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2011

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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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Effect Of Preinjury Use Of Antiplatelet Agents In Patients With Isolated Traumatic Brain Injury, Danielle Cheeseman Md, David Milia Md, David Kashmer Md, Farheen Hussain Ms, John J. Hong Md, Robert D. Barraco Md Jan 2011

Effect Of Preinjury Use Of Antiplatelet Agents In Patients With Isolated Traumatic Brain Injury, Danielle Cheeseman Md, David Milia Md, David Kashmer Md, Farheen Hussain Ms, John J. Hong Md, Robert D. Barraco Md

Department of Surgery

No abstract provided.

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Treatment Of Acute Aortic Dissection At A Community Hospital: A 10 Year Review Of Outcomes., Timothy S. Misselbeck, Stephen Deturk, Matthew Wilson, Theodore Phillips Md, Michael Szwerc Md, Sanjay Mehta Md, Gary Szydlowski Md, Raymond Singer Md, James Wu Md Jan 2011

Treatment Of Acute Aortic Dissection At A Community Hospital: A 10 Year Review Of Outcomes., Timothy S. Misselbeck, Stephen Deturk, Matthew Wilson, Theodore Phillips Md, Michael Szwerc Md, Sanjay Mehta Md, Gary Szydlowski Md, Raymond Singer Md, James Wu Md

Department of Surgery

No abstract provided.

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Tuberculous Colitis, Firas G. Madbak Md, Dale A. Dangleben Md, Facs Jan 2011

Tuberculous Colitis, Firas G. Madbak Md, Dale A. Dangleben Md, Facs

Department of Surgery

No abstract provided.

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Kindergartners Can Read And Understand : Emergent Reading Strategies At Work, Kacey Lynn Beyer Jan 2011

Kindergartners Can Read And Understand : Emergent Reading Strategies At Work, Kacey Lynn Beyer

Graduate Research Papers

The need for kindergarten educators to be effective in teaching both word solving and comprehension strategies is paramount. Educators are challenged to teach even the most emergent readers to use strategies to help them read and understand what they have read. The explicit teaching of both word solving and comprehension strategies in kindergarten builds a strong foundation for literacy learning throughout a student's school career and beyond. Fostering a love of literature and an attitude of lifelong literacy learning can be achieved for all students with the proper supports in place. This paper defines each word solving and comprehension strategy …

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Readers' Workshop In The Elementary Classroom, Alaina Terese Daters Jan 2011

Readers' Workshop In The Elementary Classroom, Alaina Terese Daters

Graduate Research Papers

In this research project, Reader's Workshop is defined and explored in relation to an elementary classroom setting. The literature review describes the importance of independent reading, the structures and components of readers' workshop, how readers' workshop motivates and engages readers, and finally how to get started with readers' workshop in the elementary classroom. Following the literature review, there is a three-year professional development plan that lays out the key components of readers' workshop and its format for training a staff on how to implement this structure into their elementary classroom. Year one of the professional development project discusses what reader's …

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Surveying The Online Classroom : Student Reactions To E-Learning, Jordan Dierks Jan 2011

Surveying The Online Classroom : Student Reactions To E-Learning, Jordan Dierks

Graduate Research Papers

The utilization of commercial, open source, and institution designed learning management systems are increasing in higher education. Universities are competing with each other to find qualified applicants or increase enrollment. Many higher education institutions are evaluating their return on investment for educational technologies, white public institutions are facing the reality of shifting funding sources from state support to self-sufficiency. The purpose of this study is to determine if the use of a learning management system (LMS) in an online classroom supporting either a full-web or blended course affects student satisfaction with the learning experience. Additional areas examined include whether students …

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Children With Cerebral Palsy And Early Intervention Services, Genalee Horsfield Jan 2011

Children With Cerebral Palsy And Early Intervention Services, Genalee Horsfield

Graduate Research Papers

The purpose of this literature and research review is to understand early home intervention services for children with Cerebral Palsy. The review focuses on children between birth and five years old and their families. Studies were reviewed worldwide including the United States, Sweden, Netherlands, and Australia. These studies include information about service providers, different programs for children with Cerebral Palsy and their families, frequency of visits that occur for the children and their families, and the disadvantages and advantages of early intervention services for children with cerebral palsy. The conclusion of this literature and research review also includes recommendations based …

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Motivating Struggling Readers, Tawnie Kerska Jan 2011

Motivating Struggling Readers, Tawnie Kerska

Graduate Research Papers

This literature review discusses the effects of extrinsic and intrinsic motivation with regard to struggling readers. Intrinsic motivation is the drive inside a student to do an activity on their own. Extrinsic motivation is to do something in order to receive some sort of reward or praise. Teachers need to move from using extrinsic motivators to creating more intrinsic motivation within students. It is essential for teachers to understand the five guiding principles behind motivating students: building self-efficacy, activating schema, interest and relevance, using extrinsic reinforcers to engage, and making facilitative attributions. Understanding these principles provides teachers with strategies to …

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