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Argentina's Emerging Standard Of Intellectual Property Protection: A Case Study Of The Underlying Conflicts Between Developing Countries, Trips Standards, And The United States, Kimberly A. Czub

Case Western Reserve Journal of International Law

This is called an article in the print version, but it appears to be (a note) written by a law student.

A "Primer" In Utah State Appellate Practice, Justice Michael J. Wilkins, Kristy L. Bertelsen, Matt Snow

Utah Law Review

Each year, many capable lawyers appear for the first time in cases before Utah appellate courts. Those lawyers with prior appellate experience in other jurisdictions, and those with no such head start, are faced equally with the somewhat daunting task of quickly getting a grip on the way we do things here. With that in mind, we have written this article, intending it to be a "primer" in Utah appellate practice generally. We do not intend to examine comprehensively all there is to know about appellatepractice. Rather, we intend this piece to be an introduction to Utah appellate procedure, a …

Divining The Framers' Intetions: The Immunity Stanadard For Criminal Proceedings Under The Utah Constitution, C. Albert Bowers

Utah Law Review

While a derivative use immunity regime may be constitutional in theory, the doctrine suffers from an unconstitutional breakdown in practice. Since Kastigar was decided, many jurisdictions have experimented with derivative use immunity. However, those jurisdictions that have carefully examined the practicality of the derivative use immunity doctrine have found it does not work in practice." The prosecution invariably uses the witness' compelled testimony against the witness in numerous and significant ways. While any one use may not be abhorrent in itself, when added together they culminate in an unconstitutional end. Although the Kastigar Court realized that the compelled witness should …

Tribute: Justice I. Daniel Stewart, Richard Cameron Blake

Utah Law Review

The curtain is now closed on Justice Stewart's remarkable performance on the Utah Supreme Court stage, opening the door for him to pursue other interests and influence the law in other ways. As is to be expected, his Court performance will be remembered differently by different people. Many will remember him as the "Thorough" (meaning "Slow") Justice; just as he went through ten drafts of discovery questions, he was famous at the Court for going through dozens of opinion drafts (fifty-one drafts is purportedly his maximum). One attorney approached me one day during my clerkship and said, "Tell the Judge …

Response: The Values Of Legal Archaeology, Judith L. Maute

Utah Law Review

Professor Threedy's ambitious undertaking has provided rich food for thought about this old fish tale. I commend her efforts and urge that she pursue the project further. Besides incorporating the contextual, historical, and biographical materials, I suggest she then step back for a perspective on contracts doctrine, theory, and policy. For the researcher, doing legal archaeology is arduous. When the product is complete, it yields great benefits to understanding the development of the law. I thank her for her labors.

Beyond Plessy: Space, Status, And Race In The Era Of Jim Crow, Barbara Y. Welke

Utah Law Review

In the 1896 case of Plessy v. Ferguson, the United States Supreme Court held that a Louisiana law requiring separate but equal accommodations on railroads for white and black passengers did not violate the Fourteenth Amendment to the U. S. Constitution. By the time of the Supreme Court's decision in Plessy every Southern state except the Carolinas and Virginia had a separate coach law similar to Louisiana's. By 1900, every Southern state required racial separation of white and black passengers on railroads. Within another decade, what is widely called "Jim Crow" applied to every aspect of Southern public life. In …

The Taxation Of Private Interests In Public Property: Toward A Unified Theory Of Property Taxation, John A. Swain

Utah Law Review

As traditional barriers in our economy continue to erode, once clear distinctions in industries, such as finance, telecommunications, and the media, are becoming blurred. Similarly, government and industry are combining forces in many non-traditional arenas. Consequently, the commercial use of government property is expanding rapidly. Although the existence of private interests in public grazing lands, forests, harbors, and airports is not new, public property is now being devoted to a myriad of expanded private uses. Resort hotels, research parks, office complexes, warehouses, and other traditional private sector improvements are being erected on public lands and titled to the government.' The …

