Digital Commons Network^™

The Role Of Institutional Factors In Protecting Individual Liberties, Thomas W. Merrill

Faculty Scholarship

Questions about the efficacy of the Bill of Rights cry out for serious comparative legal scholarship. Robert Ellickson and Frank Easterbrook suggest that one might approach these questions by looking at different state constitutions. One might also look more seriously at the different constitutional regimes around the world, and try to draw some judgments about what impact, if any, different types of constitutional arrangements have on individual rights. We have heard expressions of skepticism about this approach, but there has been very little serious comparative scholarship by constitutional law scholars in this country. The scholarly tradition in America has been …

Revisiting Overton Park: Political And Judicial Controls Over Administrative Actions Affecting The Community, Peter L. Strauss

Faculty Scholarship

Overton Park is a 342-acre municipal park lying close to downtown Memphis, Tennessee, in one of that city's better residential areas. Citizens to Preserve Overton Park, Inc. v. Volpe is a Supreme Court decision frequently cited for its general propositions about judicial review of informal administrative action that, to the citizens of Memphis, was one way-station in a more than two-decade struggle concerning whether and where an inner-city expressway, part of Interstate 40, would be built. Overall, the story of that struggle reveals a complex brew of national and local politics about the marriage of highway convenience to urban amenity; …

The Ethics Of Criminal Defense, William H. Simon

Faculty Scholarship

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not …

Social-Republican Property, William H. Simon

Faculty Scholarship

Economic democracy is the idea that the norms of equality and participation that classical liberalism confines to a narrowly defined sphere of government should apply to the sphere of economic life. Economic democracy thus entails a challenge to the classical liberal notion of property. In classical liberalism, property defines a realm of private enjoyment. No particular property right is a prerogative of, or a prerequisite to, citizenship, and the exercise of property rights by those who have them is not assessed in political terms.

One alternative to classical liberalism responsive to the ideal of economic democracy is classical socialism. Classical …

Getting It Right, Robert E. Scott

Faculty Scholarship

Writing a tribute for any beloved colleague who is retiring is a difficult experience. Writing about Tom Bergin, who is retiring after twenty-nine years at the Law School, is an even greater challenge. The challenge stems from Tom's legacy to his students and to his colleagues at the Law School; both the challenge and the legacy require some explanation.

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority …

Judgment And Reasoning In Adolescent Decisionmaking, Elizabeth S. Scott

Faculty Scholarship

Few people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences. Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives …

Dilemmas Of Justice, Ruti G. Teitel

Other Publications

No abstract provided.

On Sanism, Michael L. Perlin

Articles & Chapters

No abstract provided.

Understanding Eternal Life, Stephen Voss

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

The Necessity Of Gratuitous Evil, William Hasker

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Making Sense Of Animal Pain: An Environmental Theodicy, L. Stafford Betty

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Kant A Christian? A Reply To Palmquist, Anthony N. Perovich Jr.

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Emotions As Access To Religious Truths, Robert C. Roberts

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Kathryn Tanner, God And Creation In Christian Theology: Tyranny Or Empowerment?, Thomas F. Tracy

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

William P. Alston, Divine Nature And Human Language: Essays In Philospohical Theology, Richard Swinburne

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Thomas V. Morris, Ed., Philosophy And The Christian Faith, James Wm. Mcclendon Jr.

Faith and Philosophy: Journal of the Society of Christian Philosophers

No abstract provided.

Economic Analysis, Insider Trading, And Game Markets, Boyd Kimball Dyer

Utah Law Review

The analysis of the stock market developed in this Article agrees with the view that trading in the stock market by public investors is a zero sum game in which no one investor gains without a corresponding loss to another. It also agrees that in this zero sum game, an inside trader "plays with percentage dice." Since the prohibition against insider trading can only limit and not eliminate insider trading, the obvious question is "why would investors consent to play in a crooked game?" This Article breaks new ground by answering this question. To describe the stock market as a …

Biased Evidence Rules: A Framework For Judicial Analysis And Reform, Randolph N. Jonakait

Utah Law Review

Biased evidence rules, those that permit one party to use a kind or class of evidence while prohibiting the other from using it, give adversaries unequal weapons. Truth seems less likely to emerge from an adversarial testing when participants do not have the same devices to demonstrate strengths and weaknesses in the competing claims. Since a good evidence law should aid the determination of truth, neutral evidence rules should be required. In reality, however, all evidence principles are not impartial between the parties. The Federal Rules of Evidence sometimes grant evidentiary mechanisms to just one class of parties. Although principles …

Court Rulemaking In Utah Following The 1985 Revision Of The Utah Constitution, Kent R. Hart

Utah Law Review

In 1985, Utah revised its constitution to grant the Utah Supreme Court power to make rules of procedure and evidence for the courts of the State. The new article eight, section four of the Utah Constitution ("Section Four") provides in part: "The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process" Prior to 1985 and the adoption of Section Four, the legislature possessed authority to adopt rules of procedure and evidence, but delegated that aiithority to the supreme court. Section Four establishes the …

Recent Developments In Utah Law, Utah Law Review Staff

Utah Law Review

The Recent Developments in Utah Law section consists of brief expositions of selected noteworthy cases decided recently by the Utah Supreme Court and the Utah Court of Appeals, and selected statutes enacted by the 1991 Utah Legislature. Each Development is essentially self-contained.

