Law Commons^™

Childcare Market Failure, Meredith Johnson Harbach

Utah Law Review

In the United States, family law norms and childcare policy have long reflected the view that childcare is a private, family matter. But childcare has crossed the private-public divide. In the absence of parents at home providing care, a substantial childcare market has emerged. And that market is failing. Our law, policy, and legal scholarship have yet to recognize and account for this new reality. This Article confronts the problem on its own terms, using economic analysis to diagnose our childcare crisis as a market failure, and makes the case for more active and explicit government intervention in the childcare …

Rethinking The Geography Of Local Climate Action: Multilevel Network Participation In Metropolitan Regions, Hari M. Osofsky

Utah Law Review

As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metroregional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.

This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action …

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 …

Ending The Higher Education Sucker Sale: Toward An Expanded Theory Of Tort Liability For Recruitment Deception, Aaron N. Taylor

Utah Law Review

Admissions officers live a dual, often conflicted, existence. In one sense, they are counselors responsible for advising prospective students. In another sense, they are salespeople with obligations to meet enrollment goals. The pressures fostered by these roles sometimes prompt unscrupulous individuals to use misrepresentations and other forms of deception to induce students to enroll. Unfortunately, students who are induced to enroll based on recruitment deception are afforded few options for redress. The purpose of this Article is to conceptualize a tort-based solution to this utter inequity. The Article proposes a broadening of negligent misrepresentation to encompass a new tort—negligent educational …

Hoop Dreams Deferred: The Wnba, The Nba, And The Long-Standing Gender Inequity At The Game’S Highest Level, N. Jeremy Duru

Utah Law Review

From the beginning, the WNBA—which was born of the NBA’s approval in the NBA’s cities with NBA teams’ colors and largely NBA-related names and which survived a challenge from the ABL by virtue of its NBA affiliation—has featured a more stringent age eligibility rule than the NBA. When taken together, the two rules create two different tracks—one for men and one for women—to be negotiated on route to a professional basketball career in the United States. This sort of dualtracking, in which one route presents advantages over the other, is unacceptable in a nation committed to gender equity, and it …

The Dsm-5: Implications For Health Law, Stacey A. Tovino

Utah Law Review

In May 2013, the American Psychiatric Association released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Among other changes, the DSM-5 includes new entries for hoarding disorder and premenstrual dysphoric disorder as well as a reclassified entry for gambling disorder. Using these changes as examples, this Article examines the implications of the DSM-5 for key

issues in health law, including health insurance coverage, public and private disability benefit eligibility, and disability discrimination protection. As a descriptive matter, this Article illustrates how the addition of new disorders and the reclassification of existing disorders in the DSM-5 …

“I Expected It To Happen/I Knew He’D Lost Control”: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin

Utah Law Review

Given the limited definition of PTSD in earlier versions of DSM, the pernicious roles of sanism and OCS, and judges’ reluctance to embrace mental disability as a mitigator within the Federal Sentencing Guidelines, PTSD diagnoses have had little positive impact on the criminal sentencing process. The expanded definition of PTSD in DSM-5 may have profound effects on all criminal sentencing. By expanding the range of symptom clusters, DSM-5 makes more defendants “eligible” to seek sentence reductions based on the 2011 amendments to the Guidelines and the statutory criteria for such reduction.

Enduring Design For Business Entities, William E. Foster

Utah Law Review

The success or failure of an institution may hinge on some of the earliest decisions of its founders. In constitutional design literature, endurance is a widely accepted drafting objective. Indeed, constitutional endurance is positively associated with prosperous and stable societies. Like drafters of constitutions, business organizers have almost innumerable objectives for their enterprises, and attorneys drafting organizational documents must take into account these myriad goals. Oftentimes the drafting process fails to fully address some of the most important of these aims and results in suboptimal structures that lack predictability and reliability.

This article looks specifically at small business organizations and …

Interruptions In Search Of A Purpose: Oral Argument In The Supreme Court, October Terms 1958–60 And 2010–12, Barry Sullivan, Megan Canty

Utah Law Review

We tend to think of the Supreme Court as an institution that is unchanging. Nothing, of course, could be further from the truth. The Court has changed in important ways throughout its history. During the last few decades, the Court has experienced many significant changes: Congress has virtually eliminated the Court’s mandatory jurisdiction; the Court has reduced by almost half the number of cases in which it grants review; the number of law clerks has increased; the numbers of lower court cases and judges have increased substantially; the Court has shortened by half the amount of time normally allowed for …

Formality And Informality In Cost-Benefit Analysis, Amy Sinden

Utah Law Review

Cost-benefit analysis (CBA) is usually treated as a monolith. In fact, the term can refer to a broad variety of decisionmaking practices, ranging from a qualitative comparison of pros and cons to a highly formalized and technical method grounded in economic theory that monetizes both costs and benefits, discounts to present net value, and locates the point at which the marginal benefits curve crosses the marginal costs curve. This article develops a typology that helps to conceptualize the multiple varieties of CBA along a formality-informality spectrum. It then uses this typology to analyze the treatment of CBA by the academic …

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 …

Myths Of Environmental Law, Albert C. Lin

Utah Law Review

Environmental law is pervaded by myths—i.e., assumptions that are inaccurate, misleading, or false. These myths arise in various contexts, ranging from wetlands mitigation schemes and pollution credit trading programs to legal regimes premised on the concept of sustainability. This Article explores several myths of environmental law, their origins, and their roles. While political reasons explain in part the creation and prevalence of these myths, more is at work behind these myths than mere politics or failures to implement the law. The myths of environmental law facilitate the management of ecologically complex systems by providing a reductionist account of them. Beyond …

Treating The Blue Rash: Win-Win Solutions And Improving The Land Exchange Process, Smith Monson

Utah Law Review

The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.

Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the …

Anticipating A Sea Change For Insider Trading Law: From Trading Plan Crisis To Rational Reform, John P. Anderson

Utah Law Review

The Securities and Exchange Commission is poised to take action in the face of compelling evidence that corporate insiders are availing themselves of rule-sanctioned Trading Plans to beat the market. These Trading Plans allow insiders to trade while aware of material nonpublic information. Since the market advantage insiders have enjoyed from Plan trading can be traced to loopholes in the current regulatory scheme, increased enforcement of the existing rules cannot address the issue. But, simply tweaking the existing rule structure to close these loopholes would not work either. This is because the SEC adopted the current rule as a part …

The Missing Victims Of Health Care Fraud, Anthony Kyriakakis

Utah Law Review

Over the past few decades, combating criminal health care fraud has become one of the highest priorities of federal law enforcement, which views and treats it as a financial crime that causes vast economic losses to the government and private insurers. But the crime also causes, or threatens, physical harms to individual health care patients, a class of victims that the criminal justice system often fails to recognize. This Article is the first to explore how structures and hidden levers of power within the criminal justice bureaucracy lead agents and prosecutors to select—and ignore—particular harms and victims and, more importantly, …

The Keystone Xl Pipeline And The Dormant Commerce Clause: Would Action By Congress Preclude Adequate Environmental Regulation At The State Level?, S. Shane Stroud

Utah Law Review

The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to place itself in a position of economic isolation, it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.

This Is Your Brain On Law School: The Impact Of Fear-Based Narratives On Law Students, Abigail A. Patthoff

Utah Law Review

Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate-student populations. As their teachers, we cannot ignore the palpable presence of this stress in our classrooms—unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness.

By more thoughtfully using cautionary tales, we can actively manage one source of law student anxiety. Although reining in cautionary tales will certainly not be a panacea to law student distress, elimination of all law student anxiety is neither a realistic nor a desirable goal. Fear-based stress, in moderation, can compel students to overcome challenges they never thought possible; …

A Market Reliance Theory For Frand Commitments And Other Patent Pledges, Jorge L. Contreras

Utah Law Review

Patent holders are, with increasing frequency, making public promises to refrain from asserting patents under certain conditions, or to license patents on terms that are “fair, reasonable and nondiscriminatory” (FRAND). These promises or “patent pledges” generally precede formal license agreements and other contracts, but are nevertheless intended to induce the market to make expenditures and adopt common technology platforms without the fear of patent infringement. But despite their increasing prevalence, current contract, property, and antitrust law theories used to explain and enforce patent pledges have fallen short. Thus, a new theory is needed to secure the market-wide benefits that patent …

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 …

The Dsm-5 And Criminal Defense: When Does A Diagnosis Make A Difference?, Nancy Haydt

Utah Law Review

In June 2013, the American Psychiatric Association published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). The DSM-5 was intended to be an updated guidebook for the clinical diagnosis of mental disorders. It received mixed reviews from the mental health community. The reception from the forensic mental health community is likewise varied. The evolution of conceptualizing mental illness, its origins and treatment efficacy, may weaken the authority of the DSM and further confuse its application in forensic situations. This Article explores the possible effects of the DSM-5 in criminal cases.

Does The Dsm-5 Threaten Autism Service Access?, Rebecca Johnson

Utah Law Review

The present paper addressed the question: how will the DSM-5 revisions impact access to autism services? While media commentators posited a straightforward link between DSM-5 changes and service access, we should consider the different strength of couplings between a DSM diagnosis and entitlement access by investigating the factors that result in a diagnoses translation into service access. The Article began by outlining the pre DSM-5 policy background for autism entitlements. This background helps contextualize the policy environment into which the DSM-5 changes entered. Rather than examining autism medical and educational services in isolation, we should conceive of these services as …

Testing The Models Of Tax Compliance: The Use-Tax Experiment, Adam B. Thimmesch

Utah Law Review

Researchers in a number of fields have explored the question of why people voluntarily comply with the tax laws. The resulting scholarship suggests that a number of factors influence that decision, but the precise role of, and interaction between, those factors continue to be subjects of debate. More research is thus needed, including field research to put the current theories to test in real-life settings. This Article proposes that state use taxes—known primarily as the taxes that are due when taxpayers purchase items online without paying sales taxes—provide a remarkable opportunity for that research. Compliance with those taxes is virtually …

Environmental Privacy, Katrina F. Kuh

Utah Law Review

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial …

Diagnosis Dangerous: Why State Licensing Boards Should Step In To Prevent Mental Health Practitioners From Speculating Beyond The Scope Of Professional Standards, Jennifer S. Bard

Utah Law Review

This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death penalty, it most frequently occurs in Texas because of a statute that makes it mandatory for juries to determine the future dangerousness of the defendant they have just found guilty. Both the American Psychiatric Association and the American Psychological Association have protested the use of mental health professionals in this setting because there are …

Postemployment Noncompete Agreements: Why Utah Should Depart From The Majority, Christopher Mack

Utah Law Review

A decision by the Utah Legislature to follow California’s statutory scheme on noncompetition law would have a positive impact on the economy. A ban on all postemployment noncompete agreements would strengthen the economy by increasing innovation and healthy competition. Additionally, it would create a more fair and efficient labor market, allowing individuals to reach their employment potential. Finally, abolishing postemployment noncompete agreements would significantly increase the protection to employee rights without harming businesses’ rights to protect its goodwill and trade secrets.