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2009

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The Most Wanted Boys In The World, Ruth And Kim Hackford-Peer Jan 2009

The Most Wanted Boys In The World, Ruth And Kim Hackford-Peer

Utah Law Review

My partner and I met in college twelve years ago. Shortly before Kim moved in with me, my grandma called to telline that I wasn't allowed to "just shack up with some gal and live in sin." She told me I would have to get married. She shushed me when I told her we were denied that particular civil right and added that she got married to my Grandpa by using a fake ID. She told me the most important thing is to make a commitment and stick with it. I told her I wouldn't let her down.

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Telling, Martha M. Ertman Jan 2009

Telling, Martha M. Ertman

Utah Law Review

Balancing the white plastic stick carefully on top of the toilet tank, I leave the bathroom. I feel a little crazy for wanting to take it with me for proof, good luck or an early demonstration of maternal dedication, and ia little crazy for not just throwing it away. I walk slowly down the wood-p~led hall toward the living room. What should I do? I look around for a minute to memorize the look of this rattletrap living room, the 70s beige carpet, the riqkety wooden coffee table, painted white like just about every other piece of fumitiure on Cape …

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"You Only Donated Sperm": Using Intent To Uphold Paternityagreements, Jesse Michael Nix Jan 2009

"You Only Donated Sperm": Using Intent To Uphold Paternityagreements, Jesse Michael Nix

Utah Law Review

Ruth and Kim Hackford-Peer identify themselves as a lesbian couple who went to great lengths to have children in "The Most Wanted Boys in the World." Using sperm donations from two different men, Ruth was able to have, two children through artificial insemination. As a result, Ruth is the legal mother of both children, but Kim is the legal mother of Oflly one because she adopted the fust child while living out-of-state, but could not adopt the second child under Utah's adoption laws. In the monologue, "Telling," Martha Ertman describes herself as a single lesbian woman who wants a child. …

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Families, Oh My, Cynthia Lane Jan 2009

Families, Oh My, Cynthia Lane

Utah Law Review

Family, the people who sit with you at events you never wanted to go to anyway. Who make you laugh, make you cry, and come to get you when your car breaks down. Who pay attention to the details, and hang in there as best they can. Who forgive you your stupidity even as you forgive theirs. These are the people who see past their own egos, faults and failings and do their best to give you a place in their hearts and homes. People for whom you find a place in your heart and home to return the favor. …

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Two Steps Behind: The Law's Struggle To Keep Pace With The Changing Dynamics Of The American Family, Jason M. Merrill Jan 2009

Two Steps Behind: The Law's Struggle To Keep Pace With The Changing Dynamics Of The American Family, Jason M. Merrill

Utah Law Review

While the dynamics of the U.S. family hav shifted from traditional to alternative, many laws remain centered around trad tional family policy. In areas of the law involving child visitation rights, non-marital cohabitation, and caretaking policies, the focus on traditional family form rather than modem family function has resulted in a failure to fully accommodate the needs of alternative families.

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The Most Important Thing, Linda Smith Jan 2009

The Most Important Thing, Linda Smith

Utah Law Review

It was a Guardianship action filed by the Granmother (Abuela) of a little girl. The mother had died while she and her daughter were living with Abuela. So Abuela sought permanent custody of the three-year-oId child. The lawyer filed the papers in Massachusetts, and served the father (Padre) who was far away in Puerto Rico.

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Safety Pin, Bara Swain Jan 2009

Safety Pin, Bara Swain

Utah Law Review

I am told that I climbed to the'top of our porch trellis when I was two years old. I used to believe that I remembered that moment the ivy tickling my stomach, a caterpillar crawling into my underpant , clinging to the slats until my father's outstretched hand supported my bottom letting go, feeling weightless, feeling safe. But now I think I don't remember his at all It was my father's retelling of the story that was real. His voice rang with pride.

