Digital Commons Network^™

Keeping The Perpetual In Florida's Conservation Easements, Nancy Mclaughlin

Utah Law Faculty Scholarship

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and that the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” …

Defining 'Victim' Through Harm: Crime Victim Status In The Crime Victims' Rights Act And Other Victims' Rights Enactments, Paul Cassell, Michael Ray Morris

Utah Law Faculty Scholarship

Who qualifies as a “victim” is the foundational question for the Crime Victims’ Rights Act (“CVRA” or “Act”) and other crime victims’ rights laws. This article provides the first comprehensive exploration of this “victim” definition question. It traces how the CVRA (and many states) define “victim” as broadly covering anyone who has been harmed as the result of a crime. This article begins by reviewing how the definition of “victim” has evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” …

Why Do Judges Compete For Cases?, Jonas Anderson, Paul R. Gugliuzza

Utah Law Faculty Scholarship

It’s not just parties to litigation who forum shop. Sometimes judges forum sell by trying to attract cases to their courts. This judicial competition for cases has been documented in areas ranging from bankruptcy to antitrust to, most infamously, patent law. Despite the ubiquity of judicial case-seeking behavior, one important question remains unanswered: why? Why do judges—particularly federal district judges, who enjoy life tenure and are paid fixed salaries—seek out more work, especially in cases that can be quite complex?

This article answers that question by developing a first-of-its-kind model of judicial behavior in the context of court competition. The …

Reproductive Justice At Work: Employment Law After Dobbs V. Jackson Women’S Health Organization, Laura T. Kessler

Utah Law Faculty Scholarship

In June 2022, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what happens in their own bodies. In the two years since the decision, seventeen states have made most or all abortions illegal, with the fight over abortion still taking place in state and federal courts. Experts across fields have explored the decision's effects on health, economic …

Corporate Democracy And The Intermediary Voting Dilemma, Jill E. Fisch, Jeff Schwartz

Utah Law Faculty Scholarship

Corporate governance is changing. For the past two decades, the focus of shareholder voting and engagement was deconstructing impediments to shareholder power and increasing managerial accountability. The goal of these interventions was to increase firm value by reducing agency costs. Increasingly, however, environmental and social issues have risen to the fore. This new focus is arguably more about values than value. This Article is the first to argue that, because of this shift, institutional intermediaries—namely, pension and mutual fund managers—can no longer vote and engage on the affairs of their portfolio companies without seeking the input of the pension-plan participants …

Pathogen Genomes As Global Public Goods (And Why They Should Not Be Patented), Jorge L. Contreras

Utah Law Faculty Scholarship

During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. …

Proportionality Defenses In Frand Cases - A Comparative Assessment Of The Revised German Patent Injunction Rules And Us Case Law, Peter Georg Picht, Jorge L. Contreras

Utah Law Faculty Scholarship

A new defense against injunctions in FRAND cases has arisen in Germany, and its relationship to the Huawei defense (whether viewed as a competition or contractual matter) is largely unexplo-red. In August 2021, the “Second Act for the Modernization of Patent Law” (Zweites Pa-tentrechtsmodernisierungsgesetz) took effect and modified the German Patent Act (GPA) in sever-al respects. Pertinent to our topic is an amendment to § 139(1) GPA which introduced an expli-cit proportionality defense against injunction claims. The new proportionality mechanism con-sists of three main elements: First, § 139(1)(3) GPA excludes the claim to an injunction in case of patent infringement …

Religious Gerrymandering: A New Avenue For Redistricting Challenges?, Jacqueline Rosen

Utah Law Student Scholarship

Recently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah’s Constitution. Using Utah as a case study, I …

Laws Governing Restrictions On Charitable Gifts: The Consequences Of Codification, Nancy Mclaughlin

Utah Law Faculty Scholarship

Over the last two decades we have seen marked changes in the laws governing donor-imposed restrictions on charitable gifts. These changes have occurred primarily as a result of the adoption in many states of the Uniform Trust Code (the UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA). This Essay explains that codification in the UTC and UPMIFA of liberalized versions of cy pres and deviation, as well as other related changes to the common law, have had unintended negative consequences. Those negative consequences include a lack of coherence in the law, an elevation of form over substance …

