Law Commons^™

Examining The Constitutionality Of Legislative Medical Care Bans For Transgender Youth, John Mejia

Utah Law Review

As should be abundantly clear by this Article, the stakes of bans on genderaffirming health care for transgender adolescents are existential. The recent flood of state-law bans is a low point in the ongoing fight to ensure that all people truly enjoy the liberties and protections guaranteed by our state and federal constitutions. Stories like Utah’s are more likely the rule, not the exception. Legislatures around the country are rushing to push through this legislation as quickly as possible, seemingly to catch their opponents off guard. The overwhelming majority of federal district courts to consider these laws find them repulsive …

Gender Pay Equity: An Analysis Of The United States Women’S National Team Soccer Settlement, Joni Hersch, Delaney M. Beck

Utah Law Review

Even though the United States Women’s National Team (“WNT”) has been far more successful than the United States Men’s National Team (“MNT”), the team members have experienced unequal treatment from the United States Soccer Federation (“USSF”) since its inception. In March 2019, members of the WNT filed suit against USSF, alleging that it had violated the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. The complaint alleged that USSF had a policy of discriminating against the WNT due to their players’ gender by paying them less than the MNT and providing them with lesser …

First Amendment Fetishism, John Kang

Utah Law Review

This Article has not argued for the propriety of restricting speech as a good in its own right. Rather, it argues the Supreme Court has gone too far in protecting the right of highly offensive speech. Instead of weighing the value of such speech in relation to its harms on the community, the Court has eagerly embraced a fetishistic attitude toward the right of speech. This Article has suggested, however, that said fetishism is inconsistent with the original understanding of the right of speech. This Article culled the insights provided by the original understanding of the right of speech and …

Saving Democracy From The Senate, David Froomkin, A. Michael Froomkin

Utah Law Review

It should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several …

Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras

Utah Law Review

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust …

Don't Say Gay: The Government's Silence And The Equal Protection Clause, Clifford Rosky

Utah Law Faculty Scholarship

This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently …

The White Supremacist Constitution, Ruth Colker

Utah Law Review

The United States Constitution is a document that, during every era, has helped further white supremacy. White supremacy constitutes a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”1 Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.

From its inception, the Constitution enshrined slavery and the degradation of Black people by …

Public Underweight, Christina Koningisor

Utah Law Faculty Scholarship

The laws governing transparency and accountability in government are deeply flawed, plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set of grassroots efforts that seek to reconstruct government information extralegally, rather than work through existing legal structures or remedy breakdowns in the formal transparency law regime.

An array of bottom-up movements to circumvent the formal transparency law and challenge the government’s monopoly on information have sprung up around the country in …

The Religion Of Race: The Supreme Court As Priests Of Racial Politics, Audra Savage

Utah Law Review

The tumultuous summer of 2020 opened the eyes of many Americans, leading to a general consensus on one issue—racism still exists. This Article offers a new descriptive account of America’s history that can contextualize the zeitgeist of racial politics. It argues that the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery in the creation of the Constitution. This religion, called the Religion of Race, is built on a belief system where whiteness is sacred and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the …

Negative Freedom In Crisis Times, Leslie Francis

Utah Law Faculty Scholarship

Contemporary U.S. jurisprudence thus treats public health orders requiring masks or limiting attendance at religious services as conflicts between individual freedoms and the public safety. Courts have left unquestioned the scope of individual liberties. Choices about whether to cover one’s face or attend religious services are not, however, fully analogous to protections from physical injury by others. Instead, they are choices that may result in risks to others. It is thus at least open to question whether they are within the scope of protected individual liberties in the first place. The scope of personal liberty—whether liberty is distinct from license—is …

The Path To Standing: Asserting The Inherent Injury Of The Data Breach, Jennifer M. Joslin

Utah Law Review

Data breaches are on the rise as consumers continue to exchange personally identifiable information for goods and services in sectors from retail to healthcare. In the aftermath of a data breach, it has been difficult for victims of the breach to establish Article III standing to sue in federal courts. The primary hurdle for those seeking a remedy for the theft of their data has been showing that they have suffered an injury-in-fact. Plaintiffs typically assert an injury based on the increased risk of identity theft following a breach. However, courts have divided on whether such an injury satisfies the …

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in Bartkus v. …

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive, …

Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane

Utah Law Review

The families of Eric Garner, Laquan McDonald, Freddie Gray, and Walter Scott have obtained multimillion dollar settlements from the cities in which their family members lost their lives. This Article identifies and labels these settlements as a legal response unique to high-profile policeinvolved deaths: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. Section 1983 litigation rather than litigation itself to compensate police-involved shooting victims’ family members. This Article explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal of accelerated civil …

The Rhetorical Allure Of Post-Racial Process Discourse And The Democratic Myth, Cedric Merlin Powell

Utah Law Review

We are witnessing the power of distorted and neutral rhetoric that rings with deceptive clarity. This post-racial process discourse is advanced on many levels: in political discourse, by a distrustful citizenry energized by hateful rhetoric that appeals to their concerns of being “left behind” on the basis of “preferences” for minorities that diminish America’s “greatness,” and a Court that seeks to constitutionalize a mythic democracy that promises participation while implicitly endorsing structural exclusion.

