Law Commons^™

Learning From The Past And The Pandemic To Address Mental Health In Tribal Communities, Heather Tanana

Utah Law Faculty Scholarship

When COVID-19 hit, it devastated Tribal communities. Based on past federal policies, American Indians and Alaska Natives suffer various health and socioeconomic disparities that make them not only more vulnerable to contracting COVID-19, but also more susceptible to negative outcomes once infected. Much attention has focused on COVID-19 infection rates and related deaths in Indian country. However, the pandemic’s reach has gone beyond physical impacts on the body. COVID-19 has also affected the mental health of Tribal members and their access to mental health services. This Article dives into the effects of the coronavirus pandemic on the mental health and …

Bystander Legislation: He Ain't Heavy, He's My Brother, Amos N. Guiora, Jessie E. Dyer

Utah Law Faculty Scholarship

In this article we address the bystander with a particular focus on legislating-criminalizing the bystander. In doing so we focus on bystander responsibility from the perspective of the individual in peril. Why and how the individual is in that condition is irrelevant to the recommendation that a duty to act be imposed on the bystander. The circumstances that directly, or indirectly, led to the distress are insignificant to the legal obligation to intervene on behalf of the person in immediate physical peril.

The bystander is the person who observes another individual in distress, knows of that person’s travail, and has …

Indian Country Post Mcgirt: Implications For Traditional Energy Development And Beyond, Elizabeth Kronk Warner, Heather Tanana

Utah Law Faculty Scholarship

The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the …

A Road Map To Net-Zero Emissions For Fossil Fuel Development On Public Lands, Jamie Pleune, John C. Ruple, Nada Culver

Utah Law Faculty Scholarship

Almost one quarter of all U.S. carbon dioxide (CO2) emissions come from fossil fuels extracted from public lands, and these resources are managed by the Bureau of Land Management (BLM). The BLM has a statutory duty set forth in the Federal Land Policy and Management Act (FLPMA) to coordinate management of various resources “without permanent impairment of the productivity of the land and the quality of the environment.” Continuing to permit fossil fuel development without adhering to a carbon budget violates this statutory duty. This Article argues that the BLM must address climate change in its decisions. It also proposes …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely, Lucius K. Caldwell

Utah Law Review

The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millenia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

Restoring The Public Interest In Western Water Law, Mark Squillace

Utah Law Review

American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging …

Up In The Air: A Fifty-State Survey Of Atmospheric Trust Litigation Brought By Our Children’S Trust, Anna Christiansen

Utah Law Review

Frustrated by government inaction in response to the threats posed by anthropogenic climate change, the advocacy organization Our Children’s Trust (OCT) is pursuing legal reform in every state in the United States. These efforts include petitioning state environmental agencies for rulemaking and filing lawsuits against those agencies and the states. The legal claims have generally been rooted in the public trust doctrine. This Note surveys OCT’s efforts and the evolution of the organization’s legal strategy, as OCT has recently based its lawsuits on violations of substantive due process, and in some cases, violations of the states’ own environmental laws. This …

Assessing The Performance Of Voluntary Environmental Programs, Luis Inaraja Vera

Utah Law Review

In recent years, government agencies have increasingly relied on voluntary programs to achieve a variety of goals, from improving worker safety to creating healthier living conditions in urban areas. This type of government initiative is based on a bargain between the agency and private citizens: the government provides certain incentives—economic or otherwise—and private actors voluntarily adopt behaviors that benefit the public. One example is cleaning up a contaminated site and building an affordable housing project.

