Law Commons^™

The Unfulfilled Promise Of Indian Water Rights Settlements, Heather Tanana, Elisabeth Paxton Parker

Utah Law Faculty Scholarship

As climate change threatens an already-scarce resource, quantifying tribal water rights is critical to providing additional certainty to an uncertain future. In order to protect the future of their communities, it is critical that tribal water rights move from merely theoretical paper rights to actualized wet water rights.

Don't Say Gay: The Government's Silence And The Equal Protection Clause, Clifford Rosky

Utah Law Faculty Scholarship

This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently …

#Includetheirstories: Rethinking, Reimagining, And Reshaping Legal Education, Leslie Culver, Elizabeth A. Kronk Warner

Utah Law Faculty Scholarship

The entire world was shaken by the events of 2020—a year that the historians will pen with infamy. Along with a global health pandemic that tested both human frailties and social infrastructures, the world witnessed the devastation of George Floyd, an African American man, dying under the knee of Derek Chauvin, a White male police officer. The nation erupted. As 2020 ended, many organizations and institutions clamored both to process ethnic divides and injustices, and to gain tools and skills to create meaningful change and lasting impact. Legal education was one such institution. During the summer and fall of 2020, …

Mindful Lawyering: A Pilot Study On Mindfulness Training For Law Students, Clifford Rosky, R. Lynae Roberts, Adam W. Hanley, Eric L. Garland

Utah Law Faculty Scholarship

Many US law schools are now offering elective courses in mindfulness training to alleviate disproportionately high levels of anxiety, depression, stress, and disordered alcohol use among law students. To date, empirical evidence on the effectiveness of these courses has been lacking. The aim of this pilot study was to explore the feasibility and impact of a 13-week mindfulness course, "Mindful Lawyering," specifically tailored to law students. The primary hypothesis was that mindfulness training would be significantly correlated with improvements in well-being and mindfulness.

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Utah Law Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Demystifying Mindreading For The Law, Teneille R. Brown

Utah Law Faculty Scholarship

To lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states …

A Statutory Anti-Anti-Suit Injunction For U.S. Patent Cases?, Jorge L. Contreras

Utah Law Faculty Scholarship

Litigation relating to fair, reasonable and non-discriminatory (FRAND) licensing of patents essential to industry standards has recently seen a sharp increase in cross-jurisdictional competition fueled by the trend of courts in some jurisdictions (particularly China) to seek to establish FRAND royalty rates applicable around the world, and the increased use of anti-suit injunctions (ASIs) to prevent parties from pursuing parallel litigation in other jurisdictions. The proposed “Defending American Courts Act” (DACA), introduced to the U.S. Senate Judiciary Committee in March 2022, seeks to deter the use of foreign-issued ASIs in U.S. patent litigation. The DACA would effectively create a statutory …

Securing A Permanent Homeland: The Federal Government’S Responsibility To Provide Clean Water Access To Tribal Communities, Heather Tanana

Utah Law Faculty Scholarship

Water is life—critical to the health, socioeconomic, and cultural needs of any community. Every household in the United States needs and deserves access to clean, reliable, and a ordable drinking water. Yet, tribal communities face high rates of water insecurity. More than a half million people—nearly 48 percent of tribal homes in Native communities across the United States—do not have access to reliable water sources, clean drinking water, or basic sanitation. In comparison, as a whole, less than 1 percent of households in the United States lack these facilities. This persistent problem became a matter of life or death during …

Achieving Equality Without A Constitution: Lessons From Israel For Queer Family Law, Laura T. Kessler

Utah Law Faculty Scholarship

How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context …

Assessing Responses To The Pto’S 2021 Patent Eligibility Study, Jorge L. Contreras, Victoria T. Carrington

Utah Law Faculty Scholarship

In July 2021, the US Patent and Trademark Office (PTO) issued a public request for comments regarding the impact of recent patent eligibility jurisprudence on US businesses and markets. The PTO received 145 responses to its request by the October 2021 deadline. In this paper, we analyze the responses by industry sector and respondent type, assessing whether responses were generally positive, neutral or negative toward US patent eligibility jurisprudence, and also identifying those responses that cited international competitiveness of US businesses (particularly with respect to China) in their reasoning.

The Public Benefits Of Press Specialness, Ronnell Andersen Jones

Utah Law Faculty Scholarship

In many circumstances, a broad umbrella of shared rights for the press and the public is perfectly adequate. But there are also times when statutorily, and even constitutionally, we should be providing unique protection to those who, if granted rights beyond those available to all speakers, will use those rights to benefit society as a whole. In these areas, our ongoing refusal to conceptualize and legally recognize the specialness of the press function has robbed us of public benefits.

