Past Issues

Adam B. Thimmesch The U.S. federal structure tasks the states with providing many of the critical services on which individuals rely for their basic needs. State fiscal stability is therefore critical to state residents’ health, economic security, and physical safety, especially in times of macroeconomic hardship. It is unfortunate in this regard that prevailing economic conditions heavily impact states’ revenue streams and that periods of economic recession can be met with state spending that lags recovery. It is also unfortunate that states’ exposure to these downturns is partly attributable to their own policy choices.Virtually all states have enacted balanced budget requirements of some form, with the result that states cannot easily smooth their spending with borrowing during economic downturns. Most states also rely to a large degree on the personal income…

Ric Simmons For over a hundred years, the Supreme Court has employed rhetoric in its Fourth Amendment cases that supports the concept of “home exceptionalism”—that is, the idea that protecting the home is the “very core” of the Fourth Amendment. Two cases from this year’s Supreme Court term, Lange v. California and Caniglia v. Strom, appear at first to support this doctrine, since a narrow reading of their holdings appears to enhance Fourth Amendment protection of the home.However, a closer examination of Supreme Court doctrine reveals that home exceptionalism is a myth. Although the home does receive small amounts of special protection in some areas, such as the arrest warrant requirement and the protection of curtilage, these special protections are far weaker than the Court’s rhetoric implies. In fact, the recent…

Mariana Oliver & Matthew B. Kugler Discussions of surveillance practices within U.S. law enforcement agencies often suggest that police departments have ready access to a wide range of high-tech tools. To date, however, most of the empirical evidence regarding police surveillance has come from either qualitative case studies of cities or surveys of the largest departments. While these studies have shed light on the surveillance capacities of large police departments located in larger jurisdictions, our current understanding of police surveillance is limited by a lack of empirical data on police departments in smallerjurisdictions. This study fills this gap by using data from an original nationwide survey of police departments. First, we discuss existing studies of police surveillance access and the legal regimes underlying each type of technology. Next, we use descriptive…

Kevin Cope, Ilya Somin, & Alexander Stremitzer Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but became politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are usuallyconstitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. We argue that, based on existingprecedent, the government may indeed be constitutionally required to exempt the vaccinated from numerous liberty restrictions. Although governments are not constitutionally obligated to impose liberty restricting measures in response to an infectious disease epidemic, where a government—local,state, or national—does so,…

Rebecca Tsosie  I am honored to give the Canby Lecture for 2020, and I thank Patty Ferguson-Bohnee and Kate Rosier for their leadership of the Indian Legal Program and for inviting me today. I’m delighted to return, even in a virtual space, to the Sandra Day O’Connor College of Law at Arizona State University (ASU). This was my academic home for over twenty-two years, and I owe so much to this law school and its amazing faculty, past and present. In particular, I honor Judge Canby, who first taught Federal Indian law at ASU in the early days of the law school before there was a formal Indian Legal Program, and who was responsible for recruiting the first Native students to graduate from ASU’s law school. Judge Canby’s intellectual leadership…

Felix Mormann & Milica Mormann  Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.  Full Article.

Joseph Avery  In 2018, an autonomous Uber vehicle hit and killed a pedestrian. Although  autonomous, the vehicle was not driverless: the onboard artificial intelligence (AI) had handed off control to a safety driver at the last second. “Handed off”—a just-launched National Highway Traffic Safety Administration investigation into Tesla is focusing on this very issue. After all, like many socio-technical systems, semi- and fully autonomous vehicles are designed so that decision-making can be handed off from a machine to a human operator. This is worrisome because decades of human factors research have shown that people perform poorly under such conditions. When situated in the handoff recipient role, humans suffer from a combination of four linked issues: complacency, inattention, skill atrophy, and automation bias (i.e., over-trust in the machine).  Full Article.

Alanna Ostby Since 1791, the Constitution of the United States has guarded the rights of the criminal defendant. Those rights include the right to an attorney, the right to a speedy trial, the right to confront witnesses against him—and the list continues. Perhaps most notably the Constitution provides that “no person shall be . . . deprived of life, liberty, or property, without due process of law.” The Supreme Court has interpreted “due process” to include several freestanding rights, among them the right to be presumed innocent until proven guilty, the right to an impartial tribunal, and the right to make the government prove its case beyond a reasonable doubt. Of course, all of these rights play a vital role in affording criminal defendants a fair trial and sustaining public…

Gideon Cionelo Maria stood outside her apartment, where she lived with her three youngchildren, scanning the packet of papers just handed to her by the process server. Although each page was littered with words and phrases she did not understand, the few she did comprehend made it clear that she was being sued by her credit card company. Maria had never been sued before nor had she ever heard of the Maricopa County Justice Court. But more importantly, this lawsuit was unexpected. Maria made most of her minimum payments, and she thought the credit card company had agreed to defer her missed payments when she spoke with them over the phone a few months earlier. Full Article.

Kole Lyons Consider the stories of two bakers: Bryan, a small business owner, who has developed his affinity for baking into a livelihood, and Jim, an employee working in his local grocery store’s bakery department. . . . Full Article.