the sciences for evidence of causation—sometimes even requiring such evidence to prove causation—the law has rarely looked to these fields for guidance in developing…
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Bad Blood: Taylor Swift’s Ongoing Battle with Big Machine Records Raises Questions About Re-Recording Clauses

Arizona State Law Journal Blog
By Delilah Cassidy. Taylor Swift is one of the best-selling singer-songwriters of all time. At fifteen, she signed her first record deal with Big Machine Label Group (“Big Machine”) and created six albums with the label. Upon expiration, Swift signed with Universal Music Group (“UMG”). Under the UMG agreement, she owns all original sound recordings of new songs (original sound recordings are “masters”). However, about eight months after her switch, talent manager Scooter Braun purchased Big Machine, including the masters to Swift’s first six albums. Swift publicized her frustration with the deal because she was not offered the chance to buy her masters. Swift said in an August interview that she will begin re-recording her Big Machine-era songs in November 2020, the first opportunity her contract with Big Machine allows…
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The Dignity Crutch: Understanding Sovereign Immunity After Franchise Tax Board of California v. Hyatt

Arizona State Law Journal Blog
By KC Hooker. In May 2019, the Supreme Court decided Franchise Tax Board of California v. Hyatt, which overturned Nevada v. Hall and held that citizens cannot sue a state in another state’s courts. The decision was not surprising given the Court’s expansion of sovereign immunity—or the idea that governments are immune from suits by private parties—since the mid 1990s. As the Court expanded sovereign immunity during that decade, it departed from the literal text of the Eleventh Amendment, which limits federal court jurisdiction to entertain suits against states, and began to rely on a principle called the “dignity rationale.” The dignity rationale is the idea that States are immune from suit because it is an affront to their dignity, as sovereign entities, to be dragged into court at the…
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Arizona’s Compulsory Arbitration Program: Is It Time for a Reform?

Arizona State Law Journal Blog
By Christian Fernandez. What is Arizona’s compulsory arbitration program? Arbitration is a form of alternative dispute resolution where an independent third party hears the case and determines the result. Arizona courts have adopted a compulsory arbitration program for all civil lawsuits that meet the requirements listed in Rules 72–77 of the Arizona Rules of Civil Procedure. All civil disputes valued under a specific amount are resolved through this arbitration program instead of litigating in court. This program applies to plaintiffs that are only seeking money damages. In addition, this program does not apply to criminal lawsuits. How does the compulsory arbitration program work? A person that brings a lawsuit in Arizona is required to fill out a form stating the type and estimated value of damages they seek. The compulsory…
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