Law Commons^™

Sex And Coercion: Comments On Green's Criminalizing Sex, Michelle Madden Dempsey

Faculty Publications

In chapter seven of Stuart Green’s magnificent book, Criminalizing Sex, he considers the crime of rape by coercion. In doing so, he takes up several related questions, including how we should distinguish between coercive threats and so-called coercive offers, and how to distinguish between coercive and non-coercive offers. My comments proceed in five steps. In section one, I argue that we should not bother making any distinction between threats and offers, since the two are intertranslatable. In section two, I examine various baselines that might be used to identify coercive proposals (regardless of whether they appear in the form of …

A New Feudalism: Selfish Genes, Great Wealth, And The Rise Of The Dynastic Family Trust (Dft), Eric Kades

Faculty Publications

Today’s record levels of economic inequality are infecting our future as the top 0.01% bequeath vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines—not just for a generation or two, but forever. Although it may sound implausible, interviews with estate lawyers serving very high-net-worth clients reveal that some members of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues. Recent work in evolutionary …

Estate Planning With Electronic And Regulated Assets, Thomas Simmons, Deborah Tedford, Jared Cloud, Shaheen Inami, Shari Levitan

Faculty Publications

Unique or unusual assets – from non-fungible tokens to firearms – pose novel challenges to estate planners and fiduciaries – particularly when it comes to administration of the estate. The need to both carry out the donor’s wishes and maintain the value for beneficiaries can come with different considerations from the more “garden variety” asset – particularly if the estate planner and/or fiduciary is not aware of their existence. In this webcast, our faculty of experienced estate planners – all Fellows of ACTEC – will explore different types of electronic and regulated assets and the issues you must take into …

Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams

Faculty Publications

The article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”

Interpreting State Statutes In Federal Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts …

Improving (And Avoiding) Interstate Interpretive Encounters, Aaron-Andrew P. Bruhl

Faculty Publications

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law …

Privacy Qui Tam, Peter Ormerod

Faculty Publications

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

Nomos, Narrative, And Nephi: Legal Interpretation In The Book Of Mormon, Nathan B. Oman

Faculty Publications

The Book of Mormon helped launch one of America’s most successful religions, and millions around the world accept it as scripture. It is thus one of the more influential books to have been published in the United States. Ironically, precisely because of its role in the founding of Mormonism, the text of the Book of Mormon has often been ignored. Recently, however, the Book of Mormon has begun to attract the attention of scholars whose interest in the text goes beyond either religious devotion or the academic study of Mormonism. Rather, they look to the text as a literary creation …

With Great Power Comes Great Responsibility: Superheroes & The Law, Thomas Simmons, Chris Dellicarpini, Rick Collins

Faculty Publications

Legal issues and lessons abound in superhero narratives. Caped heroes often act above and outside the law but deliver on law’s promises of justice and mercy in ways that ordinary legal actors cannot. Legal ethics, criminal law, and procedure are all on display. Superheroes supply a framework for examination of multiple legal issues and lessons, including what it means to be ethical (within the context of the rules of professional conduct and also in a broader sense) and how a legal life can be a virtuous one.

Friendship As The Primary Purpose Of Law, Michael P. Moreland

Faculty Publications

A significant aspect of the legacy of John Finnis is the restoration of friendship to a central place in moral, political, and legal theory building on the classical tradition in Plato, Aristotle, and Aquinas. This essay surveys the implications of friendship for law by way of exploring Finnis’s treatment of friendship in several of his works, including friendship as a condition for discourse, friendship as an especially important illustration of the central case, the relationship between friendship and the common good, and the place of civic friendship in a political community. The essay concludes with a discussion of friendship with …

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

Faculty Publications

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

"The Rule” And The Constitution: Witness Exclusion And The Right To A Public Trial, Stephen E. Smith

Faculty Publications

Federal and state rules of evidence provide for the exclusion of potential witnesses from the courtroom. But, in criminal proceedings, the Sixth Amendment’s right to a public trial presumes that a courtroom will be open. The public trial right has been widely interpreted to restrict even “partial closures” – the exclusion of an individual or group from a criminal courtroom. The rule on witnesses is potentially at odds with the right to a public trial. Witness exclusion, by rule, is almost automatic. The Sixth Amendment, on the other hand, requires heightened scrutiny before individuals may be excluded from the courtroom. …

Advising The Victim Of Domestic Violence, Kristen Clarke Kellems, Kristen Kellems

Faculty Publications

This presentation provides Utah attorneys and advocates with a practical framework for advising people experiencing domestic violence. It explains how criminal, protective-order, divorce, custody, housing, financial, juvenile, and immigration matters may overlap, often leaving clients overwhelmed and uncertain about what each court can accomplish. The presenters emphasize client autonomy, safe communication, realistic expectations, and coordination with victim advocates and community resources. Through case hypotheticals, the presentation examines civil and criminal protective orders, restraining orders, court safety planning, custody and parent-time concerns, documentation, communication between parents, social media, supervised visitation, and the risk that litigation may become another means of control. …

United States V. Allen And Judicial Review Of Early Pandemic Courtroom Closures, Stephen E. Smith

Faculty Publications

Trial court judges in 2020 were faced with a remarkable new problem. They were asked to accommodate both public health concerns (preventing trial participants, jurors, and spectators from contracting COVID-19) and criminal defendants’ Sixth Amendment right to a public trial. As courts of appeal begin their review of cases alleging violations of the Sixth Amendment’s right to a public trial arising during the early pandemic, they should be careful to consider conditions as they were at the time. We have learned much about COVID-19 and its management since then. But reviewing courts should not demand that trial courts possess public …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: New York Times V. Sullivan As Historical Analogue, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive …

For Their Own Good: Girls, Sexuality, And State Violence In The Name Of Safety, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

Faculty Publications

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of race-conscious …

Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules

Faculty Publications

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.

