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2011

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A Sobering Look At Why Sunday Liquor Laws Violate The Sherman Act, Elina Tetebaum Jan 2011

A Sobering Look At Why Sunday Liquor Laws Violate The Sherman Act, Elina Tetebaum

Utah Law Review

On April 8, 2010, an attempt to allow liquor stores to open on Sundays was overwhelmingly defeated in the Minnesota state house. Minneapolis Representative Phyllis Kahn, who has unsuccessfully tried to overturn the Sunday laws for years, “tried to put an amendment on another liquor-related bill, but it was voted down 110–20.” Minnesota is one of many states that maintain a ban on Sunday liquor sales, even though there is significant public support for removing the ban and Sunday alcohol sales could bring in much-needed revenues to the state. For example, Indiana State Senator Phil Boots is pushing to allow …

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Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck Jan 2011

Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck

Utah Law Review

The record of the debate by the First Federal Congress, along with the final text of the clause, demonstrate that neither the House nor the Senate had in mind either nonpreferentialism or specific federalism, nor did the First Congress limit the Establishment Clause to instances where liberty of conscience alone is violated. Careful attention to the text and original understanding cannot answer all contemporary questions with respect to the correct application of the Establishment Clause, but the discipline does eliminate all three of these false paths. While the text and original understanding may not reveal clearly the meaning of “establishment,” …

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Victims’ Rights In Context: Protecting Crime Victims Under The Utah Supreme Courts’ Analysis Of Rule 506(D)(1), Thomas E. Goodwin Jan 2011

Victims’ Rights In Context: Protecting Crime Victims Under The Utah Supreme Courts’ Analysis Of Rule 506(D)(1), Thomas E. Goodwin

Utah Law Review

Imagine the Utah Supreme Court ignoring a defendant’s claim that the confession used as the basis for his conviction was made involuntarily. This idea is outrageous because both the Utah and United States Constitutions protect defendants against compelled self-incrimination, and the public demands that courts uphold constitutional rights. Unfortunately, however, crime victims are not always afforded the same right. In a number of recent cases dealing with defendants’ attempts to gain access to crime victims’ privileged mental health records, the Utah Supreme Court gave no consideration to crime victims’ constitutional rights before determining the records’ admissibility. The purpose of this …

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Talkin’ ‘Bout A Revolution?: Utah Overhauls Its Rules Of Civil Discovery, Marc Therrien Jan 2011

Talkin’ ‘Bout A Revolution?: Utah Overhauls Its Rules Of Civil Discovery, Marc Therrien

Utah Law Review

In response to a perception that the civil discovery process in Utah is too costly, burdensome, and unnecessarily delays the ultimate resolution of many lawsuits (to say nothing of limiting the access of many people with valid claims to the courts), the Utah Supreme Court Advisory Committee on the Rules of Civil Procedure proposed a series of reforms to the Utah Rules. These rules have been adopted and will become effective November 1, 2011. But many of the reforms contained in the Amended Rules miss the mark. The empirical data suggest that discovery is not a large element of the …

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The Self-Judging Wto Security Exception, Roger P. Alford Jan 2011

The Self-Judging Wto Security Exception, Roger P. Alford

Utah Law Review

In The Wealth of Nations, Adam Smith identified only one type of government action that justified a departure from free trade: laws designed to protect national defense. Under the Act of Navigation, Great Britain adopted a trade embargo against Holland, prohibiting Dutch ships from trading with the British settlements or with the British Isles. According to Smith, the effect of these laws was to exclude the Dutch, “the great carriers of Europe . . . from being the carriers to Great Britain.” When these laws were passed, Smith wrote, while “England and Holland were not actually at war, the most …

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The Paradox Of “Abstract Ideas”, Alan L. Durham Jan 2011

