Tilting at Windmills: Finding an Alternative Dormant Commerce Clause Framework to Preserve Renewable Portfolio Standard Generator Location Requirements

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Danny Englese. As our world becomes ever more connected, with a boundless supply of information and products from all over the world readily accessible through the click of a button, consumers are becoming more motivated than ever to spend their money at locally-owned businesses. This “localist” movement is supported by various local organizations around the country, whose memberships are steadily increasing. The localist movement has been particularly visible in Arizona. For instance, Local First Arizona, “a statewide non-profit organization working to strengthen communities and local economies through growing, supporting, and celebrating locally owned businesses throughout the state,” has over 2,000 members in industries ranging from food service to banking and finance. There is growing evidence that spending at local businesses has a significant economic impact. According to one study, for…
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Big Conflicts Little Conflicts

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Katherine Florey. Choice-of-law doctrine today increasingly presents two distinct faces. When it comes to garden-variety tort and contract cases, conflicts doctrine often produces uncontroversial results with surprisingly little drama. In more complicated litigation, however, the picture is starkly different. It is fair to say that choice-of-law issues represent perhaps the most serious obstacle to consolidating complex cases. Further, conflicts issues even in simpler cases have proven deeply problematic when they implicate not just the interests of individuals, but larger questions about the proper allocation of state power. What accounts for the divergent performance of conflicts doctrine in, on the one hand, small-scale litigation and, on the other, litigation that affects more people or raises broader policy concerns? This Article argues that domestic U.S. choice-of-law doctrines serve two distinct functions, and…
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Google Glass While Driving

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Adam M. Gershowitz. Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using”…
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Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Elizabeth Ann Kronk Warner. Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the…
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Economic Conundrums in Search of a Solution: The Functions of Third-Party Litigation Finance

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Joanna M. Shepherd & Judd E. Stone II. Despite a rapid increase in economic significance and substantial increase in international use, third-party litigation financing remains poorly understood. No academic consensus takes account of the multiple economic conundrums that third-party litigation financing arises to solve, nor do legal scholars adequately consider obvious public and private substitutes for litigation financing that society rightfully recognizes as innocuous or outright beneficial. In this Article, we explore the economic challenges driving both business plaintiffs and sophisticated law firms to seek external litigation financing. We examine closely the key elements of the litigation financing arrangement itself, focusing on eligible cases and clients, devices financiers employ to ensure repayment without meaningful control over the litigation, and theorize conditions under which third-party litigation financing will be attractive to companies…
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Time to Reboot?: DMCA 2.0

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Donald P. Harris. Imagine this scenario. Mary Saint Francis was a longtime librarian of limited means. She had always dreamed of becoming a successful writer and living the way “the other half” lived, retiring from the library and traveling around the world. At 56, and after a number of unsuccessful and little known short stories, she was beginning to believe this would never happen. In March 2013, things changed. Mary wrote a saucy and stimulating novel about being a librarian: The Real Life of a Librarian. Surprisingly, Real Life became an instant success. Over the next year, Mary’s novel achieved critical acclaim, was the subject of Oprah’s Book of the Month, was the topic of numerous talk shows, and was discussed on various news and radio spots. Mary also traveled…
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An Empirical Method for Harmless Error

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
D. Alex Winkelman, David V. Yokum, Lisette C. Cole, Shelby C. Thompson & Christopher T. Robertson. Trials are often imperfect. When inadmissible evidence is introduced or the jury is incorrectly instructed, judges must determine whether the error was prejudicial or merely harmless. In making that assessment, judges resort to speculation about the counterfactual question of whether the error changed the outcome, compared to the decision of a properly informed and instructed jury. These decisions are likely colored by confirmation and status quo biases, along with “mental contamination” of the error itself. Even when appellate judges perform these analyses accurately, their decisions appear conclusory. Scholars and judges have roundly criticized this doctrine, but no solution has emerged. We developed and piloted an unbiased and transparent method for making harmless error determinations, using randomized experiments with simulated jurors. To pilot this method on…
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Gambling on Our Financial Future: How the Federal Government Fiddles While State Common Law is a Safer Bet to Prevent Another Financial Collapse

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
Brian M. McCall. Warren Buffett once referred to derivatives as “financial weapons of mass destruction.” Academics, analysts, politicians and regulators have argued that one form of derivative contract was responsible, at least in significant part, for the mass destruction of the financial system in 2008: credit default swaps (“CDSs”). Eric Dinallo, the New York Superintendent of Insurance, compared the 2008 Financial Crisis to the 1907 Panic because in his opinion both were caused by unregulated betting on markets by people who did not own assets in those markets. He explained: “Many compare this financial crisis to the stock market crash of 1929, but it is closer to the credit freeze and bank panic of 1907 . . . . What has been forgotten is one major cause of the crisis—unregulated speculation on the prices of securities by people who did not…
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Reversing a Wayward Trend: Why Courts Using the Functional Test For Removal Are Right

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
Perry Thomas Klauber. The federal courts are divided concerning the interpretation of the general, federal removal statute 28 U.S.C. § 1441(a). The statute states that a defendant can remove any civil action from state court to a federal district court so long as the federal court has original jurisdiction. Some courts use a functional test to interpret the meaning of “state court,” while other courts use the plain meaning test and exclude state administrative courts from the “state court” definition. Thus, in some jurisdictions certain cases can be removed from a state administrative court to a federal district court if the federal court applies the functional test and finds that the administrative court functions as a “court” that provides judicial, binding, enforceable decisions. In contrast, other jurisdictions require cases to continue in administrative court until adjudication is complete, before there is…
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Single and Childfree! Reassessing Parental and Marital Status Discrimination

2014, Past Issues, Print, Volume 46 (2014) Issue 4 (Winter)
Trina Jones. "Janet’s perfect for that job . . . [b]ecause for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19, 20 hours a day to it." Former Pennsylvania Governor Ed Rendell made the above statement following President Obama’s nomination of Janet Napolitano to head the Department of Homeland Security. Rendell’s observations about Napolitano, who is unmarried and childless, reflect concerns being raised in the United States by some single workers without children. These workers, referred to herein as SWOCs, maintain that their employers assume they have no lives and therefore can and should devote all of their waking hours to work, meaning employers expect single workers without children to travel with little notice, to work evening hours, and to be available on weekends and holidays. SWOCs contend that these expectations are…
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