Can Constitutional Error Be Harmless?, David R. Dow, James Rytting

Utah Law Review

Chapman v. California held that federal constitutional error in a state criminal proceeding does not require reversal if the state can establish that the error was harmless. Writing about Chapman several years after it was decided, Professor Daniel J. Meltzer observed that in fact the case had decided two propositions: first, that constitutional errors can be deemed. harmless; and second, that federal law determines the issue of harmlessness. Professor Meltzer then focused exclusively on the second proposition, concluding that it was sound. In this Article, we focus on the first. We will demonstrate that harmless error doctrine is conceptually incoherent. …

History And Application Of The Plain Error Doctrine In Utah, Robert J. Labrum

Utah Law Review

It is a general rule in the judicial system that any issues to be argued on appeal must first be raised in the court below. However, sometimes circumstances arise where despite counsel's failure to make proper objections, the appeal should be heard to further the interests of justice. The plain error doctrine is one of the tools that Utah appellate courts use to allow issues to be raised for the first time on appeal. Yet, in spite of the fact that the plain error doctrine has been recognized in Utah for over sixty years, Utah courts have had difficulty using …

Revival Of Jeffersonian Democracy Or Resurgence Of Western Anger? The Emergence Of Collaborative Decision Making, Sydney F. Cook

Utah Law Review

Standing on the rim of the San Rafel Swell, a visitor to southern Utah can see the contours of red sandstone open up across the horizon for almost sixty miles. The San Rafel Swell, a giant expanse of undeveloped land located at the gateway to canyon country in southern Utah, is at the center of the proposed San Rafel Swell National Heritage and Conservation Act ("the Act"). The Act outlines land management guidelines for an area of land in southern Utah that includes the San Rafel Swell as well as parts of Desolation and Labyrinth canyons. Supporters applaud the bill …

Utah's Gang Enhancement Statute: Did The Legislature Create A Sentencing Factor As It Intended Or Did It Unwittingly Create An Element Of The Offense?, M. Scott Smith

Utah Law Review

The Utah Legislature, hoping to deter gang-related criminal activity, created a sentencing enhancement to increase the minimum jail time of group criminal actors. This sentencing enhancement was to operate as a sentencing factor-upon a finding by the sentencing judge that the criminal actor had acted "in concert with two or more persons" in committing a particular crime, the sentencing judge was to increase the penalty. The Lopes majority, however, concluded that the Utah Legislature had unwittingly created an element of the offense rather than a sentencing actor. As such, the "in concert" requirement had to be pleaded in the indictment …

The Right To Genetic Privacy? Are We Unlocking The Secrets Of The Human Genome Only To Risk Insurance And Employment Discrimination?, Nathalie Smith

Utah Law Review

Imagine the following: you are a healthy middle-aged adult. Breast, ovarian, or prostate cancer runs in your family. Knowing of your potential increased susceptibility to these diseases, your physician recommends that you participate in an ongoing, local research project. As your physician explains, the research project, which encourages enrollment of high-risk individuals and their families, bases participation on those with family histories such as yours. Upon enrollment, the research project uses a DNA based genetic test to detect the mutated gene' that increases your likelihood of developing the tested-for disease by eighty percent. Your physician is careful to point out …

More Than Mere Majorities, Saul Levmore

Utah Law Review

Spontaneous law is less enamored with simple majorities than is much of formal law, at least in appellate courts, legislatures, the electoral college, and plebiscites, where simple majoritarianism is the common requirement for action. In contrast, young children who are asked to vote on a name for their athletic team are often observed entertaining numerous nominations and then raising their hands as each nomination is called out-with no apparent restriction on the number of times a given little hand may be raised. The winner is the option that attracts the most votes. Experienced adults are often startled when these young …

Recent Developments In Utah Law, Utah Law Review Staff

Utah Law Review

No abstract provided.

Making Blacks Foreigners: The Legal Construction Of Former Slaves In Postrevolutionary Massachusetts, Kunal M. Parker

Utah Law Review

If the narrative of immigration is rethought in the way suggested here, i.e., immigrant identities are not so much about choosing to move from "there" to "here," nor even about the brute fact of moving from "there" to "here," but about always being produced "here" in order to refuse individuals' claims upon the community, African-Americans might be seen not just as being connected to other immigrant experiences, but as offering the model for understanding the immigrant experience itself. All groups, whether European-Americans, Hispanic-Americans, Asian-Americans, or African-Americans, are made immigrants "here," not least when the state pins a "there" onto them …

