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Standard Issue: Public Discourse, Ayers V. Fordice, And The Dilemma Of The Basic Writer, Joyce Olewski Inman

Faculty Publications

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Concert Recording 2013-04-09, Johan Botes, Peter Hamby

Concert Recordings & Programs

Sonata for horn and piano / Trygve Madsen -- Nocturno op. 7 / Franz Strauss -- Andante e polacca / Carl Czerny

Concert Recording 2013-11-16, Charles Villarrubia, Johan Botes

Concert Recordings & Programs

Sonata no. 2 / Luigi Cherubini ; [trans.] Charles Villarrubia -- Four songs. If love's a sweet possion / Henry Purcell ; [trans.] Charles Villarrubia -- Four Songs. Lascia ch'lo pianga ; Where'er you walk / G.F. Handel ; [trans.] Charles Villarrubia -- Four Songs. Whither must I wander? / Ralph Vaughn Williams ; [trans.] Charles Villarrubia -- Sonata / Bruce Broughton -- Two part inventions. No. 1 ; No. 4 ; No. 9 ; No. 14 / J.S. Bach ; [trans.] Benjamin Pierce -- Ballade / Jan Krzywicki -- Saltarella (souvenir de Sorrento / Guido Papini ; [trans.] Charles …

Concert Recording 2013-10-17, Thomas Bacon, Johan Botes, Timothy Thompson

Concert Recordings & Programs

Jagdstuck op. 59, #2 / Emil Kronke -- Zeal / Robert Avalon -- Dreams, yearning / Jonathan Craft -- Decicace / James DeMars -- Toys in the audience / Ellsworth Milburn

News From Wa......(More Than Just Iron Ore And Great Footy Teams) – Policy Principles To Course Design, Andrew Jones, Dawn Penney

Research outputs 2014 to 2021

In February 2007 a new senior secondary Physical Education Studies (PES) was introduced in Western Australia (WA). The course was one of some 50 new courses that were developed in conjunction with the introduction of new Western Australian Certificate of Education (WACE). This presentation draws on initial findings from a PhD study that is investigating curriculum change and reform, specifically in the context of the initial years of implementation of PES in WA. The study draws on Bernstein’s (1990) model of the social construction of pedagogic discourse as a framework to locate and position teachers in relation to other partners …

Landscape Fairness: Removing Discrimination From The Built Environment, Stephen Clowney

Utah Law Review

At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.

After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of …

Turnover Actions And The “Floating Check” Controversy, David R. Hague

Utah Law Review

When a debtor files for Chapter 7 bankruptcy, a Chapter 7 trustee is appointed and is charged with collecting and reducing to money the property of the bankruptcy estate. One of the most basic collection methods a trustee possesses is its turnover power under § 542(a) of the Bankruptcy Code. Pursuant to § 542(a), an entity in possession, custody, or control, during the bankruptcy case, of property that the trustee may use, sell, or lease, must deliver to the trustee, and account for, such property or the value of such property.

An interesting issue has arisen that is placing debtors …

Reconciling Liberty And Equality In The Debate Over Preimplantation Genetic Diagnoses, Jessica Knouse

Utah Law Review

This Article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over nontherapeutic preimplantation genetic diagnosis as an example. Preimplantation genetic diagnosis is almost entirely unregulated within the United States, and there seems to be relative consensus that its use for therapeutic or medical trait selection—for example, selection against certain genetic and chromosomal disorders— should be permitted. There is substantial disagreement, however, as to whether its use for nontherapeutic or nonmedical trait selection— selection based on prospective parents’ preferences for a particular sex, eye color, hair …

Dissent Into Confusion: The Supreme Court, Denialism, And The False “Scientific” Controversy Over Shaken Baby Syndrome, Joelle Moreno, Brian Homgren

Utah Law Review

In the United States Supreme Court's first opinion on the merits from its 2011-2012 term, three members of the Court contributed their authoritative voices to one of the most recent -- and one of the most deadly -- false scientific controversies, the purported scientific debate over the medical diagnosis of shaken baby syndrome (SBS), a prevalent form of abusive head trauma (AHT).

On October 31, 2011, in Cavazos v. Smith, the Supreme Court upheld Shirley Ree Smith's conviction for causing the death of her seven-week-old grandson, Etzel. This conviction was based on the jury finding that Etzel died from SBS. …

Mapping, Modeling, And The Fragmentation Of Environmental Law, Dave Owen

Utah Law Review

In the past forty years, environmental researchers have achieved major advances in electronic mapping and spatially explicit, computerbased simulation modeling. Those advances have turned quantitative spatial analysis—that is, quantitative analysis of data coded to specific geographic locations—into one of the primary modes of environmental research. Researchers now routinely use spatial analysis to explore environmental trends, diagnose problems, discover causal relationships, predict possible futures, and test policy options. At a more fundamental level, these technologies and an associated field of theory are transforming how researchers conceptualize environmental systems.

