Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup

In this report, the COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (Plan B Workgroup) makes recommendations about best practices and technologies that should be retained or adapted post-pandemic. The recommendations in this final Plan B Workgroup whitepaper are based on experience and feedback from Arizona’s courts addressing pandemic and post-pandemic practices. Although the original report, issued on June 2, 2021, included a May 2021 Survey of Arizona’s Courts, this updated report also includes information from a July 2021 State Bar of Arizona Survey and a September 2021 State of Arizona Public Opinion Survey addressing those practices. The workgroup’s findings and recommendations, which remain unchanged, can be summarized in five major categories: (1) Increasing Access to Justice, (2) Expanding Use of Technology, (3) Jury and Trial Management, (4) Communication Strategies and Disaster Preparedness, and (5) Health, Safety, and Security Protocols.

How to Do Surgery on the Constitutional Law of Libel

Of late, the constitutional law of libel has become the focus of increasing dissatisfaction. This dissatisfaction has taken various forms. The argument below, however, is that the most crucial defect of constitutional libel law lies in the Court’s continuing attempts to draw and utilize distinctions among public figure and private figure libel plaintiffs. The Court should abandon these attempts. Instead, the Court should attend, broadly and fundamentally, to the constitutionally vital distinction between libelous speech that does or does not address some matter of public interest and concern. The argument below first emphasizes the constitutional logic underlying the Court’s initial imposition of First Amendment limitations on the state tort law of libel. The argument then critiques the Court’s initial embrace of a supposedly fundamental but actually distracting distinction between public and private figure libel plaintiffs. Interestingly, for a brief time, a divided Court returned to a focus on the underlying logic of putting First Amendment limits on the tort of libel, only to then re-distract itself with a renewed focus on questions of public and private figure status. Perhaps inevitably though, the Court’s emphasis on public versus private figure status has been qualified, in limited ways, by recourse to the genuinely basic and more valuable distinction between speech that does or does not address some matter of public interest and concern. The argument then catalogs some additional problems inherent in the Court’s public versus private figure libel plaintiff distinction. The argument then defends the essential priority of a focus on the public interest versus merely private interest nature of the subject matter of the libel defendant’s speech. A brief, but comprehensive, conclusion then follows.

Texas, Abortion, and State Action

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday citizens, thereby allowing the law’s defenders to argue that the law does not trigger constitutional protections. This short article argues that the courts should have little trouble concluding that this law and its unusual enforcement mechanism amount to state action, meaning this law is subject to normal constitutional scrutiny. The Supreme Court’s decisions in Shelley v. Kraemer, Edmonson v. Leesville Concrete Co., and Terry v. Adams make clear that private parties can be considered state actors, especially when they are working with the express approval of the government and when the courts are required to hand down rulings that seemingly infringe on well-settled constitutional protections. These decisions, among others, show that the private-citizen plaintiffs deputized under this new Texas law must be treated as state actors who are subject to constitutional limitations.

Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

Many people are deriding (or celebrating) the exceptional—and exceptionally deceptive—device of the Texas legislature to so-called “deputize” private individuals as government enforcement agents to carry out a state anti-abortion law that, at present, violates the U.S. Constitution. The law at issue, commonly referred to as Senate Bill 8, is extraordinarily broad, and provides that anyone can sue anyone who “aids or abets” an abortion after about six weeks of pregnancy (including, if read literally, the Uber driver who drove the woman to the clinic). The law awards recovery of no less than $10,000 and makes no exceptions for pregnancies resulting from incest or rape. Actually, the deceptive nature of the law can be subdivided into three devices. I’ll address each in turn with the principal aim of suing someone under federal law for bringing suit under the Texas state law. In this respect, I’ll be going quite a bit further than those who seek simply to spotlight the unconstitutionality of the Texas law. Rather, I’m going after the plaintiff who sues under it.

The Texas Legislature Has Significantly Broadened the Statute Governing Recovery of Attorney's Fees in Breach of Contract Cases

Texas recently enacted amendments that significantly expand the scope of section 38.001 of the Texas Civil Practice & Remedies Code, a statute that awards attorney’s fees to successful claimants in breach of contract cases. Under the new amendments, which take effect September 1, 2021, the prevailing party may recover reasonable attorney’s fees from most forms of business organizations, including partnerships and limited liability companies—not just from individuals and corporations, as the statute previously provided. And although there has been some confusion on this point, the amended statute continues to protect governments and governmental agencies from attorney’s fees liability. Additionally, the amendments expressly preclude recovery of fees against certain quasi-governmental organizations providing public services and religious or charitable organizations.

