ESSAYS AND ARTICLES CELEBRATING THE 50TH ANNIVERSARY OF THE ARIZONA LAW REVIEW

 DEAN’S INTRODUCTION
Toni M. Massaro

FOREWORD
Charles E. Ares

ESSAYS

 REFLECTIONS ON ARIZONA’S JUDICIAL SELECTION PROCESS
Sandra Day O’Connor & RonNell Andersen Jones

Using Arizona as a case study, this Essay examines the history of changes in state judicial-selection rationales, methods, and practices. It outlines Arizona's journey from contested elections to a hybrid merit-selection system featuring appointments and retention elections, and compares this experience to that of states that have continued with a pure election system. The Essay explores the purported tension between judicial accountability and judicial independence and argues that Arizona's experience demonstrates both the falsity of that dichotomy and the superiority of a hybrid merit-selection system in simultaneously promoting accountability, independence, competency, and fairness.

 BEYOND THE SUPERMAJORITY: POST-ADOPTION RATIFICATION OF THE EQUALITY AMENDMENTS
Gabriel J. Chin & Anjali Abraham

Although an amendment to the Constitution is effective when ratified by three-fourths of the states, the states in the Union at the time of adoption unanimously ratified the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments, as well as the Bill of Rights. Ratification of an already effective provision at first blush appears pointless, but it serves an important function: Post-adoption ratifications moot legal and political infirmities with earlier ratifications when, as was the case with the Fourteenth, Fifteenth, and Nineteenth Amendments, one or more of the first three-fourths of the states to ratify did so in a procedurally questionable manner. Post-adoption ratification has also served as an important symbol; for example, several states ratified the Fourteenth and Fifteenth Amendments during the Civil Rights Era to show support for racial integration.

UNDERTAKINGS AND SPECIAL RELATIONSHIPS IN CLAIMS FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Dan B. Dobbs

Courts impose a number of barriers to recovery for negligently inflicted emotional harm. Whether or not these barriers are justified in suits between strangers, this essay argues that they are inappropriate both when the defendant has a special relationship to the plaintiff and when the defendant has undertaken a duty of care that implicates the plaintiff's emotional well-being. A hospital caring for mother and her newborn infant should be liable for the mother's emotional harm on ordinary negligence principles if it loses the baby. The essay also considers whether the defendant should be permitted to contract out of the responsibility.

ENTREPRENEURS ON HORSEBACK: REFLECTIONS ON THE ORGANIZATION OF LAW
Darian M. Ibrahim & D. Gordon Smith

“Law and entrepreneurship” is an emerging field of study. Skeptics might wonder whether law and entrepreneurship is a variant of that old canard, the Law of the Horse. In this Essay, we defend law and entrepreneurship against that charge and urge legal scholars to become even more engaged in the wide-ranging scholarly discourse regarding entrepreneurship. In making our case, we argue that research at the intersection of entrepreneurship and law is distinctive. In some instances, legal rules and practices are tailored to the entrepreneurial context, and in other instances, general rules of law find novel expression in the entrepreneurial context. As a result, studying connections between law and entrepreneurship offers unique insights about them both.

FROM H20 TO C02: LESSONS OF WATER RIGHTS FOR CARBON TRADING
Carol M. Rose

Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap—keeping water instream—and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

 SAME QUESTIONS, DIFFERENT ANSWERS: A COMPARATIVE LOOK AT INTERNATIONAL AND STATE AND LOCAL TAXATION
John A. Swain

This Essay is a primer on the income taxation of cross-border transactions, comparatively examining the approaches of the U.S. federal government and the American states, and focusing on the problems of residency, enforcement jurisdiction, sourcing, and transfer pricing. The sourcing rules of each level of government share common flaws, while the approaches to the problem of transfer pricing offer the sharpest contrast. The differences between the two systems often are explained by the higher level of integration within the federal system, but as the global economy continues to integrate, the approaches may begin to converge.

ARTICLES

THE VOICE OF THE INDIAN CHILD: STRENGTHENING THE INDIAN CHILDWELFARE ACT THROUGH CHILDREN’S PARTICIPATION
Barbara Atwood

This Article explores the potential benefits and challenges of giving more prominence to the voice of the Indian child in ICWA proceedings, a topic that has received scant attention from scholars and courts. The Act itself authorizes the appointment of counsel for children and provides that state courts may consider the child’s wishes as to placement. Moreover, international law and the laws of many Indian tribes within the United States recognize the child’s right of participation. By including the perspectives of Indian children in the judicial calculus, state courts could affirm the dignity of each child through more individuated decision-making.