The Paradox Of “Abstract Ideas”, Alan L. Durham

Utah Law Review

An enduring principle of intellectual property law is that one cannot patent an abstract idea. It was true in 1854, when the Supreme Court denied Samuel Morse, inventor of the telegraph, a patent claim that would have covered any means of using electromagnetism to transmit printed messages. It was still true in 2010, when, in the much anticipated Bilski v. Kappos case, the Supreme Court held that a method of hedging risks in commodities sales transactions was not patentable subject matter. The abstract ideas exclusion is one of the few categorical limitations of patentable subject matter, and it stands now …

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Using Anti-Suit Injunctions To Prevent Interdictory Actions And To Enforce Choice Of Court Agreements, Walter W. Heiser Jan 2011

Using Anti-Suit Injunctions To Prevent Interdictory Actions And To Enforce Choice Of Court Agreements, Walter W. Heiser

Utah Law Review

Modern rules of personal and prescriptive jurisdiction often provide parties with several choices with respect to the country in which to litigate a transnational dispute. Consequently, parallel litigation—simultaneous litigation in courts in the United States and in another country involving the same parties and similar claims—is not uncommon. The traditional response by U.S. courts to parallel litigation is to do nothing, invoking the general rule that parallel proceedings should ordinarily be allowed to proceed simultaneously. There are, however, exceptions to this general rule. A U.S. court may stay or dismiss the domestic action pursuant to the doctrine of forum non …

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Protecting Property Rights And Unleashing Capital In Art, Jennifer Anglim Kreder, Benjamin Bauer Jan 2011

Protecting Property Rights And Unleashing Capital In Art, Jennifer Anglim Kreder, Benjamin Bauer

Utah Law Review

A federal cultural property registration system could help to solve most of these problems. Claimants could obtain compensation without expensive legal battles, leading to more just results. Museums and collectors would have a means to purchase with confidence and protect their collections despite the oftenundiscoverable transgressions of others in the past. Museums could borrow money secured by their collections and avoid having to sell works to pay expenses or go out of business, provided that the museum community relaxes its prohibitions on collateralizing collections. In short, a registration system would benefit all of the stakeholders; it would provide “win-win” solutions …

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Institutions And An Interpretive Methodology For The Federal Rules Of Civil Procedure, David Marcus Jan 2011

Institutions And An Interpretive Methodology For The Federal Rules Of Civil Procedure, David Marcus

Utah Law Review

Before the 1980s, problems of statutory interpretation suffered from serious neglect. Since then, courts and scholars have generated volumes of opinions and commentary that have made interpretive practices more rigorous and sophisticated. But statutory law provides only a small part of the average lawyer’s daily diet. A host of other legal texts, including the Federal Rules of Civil Procedure, are quite important in this regard, but they have thus far remained largely in the shadows of interpretive theory. As they move more into the light, it is important that the development of interpretive methodologies for each track their unique institutional …

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Substantive Due Process, Black Swans, And Innovation, Toni M. Massaro Jan 2011

Substantive Due Process, Black Swans, And Innovation, Toni M. Massaro

Utah Law Review

The United States Supreme Court in 2010 declined to set right what many view as an old and egregious constitutional wrong. The Privileges or Immunities Clause of the Fourteenth Amendment, eviscerated by the Court in The Slaughterhouse Cases, was left in its hollowed out condition. The Court in McDonald v. City of Chicago rejected arguments to use the clause as the textual anchor for the right to bear arms vis-à-vis state and local governments. Doing so would have paved the way to relocating many, if not most, of the “substantive due process” rights—the nonprocedural due process-based protections against deprivations of …

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Reviving Slander, Cristina Carmody Tilley Jan 2011

Reviving Slander, Cristina Carmody Tilley

Utah Law Review

For millennia, governments have struggled to harness speech so that it does optimal social good without inflicting undue harm on individuals. History reveals that in the Roman and later in the English systems that undergird American speech law, these dueling goals were served by a two-tiered conception of speech based on the community of interest within which words circulated. One tier of speech, communications on matters of personal interest within small, closed communities, was mediated by local authorities. Injurious intracommunity speech in Rome was known as iniuria; in England, as slander. A second tier of speech, communications on matters of …