While agencies have made substantial progress since the creation of the first voluntary programs, much work remains. To move forward in this area, and especially …

In A World Of “Fake News,” What’S A Social Media Platform To Do?, Evelyn Mary Aswad

Utah Law Review

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …

Media Literacy Beyond The National Security Frame, Lili Levi

Utah Law Review

The Trump administration’s delegitimizing refrain characterizing legacy media as “fake news” institutions has doubtless exacerbated growing public distrust in government and accountability institutions. It has also promoted arrogation of power by the Executive. Media literacy must be broadened to encompass the more capacious goal of helping citizens understand the structure, operations, and structural role in democracy, and the interconnected ways in which it is threatened. Expanding the public’s understanding of the proper role of the press and the ways in which modern information industries operate attention markets, promoting the audience’s awareness of its own cognitive blind spots, increasing reporters’ critical …

Information Hacking, Derek E. Bambauer

Utah Law Review

The 2016 U.S. presidential election is seen as a masterpiece of effective disinformation tactics. Commentators credit the Russian Federation with a set of targeted, effective information interventions that led to the surprise election of Republican candidate Donald Trump. On this account, Russia hacked not only America’s voting systems, but also American voters, plying them with inaccurate data—especially on Internet platforms—that changed political views.

This Essay examines the 2016 election narrative through the lens of cybersecurity; it treats foreign efforts to influence the outcome as information hacking. It critically assesses unstated assumptions of the narrative, including whether these attacks can be …

Disclosing The Danger: State Attorney Ethics Rules Meet Climate Change, Victor B. Flatt

Utah Law Review

This Article suggests a novel concept in climate change law and attorney ethics law by proposing that many states’ attorney ethics laws could be interpreted to require, or at least permit, attorneys to disclose client activity relating to greenhouse gas emissions. Every state has some form of ABA Model Rule 1.6(b), either requiring or allowing attorneys to disclose client activities that result in death or substantial bodily harm. This Article asserts that precedent surrounding this disclosure rule indicates that the rule could be applicable to harms caused by greenhouse gas emissions. Attorney disclosures, in turn, could impact a wide swath …

The Incidental Environmental Agency, Tara K. Righetti

Utah Law Review

State oil and gas conservation agencies are the gatekeepers to oil and gas development: as the agencies charged with granting drilling permits, they decide if, when, where, and how oil and gas will be developed. As such, oil and gas conservation agencies sit on the front lines in the emerging, and increasingly irresolvable, struggle between fossil energy development and the environment. Current oil and gas conservation regulation is designed to promote development, maximize recovery of the resource, and protect the individual property rights of mineral owners. However, advocacy by environmental constituencies, including surface owners and local governments, has challenged the …

Disentangling Disinformation: What Makes Regulating Disinformation So Difficult?, Jason Pielemeier

Utah Law Review

This Essay articulates some of the critical ways in which disinformation differs from other categories of harmful content and explores some of the early efforts by platforms and governments to address the issue. It begins by analyzing the semantics around disinformation, explaining how specific terminology can allude to distinct concerns. It then explores the similarities and differences between disinformation and related categories of harmful content, like hate speech and terrorist incitement, before examining some of the corporate and regulatory initiatives that have emerged. It concludes with some observations and cautionary notes for corporate and governmental policy makers as they consider …

Who Will Check The Checkers? False Factcheckers And Memetic Misinformation, Andrew Moshirnia

Utah Law Review

This Essay sets out the need for disciplined fact-checking networks and the likely counterattacks of domestic and foreign propagandists. Part I sets out the continuing social media disinformation campaigns infecting elections worldwide, which stoke internal divisions and undermine public discourse. Part II details factchecking efforts and their effectiveness, with specific attention paid to the neutralization of memes designed to inflame racial hatred. Part III examines disturbing trends that threaten the fact-checking mission, including an internallydriven tendency towards false equivalence and foreign-directed efforts to create imposter fact-checkers. Part IV offers an overview of potential solutions and areas for future study.

Networks Of Empathy, Thomas E. Kadri

Utah Law Review

Digital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.

Although law can be a powerful tool to regulate digital abuse, legal responses are …

Exploiting The Charitable Contribution Deduction’S Hypersalience, Eric S. Smith

Utah Law Review

Hypersalience describes the cognitive error that occurs when taxpayers are highly aware of a tax provision generally, but fail to correctly perceive its associated limitations. The charitable contribution deduction provides a strong example of hypersalience as taxpayers have general awareness that tax benefit follows charitable giving, but often fail to understand the deduction’s limits—most notably the standard deduction’s preclusion to any direct tax benefit for charitable giving. As cognitive error drives inaccurate perception of the tax law, the question arises: what, if anything, should the government do to correct taxpayer understanding?