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Our Parents' Keepers: The Current Status Of American Filial Responsibility Laws, Michael Lundberg Jan 2009

Our Parents' Keepers: The Current Status Of American Filial Responsibility Laws, Michael Lundberg

Utah Law Review

The United States, deeply influenced by early sources such as Judeo-Christian theology, as well as Eastern, Roman, and British law, enacted statutes requiring children to provide support for the indigent elderly. The rationale for these laws was based mainly on the filial relationship. between parent and child. However, due to the enactment of several welfare statutes following the 1950s, many states have repealed filial responsibility statutes or do not enforce them, despite continual support from the judiciary and critics who are concemed with the stability of Medicare, Medicaid, and Social Security. The enfocement of such statutes would be beneficial to …

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Full Circle, Ashley Morgan Jan 2009

Full Circle, Ashley Morgan

Utah Law Review

As a child, I spent most of my time daydreaming imagining other places and pretending to be someone else to avoid facing the reality of our home. My family looked ideal from the outside. I lived in a smalI house with my Mom, Dad, Grandma, two sisters, and a brother. Inside, it was a different story. My father physically abused my brother and sexually abused me. My mother knew, but chose not to defend us; and, I felt trapped in a life that offered no escape. For a very long time, I hated my mother. I despised her because she …

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Seen But Not Heard: Child Sexual Abuse, Incest, And The Law In The United States, Alison Adams Jan 2009

Seen But Not Heard: Child Sexual Abuse, Incest, And The Law In The United States, Alison Adams

Utah Law Review

Ashley Morgan's monologue Full Circle explores the difficult subject of child sexual abuse. In 2005 alone, over 83,000 children were confirmed victims of sexual abuse in the United States. This number is taggering. Even more shocking is a 1994 retrospective survey of adults, which suggests that the number of confirmed sexual abuse victims is extremely understated. The survey estimated that at least twenty percent of American woman and five to ten percent of American men experienced some form of sexual abuse as children. More alarming than the number of children who are victims of child sexual abuse is understanding who …

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Anne, Heidi Camp Jan 2009

Anne, Heidi Camp

Utah Law Review

Anne was born early in a violent act of surgical intervention-blood, tissue, and fluids spilling out of the fertile cavity, sucked away by surgical probes and gauze sponges. Two pounds, nine ounces of screaming beginning: Dark hair, dark, wise eyes. Long fingers puckered from seven months of floating in the warm amniotic swimming pool of her birth mother's womb.

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Elective Surgery-When Parental And Medical Opinion Supersedes A Child's Right To Choose, Danielle Hawkes Jan 2009

Elective Surgery-When Parental And Medical Opinion Supersedes A Child's Right To Choose, Danielle Hawkes

Utah Law Review

In Raising a Woman, I Mary was fourteen when she had an operation that would forever deprive her of the ability to bear a child. In facing this 'surgery, she had no choice in the matter, no option to say no, and no advocate asking what she wanted. She was alone and left without a voice because her physician, and even her own mother, had taken her choice away. When Mary received a hysterectomy, her mother's needs were addressed the monthly anguish in caring for her daughter's menstruation was eliminated, thereby diminishing the extremely difficult turn that her life had …

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My Uncle George, Karen Williams Jan 2009

My Uncle George, Karen Williams

Utah Law Review

My words to Jean would have been different had I been free of the promise I gave to my mother years ago. I would have told Uncle George's daughter that there truly was no one else quite like her father in our whole family. I would have said that Uncle George, like St. Joseph, lived a life that defined a legitimate father by his love for a mother and her unborn child.

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Marital Rights For Teens: Judicial Intervention That Properly Balances Privacy And Protection, Pamela E. Beatse Jan 2009

Marital Rights For Teens: Judicial Intervention That Properly Balances Privacy And Protection, Pamela E. Beatse

Utah Law Review

Uncle George's Story, pinpoints the many policy tensions at play when minors desire to marry, especially when the minor female is pregnant. Clearly, George was a young man deeply affected by his experiences growing up as an illegitimate child. He made the voluntary choice to marry his childhood sweetheart,who was pregnant with another man's child. With the support of her father, George and his bride were legally married in Utah and had a strong, loving marriage. Yet, this story is not the typical story when teens marry. Consequently, under pure common law and subsequent statutory provisions, all states have carved …

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Justice In The Darkness: Mental Health And The Juveniie Justice System, Brian Jay Nicholls Jan 2009

Justice In The Darkness: Mental Health And The Juveniie Justice System, Brian Jay Nicholls

Utah Law Review

Unless states can provide a way to identify these youth at an earlier stage, intervene, and provide meaningful and effective treatment, the future of those youths as well as the public safety is in jeopardy. Research has shown, as illustrated by Utah's C3 Court, that a comprehensive and collaborative approach to treating these kids can "reduce both crime and costs in the long run while improving (and even saving) the lives of young people today." If states do nothing however, not only do those states fail the youth that they are supposed to rehabilitate, but the state also "fails the …

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An Antitrust Common Law For The Twenty-First Century, Thomas A. Piraino, Jr. Jan 2009

An Antitrust Common Law For The Twenty-First Century, Thomas A. Piraino, Jr.