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Constitutional Transitions: The Role Of Lame Ducks And Caretakers, Rivka Weill Jan 2011

Constitutional Transitions: The Role Of Lame Ducks And Caretakers, Rivka Weill

Utah Law Review

As a lame-duck president, George W. Bush was criticized for finalizing a bilateral military accord with the Iraqi government against the wishes of Presidentelect Obama, U.S. Congress, and the American people. He thus tied the hands of his successor in handling foreign and military affairs, and partially subverted the powerful call for “change” that the nation had demanded at the voting booth. President Bush’s predecessor engaged in similar “midnight” actions. As a lameduck president, President Bill Clinton signed the Rome Statute, the treaty establishing the International Criminal Court, which led the newly elected President Bush to take the remarkable and …

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Lying And Freedom Of Speech, R. George Wright Jan 2011

Lying And Freedom Of Speech, R. George Wright

Utah Law Review

Lies, it has been thought, have in themselves no First Amendment value. The Supreme Court has famously maintained, more broadly, that “there is no constitutional value in false statements of fact.” This language has frequently been repeated by the Supreme Court itself and by other courts. Elsewhere, the Court has maintained that “[f]alse statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas.” Distinguishing among different kinds of false statements of fact, the Court has argued that “[n]either the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and …

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The Best Interests Of Transgender Children, Erika Skougard Jan 2011

The Best Interests Of Transgender Children, Erika Skougard

Utah Law Review

As in most family disputes, parents who disagree about the best interests of gender-variant children generally both love and want the best for their child. These cases touch on profound beliefs about human dignity, tolerance, morality, and religious obligation. They also force an uncomfortable examination of the deeply entrenched social prejudice toward those who violate social gender norms. With the growing visibility of transgender and gender nonconforming children, an increase in parent custody disputes like these is inevitable. The polarized scientific views regarding what is best for transgender children will test the wisest and most cautious judge—who will certainly face …

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The Rule Of Law At The Crossroads: Consequences Of Targeted Killing Of Citizens, Ryan Patrick Alford Jan 2011

The Rule Of Law At The Crossroads: Consequences Of Targeted Killing Of Citizens, Ryan Patrick Alford

Utah Law Review

From 2001 to 2004, the constitutional order of the United States was severely tested. In Hamdi v. Rumsfeld, the Supreme Court held that the writ of habeas corpus extended to a United States citizen held at Guantanamo Bay. Eight of the nine Justices agreed that the executive branch did not have the power to hold a citizen indefinitely, without access to basic due process protections enforceable in open court. This case was properly seen as a watershed, a rejection of theories of executive detention that were incompatible with the basic tenets of our common law tradition. However, the clear right …

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“V” Is For Vegetarian: Fda-Mandated Vegetarian Food Labeling, Carrie Griffin Basas Jan 2011

“V” Is For Vegetarian: Fda-Mandated Vegetarian Food Labeling, Carrie Griffin Basas

Utah Law Review

More than eight million adults in the United States are vegetarians, and around forty percent of all people in the United States regularly seek vegetarian food options while dining. Vegetarianism comes in a multitude of flavors, but a “pure vegetarian,” also called a vegan, does not consume any products that come from animals, including meat, milk, eggs, and gelatin. People practicing a vegetarian lifestyle may have turned to these dietary restrictions for ethical, religious, environmental, health, or other reasons.

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Regulating Mandatory Arbitration, Thomas V. Burch Jan 2011

Regulating Mandatory Arbitration, Thomas V. Burch

Utah Law Review

Mandatory arbitration is a recent phenomenon, and it poses a seemingly intractable problem. After the Supreme Court’s Southland Corp. v. Keating decision in 1984, companies increasingly began adding arbitration provisions to their consumer, employee, and franchisee agreements—often using those provisions to restrict or eliminate the nondrafting parties’ rights. While these provisions usually lacked bilateral consent, the Court instructed lower courts to allow their use, claiming that parties should have autonomy to negotiate the manner in which they resolve disputes. At the same time, the Court steadily expanded the Federal Arbitration Act’s scope, thereby increasing the number of mandatory arbitration agreements …