Taking Exception To Traditional Exceptions Clause Jurisprudence: On Congress's Power To Limit The Court's Jurisdiction, Mark Strasser

Utah Law Review

The Court's appellate jurisdiction is essential in the tri-partite structure of our constitutional system. This means that the Court's appellate jurisdiction cannot be restricted to merely its "essential roles," unless those are understood to be sufficiently encompassing to include much more than most commentators seem to think. Further, those "small" exceptions to the Court's jurisdiction, e.g., abortion or school prayer cases, must be considered at the appropriate level of abstraction; otherwise, most individual rights under the Constitution might be excluded from the Court's appellate jurisdiction in a piecemeal fashion. While the Exceptions Clause likely allows some categories of cases to …

Perpetuating Stigma: Client Identity In Disability Rights Litigation, Laura L. Rovner

Utah Law Review

In returning to the question of whether and how lawyers can represent clients in disability rights cases in ways that are more congruent with how at least some of these clients self-identify, I find that part of the answer depends, necessarily, on what it is the client is seeking to achieve through a lawsuit in the first place. To the extent that the client's main objective is not an award of compensatory damages, there may be greater opportunity for the client's voice and story to be presented in a (relatively) unfiltered way. For a client whose primary goal is a …

Charting The Spectrum Of Prohibited And Permitted Aid To Religion, Philip Manns

Utah Law Review

The Court's Free Exercise Clause decision in Smith and the Establishment Clause trilogy of Rosenberger, Agostini, and Mitchell underpin each Religion Clause with the twin principles of the prohibiting of targeting of religion (for burden or aid) and the permitting of equating religion with its analogous secular activity (for burden or aid). On the Free Exercise Clause side, if conduct is regulated when engaged in as a secular activity, it can be identically regulated even when engaged in as religious activity. On the Establishment Clause side, the symmetry is incomplete regarding aid to religious groups. If religion is provided aid …

Beyond Personhood And Autonomy: Moral Theory And The Premises Of Privacy, Aaron J. Rappaport

Utah Law Review

This Article constitutes a challenge to the view that the Court's privacy jurisprudence is unprincipled and incoherent. My claim, in contrast, is that the jurisprudence has a core logic. It is a logic based on a series of interlocking premises-a moral principle of perfectionism, a political premise of liberty, an institutional premise of judicial review, and a prudential concern for tradition. One who embraces all of these premises, in the way described, will have a plausible basis for believing that the Court's jurisprudence is morally justified.

Exploring Justice Courts In Utah And Three Problems Inherent In The Justice Court System, Benjamin Will Bates

Utah Law Review

Like all other courts, the justice court system in Utah is far from flawless, and brings additional unique problems into the judicial system. The "trial de novo" appeal is the source of some of those problems. As the system has recently operated, it has not been uncommon for the "trial de novo" appeal from justice courts to create large disparities between the rights of defendants injustice courts and the rights of defendants in other criminal courts. The decisions in Dean, Hudecek, and Hinson have allowed defendants taking a "trial de novo" appeal in the district court to do so on …

Youth Interrogations And The Utah Constitution, Troy L. Booher

Utah Law Review

Currently there are two approaches to determining whether youth act voluntarily to waive Miranda rights or confess to crimes, per se rules and totality tests. As they are applied, neither approach is fully adequate. Per se rules can cripple legitimate law enforcement efforts to interrogate youth by demanding that third parties become involved. Also, there is no guarantee that those who are present on behalf of youth, especially parents, will act in the best interest of youth. Moreover, some youth simply are as capable as adults of voluntarily both waiving Miranda rights and confessing to crimes, and per se rules …

Interpreting Utah's Sex Offender Registration Requirements After Femedeer V. Haun, David F. Mull

Utah Law Review

Sex offender registration statutes are widely known as "Megan's Laws," in memory of a seven year-old New Jersey girl, Megan Kanka, who in 1994 was raped and strangled to death by a twice-convicted sex offender who had been living in Megan's neighborhood unbeknownst to her parents.' In 1998, the Utah Legislature amended its "Megan's Law" sex offender registration statute (the "Statute") to apply retroactively to people who had already been convicted of sex offenses.2 As a result, every former sex offender in Utah who fits into this category is required to submit specific information to the Department of Corrections (D.O.C.), …

Business Method Patents, Franchises, And The First Inventor Defense Act: Something Must Give, Matthew D. Thayne

Utah Law Review

To sustain the designs of the patent system, it must evolve as technology does, providing limited monopolies in technological realms the Constitution's framers could hardly have imagined. By the same token, we must not allow new technology to disguise as patent-worthy those inventions or ideas which are not deserving of patent protection. Patent grants can only be justified to the extent that they serve the interests of the public.

