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2011

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Judicial Independence In Times Of Crisis: Introduction, Wayne Mccormack Jan 2011

Judicial Independence In Times Of Crisis: Introduction, Wayne Mccormack

Utah Law Review

The articles in this Symposium address various aspects of the role of the judiciary in times of crisis. Most of them speak from the perspective of a specific country—the United Kingdom, United States, India, Iraq, and Israel. The sixth article draws on the author’s experience with the former Soviet republics and the Middle East to make the point that many governments are in transition, just as the United States was in transition for much of its history. It might not be immediately clear why the current experiences of developed countries such as the United Kingdom and the United States are …

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The United Kingdom’S Supreme Court: Three Skeptical Reflections Concerning The New Court, Neil Andrews Jan 2011

The United Kingdom’S Supreme Court: Three Skeptical Reflections Concerning The New Court, Neil Andrews

Utah Law Review

Established by the Constitutional Reform Act 2005, the United Kingdom Supreme Court is now the highest appellate court within the United Kingdom, replacing the Appellate Committee of the House of Lords. The Supreme Court sits in the former Middlesex Guildhall, on the western side of Parliament Square, facing the Houses of Parliament (the cost of this move was circa $100 million or £60 million). It sat for the first time in October 2009.

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Getting What You Pay For: Judicial Compensation And Judicial Independence, Jonathan L. Entin Jan 2011

Getting What You Pay For: Judicial Compensation And Judicial Independence, Jonathan L. Entin

Utah Law Review

One vital way of assuring judicial independence is to guarantee that judges need not fear that their salaries will be reduced if they render unpopular or controversial decisions. The United States Constitution seeks to do this by providing that all federal judges “shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” As the Supreme Court explained in perhaps the leading case on the Compensation Clause, “[a] Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges …

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The Will Of The (Iraqi) People, Haider Ala Hamoudi Jan 2011

The Will Of The (Iraqi) People, Haider Ala Hamoudi

Utah Law Review

While there has been much scholarly and popular media literature on the Iraqi Constitution, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court (Court), has been far less pronounced. In fact, my own search has led me to only a single published law review article on the subject, at least since the fall of Saddam Hussein’s regime. There is some irony to this—it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant …

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Judicial Independence In Times Of War: Prolonged Armed Conflict And Judicial Review Of Military Actions In Israel, Amnon Reichman Jan 2011

Judicial Independence In Times Of War: Prolonged Armed Conflict And Judicial Review Of Military Actions In Israel, Amnon Reichman

Utah Law Review

Emergencies, and especially wars, challenge our intuitive approach to judicial independence in two important ways. One relates to the tension between judicial independence as a feature of separation of powers and the need to consolidate powers in times of crisis. The other relates to the tension faced by an (independent) judiciary when the state (of which the judiciary is a part) is threatened by an external enemy. Part II of this Article will present these two challenges and briefly sketch their theoretical roots and possible practical implications. Part III will then examine the issue of judicial independence in times of …

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Academic Blueprint For The Implementation Of A Uniform Civil Code For India, Shimon Shetreet Jan 2011

Academic Blueprint For The Implementation Of A Uniform Civil Code For India, Shimon Shetreet

Utah Law Review

For more than sixty years, Article 44 of the Constitution of India, which requires the implementation of a uniform civil code in Inida, has been overlooked—if not by words, then by deeds. However, it exists, and must be applied. The guidelines suggested in this Article—implementation by the legislature rather than the courts, parallel application of civil and religious law, graduate application of provisions of the code, and both intercommunity mediation and individual mediation—could serve as a blueprint for a scholarly discourse on the implantation of a uniform civil code in India.

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Judicial System Institutional Frameworks: An Overview Of The Interplay Between Self-Governance And Independence, Markus B. Zimmer Jan 2011

Judicial System Institutional Frameworks: An Overview Of The Interplay Between Self-Governance And Independence, Markus B. Zimmer

Utah Law Review

Amid the epic and sporadically tragic twentieth-century political turmoil, which spawned new states and liberated others after a dark internment of nearly fifty years, record numbers of new national constitutions were drafted and implemented. The drafting of these foundational documents was spawned in part due to the release of long-simmering and sometimes naïve democratic impulses exemplified in many of the former states of the Soviet Union on its often fiery and ham-fisted dissolution. Imperial geopolitical engineering by Western powers crafted new states in the Near East and Northern Africa. Some, such as Jordan and Morocco, conceived and enacted constitutions which …

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The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley W. Joondeph Jan 2011

The Partisan Dimensions Of Federal Preemption In The United States Courts Of Appeals, Bradley W. Joondeph