Utah Law Review

Although criminal enforcement has always been an important component of environmental law, the year of this symposium (2009) marked the twenty-year anniversary of an event that, for some, increased attention to the propriety and effectiveness of criminal remedies as tools for environmental protection. On March 24, 1989, the Exxon Valdez supertanker ran aground in Alaska’s Prince William Sound, spilling almost eleven million gallons of North Slope crude oil and causing one of the largest and most significant single-incident environmental disasters in history. Among the casualties were hundreds of thousands of birds, more than a thousand sea otters, hundreds of bald …

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Allocating Influence, Heidi Reamer Anderson Jan 2009

Allocating Influence, Heidi Reamer Anderson

Utah Law Review

The environmental crimes program has become an established part of our environmental protection effort. It exists at all levels of government, federal, state, and local. But how do we describe its evolution? There are a number of ways in which this can be done. One, of course, would be to track the case statistics and trends through the years. Another—which is the approach of this essay—would be to focus less upon the cases, as such, and more upon the background developments and issues that have characterized the federal program over time. A pattern emerges in which each successive decade has …

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Collateral Damage And Securities Litigation, Bradford Cornell, James C. Rutten Jan 2009

Collateral Damage And Securities Litigation, Bradford Cornell, James C. Rutten

Utah Law Review

Because environmental crimes can be committed by businesses, regulating and enforcement entities such as the Department of Justice (“DOJ”) and the Environmental Protection Agency (“EPA”) may have a particular interest in indicting a corporation as a means of protecting the public at large. Although major environmental statutes such as the Clean Water Act and the Clean Air Act provide for civil penalties, some environmental violations are such that criminal charges may be appropriate both as a means of punishing wrongdoing and also to deter future violations. Additionally, the U.S. Attorneys’ Manual states prosecution of corporate crime is a high priority …

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From Identity Politics To Ideology Politics, Jessica Knouse Jan 2009

From Identity Politics To Ideology Politics, Jessica Knouse

Utah Law Review

We live in a lacuna between identity politics and post-identity politics. Although we understand that identity groups like African Americans and women are not ideologically monolithic, we continue to use race and gender as proxies for ideology. Although some have proclaimed the 2008 presidential election the first “post-identity politics election,” issues of race and gender continue to dominate the public forum. In short, although we want to have transcended identity politics, we have not. This Article asks why not, and concludes that the existing equal protection doctrine is partly to blame. It proposes that we abandon the existing doctrine, which …

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Extending The Shadow Of The Law: Using Hybrid Mechanisms To Develop Constitutional Norms In Socioeconomic Rights Cases, Brian Ray Jan 2009

Extending The Shadow Of The Law: Using Hybrid Mechanisms To Develop Constitutional Norms In Socioeconomic Rights Cases, Brian Ray

Utah Law Review

As a hybrid process that operates somewhere between pure ADR and pure adjudication—and, indeed oscillates between those extremes—engagement offers a novel and potentially important tool for enforcing socioeconomic rights. That tool falls somewhat short of the call by the Constitutional Courts’ critics for fullfledged judicial interpretation and enforcement, but the same features that make engagement something less than strong court enforcement also enhance its legitimacy.

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Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin, Jr. Jan 2009

Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin, Jr.

Utah Law Review

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA’s passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people it was designed to protect. We explain this paradox by showing the way in which specific ADA provisions could have given rise …

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Height Discrimination In Employment, Isaac B. Rosenberg Jan 2009

Height Discrimination In Employment, Isaac B. Rosenberg

Utah Law Review

This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Although much scholarship has focused on other forms of trait-based discrimination—most notably weight and appearance discrimination, both of which indirectly involve height as a component—little has focused on “pure” height discrimination. Nevertheless, within the past five years courts, scholars, and legislatures have increasingly tackled these non-traditional forms of discrimination. As such, this Article endeavors to fill the gap in the existing scholarship.

