Law Commons^™

Actually We Should Wait: Evaluating The Obama Administration’S Commitment To Unilateral Executive-Branch Action, William P. Marshall

Utah Law Review

This Article agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good.9 It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

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 …

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 …

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 …

Warning: A Post-Sale Duty To Warn Targets Small Manufacturers, Jill Wieber Lens

Utah Law Review

The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.

This Article is …

Outsiders Looking In: Advancing The Immigrant Worker Movement Through Strategic Mainstreaming, Jennifer J. Lee

Utah Law Review

The immigrant worker movement faces the age-old problem of social movements: whether change should be pursued from the inside or outside. Shaped by dominant cultural norms, the current legal framework generally disadvantages immigrant workers. They suffer from workplace exploitation, anti-immigrant hostility, and exclusion. By examining the interplay between law and culture, this Article offers a unique perspective on how immigrant workers have the power to change law through cultural narratives.

Change pursued from the inside by immigrant workers, community advocates, and public interest attorneys has more immediately provided positive results for immigrant workers. They have done so by mainstreaming immigrant …

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.

Building The Canon Of Utah Constitutional Law: Lessons From The Utah Public Interest Standing Doctrine, Jordan Dez

Utah Law Review

In the current era of Utah constitutional case law, the legal community will have to be creative—and even deviceful—to piece together compelling briefs to argue cases under the Utah Constitution. In contrast to the early days of New Judicial Federalism where the court introduced new interpretations into the Utah constitutional dialogue from nothing more than a party’s citation to sister state law, sophisticated briefing is now necessary to succeed on a Utah Constitutional claim. Even where there is little case law or unfavorable prior precedents, practitioners may still find success by raising arguments grounded in the text of the Utah …

Is Congress Now The Broken Branch?, Barbara Sinclair

Utah Law Review

The Broken Branch: How Congress is Failing America and How to Get It Back on Track by Tom Mann and Norm Ornstein was published in 2006. To be sure, criticism of Congress is a staple of American political discourse—the content varies, but the criticism is ubiquitous. Nevertheless, the volume of criticism has ramped up in the past decade or so, and the fact that two highly respected congressional scholars, Thomas Mann and Norman Ornstein—who are also Washington insiders and known to be sympathetic to Congress—have joined in the criticism needs to be taken seriously.

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

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

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

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 …

The Real World Of Interdependence Of Governments And Corporations: What We Know Vs. What We Teach, David Menefee-Libey, Charles Herman, Chad Powell, Jeffrey Zalesin

Utah Law Review

Once we better understand this interdependence, we can more carefully ask how the public and private sectors can and should collaborate, for what purposes, and to whose benefit. The real world political questions are not whether it will be done or how such things could happen. A more constructive real world politics will focus on how we will manage the interdependence of governments and corporations, and whose interests and values will be served by policy choices about the patterns and practices of collaboration. If we organize our public life around these questions in 2020, American politics will be much more …

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 …

Clear As Mud: Recreating Public Water Rights That Already Exist, Kathryn A. Tipple

Utah Law Review

“Speculation. Water monopoly. Land monopoly. . . . John Wesley Powell was pretty well convinced that those would be the fruits of a western land policy based on wishful thinking, willfulness, and lousy science.”186 PWR 107 was created to avoid water monopolization through land reservation. However, it would seem that management of public water reserves on federal lands has succumbed to some of John Wesley Powell’s concerns: management has been incomplete, ad hoc, and potentially based on incomplete hydrological data. PWR 107, as well as federal water reserves in general, pits western states against the BLM where there is a …

Charity At Work: Proposing A Charitable Flexible Spending Account, Alyssa A. Dirusso

Utah Law Review

The current federal system of tax law, in attempting to encourage the shift of assets from private individuals to charitable organizations, fails to reach significant portions of Americans. Not all donors are equal in the eyes of the law; donors with particular demographic characteristics—ranging from income, to race, to state of residence—are more likely to itemize than others. Despite its aim to reflect a pluralistic society, the charitable deduction sanctions the privileging of one-third of American voices over the rest. If taxes are ballots, the election is rigged.

The New Prosecutor’S Dilemma: Prosecutorial Ethics And The Evaluation Of Actual Innocence, Dana Carver Boehm

Utah Law Review

Buoyed by advances in forensic science, the number of postconviction exonerations has significantly risen in the American criminal justice system over the last twenty years. The ethical obligations of prosecutors faced with such claims, however, have not kept pace. Most efforts within district and U.S. attorneys’ offices have been incremental at best, and even those few prosecutors’ offices with more robust “conviction integrity units”—units that affirmatively investigate claims of actual innocence and seek to mitigate the likelihood of wrongful convictions in the first place—suffer from various structural defects. Often a prosecutor’s default posture when faced with a claim of actual …

Greed, Envy, And The Criminalization Of Insider Trading, John P. Anderson

Utah Law Review

In October 2011, a U.S. district court sentenced Raj Rajaratnam to eleven years in federal prison for insider trading. This is the longest sentence for insider trading in U.S. history, but it is significantly less than the nineteen to twenty-four-year term requested by the government. Such harsh prison terms (equal in some cases to those meted out for murder or rape) require sound justification in a liberal society. Yet jurists, politicians, and scholars have failed to offer a clear articulation of either the economic harm or the moral wrong committed by the insider trader.

