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Articles 31 - 44 of 44
Full-Text Articles in Law
Unequal Inequalities? Poverty, Sexual Orientation, And The Dynamics Of Constitutional Law, Jane S. Schacter
Unequal Inequalities? Poverty, Sexual Orientation, And The Dynamics Of Constitutional Law, Jane S. Schacter
Utah Law Review
As we think about the future role the judicial branch will play in our governance, we might consider one important function of the courts: addressing claims of constitutional inequality. In this Article, I explore this question by juxtaposing two claims of inequality that have been pressed by advocates—one concerning sexual orientation, the other concerning poverty. These two contexts are undoubtedly different in ways both numerous and significant. The lesbian, gay, bisexual, and transgender (LGBT) rights movement is today, while the constitutional movement for the rights of the poor was yesterday.1 The LGBT movement has won major Supreme Court victories in …
Executive Power In The Obama Administration And The Decision To Seek Congressional Authorization For A Military Attack Against Syria: Implications For Theories Of Unilateral Action, Kenneth R. Mayer
Utah Law Review
The primary axiom of the unilateral-powers literature is that the institutional setting and political incentives that confront presidents push them to seek maximum discretion over policy. The straightforward implication is that presidents will seek control (Terry Moe calls it autonomy)—always contentious given the competitive political authority at the heart of separation of powers, but necessary to them given their interests and position in the political system. Empirically, presidents are expected to (and do) act unilaterally, moving first to put their stamp on policy and process, shape institutional structures, and alter the status quo to shift government outputs toward their preferred …
Finding The Lost Involuntary Public Figure, Jeffrey Omar Usman
Finding The Lost Involuntary Public Figure, Jeffrey Omar Usman
Utah Law Review
This Article follows Aristotle’s guidance that “[i]f you would understand anything, observe its beginning and its development.” That is precisely how the discussion in this Article begins in Part I, through observation of the beginning and development of the Supreme Court’s jurisprudence on the constitutional limitations imposed upon defamation actions under the First Amendment to the United States Constitution. Part II of the Article then briefly sets forth the constitutional framework that the Supreme Court imposed in 1974 on defamation actions in Gertz v. Robert Welch, Inc. The Article then addresses in Part III how the pressures of the First …
Democracy-Assisting Judicial Review And The Challenge Of Partisan Polarization, Terri Peretti
Democracy-Assisting Judicial Review And The Challenge Of Partisan Polarization, Terri Peretti
Utah Law Review
This Article recommends abandoning the democracy-assisting idea and instead exploring ways to prevent the Court from being enlisted in extreme and unrepresentative causes. Reform ideas should focus on increasing and regularizing turnover on the Court and encouraging the selection of more representative Justices, an outcome made more likely by increasing the representativeness of the elected officials who choose the Justices. Absent a crisis, of course, it is highly unlikely that any such reforms will be adopted. Nonetheless, it is a worthwhile exercise to think about how to enhance representational and consensus-building processes in the presence of growing partisan polarization. And …
The Struggle Over Executive Appointments, John C. Roberts
The Struggle Over Executive Appointments, John C. Roberts
Utah Law Review
This Article argues that the long-term struggle between the President and the Senate over executive appointments has now reached a crisis and that we may be approaching a point where the President’s crucial duty to take care that the laws be faithfully executed is significantly impaired. During the Obama administration, an unprecedented number of judgeships and executive branch positions remain unfilled, threatening the smooth functioning of government at an especially demanding time.
Holding The President Accountable To Constitutional Limits, Louis Fisher
Holding The President Accountable To Constitutional Limits, Louis Fisher
Utah Law Review
As with Congress and the judiciary, presidents have access to powers expressly stated in the Constitution and those necessarily implied in those grants. In highly limited circumstances, presidents may also exercise a “prerogative” (i.e., unilateral action), but that authority is frequently misunderstood and subject to abuse. Unlike those in the other branches, presidents lay claim to a host of powers far beyond enumerated and implied powers. In seizing steel mills in 1952 to prosecute the war in Korea, President Harry Truman acted on what he called an “inherent” power that was not subject to judicial or legislative checks. Presidents Richard …
Reinvigorating The Judiciary’S Role In Resolving Interbranch Disputes, Michael Teter
Reinvigorating The Judiciary’S Role In Resolving Interbranch Disputes, Michael Teter
Utah Law Review
The Framers established a federal government of three coequal, coordinate branches—each with its own constitutional responsibilities and each charged with checking the other two branches. Indeed, separated functions and balance of power are the two underlying elements of our bedrock constitutional principle of separation of powers. The current style of governance in the Unites States poses a unique and serious threat to that basic principle. Congressional dysfunction prevents the legislative branch from legislating, pushes the executive branch toward assuming greater lawmaking authority, and undermines the ability of both the judiciary and executive branch to fulfill their own constitutional obligations.