Desuetude, Due Process, And The Scarlet Letter Revisited, Cory R. Chivers

Utah Law Review

American courts do not often mention the obscure civil law doctrine known as the doctrine of desuetude.' Under its tenets, courts may abrogate statutes that have fallen into disuse. American courts do not employ the doctrine, however. The "American Rule" is that disuse, or desuetude, does not give courts the power to nullify or disregard a statute. One simple explanation for the American Rule is that courts normally do not abrogate legislative enactments without a constitutional violation, and courts have not viewed desuetude as a constitutional issue. However, as Professor Bickel observed exactly three decades ago, the doctrine of desuetude …

Wilson V. Seiter. An Unsatisfying Attempt At Resolving The Imbroglio Of Eighth Amendment Prisoners' Rights Standards, Arthur B. Berger

Utah Law Review

The Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution is of murky philosophical genesis, has been the subject of discordant interpretation, and has an uncertain fate. Like several other provisions of the Constitution, such as the due process guarantees of the Fifth and Fourteenth Amendments, the meaning of the Cruel and Unusual Punishments Clause, as well as the standards by which alleged violations are judged, has evolved over time. Yet, notwithstanding its enigmatic nature and praxis, the clause has been an historically important source of rights for those resident in our nation's prisons.

Florida V. Bostick: The Fourth Amendment-Another Casualty Of The War On Drugs, Christian J. Rowley

Utah Law Review

"Our Nation, we are told, is engaged in a 'war on drugs.'" Unfortunately, the war on drugs has prompted many police departments, government agencies, and members of the public to promote extremely oppressive anti-drug tactics. Some of the individuals immersed in the "drug war" implicitly justify these new, constitutionally marginal police measures as necessary in light of the seriousness of the national drug problem. The current United States Supreme Court has apparently reached a similar conclusion.

State V. Ramirez- Strengthening Utah's Standard For Admitting Eyewitness Identification Evidence, Anne E. Whitehead

Utah Law Review

Traditionally, the credibility of eyewitness identifications has been left to the jury, and the procedure used to obtain an out-of-court identification affected the weight, rather than the admissibility, of the identification at trial. Over the past 100 years, however, psychological research on memory and perception has highlighted the fact that "in most cases eyewitness testimony is partially unreliable and highly susceptible to numerous influences." Furthermore, this growing body of scientific research has challenged the presumption that jurors have the ability to understand the problems inherent in eyewitness identifications.

Naomi Wolf, The Beauty Myth: Howimages Of Beauty Are Used Against Women, Anne C. Levy

Utah Law Review

What has happened to the ideal world which the "liberated" woman of the '70s envisioned for herself in the ensuing decades? That vision has been replaced with a harsh reality. Today, the world presents her not with the opportunity to experience the joy of continued movement toward self-fulfillment, power, and prestige, but rather with a need to constantly struggle to overcome gnawing and unsatisfiable feelings of inadequacy and low selfesteem reinforced by an ideal which always exceeds her grasp. Far from having attained the goals of the early women's movement, the woman of the '90s is more tired than energetic, …

Lloyd Burton, American Indianwater Rights And The Limits Of Law, John S. Harbison

Utah Law Review

Is it not the case that these citizens are faced with severe and complicated resource-allocation problems in need of solutions? That when it takes a decade or more to resolve these problems under our current system, we have not much to lose. That the costs may not be more than those we currently bear, and if they are they may be worth paying? That the plethora of state and federal agencies and courts grappling with these problems is a source of substantial ineffectiveness itself? And I would summon Lon Fuller one last time: the demand on our imagination is "a …

Intergenerational Responsibility And Family Obligation: On Sharing, Lee E. Teitelbaum

Utah Law Review

The question of what family members owe to each other has become acute for a number of reasons: some demographic; some economic; and some social. The issue, of course, is an old one. During the sixteenth century, support for those who were disabled through youth (typically orphans and abandoned children), age, or infirmity was first a matter for private charity and, when that failed, became a matter of local responsibility. However, the cost of local responsibility was soon recognized, and recognition was swiftly followed by efforts to minimize the public obligation by, for example, punishing those who were "voluntarily" disabled-vagrants …

Bioethics And The Family. The Cautionary View From Family Law, Carl E. Schneider

Utah Law Review

This attempt to glean lessons for bioethics from family law has yielded no determinate answers or easy principles. I have suggested that family law has recently struggled to avoid the standards problems. Yet I have argued that each method of doing so is itself importantly flawed and sharply limited. I must confess that, if anything, this survey has been too pessimistic, that it has looked more assiduously for the drawbacks than the benefits of each approach. I should also say that my survey has confined itself to examining broad approaches, rather than seeking the surely valuable lessons to be learned …

The Roles Of The Family In Making Health Care Decisions For Incompetent Patients, Leslie P. Francis

Utah Law Review

This Article is about the roles of the family in making health care decisions for incompetent patients. It argues that complex moral reasons call for the participation of families in decision making for incompetents. However, these moral reasons do not support a single model of the family's role for all incompetents. Rather, they suggest important differences among the roles family members should play in decision making for different kinds of incompetent patients: formerly competent adults, never competent adults, or infants and children.