TOLERATING CONFUSION ABOUT CONFUSION: TRADEMARK POLICIES AND FAIR USE
Graeme W. Austin

This Article suggests that the role played by the “ordinarily prudent consumer” in trademark law should be more carefully scrutinized. Trademark infringement law’s “straightforward story,” which typically justifies trademark rights in terms of protecting consumers from the harms of likely confusion and dilution, does not adequately accommodate countervailing principles and policies. This Article argues that recognizing the incapacity of the likelihood of confusion and dilution analyses to capture the empirical reality of the consumer experience should lead to assigning greater weight to countervailing policies and principles. Trademark “fair use” doctrine provides a useful context in which to explore these ideas. The U.S. Supreme Court’s approach to fair use in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. risks valorizing consumer confusion in a context in which it should be downplayed. Moreover, the Court’s holding risks constraining the analytical space available in trademark law for expression and development of policy concerns other than those that underlie trademark’s straightforward story.

 COWBOY CONTRACTS: THE ARIZONA SUPREME COURT’S GRAND TRADITION OF TRANSACTIONAL FAIRNESS
Jean Braucher

Arizona common law insists upon transactional fairness, a tradition in keeping with the iconic ethos of the American cowboy as straightforward, trustworthy and self-reliant when necessary but also dependent on the surrounding community. Although not conventionally justified in economic terms, the Arizona approach to contract law is also efficient, increasing predictability, reducing transaction costs, and compensating for information asymmetries. In this 50th anniversary of the Arizona Law Review, and only four years from the state’s centennial, this Article celebrates the Arizona Supreme Court’s grand tradition of insisting upon transactional fairness and seeks to understand its elements and the structural features of the Arizona legal system that have allowed it to flourish, as well as the limits of the common law as a means to achieve policy goals.

LEAKY FLOORS: STATE LAW BELOW FEDERAL CONSTITUTIONAL LIMITS
Marc L. Miller & Ronald F. Wright

One of the most widely accepted notions in American constitutional law is that the federal constitution and interpretations of the federal constitution by the Supreme Court of the United States set a “floor” for personal liberties. State courts and legislatures cannot properly go below the federal floor. It is a position anchored to plain constitutional text in the form of the Supremacy Clause. In the area of criminal procedure, however, it is easy to find state positions both “above” and “below” the federal constitutional requirements. On closer inspection, this should not be a shock. The concept of a floor conflicts with our modern consensus about the nature of judicial opinions and the constraining power of language. It is also out of sync with theories about how legal institutions interact. The floor concept also ignores the capacity of legislatures and executive branch agencies to use their powers, including the power to establish and fund government entities and to set detailed policy and administrative rules, to work around even the most seemingly stringent federal limits. We expect that this insight is not peculiar to criminal procedure but something more general about the interaction between state and federal law.

ANTITRUST VERTICAL MYOPIA: THE ALLURE OF HIGH PRICES
Barak Y. Orbach

Low prices are one of antitrust law’s traditional promises to society. Resale price maintenance (“RPM”), the practice whereby a manufacturer sets pricing rules for retailers, artificially inflates prices and, thus, allegedly runs afoul of antitrust laws. The practice emerged in the last quarter of the nineteenth century with the rise of advertising and has been one of the most controversial antitrust topics ever since. At the heart of the controversy lies the question of why would manufacturers ever be interested in high retail prices that seem to protect retailers’ profits and hurt manufacturers. One of the oldest answers that manufacturers provide is that, for certain branded goods, high prices improve sales, while discounts harm the appeal of brands and adversely affect sales. Courts and scholars have always been aware of this argument, yet kept focusing on other explanations for the practice. This Article examines popular RPM theories, explains why manufacturers frequently use RPM to protect the appeal of their products as status goods, and argues that no per se rule for RPM is warranted.

THE ORGANIZED BAR AND THE COLLABORATIVE LAW MOVEMENT: A STUDY IN PROFESSIONAL CHANGE
Ted Schneyer

This Article draws on a current controversy in legal ethics to explore the evolving associational structure and ethical outlook of the American legal profession. The controversy concerns the propriety of representing clients in a novel dispute resolution process, Collaborative Law (“CL”), which is chiefly used in divorce cases. In that process, spouses and their lawyers agree to make a good faith effort to reach a marital dissolution agreement without litigation. The controversy concerns the commitment each lawyer makes to the other spouse to limit the engagement to the collaboration and not to continue if litigation proves necessary. The Article provides an account of the surprisingly favorable response CL has received in "mainstream" bar association ethics opinions and of the rapid development of inter-professional associations for collaborative lawyers and other experts, which are creating the infrastructure needed to govern the new process. The Article also considers the changes that the CL story suggests may be occurring in the structure and ideological commitments of the bar.

NOTES

PROOF OF TAX DEFICIENCY—THE SILENT ELEMENT IN FALSE STATEMENTS CHARGES?
Jennifer Gibbons

ARIZONA CASE NOTES

STATE FARM INSURANCE COMPANY V. PREMIER MANUFACTURED SYSTEMS, INC: SEVERAL-ONLY COMPARATIVE FAULT APPLIES TO STRICT PRODUCTS LIABILITY
Megan Heald