Law Commons^™

It Shouldn’T Be This Hard: The Law And Economics Of Business In Indian Country, Adam Crepelle

Utah Law Review

Indian reservation economies have been in shambles for generations. Although some tribes operate successful gaming enterprises, no tribe has a vibrant private sector economy. Law and economics help explain why. Economics is the study of choices, and Indian country’s complex legal rules deter businesses from investing on tribal land. After all, no business wants to spend a year waiting for the federal government to approve a land lease on reservation when land is easily accessible off reservation. Likewise, jurisdictional rules are clear off reservation, but within Indian country, simply determining whether to file a breach of contract suit in tribal, …

Second-Generation Source Of Income Housing Discrimination, Armen H. Merjian

Utah Law Review

This Article aims to provide courts and practitioners with the tools they need to address second-generation SOI discrimination, examining the most prevalent tactics and marshalling the relevant materials in one place. Part I of this Article provides a brief overview of SOI discrimination, demonstrating that such discrimination is rampant throughout the country, even in states and municipalities with SOI protections. Part II examines the statutes and authorities relating to the most common manifestations of second-generation SOI discrimination, namely minimum-income and minimum-credit requirements. Part III applies those authorities to voucher holders with both full and partial vouchers, demonstrating that these requirements …

Religious Liberty, Discriminatory Intent, And The Conservative Constitution, Luke Boso

Utah Law Review

The Supreme Court shocked the world at the end of its 2021–22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public’s attention is the rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution.

Discriminatory intent rose to …

Religious Freedom (For Most) Restoration Act: A Critical Review Of The Ninth Circuit’S Analysis In Apache Stronghold, Alex Mcfarlin

Utah Law Review

This Note analyzes sacred site protection under the Religious Freedom Restoration Act (“RFRA”) and argues that the Ninth Circuit’s upcoming en banc review of Apache Stronghold is a critical moment for many Indigenous faiths. Against the backdrop of a religious freedom resurgence for other faiths over the past decade, the practitioners in Apache Stronghold face the irreparable loss of identity and culture.

Tribal Cannabis Agriculture Law, Ryan B. Stoa

Utah Law Review

Indian tribes have some freedom to develop their own approach to cannabis agriculture, but what is the nature of that freedom, and how have tribes acted upon it?

This Article investigates the current legal framework surrounding tribal cannabis agriculture and tribal participation in legal cannabis markets. It is generally believed that tribes have some authority to determine the legality of cannabis cultivation on their lands, and to create rules and regulations governing that practice. However, this freedom is nascent and inconsistently granted by the federal government. In addition, the legal frameworks tribes are developing with respect to cannabis agriculture are …

Remembering A Giant—Alex Tallchief Skibine, Elizabeth A. Kronk Warner

Utah Law Review

On February 4, 2023, the world lost a legal giant, as Professor Alex Tallchief Skibine passed away following a battle with an aggressive form of brain cancer. Professor Skibine’s passing was an enormous loss for both our S.J. Quinney College of Law community and the field of Indian Law. Professor Skibine was intellectually curious, funny, and always kind––truly a pillar of our SJQ Law community. I am delighted that this issue of the Utah Law Review is dedicated to his memory.

The Possible Futures Of American Democracy, Jedediah Purdy

Utah Law Review

Everyone worries about democracy, although not everyone pauses to say what they mean by it. A New York Times poll shortly before the last election found that large shares of voters in both parties feared for democracy, although they didn’t fear the same things. In the run-up to the 2020 presidential election, about ninety percent of partisan voters said the country would suffer serious damage if the other guy won2; they presumably didn’t have quite the same worries. Pollsters ask people whether they expect political violence in future elections, and voters respond that they do. Bookstores have been full of …

Textualism As An Ally Of Antitrust Enforcement: Examples From Merger And Monopolization Law, Robert H. Lande

Utah Law Review

This Article will first briefly present an overview of the textualist method of statutory interpretation. It will then briefly engage in a textualist analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. At least in these areas, textualist analysis should, if anything, help re-invigorate antitrust enforcement.

Consumer-Facing Competition Remedies: Lessons From Consumer Law For Competition Law, Lauren E. Willis

Utah Law Review

Assigning consumers the task of disciplining markets is frequently attempted but rarely achieved. We teach financial literacy classes with the hope that consumers will avoid overly-risky and overly-costly financial products. We require calorie labels with the hope that consumers will use them to reduce obesity. We pre-select a no-overdraft default with the hope that consumers will stick with the default and avoid overdraft fees. None of these approaches are terribly effective at achieving the ends sought because, in each instance, the intervention—the classes, the disclosures, or the defaults—produce unexpected heterogeneous consumer responses and are met with a barrage of firm …

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Utah Law Review

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of …

Why Economists Should Support Populist Antitrust Goals, Mark Glick, Gabriel A. Lozada, Darren Bush

Utah Law Review

Antitrust policy can be a powerful tool to tackle important social and economic problems. For decades antitrust enforcement has been shackled by the so-called Consumer Welfare Standard (“CWS”) that has limited the goals considered to be “legitimate.” The CWS limits antitrust goals to those that impact demand in markets, and primarily in output markets. Recently, new voices have come forward to suggest that antitrust policy should address several other important social objectives. Such goals include the traditional antitrust goals that motivated passage of the antitrust statutes, and which were discussed in Pre-Rehnquist Court opinions, including dispersion of economic and political …

Why Is Frand Hard?, Michael A. Carrier

Utah Law Review

There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an …

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

The New Roaring Twenties: The Progressive Agenda For Antitrust And Consumer Protection Law, Jorge L. Contreras

Utah Law Review

It is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century.

