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2001

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Introduction, Utah Law Review Jan 2001

Introduction, Utah Law Review

Utah Law Review

On behalf of the Utah Law Review, I would like to welcome you to this year's Law Review Symposium and to offer a few comments that I hope will set the stage for today's presentations. This should be a wonderfully engaging and entertaining event and we are proud to support the growth of an area of legal scholarship that we anticipate will be incredibly influential and fruitful in the coming years. These papers collectively take an historical approach to classic legal cases. As such, they confront us with the question: why undertake an historical approach to legal studies?

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Response: The Values Of Legal Archaeology, Judith L. Maute Jan 2001

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.

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Afterword And Response: What Digging Does And Does Not Do, Patricia D. White Jan 2001

Afterword And Response: What Digging Does And Does Not Do, Patricia D. White

Utah Law Review

I wish that I could tell you that I had discovered incontrovertible evidence that Pearl Morris had moved to Alaska and undertaken to become a salmon fisherwoman. But I tried and I was unable to. So I am going to have to do something else. I suspect that I was asked to comment on Professor Welke's paper not because I am an historian, because I am not, and not because I have any particular insight to offer on either the Morris case or Plessy, because I do not. But rather because I have long been of the view that something …

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Beyond Plessy: Space, Status, And Race In The Era Of Jim Crow, Barbara Y. Welke Jan 2001

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 …

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Utah's Medicial Malpractice Prelitigation Panel: Exploring State Constitutional Arguments Against A Nonbinding Inadmissible Procedure, Heather Brann Jan 2001

Utah's Medicial Malpractice Prelitigation Panel: Exploring State Constitutional Arguments Against A Nonbinding Inadmissible Procedure, Heather Brann

Utah Law Review

The Utah Health Care Malpractice Act is on shaky ground under the Utah Constitution. To begin, the Utah Open Courts Clause preserves an historic guarantee of access to the courts and remedy for harm to one's person. The Malpractice Act violates both these provisions. The panel proceeding, as a prerequisite to the court's exercise of jurisdiction, delays and may deny access altogether. Where parties proceed to trial, the panel necessarily impairs remedies available only through formal discovery. The Malpractice Act's damage restrictions abrogate damages that were available at common law for medical malpractice without providing a quid pro quo for …

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The Taxation Of Private Interests In Public Property: Toward A Unified Theory Of Property Taxation, John A. Swain Jan 2001

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 …

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Can Constitutional Error Be Harmless?, David R. Dow, James Rytting Jan 2001

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. …

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History And Application Of The Plain Error Doctrine In Utah, Robert J. Labrum Jan 2001

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 …

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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 Jan 2001

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 …

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A Clash Between Commercial Speech And Individual Privacy: U.S. West V. Fcc, Andrew Dymek Jan 2001

A Clash Between Commercial Speech And Individual Privacy: U.S. West V. Fcc, Andrew Dymek

Utah Law Review

In recent years, the public has become increasingly concerned over threats to privacy posed by the commercial use of personal data. In response, Congress has enacted, or is considering, legislation to protect sensitive transactional data in diverse commercial fields. However, because the use of customer data may lead to greater market shares and profits, companies have zealously advocated their countervailing interests. When lobbying fails to dilute privacy legislation, companies may increasingly rely on a relatively new weapon: the First Amendment commercial speech doctrine. In a "harbinger" of future clashes between privacy and commercial speech, a divided Tenth Circuit ruled in …

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The Right To Genetic Privacy? Are We Unlocking The Secrets Of The Human Genome Only To Risk Insurance And Employment Discrimination?, Nathalie Smith Jan 2001

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 …

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More Than Mere Majorities, Saul Levmore Jan 2001

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 …

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Working Across Borders: Global Restructuring And Women's Work, Donna E. Young Jan 2001

Working Across Borders: Global Restructuring And Women's Work, Donna E. Young

Utah Law Review

In the last quarter century, economic globalization has intensified. Multinational corporations have increased their global influence to an astonishing degree. Global restructuring aids corporations in crossing national borders in search of conditions that increase production and profit. Access to cheap, unregulated or underregulated labor is critical to this process. Corporate interests have used domestic and international laws to their benefit. It is essential that women do the same. Immigrants, women, people of color, gays and lesbians, and poor people, are all at a marked disadvantage vis-a-vis multinational corporations and financial institutions. The latter have shaped and benefitted from laws fundamentally …

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Making Blacks Foreigners: The Legal Construction Of Former Slaves In Postrevolutionary Massachusetts, Kunal M. Parker Jan 2001

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 …

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Taking Exception To Traditional Exceptions Clause Jurisprudence: On Congress's Power To Limit The Court's Jurisdiction, Mark Strasser Jan 2001

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 …

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Charting The Spectrum Of Prohibited And Permitted Aid To Religion, Philip Manns Jan 2001

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 …

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The Constitution And Property: Due Process, Regulatory Takings, And Judicial Takings, Roderick E. Walston Jan 2001

The Constitution And Property: Due Process, Regulatory Takings, And Judicial Takings, Roderick E. Walston

Utah Law Review

Regulatory takings and judicial takings are judicial works in progress. The Supreme Court has charted a reasonably clear path out of the regulatory takings maze, one that allows the courts to redeem constitutional property protections by resorting to due process-like principles. The Court has not yet, however, confronted the divergence of its jurisprudence regarding judicial takings, nor indicated whether courts are subject to the same constitutional limitations that apply to legislative bodies. Thus, although the Court has significantly clarified the law since Justice Holmes announced in Pennsylvania Coal that government cannot go "too far" in regulating property, many significant takings …

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Beyond Personhood And Autonomy: Moral Theory And The Premises Of Privacy, Aaron J. Rappaport Jan 2001

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.

