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Articles 1 - 30 of 310
Full-Text Articles in Law
The Criminalization Of Care: Health And The Home, Teneille R. Brown
The Criminalization Of Care: Health And The Home, Teneille R. Brown
Utah Law Review
In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities. Noa Ben-Asher and Margot Pollans describe how “regret” has been exploited by conservative groups in campaigns to paternalistically ban abortion and genderaffirming care. They lay out how the parallel legal strategies between bans on abortion and gender-affirming care are hardly coincidental. Rather, there is a coordination effort to pervert informed consent doctrine to promote “traditional family values,” and to police reductive heteronormative visions of identity.
Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans
Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans
Utah Law Review
Conservative politicians, lawmakers, and media have generated a national moral panic about transgender children and youth that has resulted, as of early 2024, in restrictions or bans on GAC for minors in twenty-four states. In these bans and the advocacy around them gender-affirming care for minors is presented as harmful, ideological, unnecessary, and likely to lead to future regret. The role of regret in the movement to ban gender-affirming care parallels the role of regret in the ongoing conservative campaign to ban abortion. In the years between Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (2022), politicians …
We Cannot Police Systemic Racism And Systemic Poverty: Why Policing Is Not A Solution To Our Public Health Crisis, Semir Bulle
We Cannot Police Systemic Racism And Systemic Poverty: Why Policing Is Not A Solution To Our Public Health Crisis, Semir Bulle
Utah Law Review
From drug addiction to issues with homelessness, the mental health crisis, community disputes, traffic violations and more, there does not seem to be any evidence that increased police budgets and spending are the best use of limited resources. Criminalization in substitution for measured and targeted interventions has not worked in structurally vulnerable and marginalized communities and it is far past the time to accept tangible alternatives, such as funding initiatives like TCCS. Instead of perpetually increasing our police budget, let’s instead invest in healing our communities. Let’s invest this money in education, recreation, childcare, housing, health; measures that are proven …
Caught In The Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Clayton, Luke Gatta
Caught In The Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Clayton, Luke Gatta
Utah Law Review
Physicians in abortion-restrictive states who care for pregnant women who become ill are facing new challenges as they try to meet their patients’ needs while avoiding criminal prosecution on the one hand or civil litigation if there is a bad outcome, especially when care is affected by the threat of vague statutes, on the other. All these legal actions will occur in the public eye. Unfortunately, the proposed changes to HIPAA do not protect against criminal prosecution when the medical exception for the woman’s health is at issue.
Two changes are needed. The first is amending the state statutes to …
Preempting Red State Restrictions On The Use Of Fda-Approved Drugs In Gender-Affirming Care?, Lars Noah
Preempting Red State Restrictions On The Use Of Fda-Approved Drugs In Gender-Affirming Care?, Lars Noah
Utah Law Review
Some observers recently have wondered whether actions by the U.S. Food and Drug Administration (“FDA”) could federally preempt increasingly common state restrictions on gender-affirming care, particularly prohibitions on the use of puberty blockers and cross-sex hormones in adolescent patients. In theory, such a legal strategy might sidestep the need to lodge increasingly unsuccessful challenges under the Fourteenth Amendment. The Supremacy Clause offers little assistance, however, in attempting to get around these state laws. Indeed, even if the FDA eventually approved such uses for currently marketed drugs, implied preemption doctrine as currently configured probably would not do the trick, though securing …
Panel Presentation, The Criminalization Of Trans Lives And Health Care: Provider And Patient Perspective, Dana N. Johns
Panel Presentation, The Criminalization Of Trans Lives And Health Care: Provider And Patient Perspective, Dana N. Johns
Utah Law Review
Bans on gender affirming care are going to take a group of individuals who, as a whole, are already marginalized and already at risk. And then within that group, it’s going to segregate them even more because you’re going to have the people who can do that. You’re going to the families who can take their kids eight hours to another state. Then you’re going to the family that can’t because they can’t pay out of pocket, or they can’t take off work or they can’t make it to a state where their child can get care. These laws will …
Examining The Constitutionality Of Legislative Medical Care Bans For Transgender Youth, John Mejia
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
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 …
The Right To Violence, Sean Hill
The Right To Violence, Sean Hill
Utah Law Review
Scholars have long contended that the state has a monopoly on the use of violence. This monopoly is considered essential for the state to assure the safety and security of its citizens. Whereas public officers have the broadest authority to deploy violence, in order to make arrests or to inflict punishment, private citizens allegedly have severe restrictions on their use of force. Specifically, the state is said to only authorize private violence when civilians face an imminent threat of unlawful force or when civilians are attempting to prevent a crime.
