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Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

"Losers"

We are all losers at one time or another. If you're seated in economy class on an airplane, you can't use the business class toilet, even if it's just two steps in front of your seat. Instead, you have to run back to the back of the plane and use the economy class toilets. The operative rule prohibits a mere economy class passenger from exercising the much more convenient choice of using the business class toilet. You are understandably disappointed (and discomforted) that you can't use the more convenient business class toilet: you are a "loser" because your obtained …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

Losers' Law: A Metatheory for Legal Disappointments

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

"Losers"

We are all losers at one time or another. If you're in "economy class," you can't use the "business class" toilet, even if it's located just two steps in front of your seat. You must instead go to the back of the plane and use the toilets designated for economy class passengers. The operative rule prohibits you, as a mere economy class passenger, from exercising the much more convenient choice of using the business class …

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

The American legal system generates losers every day. Our adversarial system of litigation practically guarantees that every lawsuit will produce a winner and a loser. When the legislature or the people directly through initiatives enact legislation that further restricts land use, landowners hoping for greater land development options are transformed into losers as well.

Losers can choose to voice their grievances, to exit the system, or to resort to illegal behavior. But once voice is exercised, and exit and illegality are rejected as viable choices, we want losers to select "acceptance" of their losses, because this helps to maintain the …

The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel

Matan Shmuel

This article deals with the circuit split over whether a government agency can use government attorneys to conceal what would otherwise become public information. Often, a government agency representative might discuss with nearby agency counsel personal legal information outside the scope of their employment. Courts are split over whether this is privileged or not. My article proposes a solution to the split by implementing a factor test which takes into account the government interest in confidentiality, the public need for disclosure, and the ability of the grand jury to find the information elsewhere.

The Role Of The Judge In Endangered Species Act Litigation: District Judge James Redden And The Columbia Basin Salmon Saga, Michael C. Blumm, Aurora Paulsen

Michael Blumm

After rejecting three federal biological opinions (BiOps) for favoring federal Columbia Basin hydroelectric operations over salmon protected by the Endangered Species Act (ESA), Judge James A. Redden has retired, passing oversight of the litigation to a new federal judge. This complex case, which concerns the accommodations the world’s largest hydropower system must give to the region’s signature natural resource, has now spanned nearly twenty years and five different BiOps. For his part, Judge Redden worked closely with the parties in an attempt to arrive at improvements in salmon survival. In this managerial role, he acted perhaps as the archetypical federal …