If We Only Had A Brain: Toothless Aquatic Code Allows Deadly, Brain-Eating Zombie Amoeba To Flourish in Arizona Splash Pads and Water Playgrounds

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Sarah Pook. It starts with a fever. A splitting headache. Vomiting, fatigue, an earache— then the secondary symptoms begin. Vision loss. Stiff neck. Lethargy, confusion, inability to walk, an aversion to light. Hallucinations. Doctors scramble to make a diagnosis, attempting treatment for bacterial meningitis, viral encephalitis, herpes, or other rare diseases, but nothing works. Finally, a coma. Death follows within three days. Full Article
Read More

Over the Border, Under What Law: The Circuit Split over Searches of Electronic Devices on the Border

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Ashley N. Gomez. On January 30, 2017, Sidd Bikkannavar arrived at the George Bush Intercontinental Airport in Houston, Texas from a trip to Chile. He had taken a few weeks off from work to go on a personal trip to pursue his hobby of racing solar-powered cars. He is a natural-born U.S. citizen, an employee of a federal agency—NASA’s Jet Propulsion Laboratory—and a “seasoned international traveler.” After U.S. Custom and Border Protection (“CBP”) processed Sidd’s passport, a CBP officer detained him and brought him into a separate room within the airport. There, the CBP officer questioned him about where he came from, where he lived, and where he worked.6 The CBP officers questioned Sidd on information they already possessed through his membership in CBP’s “Global Entry” program—an expedited clearance program…
Read More

Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Mark C. Weber. This Essay seeks to demonstrate that federal disability discrimination law conflicts with and thus supervenes the Trump Administration’s new regulations changing the standards for excluding immigrants from the United States on the basis of their likelihood of becoming a public charge. The new regulations use an explicit disability-related discriminatory criterion that is not required by the statutory admission standards and will have an unjustified negative impact on immigrants who have disabling conditions. The Essay draws the comparison to Burwell v. Hobby Lobby, Inc., a 2014 case in which the Supreme Court invalidated a federal regulation on the ground that it conflicted not with its enabling legislation but with an unrelated federal statute, the Religious Freedom Restoration Act. Full Article
Read More

Antitrust Immunity, State Administrative Law, and the Nature of the State

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Alexander Volokh. North Carolina State Board of Dental Examiners v. FTC (N.C. Dental) has worked a potential revolution in antitrust law. A revolution because it makes clear that state regulatory agencies dominated by active market participants are not entitled to immunity from federal antitrust liability unless they are actively supervised by the State. But still only a potential revolution, because much depends on what counts as “active state supervision.” The story of N.C. Dental is, in large part, the story of how federal courts have tried to define “the State” (for purposes of state-action immunity). N.C. Dental has rejected a labeling approach, a balancing approach, and a sovereignty approach in favor of a financial disinterestedness approach. I argue that this approach isn’t obvious from an abstract political-philosophy standpoint but is…
Read More

Advancing the Use of HIE Data for Research

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Michael J. Saks, Adela Grando, Chase Millea, & Anita Murcko. Health Information Exchanges (HIEs) are centralized repositories of patients’ health records. The records come from most or all of the providers and health-care organizations within a given region or locale. Used mainly for clinical care, patients’ records can generally be accessed by any of the patients’ health-care providers, care coordinators, or payors, enabling them to see comprehensive and up-to-date health information pertaining to the patient. Patients’ records and HIEs are heavily regulated by federal and state law both to achieve effective flow of information and ensure the privacy and security of the data. That same data could be a remarkable resource for medical researchers to use to improve health and health care. But the data sit unused by researchers. Why?…
Read More

Preventing the Curse of Bigness Through Conglomerate Merger Legislation

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Robert H. Lande & Sandeep Vaheesan. The antitrust laws, as they are presently interpreted, are incapable of blocking most of the very largest corporate mergers. They successfully blocked only three of the seventy-eight largest finalized mergers and acquisitions (defined as the acquired firm being valued at more than $10 billion) that occurred between 2015 and 2019. The antitrust laws also would permit the first trillion-dollar corporation, Apple, to merge with the previously third largest corporation, Exxon/Mobil. In fact, today every U.S. corporation could merge until just ten were left—so long as each owned only 10% of every relevant market. Even though the Congresses that enacted the anti-merger laws did so, among other aims, to limit the political power of corporations, today the federal antitrust agencies and courts interpret these laws…
Read More

Improving the Presentation of Expert Testimony to the Trier of Fact: An Epistemological Insight in Search of an Evidentiary Theory

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
Edward J. Imwinkelried. The use of expert testimony at trials is not only widespread; its use also appears to be increasing. In a Rand Corporation study of California trials in courts of general jurisdiction, the researchers found that experts appeared in 86% of the trials; and on average, there were 3.3 experts per trial. A more recent study reported that the average has risen to 4.31 experts per trial. One commentator has asserted that in the United States, trial by jury is evolving into trial by expert. That assertion is hyperbole, but it is undeniable that the quality of expert testimony is now a major determinant of the quality of the outcomes at American trials. Full Article
Read More

The #E-Too Movement: Fighting Back Against Sexual Harassment in Electronic Sports

2020, Past Issues, Print, Volume 52 (2020) Issue 1 (Spring)
John T. Holden, Thomas A. Baker III, & Marc Edelman. Competitive video gaming or esports has captured the attention of hundreds of millions of people across the globe. With that attention has come billions of dollars’ worth of investment and promotion. But, it has also exposed an underlying toxic environment that features widespread sexual and gender harassment. This pervasive culture of harassment threatens to derail the esports industry and mars the promise of gender equity in one of the few competitive “sports” where physical strength, agility and body size do not dictate success. In this Article, we examine the rise of competitive gaming, and provide an in-depth analysis of the pervasive issue of harassment that permeates esports. We then propose a series of tangible reforms that would hold harassers and…
Read More

A Push for Personhood Under a New Guise: Arizona’s SB 1393

2019, Online, Past Issues, Volume 51 (2019) Issue 4 (Winter)
Emily Morehead. Ruby Torres’ breast cancer diagnosis not only changed the course of her life but also laid the foundation for recognizing embryonic personhood in Arizona. In June 2014, Torres, an Arizona attorney, discovered she had an aggressive form of breast cancer. Upon learning that cancer treatment could leave her infertile, Torres and her now ex-husband, John Joseph Terrell, decided to undergo in-vitro fertilization (“IVF”) treatment. Torres hoped IVF treatment would allow her to have biologically-related children down the road. Although Torres eventually beat her cancer and is now in remission, her marriage ended in a divorce and bitter dispute over what to do with the cryopreserved embryos. During Torres’ divorce proceedings in 2017, Maricopa County Superior Court Judge Ronee Steiner faced the unprecedented question of how to deal with…
Read More

Race Matters in Research on Nonmarital Unions: A Response to Amanda Jayne Miller’s and Shannon Sassler’s “Don’t Force My Hand”: Gender and Social Class Variation in Relationship Negotiation

2019, Past Issues, Print, Volume 51 (2019) Issue 4 (Winter)
R.A. Lenhardt. At three-years old, I overheard my parents talking about one of my uncles. Chatterbox that I was, I promptly found that uncle after their conversation ended and apparently repeated much of what they said. It was not that my uncle—who did not appreciate what he heard from me at all—had done anything wrong. In fact, he had not done anything at all. And that, at least for my parents, was really the crux of the matter. It was early 1970. My uncle, a life-long New Yorker, had just become a first-time father. And, to their chagrin, he had not married the child’s mother. As it happens, his partner was no more interested in getting married than he. For my parents, however, that was almost beside the point. Like…
Read More