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John M. Yun App stores have become the subject of controversy and criticism within antitrust. For instance, app developers such as Spotify and Epic Games (creator of Fortnite) allege that Apple’s 30% cut of all sales in the App Store violates the antitrust laws and is indicative of monopoly power. The claim is that iPhone users are locked into Apple’s walled garden iOS platform, which frees Apple to engage in misconduct in the App Store “aftermarket” to the detriment of users and app developers. Full Article.

Felipe Jiménez This Article offers a theoretical framework for thinking about contract remedies. The argument starts from the distinction between rights and remedies in contract law. The distinction is consistent with the doctrinal structure of contract law in Western legal systems and with the available empirical evidence regarding contractual parties’ expectations. An adequate theory of contract remedies must start by taking this distinction seriously. The Article illustrates this point through an analysis of two influential views in the American law of contract remedies: Shiffrin’s analysis of the divergence between contract and promise, and Markovits and Schwartz’s defense of expectation damages. On the basis of the right-remedy distinction, the Article argues that contract remedies have two central roles: protecting both the integrity of the practice of contracting and the individuals who…

Derek E. Bambauer & Michael Risch The rise of algorithm-driven decision making enabled by Big Data has generated widespread concern among legal scholars. However, few critics have considered data on people’s existing preferences about the role of algorithms in decision systems. This Article uses empirical analysis of a novel, large dataset of consumer  surveys to elucidate those preferences. The surveys explore whether people prefer to have an algorithm or a human determine an outcome affecting their welfare in a range of representative scenarios with varying stakes. The Article examines how preferences change when one type of decisionmaker produces results that are more accurate, faster, cheaper, or that incorporate private personal information. And it analyzes anchoring effects from the initial assignment of a decisionmaker, along with interactions among these variables, to test how malleable views about…

Daniel Restrepo Fifty thousand years ago, a woman stands and stretches her arms, looking over America’s open plains. In the distance, she sees thirty very hairy and practically naked people speaking a language that will never be heard on the planet again. She runs, careful not to jostle the baby in her arms, joining them at the crest of a small hill. She and the other mothers, who have survived predation and the dangers of pregnancy during this hostile era, work together, stopping occasionally to nurse their children. The milk produced with the help of her community’s collective labors offers her baby the promise of another day. Full Article.

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 than fulfilling its purpose, qualified immunity has robbed victims of meaningful opportunities to seek justice when officers violate their constitutional rights. In turn, officers are not held accountable for grievous…

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 that all Americans will likely know at least one victim of gun violence in their lifetime. Full Article.

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 justice for all. . . . But without equal access to justice, the promise of equal justice under law rings hollow.” –Merrick Garland, U.S. Attorney General Noting the increasing poverty…

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 speak, write, and publish on all subjects, being responsible for the abuse of that right.” Full Article.

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, you live in geographic districts from which all federal, state, and some local officers are elected. The geographic dimensions of those districts have always affected electoral outcomes, but they have…