School Police Reform: A Public Health Imperative

Out of the twin pandemics currently gripping the United States¬—deaths of unarmed Black victims at the hands of police and racialized health inequities resulting from COVID-19—an antiracist health equity agenda has emerged that identifies racism as a public health crisis. Likewise, calls for reform of school policing by those advocating for civil rights, racial justice, and Black Lives Matter have simultaneously intensified. Yet each remains siloed, despite the natural connection and implicit overlap between these separate movements and debates. Indeed, there are documented negative health effects of school policing for Black, Indigenous, people of color (BIPOC) youth. But these have gone largely ignored or underemphasized by the movement to reform school police. Similarly, the racial health equity movement has overlooked race-conscious health equity reforms to school policing. This Article aims to fill the gap by connecting these distinct movements and debates and articulating a public-health-based response to school policing.

Time’s Up: A Call to Eradicate NCAA Monopsony Through Federal Legislation

Few traditions are as near and dear to the hearts of Americans as college athletics. The institution holds a special place in society because it reflects the ultimate convergence of those values that uniquely define the United States: loyalty, competitiveness, and pride. However, the notion of basic fairness seems to have been excluded along the way, as the commercialization of college athletics gave way to total dominance over the industry by the National Collegiate Athletic Association (NCAA). The NCAA promulgates sports rules and organizes collegiate-level championships, but its most influential role involves promoting “amateurism,” or the notion that student-athletes are not entitled to compensation because college athletics should be about the love of the game, not monetization. While amateurism may be touted as an honorable principle aimed at preserving the character of college athletics and its differences from professional sports, the principle is more difficult to justify at a time when the NCAA earns $1.1 billion per year in revenue, none of which is shared among student-athletes who work full-time and typically live below the poverty line. Last year, state legislators paused to consider whether any justification exists for continuing to adhere to the NCAA’s archaic system of denying compensation to student-athletes in light of the fact that “amateurism” holds no significance in a legal sense. Given the lack of any such justification, the California legislature became the first to explicitly defy the NCAA in passing the Fair Pay to Play Act in September of 2019. Since then, a number of states have followed suit by drafting nearly identical laws that would likewise have the effect of permitting student-athletes to earn compensation for use of their name, image, and likeness (NIL). Unsurprisingly, NCAA leadership vehemently condemned the movement at first, threatening to strip member institutions affected by the new legislation from the organization altogether. The NCAA has since reneged on its hostile position, making a public commitment to reform its policies so as to authorize paid endorsement opportunities for student-athletes on some level. However, the organization will undoubtedly attempt to minimize the impact of the Fair Pay to Play Act and its progeny whether through litigation or by crafting new restrictive policies ultimately aimed at nullifying the effects of new laws. Admittedly, the state-by-state approach to adopting a new stance on athlete compensation comes with a number of practical challenges, thereby providing fertile ground for the NCAA to launch powerful objections. This Comment aims to present a workable solution in the form of a comprehensive federal law, which would secure the rights of student-athletes to earn compensation for use of their NILs before the NCAA is given the opportunity to preempt the significance of that right. While several congressmen have drafted federal laws related to the topic of NIL rights in this context, this Comment identifies particular issues that have been overlooked at the state level thus far, recommending specific provisions that would not only embrace student-athletes’ rights in principle as a matter of basic fairness, but make those rights a practicable and economically feasible reality.

The Uncertain Future of the Fair Housing Act: HUD’s Recent Changes to Disparate Impact Standard