How Victim Impact Statements Promote Justice: Evidence From The Content Of Statements Delivered In Larry Nassar's Sentencing, Paul Cassell, Edna Erez

Utah Law Faculty Scholarship

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of …

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

Laboratories Of The Future: Tribes And Rights Of Nature, Elizabeth A. Kronk Warner, Jensen Lillquist

Utah Law Faculty Scholarship

From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from …

The Levers Of Sustainability: The Eu Directive On Corporate Sustainability Due Diligence In Comparison To Us Law, Jeff Schwartz

Utah Law Faculty Scholarship

In February 2022, the European Commission proposed a far-reaching and comprehensive directive on corporate sustainability due diligence (the “Directive”). This Article describes the Directive, compares it to sustainability efforts in the US, and offers observations and critiques about both the Directive and US law. The comparison reveals several primary takeaways. First, likely owing to their significantly different social and political cultures, the EU Directive goes far beyond any US sustainability efforts. Second, and relatedly, the Directive is part of a rapidly progressing EU sustainability framework, which embraces sustainability as a stand-alone goal. In the US, however, considerations of sustainability are …

Plastics And The Limits Of U.S. Environmental Law, Robert W. Adler, Carina E. Wells

Utah Law Faculty Scholarship

Plastics are among the most ubiquitous materials on the planet, used for functions ranging from single-use cups to medical syringes to industrial equipment. The properties that make plastic useful, however, also make them highly persistent in the environment when improperly disposed. Moreover, although plastic polymers are inert, they break down in the environment into harmful microplastics and nanoplastics, and plastics are often made using toxic chemicals or include toxic additives. These properties have caused a plastic pollution crisis. Massive amounts of plastics and breakdown chemicals contaminate the oceans and other ecosystems throughout the globe. The United States continues to contribute …

The Carpenter Test As A Transformation Of Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

For over fifty years, the Fourth Amendment’s scope has been largely dictated by the Katz test, which applies the Amendment’s protections only when the government has violated a person’s “reasonable expectation of privacy.” This vague standard is one of the most criticized doctrines in all of American law, and its lack of coherence has made Fourth Amendment search law notoriously confusing. Things have become even more complex following the Supreme Court’s landmark decision in Carpenter v. United States, which has spawned its own alternative test for determining the Fourth Amendment’s scope. The emerging Carpenter test looks to the revealing nature …

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

Utah Law Faculty Scholarship

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

Federalism And The Right To Travel: Medical Aid In Dying And Abortion, Leslie P. Francis, John Francis

Utah Law Faculty Scholarship

This article explores how rights to movement may limit state efforts to restrict abortions, either directly or indirectly. We use the language of “movement” to encompass short-term visits, longer-term residency changes, and the movement of goods or services across state lines. We prefer “movement” to “travel” or “tourism,” as this language risks trivializing the seriousness of what might be at stake. However, since “travel” is the term used in many U.S. court decisions and other discussions concerning the right,7 we use that term as relevant to these. The centerpiece of our defense is the relationship between freedom of movement and …

A Research Agenda For Standards-Essential Patents, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter discusses the current state of legal, economic and policy research on standards-essential patents (SEPs) and fair, reasonable and nondiscriminatory (FRAND) licensing of SEPs, and recommends additional research directions for the future. Areas for future research include the investigation of market adoption of standardized products subject to FRAND licensing and available on a royalty-free basis, measurement of various characteristics of SEPs including disclosure, validity, essentiality and transfer, the evolution of SDO and consortia patent policies, SEP licensing behavior, both by SEP holders and product manufacturers, SEP and FRAND disputes and litigation, including arbitration, and competition among patent pools for …

Creating A Transparent Methodology For Measuring Success Within A Continuum Of Conservation For The America The Beautiful Initiative, Jamie Pleune

Utah Law Faculty Scholarship

On January 27, 2021, the Joseph Biden Administration identified the national goal of conserving at least 30% of our lands and waters by 2030. With this order, the America the Beautiful Initiative (“ATB Initiative”) was born, and the United States joined many other nations in adopting the 30 x 30 conservation target. However, beneath the lofty aspiration lay ambiguity. The Administration has not defined the term “conservation” or explained how it will be measured. Without a clear definition or metric for measuring the outcome of conservation projects, the ATB Initiative will lose credibility. The Biden Administration should avoid this result …