This paper considers this question from two perspectives. The …

A Balanced Consideration Of The Federal Circuit’S Choice-Of-Law Rule, Jennifer E. Sturiale

Utah Law Review

The Federal Circuit’s jurisdiction is unique. Unlike the jurisdiction of all other U.S. courts of appeals, the Federal Circuit’s jurisdiction is defined not by its geographical boundaries, but rather by the subject matter of the original claims and compulsory counterclaims. The court has appellate jurisdiction over final decisions from all U.S. district courts if a plaintiff’s claim or a party’s counterclaim arises under the patent laws. From this unusual jurisdictional grant, the Federal Circuit has concluded that, as a policy matter, it should apply and develop its own law only if the legal issue pertains to patent law. For all …

The Incomplete Rule Of Completeness: Taking A Stand On Federal Rule Of Evidence 106, Louisa Heiny, Emily Nuvan

Utah Law Faculty Scholarship

The common law Rule of Completeness served an important role in Anglo-American jurisprudence for centuries. Historically, it was a rule guided by principles of fundamental fairness and was designed to prevent parties from introducing incomplete and misleading statements at trial.

What was once a simple rule has been muddled by Federal Rule of Evidence 106. The common law rule language was lost when Rule 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether Rule 106 applies to oral as well …

No Matter How Loud I Shout: Legal Writing As Gender Sidelining, Leslie Culver

Utah Law Faculty Scholarship

In this essay, I argue that viewing legal writing as a mode of gender sidelining uncovers the urgency for law schools to provide unitary tenure for legal writing programs across all law schools. I recognize that many legal writing faculty are employed under ABA Standard 405(c), a seemingly second-best option to traditional tenure tracks. As Professor Kathy Stanchi (UNLV) comments, however, while Standard 405(c) offers some respite from “job insecurity, intellectual disparagement, and pay inequity,” it ultimately serves as an “institutionalized bar to professional advancement divorced from any reasonable measure of merit.” This essay takes Stanchi’s framing of 405(c) as …

Rewriting Judicial Recusal Rules With Big Data, Raymond J. Mckoski

Utah Law Review

Big data affects the personal and professional life of every judge. A judge’s travel time to work, creditworthiness, and chances of an IRS audit all depend on predictive algorithms interpreting big data. A client’s choice of counsel, the precise wording of a litigant’s motion, and the composition of the jury may be dictated by analytics. Touted as a means of bringing objectivity to judicial decision-making, judges have employed big data to determine sentences and to set the amount of restitution in class action cases. Unfortunately, the legal profession and big data proponents have ignored one perplexing problem begging for a …

Mpeg La’S Use Of A Patent Pool To Solve The Crispr Industry’S Licensing Problems, Patrick Neville

Utah Law Review

Since 2012, CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) technology has revolutionized how scientists approach gene editing. CRISPR allows for easier modification and alteration of the genome. This technology has potential applications ranging from correcting genetic defects to the treatment and prevention of diseases—CRISPR’s potential upside is unquestionable. However, CRISPR’s current patent landscape presents a variety of roadblocks for research, innovation, and profit. This Note discusses the potential use of a patent pool to alleviate some of these roadblocks. This Note begins with a discussion of the independent administrative body attempting to create such a patent pool, MPEG LA, before …

The Road To Paris Runs Through Delaware: Climate Litigation And Directors’ Duties, Lisa Benjamin

Utah Law Review

As political and regulatory battles over climate change rage in the United States, and the Trump Administration unwinds regulation on climate change, the directors of some of the largest, fossil fuel corporations, often referred to as “carbon-majors”, are facing a barrage of climate litigation claims. This is the second time directors of these corporations have faced litigation. The first wave of litigation against carbon majors failed for a number of reasons, including judicial reluctance to engage with the complex issue of climate change. However, climate litigation is evolving. In this second wave of litigation judges have started to engage more …