This Article looks to fill this …

The Philosophy And Jurisprudence Of Chief Justice Roberts, Kiel Brennan-Marquez

Utah Law Review

A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency …

A Court For The One Percent: How The Supreme Court Contributes To Economic Inequality, Michele Gilman

Utah Law Review

This Article explores the United States Supreme Court’s role in furthering economic inequality. The Occupy Wall Street movement in 2011 not only highlighted growing income and wealth inequality in the United States, but also pointed the blame at governmental policies that favor business interests and the wealthy due to their outsized influence on politicians. Numerous economists and political scientists agree with this thesis. However, in focusing ire on the political branches and big business, these critiques have largely overlooked the role of the judiciary in fostering economic inequality. The Court’s doctrine touches each of the major causes of economic inequality, …

Criminalizing The Transmission Of Hiv: Consent, Disclosure, And Online Dating, Alexandra Mccallum

Utah Law Review

Ever since Human Immunodeficiency Virus (HIV) was first recognized as a widespread public health problem, policymakers and legal scholars have considered how criminal law should be used to influence the sexual behavior of people with HIV. Surely, HIV is a problem that affects the general health, safety, and welfare of citizens. Thus, as most cases of HIV are transmitted through sexual conduct, states can regulate this conduct pursuant to their police powers. Generally, states that criminalize the transmission of HIV through sexual conduct provide an exception for HIV-positive individuals who disclose their status and obtain consent5 from their partners. However, …

Realigning Parties, Debra Lyn Bassett, Rex R. Perschbacher

Utah Law Review

The doctrine of realignment—which permits a federal court to change a party’s litigating position from plaintiff to defendant or vice versa—has been virtually ignored in federal procedure scholarship. This stark neglect is genuinely astonishing because the federal circuit courts are split as to the appropriate standard. The source of the standard—and the circuit courts’ confusion—is a 1941 U.S. Supreme Court decision, City of Indianapolis v. Chase National Bank. In that decision, rather than focusing on realignment’s purpose, the Supreme Court focused unduly on the specific context in which the realignment issue arose. The result was a muddled articulation of the …

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Utah Law Review

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

The Materiality Of Morality: Conflict Minerals, Alexandrea L. Nelson

Utah Law Review

Shareholder activism is not a privilege—it is a right and a responsibility. When we invest in a company, we own part of that company and we are partly responsible for how that company progresses. If we believe there is something going wrong with the company, then we, as shareholders, must become active and vocal.

Legality, Morality, Duality, Joshua P. Davis

Utah Law Review

This Article proposes legal dualism as a novel resolution to one of the central debates in jurisprudence—that between natural law and legal positivism. It holds that the nature of law varies with the purpose for which it is being interpreted. Natural law provides the best account of the law when it serves as a source of moral guidance and legal positivism provides the best account of the law when it does not.

Institutional Stress And The Federal District Courts: Judicial Emergencies, Vertical Norms, And Pretrial Dismissals, Daniel J. Knudsen

Utah Law Review

This Article examines the effects of judicial emergencies on the federal district courts. The Administrative Office of the U.S. Courts declares judicial emergencies when a weighted statistic of filings and vacancy days exceeds certain thresholds. This Article presents evidence on the relationship between emergency status in a judicial circuit and the frequency of pretrial disposition in federal district courts within that circuit: a federal district court is statistically more likely to dismiss a case before trial if its corresponding circuit court is in emergency. This evidence suggests that emergency status may affect normative expectations between the federal district courts and …

Sticky Compliance: An Endowment Account Of Expressive Law, David E. Depianto

Utah Law Review

This Article extends the literature on expressive law by developing a model of compliance rooted in the endowment effect. The central premise of the model is that compliance with legal rules, while costly from an ex ante perspective, may also endow individuals with a stream of benefits whose ex post value will increase. Examples of compliance-related benefits would include reductions in risk to one’s own health and safety, enhanced reputation (as a law-abiding individual), and even tangible goods. Under this novel account, once an individual has complied with a law, received some associated benefits, and grown attached to such benefits …

The Ban Has Lifted: Now Is The Time To Change The Accredited-Investor Standard, Larissa Lee

Utah Law Review

Lifting the ban on general advertising and general solicitation will ultimately change how emerging companies receive funding. With greater access to previously untapped investors, more new businesses will be able to get on their feet and be successful. This success depends on the regulation of these offerings to ensure they are free of fraud and that investors maintain confidence in the market.

As the standard currently stands, it is likely that the removal of the ban will result in a regulatory gap, which may take advantage of several investors. The accredited investor standard should be changed to reflect not only …

Speaking Of Science: Introducing Notice And Comment Into The Legislative Process, Gregory Dolin

Utah Law Review

Congress enacts, on a nearly continuous basis, a variety of laws that affect scientific research and progress. Some of these laws have an unquestionably positive effect. For instance, Congress’s creation of the National Institutes of Health, the National Academy of Sciences, and NASA; its various appropriations to fund ground-breaking research; and a multitude of other laws have incalculably advanced human knowledge, and it is to Congress’s great credit that these laws have been and are continuing to be enacted. However, not all laws that affect the progress of sciences are an unalloyed good. Quite the opposite, often the laws aim …