In 2013, the Department of Housing and Urban Development (HUD) published its Disparate Impact Final Rule in which it sought to formalize its longstanding interpretation of disparate impact liability under the Fair Housing Act (FHA) by setting forth a three-part burden-shifting framework. HUD subsequently revisited its disparate impact standard following the 2015 Supreme Court ruling in Inclusive Communities and published a Proposed Rule on August 19, 2019. On September 24, 2020, HUD published a new Final Rule substantially altering the disparate impact standard laid out by the 2013 Rule. This Comment will analyze the similarities and differences between the disparate impact standard in the 2013 Rule and the standard set forth in the current, 2020 Rule. Additionally, given that the 2020 Rule was drafted in response to Inclusive Communities, this Comment will examine whether, and to what extent, the 2020 Rule is consistent with the Court’s ruling. Finally, this Comment will address the criticism leveled at the 2020 Rule by fair housing advocates and explore potential consequences of the new standard. Ultimately, this Comment will argue that, although the 2020 Rule finds some textual support in Inclusive Communities for several elements of its new framework, given the broad remedial purpose of the FHA, the core mission of HUD to eradicate housing discrimination, the potential, negative consequences of the new standard, and President Biden’s recent memorandum on housing discrimination, HUD should abandon the 2020 Rule and readopt the 2013 Rule.

Constructing a Tower of Babble: An Examination of Purpose in Establishment Clause Jurisprudence

“Purpose” is a key component of modern Establishment Clause jurisprudence. While the Supreme Court has expanded the role purpose plays in various areas of constitutional analysis over the last half-century, the Court seemingly continues to muddy the waters as to purpose’s proper place in Establishment Clause cases. This Comment focuses on the function and operation of purpose in Establishment Clause cases in order to probe the complications and obstacles inherent to this area of constitutional law. By constructing and applying an analytical framework that examines modern Establishment Clause cases through the lenses of “conceptions of purpose,” “evidence of purpose,” and “indicia of impermissible purpose,” this Comment provides critical takeaways about the development and current state of the Establishment Clause—as well as potential future outcomes in these cases. Ultimately, the dispositive consideration in Establishment Clause cases is the utilization and weight given by individual Justices in any given case to the factors discussed in this Comment’s analytical framework. This conclusion demonstrates the judge-dependent nature of these cases and the value certain Justices place on the institutional legitimacy of the Supreme Court and the judicial branch as a whole.

Civil Conspiracy—Holding College Officials Accountable

College sports have always been somewhat marred by controversy—whether it be point shaving, paying off players, or academic fraud—as the money to be made from college sports and the overwhelming desire to win has always seemed to generate impropriety among schools, players, and coaches. However, in recent years, scandals within college athletics programs have escalated beyond mere efforts to “win at all costs,” with the spotlight now on instances of sexual violence committed by players against other students and the cover-ups of these assaults. Following the massive cover-up and mishandling of sexual assaults by Baylor University’s athletic department and officials, and the arrest and conviction of a sexually abusive physician at Michigan State University (MSU), it has become apparent that these instances of intra-university collusion are not “isolated incidents.” Instead, these events are evidence of a pattern of behavior employed by institutions of higher education—institutions that prioritize their image over the safety of their students. Further, these cover-ups undoubtedly involve more actors than are held accountable, with scandals leading to the removal of university “faces,” while lower-level employees, staff, and coaches are retained despite their obvious involvement. This Comment will address the goings-on within college athletic programs and will argue that such catastrophic failures on the part of schools like Baylor and MSU are likely evidence of a conspiracy within those institutions to defraud their students or interfere with their civil rights, thereby jeopardizing the safety of every student enrolled. It will be a fact-intensive analysis of the tragic events at Baylor and MSU and of the lawsuits filed against both schools by victims. This analysis will show that a much greater evil is at play at these, and likely many other institutions. Not only did these universities fail to adhere to policy, protect their students, or act with any common sense or decency—they actively attempted to inhibit investigations and intentionally tried to cover up sexual harassment, sexual assault, and even gang rapes in order to protect their athletic programs, their employees’ jobs, and their schools’ reputations. Next, this Comment will discuss the shortcomings of Title IX, focusing on how the statute does little to provide an adequate remedy for the victims at Baylor and MSU. Additionally, the impotency of National Collegiate Athletic Association (NCAA) sanctions will be analyzed, illustrating how those sanctions do little to encourage athletic officials to adhere to proper Title IX or university policy. Finally, this Comment argues that the pursuit of civil conspiracy claims against athletic programs and universities would: (1) deter schools from protecting alleged rapists in order to promote their athletic programs, and (2) root out and punish individuals responsible for willfully protecting students unequally or discouraging reporting of sexual assaults. Additionally, this Comment advocates for neutral government or academic agencies to handle these cases, thereby removing these kinds of investigations entirely from the hands of ill-equipped athletic programs and coaches.