Managing Political Polarization In Congress: A Case Study On The Use Of The Hastert Rule, Holly Fechner
Managing Political Polarization In Congress: A Case Study On The Use Of The Hastert Rule, Holly Fechner
Utah Law Review
This Article discusses the ideological polarization of Congress and of the Republican Party in particular. The rise of the Tea Party widened the ideological spectrum of members of the Republican caucus in Congress, especially in the House. To retain his leadership position and balance the competing factions in his caucus, Speaker Boehner routinely used a political and procedural tool known as the Hastert Rule.9 The Hastert Rule provides that the Speaker of the House will not schedule a bill for a floor vote unless a “majority of the majority” favors the legislation.
Unfunded Federal Mandates And State Judiciaries: A Question Of Sovereignty, Christine M. Durham, Brian L. Hazen
Unfunded Federal Mandates And State Judiciaries: A Question Of Sovereignty, Christine M. Durham, Brian L. Hazen
Utah Law Review
State courts have a well-recognized obligation to provide LEP individuals with meaningful access. In accordance with federal law, state courts have long been taking steps to increase that access, though perhaps not with time frames as swift as DOJ (or even the courts themselves) would prefer. But determining the manner in which state courts allocate their resources to provide interpreters should be within the discretion of the states to decide, provided, of course, that the courts provide meaningful access to LEP individuals. Additionally, state courts must make LEP funding decisions in a holistic context that requires courts to allocate scarce …
Lawyers, Clients, And Constitutional Rights, Jason Mazzone
Lawyers, Clients, And Constitutional Rights, Jason Mazzone
Utah OnLaw: The Utah Law Review Online Supplement
Professor Tarkington’s achievement is to show that associational freedom should encompass lawyering. With that, her article should have considerable impact on academic and judicial accounts of associational rights. In practice, however, the impact is likely to come in terms of protections for the ability of organizations to engage counsel—the right to client-attorney association—rather than, as in her focus, on a right that belongs to and is exercised by attorneys.
Advocacy And Association, John D. Inazu
Advocacy And Association, John D. Inazu
Utah OnLaw: The Utah Law Review Online Supplement
The lawyer as advocate (who files briefs and delivers arguments) flows out of the lawyer as counselor (who listens to clients, shapes arguments, and forms relationships). In this sense, Professor Tarkington’s focus on attorney-client association mirrors the ways in which many groups function as the pre-political spaces in which ideas and relationships are formed in the first place. It is not enough for us to focus on the moment of expression (or the moment of advocacy) because we will never arrive at these moments without sufficient protection for the background circumstances in which they are crafted. That to me is …
Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew
Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew
Utah OnLaw: The Utah Law Review Online Supplement
It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …
Removing The Presumption Of Innocence: A Constitutional Analysis Of The Ogden Trece Gang Injunction, Megan K. Baker
Removing The Presumption Of Innocence: A Constitutional Analysis Of The Ogden Trece Gang Injunction, Megan K. Baker
Utah OnLaw: The Utah Law Review Online Supplement
Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as …
No Promo Hetero: Children's Right To Be Queer, Clifford Rosky
No Promo Hetero: Children's Right To Be Queer, Clifford Rosky
Utah Law Faculty Scholarship
This Article argues that the government has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand. Building upon a familiar schema of legal scholarship on LGBT rights, this Article challenges the state’s interest in promoting heterosexuality by articulating a tripartite defense of children’s speech, status, and conduct. It argues that these three aspects of homosexuality are connected to and protected by three constitutional clauses — the First Amendment, …