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Illinois V. Wardlow: A Single-Factor Totality, Debra Meek Nelson Jan 2001

Illinois V. Wardlow: A Single-Factor Totality, Debra Meek Nelson

Utah Law Review

The Wardlow decision departs from long established Fourth Amendment jurisprudence by in effect allowing a single factor-flight--to be enough to establish reasonable suspicion justifying an investigative stop. While the United States Supreme Court claimed to base its conclusion on two factors- unprovoked flight in a high crime area-the majority's reasoning tells another story. This reasoning reveals the Court's reliance on the single factor of unprovoked flight to justify an investigatory stop.

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Failed Markets, Failing Government, Or Both? Learning From The Unintended Consequences Of Utah Consumer Credit Law On Vulnerable Debtors, Christopher L. Peterson Jan 2001

Failed Markets, Failing Government, Or Both? Learning From The Unintended Consequences Of Utah Consumer Credit Law On Vulnerable Debtors, Christopher L. Peterson

Utah Law Review

Although for millennia the Western tradition looked upon the taking of interest with a jaundiced eye, consumer credit has become an integral and accepted part of the American economy. Nevertheless, throughout the twentieth century federal and state government institutions have struggled with the dual needs of facilitating creditors' business ventures and simultaneously protecting vulnerable debtors from onerous obligations.

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Punishing The Saints For Their "Peculiar Institution": Congress On The Constitutional Dilemmas, L. Rex Sears Jan 2001

Punishing The Saints For Their "Peculiar Institution": Congress On The Constitutional Dilemmas, L. Rex Sears

Utah Law Review

The palpable connection between Mormon polygamy and that political subdivision of the Union that was first Utah Territory, and then the State of Utah, proved a fertile source of constitutional perplexity, and over time, generated a significant body of constitutional debate in Congress. The lessons taught by reviewing these debates are not all positive. The debates over exclusion and expulsion stand as an alarming illustration of how the flames of popular prejudice can push congressional majorities to embrace what had but recently been constitutionally unthinkable. Likewise, Congress's eventual acceptance of the myth that polygamists could be disfranchised for their criminal …

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Distrust And Discovery: The Impending Debacle In Discovery Of Rape Victims' Counseling Records In Utah, Tera Jckowski Peterson Jan 2001

Distrust And Discovery: The Impending Debacle In Discovery Of Rape Victims' Counseling Records In Utah, Tera Jckowski Peterson

Utah Law Review

This painful narrative may represent a dramatically commonplace monologue by a rape victim to a mental health therapist, expressing feelings of deep embarrassment, guilt, stigmatization by society, and even self-blame. In fact, rape victims' most common response to rape is the belief that they are somehow responsible for the attack. Therapists persuade rape victims to disclose this fear in order to help them heal from the psychological effects of the assault. Because of the intimate and deep damage sexual assault inflicts on its victims, "[e]ffective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing …

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Exploring Justice Courts In Utah And Three Problems Inherent In The Justice Court System, Benjamin Will Bates Jan 2001

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 …

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Youth Interrogations And The Utah Constitution, Troy L. Booher Jan 2001

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 …

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The Electronic Signatures Act: Preempting State Law By Legislating Contradictory Technology Standards, Allison W. Freedman Jan 2001

The Electronic Signatures Act: Preempting State Law By Legislating Contradictory Technology Standards, Allison W. Freedman

Utah Law Review

Federal e-commerce legislation was desperately needed in order to keep pace with the exponential growth of businesses utilizing technology and to inject uniformity into the numerous conflicting state laws. While E-Sign is a step in the right direction, it creates as many problems as it strives to solve. E-Sign attempted to design a technology-neutral approach to e-commerce that allows for growth in an important, rapidly changing industry. While in one sense it does that, it also puts forth confusing, ambiguous, and contrary provisions. Inconsistent standards exist even within E-Sign itself.

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Interpreting Utah's Sex Offender Registration Requirements After Femedeer V. Haun, David F. Mull Jan 2001

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.), …

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Recent Developments In Utah Law, Kari Alcorn Tuft, Matthew Moncur, Stephanie Wilkins Pugsley, Dwight Beckstrand Jan 2001

Recent Developments In Utah Law, Kari Alcorn Tuft, Matthew Moncur, Stephanie Wilkins Pugsley, Dwight Beckstrand

Utah Law Review

The Recent Case Law Developments section consists of brief expositions of selected noteworthy cases decided recently by Utah courts. Each development is self-contained.

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The Right To Information Self-Determination, Edward J. Eberle Jan 2001

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 …

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Herbivore Asse[M]Blage Response To Stressed And Vigorous Prairie Roses, Mark A. Williams Jan 2001

Herbivore Asse[M]Blage Response To Stressed And Vigorous Prairie Roses, Mark A. Williams

Theses and Dissertations

No abstract provided.

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Sleep Disturbances In Hospitals, Naira Rachikovna Zargarian Jan 2001

Sleep Disturbances In Hospitals, Naira Rachikovna Zargarian

Theses and Dissertations

No abstract provided.

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