This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …

Taxation And The Constitution, Reconsidered, David Gamage, John R. Brooks

Faculty Publications

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Segmented Innovation In The Legalization Of Mitochondrial Transfer: Lessons From Australia And The United Kingdom, Myrisha S. Lewis

Faculty Publications

The U.S. is often characterized as a leader in innovation—a home of Nobel Prize‐winning scientists, innovators, and abundant research funding. Yet, in the area of assisted reproduction combined with genetic modification or substitution, what I call “reproductive genetic innovation,” that characterization begins to wane. This Article focuses on the regulation of mitochondrial transfer, a subset of reproductive genetic innovation. While human clinical trials related to mitochondrial transfer go forward in the U.K., the clinical use of the technique remains illegal in the U.S. due to a system of subterranean regulation by the U.S. Food and Drug Administration and a now-recurring …

Innovation Transition Success: Practice Doesn't Make Perfect, Kaitlyn Ryan, Amy M. Cox, Ethan Blake, Clay Koschnick, Alfred E. Thal Jr.

Faculty Publications

The authors of this research examine and evaluate organizational factors associated with commercialization under the Air Force Small Business Innovation Research (SBIR) program. Their objective is to improve return on investment. The data set used was the SBIR Phase II program data set, which contains information on 433 SBIR topics with closed contracts reported during Department of Defense (DoD) fiscal years (FYs) 2015 to 2018. Each data point contained characteristics of the topic, including commercialization. Military capability or topic areas were hypothesized to have varying commercialization rates. Incumbency was theorized to be a characteristic of successful programs, while increased company …

Circuit Personalities, Allison Orr Larsen, Neal Devins

Faculty Publications

The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even selfimposed circuit nicknames. In this Article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality …

Redefining Progress And The Case For Diversity In Innovation And Inventing, Colleen Chien

Faculty Publications

In the United States, women represent 50% of the workforce, but only 27% of STEM workers and 13% of inventors. This article surveys the scientific literature to make the empirical case for diversity in innovation and inventing, finding a growing body of research to show how diverse innovators expand the reach, quality, and quantity of innovation. It then surveys the history of patent law to make the legal case for prioritizing diversity in inventing, and for expanding conventional notions of “progress” in the patent system to include the promotion of a diverse set of innovators, rather than just innovation. It …

Darnell, Latoya, Brad, And Laurie: Lawyers’ Responses To Email Requests For Representation, Elizabeth S. Chambliss

Faculty Publications

No abstract provided.

Statutory Foundations: Let’S Discuss The Fuss, The Nonplus, And The Superfluous, Thomas Simmons

Faculty Publications

No abstract provided.

Solving The "King Lear Problem", Benjamin Means

Faculty Publications

In Shakespeare’s play, King Lear, an aging ruler relinquished control to two of his three daughters. The succession failed miserably, destroying his family and destabilizing his kingdom. King Lear shows why few family businesses survive beyond three generations. Understanding Lear’s failure is crucial to avoiding Lear’s fate, whether the family business in question is a monarchy, a media empire, or a hardware store. The conventional wisdom is that Lear gave away his kingdom too soon and left himself vulnerable to predatory heirs. This has been referred to as the “King Lear Problem.”

The conventional wisdom is wrong. Lear’s succession plan …

References To Robert Frost's Poetry In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

This article concerns courts whose written opinions have recently cited and quoted Frost and his poetry. By profiling Frost’s enduring influence, the article fortifies a theme I have presented in earlier “Writing It Right” articles. The theme begins in the courts, which in recent years often accent their opinions’ substantive or procedural rulings by quoting or citing well-known cultural markers from literature, sports, or popular entertainment.

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

Everything I Know About The Bond Market I Learned From Litwin V.Allen An Essay (In Two Parts) For Ralph Winter, Richard A. Booth

Faculty Publications

This essay focuses on the classic 1940 case Litwin v. Allen, 25 N.Y.S.2d 667 (N.Y. Sup. Ct. 1940), in which the court ruled that directors and officers of a bank were liable for losses suffered by the bank from a transaction in which the bank bought a bond at a discounted price subject to an option permitting the seller to buy it back at the same price (up to) six months later. The price of the bond fell dramatically during the option period, the seller declined to buy it back, and the bank was left with the loss. The court …

Just Strict Liability, Cristina Carmody Tilley

Faculty Publications

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault; namely, the …