Making Laws Moral: A Defense Of Substantive Canons Of Construction, Andrew C. Spiropoulos

Utah Law Review

Judges play a central, and difficult, role in our regime. The difficulty arises from our expectations for them. Judges, we demand, should both ensure that justice is done and be neutral arbiters of the laws enacted by the people. These two responsibilities are in constant tension, and it is all too easy for judges to emphasize one responsibility at the expense of the other. Judges should be neither mere minions of the legislature nor our Platonic Guardians. We do not need enlightened despots to impose justice upon us or to trick us into doing justice by pretending that they are …

The Right To Information Self-Determination, Edward J. Eberle

Utah Law Review

We have examined how the rise of the computer, and the accompanying information revolution it has triggered, can pose serious threats to human freedom. There is, accordingly, a need to safeguard the inviolability of personhood amidst this ongoing technological revolution. Determining how to respond to this challenge is a major test for the American legal system. At present, the legislative response has been inconsistent and episodic. No farreaching measures have been taken to address the needs of human security and freedom. The debate over what to do continues. Perhaps the specter of Big Brother will spur legislation more protective of …

Literature-Based Language Arts Extended To Science, Brandee M. Alexander

Graduate Research Papers

Literature can link all areas of the curriculum. Extending a literature-based language arts program to the science area can provide a rich learning environment supported by many different genres of literature and related expressive activities that contribute to the dimensions of learning.

A science unit of study on the five senses, with special emphasis on touch, for kindergarten children, was expanded through literature experiences and related expressive activities. The literature presented offered much content on the senses and models of language to nurture the children's emerging literacy. During the one-week of study, learner enthusiasm and peer interaction for reading and …

Using Lightspan Technology To Build School To Home Connections, Frances J. Birks

Graduate Research Papers

Family involvement in children's emerging literacy is critical to their school success. School personnel can support family literacy by becoming acquainted with families and providing home strategies and materials. Teachers can guide caregivers to the resources of the school and public libraries for books and software. Schools can off er caregivers instruction on computers as a learning tool for children.

The implementation of school computer lab sessions scheduled at night for families is described. This project was designed to 1) discover the ways families interact while using computers, 2) determine if families enjoyed using the lab together, and 3) document …

Internet-Enhanced Esl Education : A Literature Review, Yu Cao

Graduate Research Papers

This paper intends to present some of the most current research on the tremendous benefits which the Internet can provide to ESL education. Some Internet applications which can be used as active teaching and learning tools in the ESL classrooms are being presented in this paper, such as electronic mail, electronic discussion group or "lists," electronic forum, chat room, and keypal. Additionally, this paper intends to bring educators' attention to those issues which affect language learners' interests in using the Internet in their learning. Issues include the lack of training, accessibility of technology, and lack of feedback.

Parenting Styles In Society Today, Julie Hammond

Graduate Research Papers

This paper is a review of parenting styles relative to the importance of childrearing practices. Its primary focus is to identify and examine parenting styles, which impacts childrearing methods. The authoritarian, permissive, and authoritative methods were identified with strengths and weaknesses compared.

From the comparison, it was determined that the authoritative parenting style provides the most success for childrearing in today's changing American society. The conclusion of the paper offers guidelines and suggestions to parents on establishing this childrearing method.

Web-Based Portfolios In Higher Education, Marilyn Murphy

Graduate Research Papers

Portfolios offer an authentic means of assessment for higher education. The management of paper portfolios, however, is problematic,. Electronic portfolios solve many of the problems associated with paper portfolios and offer several added benefits. Making electronic portfolios accessible on the World Wide Web is advantageous for faculty, students, and employers. The problems associated with web-based portfolios are generally manageable.