Resilience Theory And Wicked Problems, Robin Kundis Craig

Utah Law Faculty Scholarship

This Article posits, first, that resilience theory offers important insights into our understanding of wicked problems and, second, that to understand the value of resilience theory to wicked problems, we should start by going back to the context of Rittel’s and Webber’s 1973 delineation of the ten characteristics of a “wicked problem.” Rittel and Webber were in fact among the vanguard of researchers beginning to articulate the realization that social and ecological systems — now social-ecological systems, or SESs — do not follow the predictable and mechanistic rules of Newtonian physics. As a result, SESs do not yield, at least …

The Technical Standardization Ecosystem And Institutional Decision Making: The Case Of Intellectual Property Rights Policies, Justus Baron, Jorge L. Contreras, Martin Husovec, Pierre Larouche, Nikolaus Thumm

Utah Law Faculty Scholarship

In this paper, we analyze decision making on Intellectual Property Rights (IPR) policies in the standardization ecosystem. While a large literature has studied IPR policies of Standard Developing Organizations (SDOs), we contribute a more rigorous analysis of how these IPR policies are shaped by the interdependencies between SDOs and between SDOs and a variety of stakeholders. While SDO stakeholders often have opposing policy preferences, they are tied together by non-generic complementarities and a joint interest in the overall performance of the standardization system, which are constitutive characteristics of an ecosystem. The standardization ecosystem is characterized by widely shared institutional norms, …

Digital Services Tax: A Cross-Border Variation Of The Consumption Tax Debate, Young Ran Kim

Utah Law Faculty Scholarship

The rise of highly digitalized businesses, such as Google and Amazon, has strained the traditional income tax rules on nexus and profit allocation. Traditionally, profit is allocated to market countries where consumers are located only if the business has a physical presence. However, in the digital economy, profits can be easily generated in market countries without a physical presence, resulting in tax revenue loss for market countries. In response, market countries have started imposing a new tax, called the digital services tax (DST), on certain digital business models, which has ignited heated debate across the globe. Supporters defend the DST, …

Amici Curiae Brief, Pine Mountain Preserve, Llp V. Commissioner, Filed In The U.S. Court Of Appeals For The Eleventh Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018).

Freedom Of The Press In Post-Truthism America, Ronnell Anderson Jones, Lisa Grow Sun

Utah Law Faculty Scholarship

Freedom of the press in America is at a critical crossroads in a number of ways, but one stands out as most fundamental: the stark impact of the current debate over “Post-Truthism.” Press freedom jurisprudence has long been structured around the concept of an audience member’s search for truth in a marketplace of ideas. But social science research increasingly suggests that individual information consumers are in fact often driven by emotion, affirmation of political identity, and the need for cognitive shortcuts, and that they may not possess the truth-seeking, rational processing, or information-updating capabilities that the Court assumes. Whether this …

Research And Repair: Expanding Exceptions To Patent Infringement In Response To A Pandemic, Jorge L. Contreras

Utah Law Faculty Scholarship

The doctrinal areas on which this essay focuses are two longstanding but narrow exemptions from patent infringement: one that permits scientific research, and one that permits the owner of a patented device to repair it. Though distinct at first glance, both of these doctrines act to permit activity that would otherwise be considered patent infringement. They are exceptions to the exclusivity that the law grants to patent holders – particularly the right to “make” a patented article and, to a lesser degree, to “use” it, and for this reason they are particularly salient when patents may impact critical lifesaving technologies. …

Digital Services Tax: A Cross-Border Variation Of The Consumption Tax Debate, Young Ran Kim

Utah Law Faculty Scholarship

The rise of highly digitalized businesses, such as Google and Amazon, has strained the traditional income tax rules on nexus and profit allocation. Traditionally, profit is allocated to market countries where consumers are located only if the business has physical presence. However, in the digital economy, profits can be easily generated in market countries without a physical presence, resulting in tax revenue loss for market countries. In response, market countries have started imposing a new tax, called the digital services tax (“DST”), on certain digital business models, which has ignited heated debate across the globe. Supporters defend the DST, designed …