Past Issues

50 Ariz. St. L.J. 1347 (2018). Lynsie Zona. A recent article in the Arizona Daily Star opened with a heartbreaking story: A woman learned that her father had not received a critical medication during a month’s stay at an assisted living facility. His health declined rapidly, and he died a few months later. The article featured an interview with a Tucson attorney, who noted that litigation often prompts long-term care facilities to make improvements. According to the attorney, “[i]f facilities are being looked at and watched more closely, they generally will attempt to do better.” But litigation comes too late for some families hoping to protect their loved ones. Instead, families may turn to technology to watch their relative’s facility more closely and ensure their loved ones are being cared…

50 Ariz. St. L.J. 1215 (2018). Mary Ziegler. Unworkability, a factor in the Supreme Court’s analysis of stare decisis, has played a central role in recent blockbuster decisions, including Janus v. American Federation of State, County, and Municipal Employees, Council 31 and South Dakota v. Wayfair, Inc. Since the retirement of Anthony Kennedy, unworkability has taken on additional importance, especially since the Court seems more likely to reconsider decisions including Roe v. Wade and Planned Parenthood v. Casey. Despite the importance of unworkability jurisprudence, there is relatively little scholarship about its evolution or meaning. This Article offers an original legal history of the surprising relationship between abortion law and unworkability. Full Article

50 Ariz. St. L.J. 1287 (2018). Andrea Gass. This Comment argues that the federal government is best positioned to mandate reducing nonpoint source pollution, and it should not further delegate this responsibility to the states. Governors, as well as state and federal lawmakers, face regular elections in the short term that constrain their ability to regulate the environment in the long term. Voters do not target longstanding, entrenched federal regulations, but they might lash out against new local regulations. Federal aid can give states and local entities support to advance storm water cleanup efforts such as green infrastructure. Cleaner storm runoff would improve Arizona water appropriators’ supplies or provide a clean, new resource to recharge critical aquifers. Full Article

50 Ariz. St. L.J. 791 (2018). Martha A. Field. My role in this symposium, and my paper, are less academic than others’. I clerked for Justice Abe Fortas during the 1968–69 Term and worked with him on Brandenburg v. Ohio. I will describe the process by which Brandenburg was created, its per curiam status, and its meaning as seen from the perspective of its author. I also will address the theme of this conference, especially the claim that Brandenburg incorporated Learned Hand’s view of the First Amendment. Full Article

50 Ariz. St. L.J. 911 (2018). David M. Rabban. Contrary to the assumption of most legal scholars and judges since 1917, there was substantial adjudication of free speech issues throughout the state and federal judicial systems in the late nineteenth and early twentieth centuries. The decisions overwhelmingly rejected free speech claims. No court was more hostile to them than the United States Supreme Court. The judicial hostility extended beyond any individual issue or litigant. Some of the most restrictive decisions were written by Oliver Wendell Holmes, Jr., first as a judge on the Supreme Judicial Court of Massachusetts and subsequently as a justice on the United States Supreme Court. The most common judicial analysis allowed the punishment of speech for its alleged “bad tendency.” A few decisions, mostly in the…

50 Ariz. St. L.J. 855 (2018). Edward A. Purcell, Jr. The 100th anniversary of Judge Learned Hand’s opinion in Masses Publishing Co. v. Patten invites us to look back on its author’s long career and to consider his contributions to American law and his significance in the nation’s history. Spanning more than fifty years from the presidency of William Howard Taft to the presidency of John F. Kennedy, Hand’s judicial career presents an exceptionally rich subject for such reflection. Full Article

50 Ariz. St. L.J. 687 (2018). Amy Adler. This Article explores a little-known chapter in the cultural history of The Masses, the radical, iconoclastic, and artistically cutting-edge publication that was the subject of Learned Hand’s landmark First Amendment decision in Masses Publishing Co. v. Patten (1917). The Article sets forth the story of an internal battle about freedom of expression in the arts that had shaken The Masses to its core in the year leading up to Hand’s famous decision. The Masses was founded on two central premises: first, that absolute freedom of expression was necessary for its mission; and second, that art and politics must be inextricably intertwined in pursuing this mission because creativity was itself an act of political rebellion against capitalism. Yet this marriage between art and…

50 Ariz. St. L.J. 927 (2018). James Weinstein. On July 24, 1917, Learned Hand, then a young judge on the United States District Court for the Southern District of New York, enjoined the New York City Postmaster from refusing to mail the August issue of a self-proclaimed “revolutionary” magazine called The Masses. The Postmaster had deemed the issue nonmailable because in his view material condemning America’s involvement in World War I tended to cause “insubordination, disloyalty, mutiny [and] refusal of duty” and “obstruct[ed] the recruitment or enlistment service of the United States” in violation of the Espionage Act of 1917. Judge Hand began his opinion by construing the Espionage Act against a background of “that right to criticize either by temperate reasoning, or by immoderate and indecent invective, which is…

50 Arz. St. L.J. 803 (2018). Thomas Healy. In a letter to Justice Oliver Wendell Holmes in the spring of 1919, Learned Hand described his decision in Masses Publishing Co. v. Patten as “my little toy ship which set out quite bravely in the shortest voyage ever made.” At the time, that certainly must have been the way things looked to Hand. A judge on the Second Circuit had stayed his decision the same day it was issued, and the full appeals court had reversed it three months after that. Moreover, as Hand noted in a subsequent letter to Harvard Law professor Zechariah Chafee, his Masses opinion “seemed to meet with practically no professional approval whatsoever.” The response was so discouraging that Hand, preternaturally anxious and self-doubting, began to question the…

50 Ariz. St. L.J. 717 (2018). Vincent Blasi. I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the denial of mailing privileges unless the authors tell their readers it is in their interest or is their duty to violate the law.…