Yet the state explicitly authorized private violence against enslaved people …
Circumventing The Fourth Amendment: The Unconstitutional Nature Of Geofence Warrants, Shelby Stender
Circumventing The Fourth Amendment: The Unconstitutional Nature Of Geofence Warrants, Shelby Stender
Utah Law Review
Federal and state law enforcement agencies are using a new tactic for gathering evidence: geofence warrants. These warrants allow law enforcement to gather historical location data collected by third party companies including Google, Facebook, Amazon, and Apple. Armed with a geofence warrant today, law enforcement agencies can track the previous location of an individual at any point from the moment they acquired a cell phone—so long as the location history is turned on. The tactic has grown in popularity since 2019 and has been used to uncover suspects in cases where police had few leads. Troublingly though, the tactic has …
Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery
Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery
Utah Law Review
Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received …
First Amendment Fetishism, John Kang
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 …
Democratic Erosion And The United States Supreme Court, Jenny Breen
Democratic Erosion And The United States Supreme Court, Jenny Breen
Utah Law Review
For many decades, confidence in American institutions and political culture consistently led scholars to sideline questions about “regime change” in the United States. And for many years, that approach seemed justified. Democratic institutions were firmly rooted and stable, and American voters participated in free and fair elections that resulted in the peaceful transfer of power between parties and candidates. Then came the campaign of Donald Trump and all that has followed since, including open challenges to the most basic and fundamental democratic norms. These changes have led many voters, commentators, and scholars to ask: Is democracy eroding in the United …
A State For Second Chances: Utah’S Clean Slate Legislation, Madelynn Woolf
A State For Second Chances: Utah’S Clean Slate Legislation, Madelynn Woolf
Utah Law Review
Utah’s Clean Slate Act and the wave of similar legislation across the country provide a much-needed change to the traditional method of expungements that left many still facing heavy collateral consequences. Utah’s first pass at this legislation struck a good balance, evidenced by bipartisan support. It does not eliminate responsibility for one’s actions, but “[t]hose who violate the law and then pay their debt to society should not be punished indefinitely for the rest of their lives.” This reflects the broader “vision of America, then and now . . . a land of second chances, where one could make a …
Positioning Podcasting As Legal Scholarship, Sara Gras
Positioning Podcasting As Legal Scholarship, Sara Gras
Utah Law Review
Technology has revolutionized legal practice, education, and societygenerally, yet the availability of new forms of digital media has notsignificantly changed the locus of legal scholarship. This Article examineswhether our collective understanding of where scholarship can existshould expand to include podcasting as a formally acknowledged mediumfor legal scholarship. Student-edited law journals remain the primaryvehicle for disseminating law faculty scholarship, as well as an importantmeasure of faculty productivity and success as scholars, even though mostlegal research is conducted online. Despite acknowledged structurallimitations and biases inherent in the academic law review system,traditional print law journals continue to be more highly placed on thehierarchy …
The New Undue Influence, David Horton, Reid K. Weisbord
The New Undue Influence, David Horton, Reid K. Weisbord
Utah Law Review
The doctrine of undue influence has long been the problem child of inheritance law. Undue influence, a hazy combination of fraud and duress, supposedly invalidates bequests that a beneficiary obtained by overriding the volition of a vulnerable testator or settlor. But because relationships are complex, concepts like free will are slippery, and challenges to do native transfers are litigated after the owner dies, courts struggle to apply the rule. Making matters worse, fact finders exploit the principle’s vagueness to protect a decedent’s family at the expense of non-traditional relationships. As a result, scholars have criticized undue influence fordecades, with some …
Saving Democracy From The Senate, David Froomkin, A. Michael Froomkin
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 …
Old And New Environmental Racism, Tseming Yang
Old And New Environmental Racism, Tseming Yang
Utah Law Review
Over the past five decades, the U.S. Environmental Protection Agency (“EPA”) moved from purposeful disregard of environmental racism to a public embrace of environmental justice as an organizational priority. Unfortunately, its efforts to address environmental discrimination remain a work-in-progress. This Article posits that the Agency’s core difficulties have arisen out of its reluctance to accept the continuing salience of race and the substantive implications for its regulatory work. It has blinded the Agency to the evolving manifestations of environmental discrimination and associated harms. The effect has been to impede the aggressive enforcement of antidiscrimination laws, particularly the discriminatory effects regulations …
Soil Governance And Private Property, Sarah J. Fox
Soil Governance And Private Property, Sarah J. Fox
Utah Law Review
This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …
Banning Plastic, Rachael E. Salcido
Banning Plastic, Rachael E. Salcido
Utah Law Review
The disgusting nature of plastic pollution has finally captured the attention of policymakers and driven legal change. Local, state, and national bans on various plastic consumer items coupled with voluntary industry switching creates momentum toward a full-scale end to unnecessary plastic products. Bans have the capacity to create an important tipping point. This Article extolls the effectiveness of consumer bans and explores the challenges to achieving this highest level of environmental control. Plastic is essentially pure petroleum.1 Its persistence and destructiveness in the environment presents unique reasons to eliminate its use altogether. Plastics should only be used for essential products …
Standing In The Way Of Environmental Justice, Lauren Cormany
Standing In The Way Of Environmental Justice, Lauren Cormany
Utah Law Review
Private citizens need an avenue for justice through the judicial system on the siting of hazardous facilities. The health impacts of exposure to toxic facilities—like cancer, respiratory illnesses, and birth defects—are severe and victims deserve their day in court. While initiatives by government agencies and grassroots organizations provide influential roads to improvement, the judiciary stands to only bolster the efficacy of the work in the environmental justice field. The most effective way to include the courts is through the legislature creating a cause of action targeting the issues that communities face. Solutions to the issue of citizen standing in challenging …
It Shouldn’T Be This Hard: The Law And Economics Of Business In Indian Country, Adam Crepelle
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
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
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
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
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
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
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
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
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 …