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Protecting Taxpayers And Crime Victims: The Case For Restricting Utah’S Preliminary Hearings To Felony Offenses, Paul G. Cassell, Thomas E. Goodwin Jan 2011

Protecting Taxpayers And Crime Victims: The Case For Restricting Utah’S Preliminary Hearings To Felony Offenses, Paul G. Cassell, Thomas E. Goodwin

Utah Law Review

When prosecutors file serious criminal charges in Utah, the defendant is entitled to a preliminary hearing. At this hearing, witnesses will testify and be cross-examined to determine if the defendant should be bound over to face trial. For many decades, however, Utah has held such hearings only for felony offenses, not misdemeanors. In this respect, Utah practice tracked that of the vast majority of other states, which limit the use of preliminary hearings to more serious felony crimes. The reasons for limiting preliminary hearings to more serious felony cases are easy to understand. Preliminary hearings are costly and time consuming. …

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Punishing Without Free Will, Luis E. Chiesa Jan 2011

Punishing Without Free Will, Luis E. Chiesa

Utah Law Review

In a few memorable lines of dialogue between Candide and his faithful servant Martin, Voltaire eloquently conveyed the relevance of free will to our practices of punishing and blaming. In a naturalistic world, as Martin observes, human beings are merely another cog in the wheel of nature. As such, it would be as absurd to blame humans for their sins as it would be to blame hawks for eating pigeons. The always-optimistic Candide begs to differ. The hawk’s nature is fixed because animal conduct is determined by natural laws. Mankind’s nature, on the other hand, is variable because humans have …

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Confronting The Certainty Imperative In Corporate Finance Jurisprudence, Diane Lourdes Dick Jan 2011

Confronting The Certainty Imperative In Corporate Finance Jurisprudence, Diane Lourdes Dick

Utah Law Review

As it has evolved across decades of case law and legislative enactments, the Certainty Imperative has profoundly altered judicial decision-making in finance and lending by encouraging strict interpretive norms and rejecting more expansive contextual analyses. Over time, the Imperative’s methodological constraints have become a paralyzing force upon the judiciary, preventing it from engaging in legal reform. In essence, the law of corporate finance places the highest value upon the status quo. The methodological constraints imposed by the Imperative must be overcome. As modern corporate financing arrangements grow more complex, moral hazards arise when contractual language vests substantive rights and remedies …

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Removing The Umpire’S Mask: The Propriety And Impact Of Judicial Apologies, Maxine D. Goodman Jan 2011

Removing The Umpire’S Mask: The Propriety And Impact Of Judicial Apologies, Maxine D. Goodman

Utah Law Review

One additional question this Article raises is why judicial conduct often warrants an apology. In other words, why do judges behave so badly? Researching judicial apologies for this Article presented a distressing view of judicial behavior—the degree and amount of rude and offensive behavior, illustrated by the examples shared previously, was both surprising and disheartening. Ideally, other commentators may take this Article and build on the ideas regarding the role of emotions in judging, which would include the emotions that motivate apologies.

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Professional Responsibility Compliance And National Security Attorneys: Adopting The Normative Framework Of Internalized Legal Ethics, Keith A. Petty Jan 2011

Professional Responsibility Compliance And National Security Attorneys: Adopting The Normative Framework Of Internalized Legal Ethics, Keith A. Petty

Utah Law Review

In recent years, headline-making events reminded us that attorneys’ professional responsibilities will be tested in the national security context. The legal foundations of many post-9/11 counterterrorism policies were “sloppily reasoned, overbroad, and incautious,” as a prominent government attorney later recalled. Chief among these were the infamous “torture memos” drafted by legal advisors in executive branch agencies in 2002 and 2003, which authorized controversial interrogation and detention practices in furtherance of the “war on terrorism.” Although the authors of these memos were recently cleared of professional misconduct allegations following a five-year Department of Justice inquiry, their adherence to ethical standards has …