The Freedom of Information Act context is a perfect illustration of this. Federal agencies are so swamped by requesters with non-newsworthy, …

Anti-Suit Injunctions And Jurisdictional Competition In Global Frand Litigation: The Case For Judicial Restraint, Jorge L. Contreras

Utah Law Faculty Scholarship

The proliferation of international jurisdictional conflicts and competing “anti-suit injunctions” in litigation over the licensing of standards-essential patents has raised concerns among policy makers in the United States, Europe and China. This article suggests that national courts temporarily “stand down” from assessing global “fair, reasonable and nondiscriminatory” (FRAND) royalty rates while international bodies develop a more comprehensive, efficient and transparent methodology for resolving issues around FRAND licensing.

Sea Of Destruction: Legal And Social Forces Enabling Sexual Abuse Of Children, Amos N. Guiora

Utah Law Faculty Scholarship

This Article seeks to expose the truth of how our schools, laws, and powerful groups in our society actively work to aid mobile molesters in schools—mobile because they move from child to child and school to school, all with the blessing of adult enablers who are charged to protect children. According to news reports, in 2015, at least 498 teachers and other school workers were arrested for sexual misconduct with children. That is almost three per school day. Even worse, in addition to the initial attack by the molester, the child is subsequently revictimized by others who aim attempt to …

The Disappearing Freedom Of The Press, Ronnell Andersen Jones

Utah Law Faculty Scholarship

At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment …

Getting Real, Getting Personal: Fictions And Realities Of Property Across Borders (Review Of Lionel Shriver, Property: Stories Between Two Novellas And Ayelet Waldman, Love & Treasure), Jorge L. Contreras

Utah Law Faculty Scholarship

From our earliest days, we are steeped in stories revolving around the acquisition, and loss, of property. For these reasons, Lionel Shriver’s collection of short fiction – Property: Stories between Two Novellas – and Ayelet Waldman’s novel Love & Treasure are particularly worthy of attention. Each of these works sheds new and interesting light on assumptions about property across national and cultural boundaries and raises questions about the place of property in shaping the human experience.

Proposed Allocation Of Funding From The American Rescue Plan Act, Infrastructure Investment And Jobs Act, And Build Back Better Act, Anne Castle, Heather Tanana, Jaime Garcia, Matthew Mckinney, Chelsea Colwyn, Ana Olaya, Daryl Vigil, Garrit Vogesser

Utah Law Faculty Scholarship

The initiative on Universal Access to Clean Water for Tribal Communities strongly supports IHS’s efforts to provide clean water access and sanitation services to Tribal communities and applauds the new funding available through the Infrastructure Investment and Jobs Act. We appreciate the thoughtful approach that IHS is taking to the allocation of this funding. We want to emphasize the need to deploy this unprecedented capital infusion in a manner tailored to the specific needs of individual Tribes, in consultation with them, and in a manner that sets both the Tribes and the projects up for long term success.

Comments In Response To Request For Information To Inform Interagency Efforts To Develop The American Conservation And Stewardship Atlas, John C. Ruple, Jamie Pleune

Utah Law Faculty Scholarship

On January 2, 2022, the Department of the Interior published a notice in the Federal Register seeking Information to Inform Interagency Efforts to Develop the American Conservation and Stewardship Atlas. This letter responds to the Department’s request for information.

Our comments focus on what we believe would be a useful framework for the Atlas. Our comments proceed in 5 parts: (1) broad comments about conservation, the Conservation and Stewardship Atlas, and the America the Beautiful Initiative; (2) the need to provide a universal baseline of ecological health that includes ecological potential, existing conditions, and a landscape health assessment; (3) the …

Comments Submitted In Response To Request For Information To Inform Interagency Working Group On Mining Regulations, Laws, And Permitting, Robert B. Keiter, Jamie Pleune, Heather Tanana, Brigham Daniels, Tim Duane, Elisabeth Parker

Utah Law Faculty Scholarship

On March 31, 2022, the Department of Interior announced the formation of an interagency working group to develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and invited public comment to help inform the efforts of the working group. The Request for Information sought, among other things, recommendations on “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.” Members of the Wallace Stegner Center of Land Resources and the Environment, at the S.J. Quinney College of Law, University of Utah submitted comments based on their shared expertise in mining law, …

Preliminary Injunctive Relief In Patent Cases: Repairing Irreparable Harm, John C. Jaros, Jorge L. Contreras, Robert L. Vigil

Utah Law Faculty Scholarship

Unlike a permanent injunction, which is an equitable remedy awarded to an injured party, a preliminary injunction is a form of interlocutory relief that is imposed by a court to preserve the status quo during litigation. In patent cases decided since (and often before) the Supreme Court’s 2006 decision in eBay v. MercExchange, courts have applied a four-factor test when considering the issuance of a permanent injunction. A similar test has evolved for preliminary injunctions, following the Court’s decision in Winter v. NRDC. Both the eBay and Winter tests rely heavily on whether the patentee is likely to suffer “irreparable” …

Patents On 5g Standards Are Not Matters Of National Security, Jorge L. Contreras

Utah Law Faculty Scholarship

Recent arguments for stronger patent rights, particularly on 5G wireless telecommunications technologies, are relevant to discussions of national industrial policy and economic development, but are not matters of national security.

