Arizona State Law Journal Blog

By Delilah Cassidy. Living on a golf course seems like a dream: waking up to the smell of freshly cut grass, sitting on the porch drinking lemonade during the Arizona spring. But since the Great Recession, what was once a dream for those living on the Ahwatukee Lakes Golf Course quickly became a nightmare; a nightmare even the law could not truly wake them up from. Not-So-Happy Gilmore: Three decades ago, a deed restriction was placed on a master-planned Arizona community limiting a portion of the land stating: “[t]he Property shall be used for no purposes other than golf courses . . . .” This restriction could only be changed if either 51% of the homeowners approved of the alternative use or a court found a “material change in the…

By Cory Bernard. The country’s largest competitive wholesale electricity market recently filed a request for rehearing in response to a December 2019 order of the Federal Energy Regulatory Commission (FERC) setting a price floor for new entrants to the market. The Minimum Offer Price Rule (MOPR) prevents any market entrants that receive “out-of-market” payments from bidding their power below an administratively determined price floor. Background The PJM Interconnection (PJM), which provides a market for more than 1,000 companies serving 65 million people to buy and sell electricity, argues the MOPR unnecessarily interfered with the market. Renewable energy advocates, several of whom also recently requested a rehearing, argue that the MOPR oversteps FERC’s jurisdiction because it unreasonably raises rates and effectively negates state-level renewable energy policies. Via the Federal Power Act…

By Jake Abrahamian. Background Later this year, the Supreme Court is set to decide USPTO v. Booking.com B.V. in a ruling that will determine whether a generic name can be transformed into a protectable trademark when followed by a top-level domain (“.com”). The issue arose when Booking.com, a hotel accommodations service, sought to register booking.com as its trademark, but the USPTO refused on the ground that booking and .com were generic. However, the Fourth Circuit found that as a whole, booking.com could be something that consumers perceive as a brand. And this is the heart of trademark law. Trademarks are brand identifiers. They indicate source. When you see a small bitten apple on the back of a laptop, you know who made the computer. The policy theory behind protecting trademarks…

By Tyler S. Woods, J.D. Candidate, 2021. The Transformative Use Test In Brown v. Entm't Merchants Ass'n, the Supreme Court confirmed that video games––like books, plays, and movies––are works of art that enjoy First Amendment protection. But this protection is not without limit. Although video games enjoy the freedom of expression, this expression cannot unjustly infringe upon an individual’s right of publicity. In Comedy III Prods., Inc. v. Gary Saderup, Inc., the California Supreme Court annunciated the transformative use test as an affirmative defense to a right of publicity claim. The test inquires “whether a product containing a celebrity's likeness is so transformed that it has become primarily the defendant's own expression rather than the celebrity's likeness.” In other words, to qualify for legal protection, “an artist depicting a celebrity…

By Benjamin Shattuck. The Fifth and Ninth Circuits are currently split as to whether victims of cross-border shootings can bring damages claims against the U.S. Border Patrol agents who shot them. In Hernandez v. Mesa, the Fifth Circuit held that the victim did not have a claim under the Fifth Amendment. Conversely, in Rodriguez v. Swartz, the Ninth Circuit held that the victim did have a claim under the Fourth Amendment. The Supreme Court granted certiorari in Hernandez and heard arguments on November 12, 2019. This blog post argues that the Supreme Court would be wise to overrule the Fifth Circuit and hold that victims of cross-border shootings can bring damages claims, in the form of Bivens claims, against the Border Patrol agents who shot them. Both cases turn on…

By Victoria Romine. What is Genetic Genealogy? Ever since the 2018 capture of Joseph DeAngelo, California’s infamous Golden State Killer, genetic genealogy has been used to solve hundreds of unsolved crimes. Law enforcement uses genetic genealogy by submitting DNA from an unsolved crime to a consumer DNA database, such as GEDMatch or Ancestry DNA, to search for a familial match. Once a match is produced, law enforcement can use it to develop family trees of the matching sample, with the ultimate goal of identifying the perpetrator of the unsolved crime. However, despite the benefits of solving cold cases, critics have contended that genetic privacy should be given more protection under the law. Unlike DNA testing in law enforcement databases, like the Combined DNA Index System (CODIS), which is limited to…

By Emiley Pagrabs. In Reynolds v. Sims (1964), the Supreme Court stated: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strikes at the heart of representative government.” However, this right historically has not applied equally to all Americans. After years of failed attempts to curb minority disenfranchisement, the Voting Rights Act (the “VRA”) entered into law on August 6, 1965. An innovative solution to historic discrepancies, the VRA curbed racial voter discrimination in two main ways. Through Section Five, Congress created a preclearance regime, which required states under the “coverage formula” to submit any changes in voting procedure to the federal government for approval before enactment.  Through Section Two, which largely mirrored the…

By John Oliver. Background Kobe Bryant’s death not only shocked the sports world but also the nation. Kobe was a professional basketball player who entered the National Basketball Association (“NBA”) straight out of high school in 1996. Kobe enjoyed enormous success throughout his twenty-year career, all with the Los Angeles Lakers. Kobe dedicated his life to his craft and the sport of basketball, his commitment to the game and desire to be the greatest led him to proclaim himself as, “The Black Mamba.” Kobe won five NBA championships and was named to eighteen NBA All-Star teams, twelve All-Defensive teams, and the NBA’s Most Valuable Player in 2008. Moreover, Kobe scored an astounding eighty-one points in a single game in 2006, the second most ever scored in a game; he was…

By Samantha Orwoll. Fast Fashion Industry Fast fashion brands, such as Forever 21, ZARA, and ASOS, create a nearly constant stream of clothes. The brands promise the latest trends at affordable prices. Rather than create seasonal collections, they produce new offerings weekly and have thousands of styles available for purchase online or in stores at any given time. As a result, the retailers boast billions of dollars in sales. Infringement But the path to financial success has not been without lawsuits. Perhaps designing so many clothes means that eventually a style will look like something that has already been created or, as suggested by plaintiffs in infringement cases, the companies cut costs by intentionally copying other designers. Two of the fast fashion giants, Forever 21 and Fashion Nova, have been…

By Alanna Ostby. Background On October 16, 2019, the Supreme Court heard oral arguments for Mathena v. Malvo—a case rising out of a string of sniper-style shootings in 2002 that killed twelve individuals and injured six others in the D.C. metropolitan area. One of the culprits, John Allen Muhammed—forty-two years old at the time of the shootings—received the death penalty and was executed in 2009. His seventeen-year-old accomplice, Lee Malvo, received a sentence of life without parole (LWOP) at the discretion of judges in Virginia and Maryland. But Malvo’s sentence stood on shaky ground when the Supreme Court initiated juvenile sentencing reform in the 2000s. Beginning with Roper v. Simmons in 2005, the Court outlawed the death penalty for juvenile offenders. Then, its 2010 decision in Graham v. Florida prohibited…