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The Impossibility Of Agnostic Discrimination Law, Deborah M. Weiss Jan 2011

The Impossibility Of Agnostic Discrimination Law, Deborah M. Weiss

Utah Law Review

The extent and nature of discrimination in American life remains a deeply contentious issue. Many doctrinal issues hinge on judicial assumptions about the prevalence of discrimination, and every Supreme Court nominee’s opinions on this matter are closely scrutinized. Yet only a small set of discrimination cases depend on substantive doctrinal issues. The typical employment discrimination case seems to raise a simple factual question: did a particular employer treat a particular employee differently because of membership in a protected group? The larger societal pattern of discrimination—its manifestations, causes, and frequency—appears to be untethered to the facts of that dispute, failing the …

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The Psychology Of Stroke In Young Adults: The Roles Of Service Provision And Return To Work, Reg Morris Jan 2011

The Psychology Of Stroke In Young Adults: The Roles Of Service Provision And Return To Work, Reg Morris

School of Psychology

Literature about the psychological consequences of stroke in those under 65 is reviewed focussing on services and work. Despite similarities, young and old survivors have different experiences and needs. These are attributable to the effects of stroke on age-normative roles and activities, self-image, and the young person's stage in the life-cycle, especially family and work. “Hidden” cognitive impairments, a disrupted sense of self, and the incongruity of suffering an “older person's” disease are salient. Young survivors benefit from services, but experience lack of congruence between their needs and service philosophy, methods, and aims, and consequently have unmet needs. Employment is …

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Concert Recording 2011-11-29, Emily Mcpherson, Richard Bobo Jan 2011

Concert Recording 2011-11-29, Emily Mcpherson, Richard Bobo

Concert Recordings & Programs

Contrastes I for flute et basson (1977) / Eugene Bozza -- Music for a low-budget epic (2001) / Jan Bach -- Duo for flute & bassoon no. 1 (1992) / Gernot Wolfgang -- Sonatine pour flute et basson (1962) / Pierre Gabaye

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Valuing The Future: Intergenerational Discounting, Its Problems, And A Modest Proposal, Stephen G. Marks Jan 2011

Valuing The Future: Intergenerational Discounting, Its Problems, And A Modest Proposal, Stephen G. Marks

Faculty Scholarship

This article examine how intergenerational investment projects, such as, investments related to global warming, natural resources, energy, etc., should be undertaken. In particular, it examines two popular prescriptions: 1) In making intergenerational investments, policymakers should use a zero discount rate. 2) In making intergenerational investments, policymakers should use the market rate. The article shows that neither of these prescriptions are correct. Indeed, the article suggests that using present-value discounting at all is extremely problematic. Instead, the best we can probably do is to is to adopt a simple algorithm: set certain minimal goals for future generations: clean air, potable water, …

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Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott Jan 2011

Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott

Articles

Community notification laws, designed to reduce the frequency of sex offenses by alerting potential victims to nearby threats and by encouraging citizen monitoring of potential recidivists, may make sense in the context of traditional sex offenses and sex offenders. But child pornography crimes and the individuals who commit them are different, and they differ from archetypal sex crimes and criminals in ways that may unintentionally cause community notification laws to facilitate crime rather than inhibit it. Child porn offenses typically involve money or trade, and their commission hinges on successfully conspiring with others. Markets and information are necessary building blocks …

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Corrective Justice For Civil Recourse Theorists, Scott Hershovitz Jan 2011

Corrective Justice For Civil Recourse Theorists, Scott Hershovitz

Articles

Though I think the civil recourse critique of the leading conceptions of corrective justice is in some respects misguided, I do not want to join up to the thrust and parry here. My aim in this Article is to show that there is a better conception of corrective justice than the ones that Goldberg and Zipursky target, that this conception of corrective justice is untouched by the civil recourse critique, and that civil recourse is best understood as a corrective justice account of tort. In other words, I aim to explain corrective justice for civil recourse theorists.

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Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross Jan 2011

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

Articles

The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."

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Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson Jan 2011

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

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