Holding Enablers Of Child Sexual Abuse Accountable: The Case Of Jeremy Bell, Amos N. Guiora, Valeri Craigle, Aya Hibben, Henry F. Fradella

Utah Law Faculty Scholarship

In the United States, 1 in every 5 women and 1 in every 13 men report being sexually abused as a child. Of the child sexual abuse that occurs during the K-12 years, much of it is aided and abetted by those in positions of authority who look the other way when abuse is known or suspected. This article uses the novel approach of holding not just the perpetrators of child sexual abuse accountable for these crimes, but also those who enable their criminal acts by failing to report suspicious behaviors or witnessed accounts of abuse. No case in more …

Police Secrecy Exceptionalism, Christina Koningisor

Utah Law Faculty Scholarship

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up.

This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …

The Fall Of Fda Review, Daniel G. Aaron

Utah Law Faculty Scholarship

The U.S. Food and Drug Administration (FDA) is in crisis. FDA can hardly go a single day without an investigation, negative news story, or scholarly critique of the agency’s work. We have increasingly entrusted FDA—today, to the tune of 25% of the U.S. economy—with vetting the products we put in and on our bodies. But the array of problems facing the agency raises questions about whether it is equipped to succeed in the 21st century.

FDA’s core function is to oversee a special legal regime called “premarket review.” Congress has prohibited all marketing of certain types of products (like drugs) …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Utah Law Faculty Scholarship

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response, access to justice reformers have embraced a key intervention: changing the judge’s traditional role. The prevailing vision for judicial role reform calls on trial judges to offer accommodation, information, and process simplification to people without legal representation.

Until now, scholars have known little about judicial behavior in lawyerless courts, including whether and how judges are implementing role reform recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear—and the discretionary power they wield—in dispensing justice for millions of unrepresented people each year. While today’s …

Trade Secret, Jorge L. Contreras

Utah Law Faculty Scholarship

A trade secret is information that has commercial value to an organization due to its secrecy, is not known outside of the organization, and the continuing secrecy of which the organization has taken reasonable measures to protect. Trade secrets may include information embodied in documents, electronic records, products and other media, as well as information known to individuals. The EU and some other jurisdictions exclude from the definition of trade secrets trivial information or experience/skills gained by employees during the normal course of their employment and information that is generally known among, or is readily accessible to, persons within the …

The Unfulfilled Promise Of Indian Water Rights Settlements, Heather Tanana, Elisabeth Paxton Parker

Utah Law Faculty Scholarship

As climate change threatens an already-scarce resource, quantifying tribal water rights is critical to providing additional certainty to an uncertain future. In order to protect the future of their communities, it is critical that tribal water rights move from merely theoretical paper rights to actualized wet water rights.

Don't Say Gay: The Government's Silence And The Equal Protection Clause, Clifford Rosky

Utah Law Faculty Scholarship

This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently …

#Includetheirstories: Rethinking, Reimagining, And Reshaping Legal Education, Leslie Culver, Elizabeth A. Kronk Warner

Utah Law Faculty Scholarship

The entire world was shaken by the events of 2020—a year that the historians will pen with infamy. Along with a global health pandemic that tested both human frailties and social infrastructures, the world witnessed the devastation of George Floyd, an African American man, dying under the knee of Derek Chauvin, a White male police officer. The nation erupted. As 2020 ended, many organizations and institutions clamored both to process ethnic divides and injustices, and to gain tools and skills to create meaningful change and lasting impact. Legal education was one such institution. During the summer and fall of 2020, …

Mindful Lawyering: A Pilot Study On Mindfulness Training For Law Students, Clifford Rosky, R. Lynae Roberts, Adam W. Hanley, Eric L. Garland

Utah Law Faculty Scholarship

Many US law schools are now offering elective courses in mindfulness training to alleviate disproportionately high levels of anxiety, depression, stress, and disordered alcohol use among law students. To date, empirical evidence on the effectiveness of these courses has been lacking. The aim of this pilot study was to explore the feasibility and impact of a 13-week mindfulness course, "Mindful Lawyering," specifically tailored to law students. The primary hypothesis was that mindfulness training would be significantly correlated with improvements in well-being and mindfulness.

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Utah Law Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …