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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 Chief Justice. She recalled that 1974 was the first year that major Phoenix law firms hired ASU women straight out of law school, though many attorneys were hostile, and, she…

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 protected populations disproportionately, voting necessarily requires some effort and compliance with some rules, and the concept of a voting system that is “equally open” and that furnishes equal “opportunity” to…

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 whether a plaintiff can prove that the defendant’s wrongful conduct was a proximate cause of her injury. This causation determination is generally a factual question for the jury. Full Article.

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 year passed between the crime and the execution.2 The current process, in contrast, often lasts more than 30 years, consuming significant resources at both the local and state level. And…

Clint Bolick State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to provide greater protections for individual rights than the federal constitution. When they do so, their decisions are not subject to review by federal courts absent a federal issue. Full Article.

Abby Dockum In the late hours of October 2, 2009, Jonathan Castro staggered drunkenly through Los Angeles, speaking unintelligibly and bumping into passersby. Concerned for his safety, police officers arrested Castro on a misdemeanor public drunkenness charge and transported him to the West Hollywood police station. He was placed in a sobering cell, which was furnished with only a toilet and mattress pads to protect detainees from injury. Full Article.

Ekow N. Yankah In February 2020, Ahmaud Arbery, a twenty-five-year-old Black jogger in Georgia, was chased down by a group of armed, White men in trucks, trapped, shot, and killed. His killers pursued Arbery because they suspected him—with no evidence whatsoever—of being behind a string of (unreported) neighborhood robberies. Arbery’s killers had never seen any suspect in those robberies. Full Article.

Kenneth W. Simons Under the willful blindness (WB) doctrine widely employed in federal criminal prosecutions, courts extend a statutory “knowledge” or “willfulness” requirement to encompass “willful blindness” or “deliberate indifference.” For example, courts conclude that for drug possession or distribution crimes that explicitly require knowing possession of the illegal drugs, a defendant can be convicted merely upon proof that he or she was willfully blind to whether the item possessed contained an illegal drug. (Suppose E pays money to D to transport a sealed box to F, and D knows that both E and F deal in drugs.) The doctrine has been applied to a wide range of other federal crimes, including smuggling firearms, medical insurance fraud and other types of fraud, identity theft, child pornography, transporting stolen property, money…

Stephen J. Morse “[E]ven a dog distinguishes between being stumbled over and being kicked.” The thesis of this Article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to the importance of mental states in the context of mental abnormalities and of external challenges to personhood and agency based on the new behavioral neuroscience and genetics. The latter challengers argue that the central role the criminal law gives to mental states is deeply misguided. Full Article.