Voter initiatives should not determine the substantive core of the Fourteenth Amendment. While democratic participation is essential to our Republic, decisions like Schuette perpetuate a democratic myth …

Employment Discrimination And The Domino Effect, Laura T. Kessler

Utah Law Faculty Scholarship

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered …

Finding Common Ground Across Race And Religion: Judicial Conceptions Of Political Community In Public Schools, Stuart Chinn

Utah Law Review

This article opens with a brief discussion of the recent controversies over race, inclusion, and community on American college campuses, focusing on the events at Yale University during the 2015 fall semester. Yale’s controversy is fascinating as one of the most recent, high-profile events that invites a discussion of a deep and persistent issue in American society: how do we construct and maintain a stable political community characterized by enduring differences? I use the Yale example as my jumping-off point for interrogating this question in the context of Supreme Court cases on race and public education, and religion/ideology and public …

Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park

Utah Law Faculty Scholarship

This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate …

Handcuffing A Third Grader? Interactions Between School Resource Officers And Students With Disabilities, Elizabeth A. Shaver, Janet R. Decker

Utah Law Review

The expansion of police involvement at schools has had serious implications for students with disabilities. By enacting IDEA, Congress recognized that these students deserve special protections and entitlements. In the most recent amendments to this federal law, Congress included important guidelines regarding functional behavioral assessments (FBAs) and behavior intervention plans (BIPs) to outline how school personnel must respond to undesired behavior of students with disabilities. Recognizing the special behavioral needs of students with disabilities is one way to reduce the current reality where students with disabilities are suspended, expelled, restrained, and secluded at much higher rates than their peers.

Although …

Subconstitutional Checks, Shima Baradaran Baughman

Utah Law Faculty Scholarship

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

Anti-Gay Curriculum Laws, Clifford Rosky

Utah Law Faculty Scholarship

Since the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have begun discussing what issues the LGBT movement should prioritize next. This article joins that dialogue by developing the framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and …

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky

Utah Law Review

I truly believe that over the next fifty years there will be, as there was in the prior fifty years, an expansion of freedom; an increase in equality. Because here I believe, and I’ll conclude with this, that the late Dr. Martin Luther King got it right when he said “The arc of the moral universe is long but it bends towards justice."

Trump University And Presidential Impeachment, Christopher L. Peterson

Utah Law Faculty Scholarship

Donald J. Trump (“Trump”), the Republican Party’s 2016 nominee for President of the United States, currently faces three lawsuits accusing him of fraud, false advertising, and racketeering. These ongoing cases focus on a series of wealth seminars Trump called “Trump University” which collected over $40 million from consumers seeking to learn Trump’s real estate investing strategies. Although these consumer protection cases are civil proceedings, the underlying legal elements in several counts plaintiffs seek to prove run parallel to the legal elements of serious crimes under both state and federal law. Somehow in the cacophony of the 2016 presidential campaign, no …

Evading The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Utah Law Review

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims. In this Article, I have argued that cyberbullying is so harmful, in and of itself, that it should be afforded diminished First Amendment protections. I have also advocated for a narrow definition of cyberbullying that incorporates the three elements of the prevailing social scientists’ definition of “bullying” as it relates to cyberbullying: (1) intent to harm; (2) repetition; and (3) power imbalance between cyberbully and victim.

Decriminalizing Polygamy, Casey E. Faucon

Utah Law Review

Polygamous families are our national outlaws. Despite the expansion of sexual rights and marriage equality in the U.S., polygamy remains a crime. Challenging that stigma is the Brown family, who star in the reality TV show “Sister Wives” and who practice polygamous marriageas a tenet of their religion. The Browns filed suit against multiple Utah state actors in federal district court, challenging Utah’s polygamy statute as unconstitutional in violation of their Free Exercise of Religion, substantive Due Process, and Equal Protection rights. The district court agreed and decriminalized informal polygamy in Utah. On appeal, the Tenth Circuit reversed the district …

Deselecting Biased Juries, Scott W. Howe

Utah Law Review

Critics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted …

On Brown V. Board Of Education And Discretionary Originalism, Ronald Turner

Utah Law Review

In 1954, the United States Supreme Court issued its seminal decision in Brown v. Board of Education. Interpreting and applying the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a unanimous Court held “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” In so holding, the Court determined that it could “not turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” The Court chose, instead, to “consider public education in the …

Unfinished Business Of Repealing “Don’T Ask, Don’T Tell”: The Military’S Unconstitutional Ban On Transgender Individuals, Kayla Quam

Utah Law Review

Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse, the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway, Sommers, and Ulane—the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse, discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination.156 As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,” discrimination based on …