Advances in spatial analysis have had modest impacts upon the practice of environmental …

Defining Persecution, Scott Rempell

Utah Law Review

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution - conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to …

The Skeptic’S Guide To Information Sharing At Sentencing, Ryan W. Scott

Utah Law Review

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

The Phantom Standard: Compelling State Interest Analysis And Political Ideology In The Affirmative Action Context, Timothy M. Bagshaw

Utah Law Review

The degree to which legal doctrine constrains judicial decisionmaking is one of the enduring questions in the study of judicial behavior. Scholars and the public alike have long debated whether and to what extent judges’ personal political ideologies affect their legal decisions. The most influential existing theories have explained judicial holdings as a function of judges’ ideological predispositions.1 But in conceptualizing holdings as the relevant dependent variable, these theories suffer from one central flaw: they assume that legal tests are ideologically neutral filters through which judges’ policy preferences pass. This assumption obscures the ideological work being done in the creation …

Paving The Road Ahead: Autonomous Vehicles, Products Liability, And The Need For A New Approach, Kevin Funkhouser

Utah Law Review

Cars that drive themselves may seem about as realistic as Marty McFly’s DeLorean in Back to the Future, but this is far from the case. Autonomous technology is available and in use in many new vehicle models. In fact, in 2010 Google announced that the company had successfully built cars capable of driving themselves (“autonomous cars”). Even more amazing, at its 2010 announcement, Google also revealed its driverless cars (customized Toyota Prius models) had logged over 100,000 miles on public roads. As of early 2013, Google’s several autonomous vehicles have traveled over 300,000 miles, and have yet to cause a …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Utah Law Review

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anticoercion limit to the Spending Clause power. When it recognized an anticoercion limit for the ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

The Economics Of The Infield Fly Rule, Howard M. Wasserman

Utah Law Review

No sports rule has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended the rule on its own terms as part of the internal rules and institutional structure of baseball as a game. This Article takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other game situations. The infield fly …

Captured Legislatures And Public-Interested Courts, Patrick Luff

Utah Law Review

According to public choice, the predominant paradigm of modern regulatory theory, legislative activity provides benefits to small, organized interests at the expense of larger groups. In practice, this means that interest groups are often able to benefit themselves at the expense of the public good. This model has been extended to the courts, which are described as implicit or explicit actors in the wealth-transfer process. Applying public choice theory to the courts, however, overlooks the structural differences between the federal judiciary and Congress, as well as the insights of judicial decisionmaking theory. Not only do judges receive better and more …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The “Interests Of Finality”, Andrew Chongseh Kim

Utah Law Review

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality”. According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on posttrial review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

“The Word[] ‘Person’ . . . Includes Corporations”: Why The Religious Freedom Restoration Act Protects Both For- And Nonprofit Corporations, Jeremy M. Christensen

Utah Law Review

In building off of the Tenth Circuit’s recent Hobby Lobby decision, courts that address this important question in the future—including the Supreme Court— should pay heed to the Rowland decision’s application of the Dictionary Act. Those courts should focus closely on RFRA’s text and context. While that focus may not necessarily dictate that these companies ultimately succeed on the merits of their claims, courts will be led to at least two conclusions: for-profits are indeed “persons” within the meaning of RFRA; and the cost of incorporation in America is not the sacrifice of conscience.

A Right To Contribution And Federal Restitution Orders, Jonathan R. Hornok

Utah Law Review

Amy and Vicky are victims of two of the most widely traded series of child sex-abuse images. The Violence Against Women Act requires courts to order full restitution for these women. However, with millions of dollars in requested restitution and thousands of defendants, the United States courts of appeals are split over whether to interpret the mandatory restitution provision broadly (providing a victim with comprehensive recovery from each defendant) or narrowly (frequently allowing only limited, expensive, and time-consuming recovery from many defendants). Partially motivating this circuit split are courts’ opposing views on whether a defendant has a right to contribution …

Perpetual Conservation Easementsin The 21st Century: What Have We Learned And Where Should We Go From Here?, Nancy A. Mclaughlin

Utah Law Review

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of the conservation easement as a land protection tool. On February 15, 2013, the Wallace Stegner Center at the University of Utah S.J. Quinney College of Law sponsored a conference at which these issues were explored, with the goal of helping to minimize abuses and ensure that conservation easements will actually provide the promised conservation benefits to …

Qualified Conservation Restrictions: Recollections Of And Reflections On The Origins Of Section 170(H), Theodore S. Sims