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

An Intersectional Examination Of U.S. Civil Justice Problems, Kathryne M. Young, Katie R. Billings

Utah Law Review

Millions of Americans face civil justice problems each year, and most of these problems never make it to court, let alone to a legal expert. Although research has established that race and class are associated with a person’s chance of experiencing a civil justice problem, detailed intersectional examinations of everyday people’s justice experiences are largely absent. A more in-depth empirical understanding of the access to justice crisis can equip lawyers, policymakers, and other designers of justice interventions to create higher-impact, more efficient, and bettertargeted programs to meet the justice needs of everyday people.

This Article fills a critical gap in …

Mass E-Carceration: Electronic Monitoring As A Bail Condition, Sara Zampierin

Utah Law Review

Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects …

A New Test For The New Crime Exception, Colin Miller

Utah Law Review

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.

By doing so, courts have allowed the new crime exception to swallow two …

Preventing Trafficking By Protecting Refugees, Rebecca L. Feldmann

Utah Law Review

An inherent tension underlies the duty to prevent trafficking. On the one hand, nation-states are required to take border control measures aimed at preventing trafficking. At the same time, such measures must respect international obligations toward asylum-seekers and other migrants relating to the free movement of people. In the past twenty years, countries such as the United States have developed increasingly sophisticated systems designed to regulate and restrict the movement of people across borders. However, the same period has seen an increasing disregard for the human rights of the very people who are crossing those borders. In order to fully …

25 Is The New 18: Extending Juvenile Jurisdiction And Closing Its Exceptions, Dylan Raymond

Utah Law Review

Courts are in broad agreement that juveniles—defined as people under 18-yearsold — are less culpable than adults and thus punish them differently. Indeed, few would disagree that the adult criminal system should apply only to adults—people “fully developed and mature.” If separating adults and juveniles based on culpability is the goal, it begs a simple question: should the split happen at age 18? Some U.S. institutions imply that they believe an 18-year-old lacks the requisite maturity to assume certain responsibilities, including the House of Representatives and car rental agencies, which permit participation at 25. Looking globally, important institutions like the …

Insider Expungement, Brian M. Murray

Utah Law Review

Like many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented …

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 …

Adopting Social Media In Family And Adoption Law, Stacey B. Steinberg, Meredith Burgess, Karla Herrera

Utah Law Review

Social media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and …

Rightsizing Local Legislatures, Brenner M. Fissell

Utah Law Review

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size …

Opening The Range: Reforms To Allow Markets For Voluntary Conservation On Federal Grazing Lands, Shawn Regan, Temple Stoellinger, Jonathan Wood

Utah Law Review

For nearly a century, the federal government has authorized ranchers to graze livestock on large areas of federal lands in the western United States. Federal-land grazing has generated substantial conflict in recent decades, as conservation interests and others have lobbied and litigated against what they view as inappropriate and destructive use of federal lands. This has produced a predictable backlash among ranching interests, including efforts to roll back the regulations relied on by environmental litigants and aggressive confrontations with federal regulators. But such conflict is not inevitable. Competing demands on these lands can be resolved through voluntary means and positive …

Flipped Constitutional Supremacy: Inferior Local Law Blocking Federal Policy, Steven Ferrey

Utah Law Review

All cities and towns in the U.S. utilize electric power. Electric power needs to be generated. Now, energized by larger issues of rapid climate change, the U.S. and all nations must transition to lower-carbon-emission sources of power generation, of which wind power currently is the most prominent and used technology. Any community hostile to wind power can pass a highly restrictive amendment to its zoning ordinance that makes the community unattractive or costprohibitive to wind or other power generation projects. There is no requirement under state law for states to allow tens of thousands of cities and towns carte blanche …

Climate Insecurity, Shi-Ling Hsu

Utah Law Review

Global climate change causes climatic events such as hurricanes, droughts, floods, and heat waves to occur more frequently and with greater severity. In addition to inflicting direct harms, climatic events disrupt the flow of commerce and natural resources, creating shortages of goods and services, sometimes temporarily, sometimes not. Climate change is getting worse, so climatic events will escalate over time, and as events cumulate, there is the potential for multiple events to heap harm on top of harm, exponentially increasing misery and disruption. What looms is the prospect of shortages of basic life necessities.

A vast literature on food and …

Owning The Right To Migrate: A Proposal For Migration Corridors In The Greater Yellowstone Ecosystem, Alyssa Florack-Hess

Utah Law Review

The Greater Yellowstone Ecosystem (GYE), one of the world’s most treasured regions, consists of an interconnected patchwork of federal, state, and private lands. The GYE’s elk, mule deer, and pronghorn antelope (pronghorn) rely on this vast range to complete their seasonal migrations, but development increasingly threatens this natural cycle. Moreover, the GYE’s existing wildlife management framework fails to resolve the tension between wildlife and growth, leaving both wildlife and local communities vulnerable. After reviewing the scope of the GYE’s ecological challenges, this Note proposes a new solution: a policy establishing affirmative easements across designated migration corridors in the GYE and …