Category: 2021

Nyla Knox On average, on-duty police officers shoot and kill one thousand individuals in the United States each year. One in every one-thousand black men will be killed by law enforcement in their lifetime. In nearly every instance, though, courts find that the officers responsible were legally justified in their actions. But how do a majority of officers escape accountability for their egregious use of excessive force? The answer arises from the doctrine of qualified immunity. Qualified immunity provides officers with civil immunity in an attempt to reduce frivolous suits and protect officers from the burdens of litigation. However, rather…

Shannon Hautzinger Aurora. Newtown. San Bernardino. Orlando. Las Vegas. Parkland. Pittsburgh. Thousand Oaks. Virginia Beach. El Paso. Dayton. Boulder. The grim commonality that links these cities needs no explanation, yet the ease with which it comes to mind demonstrates the gravity of America’s problem with gun violence. Still, deaths due to mass shootings represent only a miniscule percentage of all gun deaths in the United States. An average of 39,000 Americans are killed by guns every year, a figure that translates to about 100 fatalities per day. In the last decade alone, over one million Americans have been shot, guaranteeing…

Hon. Lawrence F. Winthrop “Equal justice under law is not merely a caption on the fa ade of the Supreme Court building. It is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists.” –Justice Lewis Powell “Can there be justice if it is not equal? Can there be a just society when some do not have justice? Equality, equal treatment is perhaps the most fundamental element of justice.” –Justice Antonin Scalia “Trust in the rule of law—the foundation of American democracy—depends upon the public’s faith that government seeks equal…

Judge Peter B. Swann & Sarah Pook The First Amendment to the United States Constitution provides unambiguously and without exception that “Congress shall make no law . . . abridging the freedom of speech.” Read literally, there is no room under the First Amendment for legislation protecting the public from any abuse of the right to free speech—including shouting “fire” in a crowded theater, child pornography, or manipulation of the public through vigorous disinformation campaigns. Yet before the First Amendment was incorporated against state law, the drafters of the Arizona Constitution took a more cautious approach: “Every person may freely…

G. Murray Snow For this edition of the Arizona State Law Journal (Journal), the editors have invited prominent Arizona judges (both state and federal) to write on topics they know about. All of the authors are jurists of experience and insight. Their articles range from soup to nuts, all of them interesting and relevant to practitioners and academics alike. The result is something most unique—a practical, useful, and interesting issue of a law review that, at the same time, recognizes some of the members of Arizona’s outstanding judiciary. Full Article.

Roslyn Silver Today, the right to vote in this country and the state of Arizona is a fundamental right of citizenship. The act of voting is one of the most elemental forms of democratic participation. But participation in our democracy is more than the act of casting a vote. The vote must be meaningful in the sense that it can be aggregated with voters having compatible goals. As Justice Powell said in Davis v. Bandemer, “The concept of ‘representation’ necessarily applies to groups: groups of voters elect representatives, individual voters do not.” If you live anywhere in the United States,…

Mary Schroeder Title VII of the Federal Civil Rights Act of 1964 was nearly ten years old before Arizona lawyers realized their state law needed to ban sex discrimination in employment. Indeed, major Phoenix law firms were openly refusing to hire women in 1969, five years after the federal law went into effect. As the mid-1970s approached, the women’s movement was getting into full swing, and women were graduating from law schools in numbers that could no longer be ignored. In 1974, several women graduated from the Arizona State University School of Law, including Ruth McGregor, who later became Arizona’s…

Andrew D. Hurwitz Recent challenges to Arizona legislation impacting elections have typically invoked the federal Voting Rights Act (“VRA”) of 1965. But a trilogy of Supreme Court decisions has diminished the sweep of that legislation. In Shelby County v. Holder, the Court struck down the preclearance provisions of Section 5 of the VRA, which subjected changes in electoral procedures in states with a history of discrimination, including Arizona, to review by the Justice Department. In Crawford v. Marion County Election Board, the Court upheld against a Section 2 VRA attack a state ID requirement, holding that even if it affected…

Andrew W. Gould & Erica Leavitt Arizona’s courts, like most courts, have wrestled with the limits of tort liability in negligence cases. Two basic frameworks have been developed to address this issue: duty and causation. Under a duty framework, a court determines, as a matter of law, whether a defendant owes a duty of care to a plaintiff before the specific facts of the case are considered. If the court determines the defendant owed no duty of care to the plaintiff, “an action for negligence cannot be maintained.” In contrast, under a causation framework, the basis for limiting liability is…

Kent E. Cattani & Paul J. McMurdie Arizona’s procedure for determining whether to seek the death penalty—a decision by an elected County Attorney—was established when Arizona became a state in 1912. At that time, however, a decision to seek the death penalty began a process that bore little resemblance to what we have today. For example, between 1912 and 1960, in the 63 cases in which a death sentence was imposed, the average time from the date of the murder to the date of execution was less than two years. In fact, in 10 of those cases, less than a…