Utah Law Review

It has been over thirty years since Congress added to the Internal Revenue Code section 170(h), which allows a deduction for contributions to charity of “qualified conservation restrictions,” commonly known as “conservation ease- ments”. That provision was adopted over the objections of the Treasury, who had expressed reservations of both a conceptual and practical nature about the legislation, which the Treasury viewed as more than ordinarily vulnerable to abuse. I was invited to participate in this symposium, not because I have any expertise in working with these restrictions—I don’t—but to provide some perspective on what might have motivated the Treasury …

Conservation Easements: Design Flaws, Enforcement Challenges, And Reform, Roger Colinvaux

Utah Law Review

The charitable deduction for conservation easements gives rise to exceptional enforcement challenges. The promise is of a conservation benefit, lasting forever. The tax incentive is intended to help produce such benefits. The principal problem with the tax incentive, however, is that it does not facilitate a substantive, enforceable definition of conservation. The result is that valuation uncertainties can be used to benefit donors, often for questionable conservation benefits, and the IRS does not have the enforcement tools it needs, leaving it to fight valuation battles that ultimately provide little to no sense of the public benefit provided. The qualified donee, …

Conservation Easements And The “Term Creep” Problem, Michael Allan Wolf

Utah Law Review

It has become apparent over the past several years that the decision to assign the label “easement” to conservation restrictions—designed to preserve and protect environmentally sensitive and productive agricultural lands, precious open space, and historically and architecturally significant lands and structures—has caused problems that most likely were not anticipated by those responsible for conceptualizing and popularizing this important and ubiquitous tool. Judges and commentators have wrestled with important questions concerning the application of common law concepts such as merger and cy pres to the statutory creation we know as “conservation easements.” There is also serious concern that other traditional principles …

Conservation Easement Enabling Statutes: Perspectives On Reform, Nancy A. Mclaughlin

Utah Law Review

All states have enacted some form of legislation that facilitates the creation of conservation easements. However, these state enabling statutes do not always contain the safeguards necessary to protect the public interest and investment in the easements. This short Article suggests a variety of reforms intended to build needed protections into state law. No longer should the public be willing to invest in conservation easements without assurance that the protected lands have high conservation value, the easements are accurately valued, and the easements will not erode or be lost over time due to, for example, inadequate recordkeeping, holder incapacity or …

Conservation Easements As Charitable Property: Fiduciary Duties And The Limits Of Charitable Self-Regulation, Melanie B. Leslie

Utah Law Review

Charitable organizations may occasionally be tempted to terminate conservation easements to appease donors, landowners, or prominent members of the community. Directors may rubber-stamp termination proposals out of a desire to be cooperative and supportive team players. This tendency to abdicate the monitoring role becomes more pronounced if board members lack full information about the terms of the transaction, especially if conflicts of interest are involved. Boards that take governance seriously will understand that termination decisions must be consistent with state law fiduciary duties of care, obedience, and loyalty. Because it is quite possible that a state court will determine that …

Amending Or Terminating Conservation Easements: The New Hampshire Experience, Terry M. Knowles

Utah Law Review

As explained in the Guidelines: “It is impossible to predict all the circumstances that may arise in the future. Even the most well-drafted conservation easement may need to be amended at some point, for example, to clarify terms, add land, improve enforceability, resolve disputes, or address unanticipated land uses.” Since their release in 2010, the Guidelines have been useful to the land trust community and to the New Hampshire Attorney General in facilitating a thorough and efficient review of proposed amendments to, as well as partial extinguishments of, conservation easements. This review has helped to ensure that both the public …

A Therapeutic Jurisprudence Analysis Of The Use Of Eminent Domain To Create A Leasehold, Carol L. Zeiner

Utah Law Review

Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner. I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government …

The Environmental Litigation Bond: An Illegal And Shortsighted Limitation On Environmental Litigation In Utah, Douglas Nafz

Utah Law Review

The Environmental Litigation Bond, passed by the Utah legislature in the 2011 general session, fails in two primary respects. First, although the statute was passed in direct response to project delays associated with litigation surrounding the Legacy Parkway project, because the Legacy Parkway litigation involved federal, not state permits, the Legacy Parkway litigation fell entirely outside the scope of the Environmental Litigation Bond and therefore would not have applied to the facts of the Legacy Parkway litigation, and could not have provided a remedy. Further, the Environmental Litigation Bond represents a solution to a problem that does not exist because …

Ppl Montana: The Supreme Court’S Modern Day City Slicker Approach For Determining The Navigability For Title Test, Landon Newell

Utah Law Review

The river thunders in perpetual roar, swelling in floods of music when the storm gods play upon the rocks and fading away in soft and low murmurs when the infinite blue of heaven is unveiled. With the melody of the great tide rising and falling, swelling and vanishing forever, other melodies are heard in the gorges of the lateral canyons, while the waters plunge in the rapids among the rocks or leap in great cataracts.