Utah Law Review

Again, the study presented here yields two core findings. First, although many issues seem to have become ideological battlegrounds in the circuit courts, federal preemption is not one of them. One could certainly imagine a different state of affairs. Given the significance of preemption, both in terms of constitutional principles and practical consequences, it would be understandable if preemption were a source of substantial friction between Republicans and Democrats. But it is not. The accepted sources of legal authority, or perhaps the norms of consensus and collegiality on the courts of appeals, have largely controlled judges’ decisions. Second, to the …

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Examining Ucc Title Battles Through A Torts Lens, Daniel Keating Jan 2011

Examining Ucc Title Battles Through A Torts Lens, Daniel Keating

Utah Law Review

For nearly seventy-five years, commercial law scholars and commentators have debated whether the foundations of commercial law, and especially the rules of title, are anchored in the principles of property or contracts. Even before the Uniform Commercial Code (UCC) was ever drafted, its primary author, Professor Karl Llewellyn, observed that “[t]he law of Sales, as is well known, is in one phase part of the law of contract, in another phase part of the law of property.” More than forty years later, Llewellyn’s UCC co-drafter, Professor Grant Gilmore, argued that as personal property became a more significant form of wealth, …

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How To Judge Shari’A Contracts: A Guide To Islamic Marriage Agreements In American Courts, Nathan B. Oman Jan 2011

How To Judge Shari’A Contracts: A Guide To Islamic Marriage Agreements In American Courts, Nathan B. Oman

Utah Law Review

The dominant paradigms for thinking about the relationship between law and religion in American jurisprudence are drawn from the Christian tradition. Increasingly, however, America is home to Muslim immigrants and citizens. As they bring their religious practices to American courts, judges will struggle to understand their meaning and police their possible abuse. Islamic mahr contracts present perhaps the most common issue of Islamic law and practice with which American courts have struggled. Islamic marriage contracts should be understood on their own terms, rather than as an idiosyncratic version of the more familiar premarital agreement. The move to conceptualize mahr contracts …

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The Card Act In Perspective: Ongoing Efforts To Find Balance In Credit Card Regulation, Christopher L. Peterson Jan 2011

The Card Act In Perspective: Ongoing Efforts To Find Balance In Credit Card Regulation, Christopher L. Peterson

Utah Law Review

The American credit card market lies at a special nexus between financial institutions and middle-America. In the first centuries of the American experiment, state governments aggressively policed consumer credit with interest rate limits that tended to preclude profitable unsecured lending to middle class consumers. These aggressive limits were buttressed by the widely held view that excessive interest rates were an immoral form of usury. But, in the early twentieth century, the social acceptance of consumer borrowing began to shift. These cultural, and eventually legal, changes were perhaps best illustrated by the credit card market. As early as 1914, retailers issued …

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Rate-Jacking: Risk-Based & Opportunistic Pricing In Credit Cards, Adam J. Levitin Jan 2011

Rate-Jacking: Risk-Based & Opportunistic Pricing In Credit Cards, Adam J. Levitin

Utah Law Review

The CARD Act has made rate-jacking a thing of the past for consumer credit cards. Instead of allowing retroactive underwriting, it requires card issuers to ensure that the cardholder is able to repay before a card is issued or a credit limit is increased, and thus to price the risk correctly upfront. The end of rate-jacking and other changes wrought by the CARD Act might have had a negative impact on some disciplined and sophisticated consumers. But if the JPMorgan Chase static pool data is indicative of the larger cardholder population, few consumers are consistently pure transactors who are unaffected …

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Young Consumer Protection In The “Millennial” Age, Eboni S. Nelson Jan 2011

Young Consumer Protection In The “Millennial” Age, Eboni S. Nelson

Utah Law Review

While many college-aged consumers may not be experiencing the detrimental consequences that can be associated with credit card debt, a significant number of them are. Several psychological and social factors may influence the thoughts and behaviors of those young consumers who find themselves at risk of experiencing indebtedness problems. Lawmakers did not fully consider and account for the possible influence of such factors when crafting the Act’s young consumer provisions. As the current CARD Act is not likely to significantly decrease the number of financially at risk college-aged cardholders or the amount of debt they incur, lawmakers should endeavor to …

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The Procedure Of Election Law In Federal Courts, Joshua A. Douglas Jan 2011

The Procedure Of Election Law In Federal Courts, Joshua A. Douglas

Utah Law Review

The public is immensely interested in elections, never more so than when the race is close. Campaigns routinely ask the courts to construe the rules to each candidate’s advantage. Even outside the context of an actual election, federal courts decide numerous election law cases that have a profound influence on how elections are run, thus impacting the scope of our representative democracy. Whenever judges decide the constitutionality of an election provision or the reach of campaign finance limitations, the courts are shaping the meaning of political participation. But there has been little thought given to the processes by which courts …

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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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