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Divided Loyalties: How The Metlife V. Glenn Standard Discounts Erisa Fiduciaries’ Conflicts Of Interest, Beverly Cohen Jan 2009

Divided Loyalties: How The Metlife V. Glenn Standard Discounts Erisa Fiduciaries’ Conflicts Of Interest, Beverly Cohen

Utah Law Review

Professor Langbein, a noted ERISA scholar, has argued convincingly in favor of applying de novo review to ERISA benefit denials where the fiduciary acted under a conflict of interest. While the Supreme Court in MetLife rejected the de novo standard in favor of retaining Firestone’s arbitrary and capricious standard coupled with weighing the conflict as a factor, application of the MetLife standard yields a result that is so close to de novo review as to be virtually indistinguishable. By allowing the reviewing court to assign a discretionary weight to the conflict, it is uncertain how much, if any, deference will …

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Web Site Proprietorship And Online Harassment, Nancy S. Kim Jan 2009

Web Site Proprietorship And Online Harassment, Nancy S. Kim

Utah Law Review

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content.

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Good Faith, Fiduciary Duties, And The Business Judgment Rule In Delaware, Clark W. Furlow Jan 2009

Good Faith, Fiduciary Duties, And The Business Judgment Rule In Delaware, Clark W. Furlow

Utah Law Review

The Delaware courts frequently refer to a corporate director’s duty of good faith. However, they struggle to define it. One Delaware judge described this struggle as a “fog of hazy jurisprudence.” Delaware’s inability to offer a clear, consistent conception of good faith is significant because, under Delaware statutory law, a director is not entitled to protection from personal liability for a decision that was not taken in good faith.

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Introduction, Robert W. Adler Jan 2009

Introduction, Robert W. Adler

Utah Law Review

Although criminal enforcement has always been an important component of environmental law, the year of this symposium (2009) marked the twenty-year anniversary of an event that, for some, increased attention to the propriety and effectiveness of criminal remedies as tools for environmental protection. On March 24, 1989, the Exxon Valdez supertanker ran aground in Alaska’s Prince William Sound, spilling almost eleven million gallons of North Slope crude oil and causing one of the largest and most significant single-incident environmental disasters in history. Among the casualties were hundreds of thousands of birds, more than a thousand sea otters, hundreds of bald …

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Up From The Sewers: A Perspective On The Evolution Of The Federal Environmental Crimes Program, Raymond W. Mushal Jan 2009

Up From The Sewers: A Perspective On The Evolution Of The Federal Environmental Crimes Program, Raymond W. Mushal

Utah Law Review

The environmental crimes program has become an established part of our environmental protection effort. It exists at all levels of government, federal, state, and local. But how do we describe its evolution? There are a number of ways in which this can be done. One, of course, would be to track the case statistics and trends through the years. Another—which is the approach of this essay—would be to focus less upon the cases, as such, and more upon the background developments and issues that have characterized the federal program over time. A pattern emerges in which each successive decade has …

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The Belt And Suspenders Approach: The Advantages Of A Formalized Environmental Compliance Program, Carol Dinkins, Sean Lonnquist Jan 2009

The Belt And Suspenders Approach: The Advantages Of A Formalized Environmental Compliance Program, Carol Dinkins, Sean Lonnquist

Utah Law Review

Because environmental crimes can be committed by businesses, regulating and enforcement entities such as the Department of Justice (“DOJ”) and the Environmental Protection Agency (“EPA”) may have a particular interest in indicting a corporation as a means of protecting the public at large. Although major environmental statutes such as the Clean Water Act and the Clean Air Act provide for civil penalties, some environmental violations are such that criminal charges may be appropriate both as a means of punishing wrongdoing and also to deter future violations. Additionally, the U.S. Attorneys’ Manual states prosecution of corporate crime is a high priority …

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Bark And Bite: The Environmental Sentencing Guidelines After Booker, Michael M. O'Hear Jan 2009

Bark And Bite: The Environmental Sentencing Guidelines After Booker, Michael M. O'Hear

Utah Law Review

The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases; barely one-third of convicted environmental defendants received prison sentences, and …

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Locating The Environmental Harm In Environmental Crimes, Susan F. Mandiberg Jan 2009

Locating The Environmental Harm In Environmental Crimes, Susan F. Mandiberg

Utah Law Review

The current approach to environmental harm is odd from a criminal law perspective. The environmental criminal statutes barely deal with the subject at all. The environmental sentencing guidelines, on the other hand, focus almost entirely on harm. The resulting system does not adequately address the role of harm in evaluating the seriousness of environmental crimes or in graduating punishment for different levels of offenders. Although the situation could be resolved through amendments to the sentencing guidelines, a statutory approach has certain advantages from a societal perspective. There is no need to jettison the current statutory approach, which works well to …

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