Certification (And) Marks – Understanding Usage And Practices Among Standards Organizations, Brad Biddle, Vigdis Bronder, Jorge L. Contreras

Utah Law Faculty Scholarship

In addition to creating technical standards that describe how different products or services interoperate, many standards development organizations (SDOs) also perform testing services that are designed to ensure that products that ostensibly comply with a standard actually work together. SDOs frequently call this process “certification,” and authorize implementers that pass the testing process to use a logo or similar mark. Certification marks are a type of trademark that would seem to be tailor-made for this process. Our empirical analysis shows that SDOs use certification marks only relatively rarely, however. This dissonance is striking, providing insight into both the remarkably sophisticated …

Telephone Pole Cameras Under Fourth Amendment Law, Matthew Tokson

Utah Law Faculty Scholarship

In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.

These questions are complicated because Fourth Amendment law is complicated. This is especially the case today as Fourth Amendment law is in a transitional phase, caught between older and newer paradigms …

'In The Public Interest' - University Technology Transfer And The Nine Points Document – An Empirical Assessment, Jorge L. Contreras

Utah Law Faculty Scholarship

In 2007, eleven major U.S. research universities and the Association of American Medical Colleges signed an accord titled “In the Public Interest: Nine Points to Consider in Licensing University Technology.” It outlined a range of issues that universities should consider when licensing their technology to the private sector - from reservations of rights and limitations on exclusivity to refraining from dealing with patent assertion entities to making medical technologies accessible at affordable prices. More than talking points, the document proposed specific contractual clauses intended to promote the educational and public welfare missions of universities. Today, more than one hundred academic …

Stewardship Theater, Jeff Schwartz

Utah Law Faculty Scholarship

Large asset managers like BlackRock and Vanguard have amassed staggering equity holdings. The voting rights that accompany these holdings give them enormous power over many of the world’s largest companies. This unprecedented concentration of influence in a small group of financial intermediaries is a pressing policy concern. While law and finance literature on the topic has recently exploded, no one has offered a satisfying theory to explain their voting behavior. Existing work tries to understand their approach to voting in conventional terms—as an attempt to improve the performance of portfolio firms—but this is not why large asset managers vote the …

Miscarriage Of Justice: Early Pregnancy Loss And The Limits Of U.S. Employment Law, Laura T. Kessler

Utah Law Faculty Scholarship

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with …

A Unified Theory Of Clean Water Act Jurisdiction, Robert W. Adler

Utah Law Faculty Scholarship

As it reaches its half century mark, the modern version of the federal Clean Water Act (CWA) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law’s reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies that implement the law, and members of the public Congress intended to protect. A unified interpretive approach focuses on the statutory text …

Playing The Long Game: Expediting Permitting Without Compromising Protections, Jamie Pleune

Utah Law Faculty Scholarship

The Biden Administration’s efforts to expedite a transition to clean energy have prompted calls for permit reform. Clean energy relies heavily upon critical minerals and transitioning to a clean energy economy demands a global increase in mineral production. Some commentators suggest that environmental standards must be loosened in order to achieve efficiency. This premise offers short term gain in exchange for long-term pain. It also poses a false dilemma by failing to distinguish between productive and unproductive causes of delay in the permitting process. The permit process creates opportunities to eliminate, reduce, or mitigate risks. These opportunities may cause short-term …

Protecting Tribal Public Health From Climate Change Impacts, Heather Tanana

Utah Law Faculty Scholarship

The COVID-19 pandemic brought national attention to challenges that tribal communities have been facing for decades, such as limited health services and lack of water access. Although the end to the pandemic seems to be in sight, climate change will continue to threaten the public health and survival of tribal communities. Since time immemorial, Native Americans have recognized the sanctity of water. Water is life. However, climate change impacts are shifting the landscape across the country and many tribes lack the necessary infrastructure to protect their communities. For example, located in the Southwest, approximately 30-40 percent of homes on the …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark

Utah Law Faculty Scholarship

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

Smart Meters As A Catalyst For Privacy Law, Matthew Tokson

Utah Law Faculty Scholarship

Smart utility meters raise several puzzling legal questions—and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. This forum essay addresses two such issues: use restrictions on collected data, and voluntary data disclosure.

First, more than any other current technology, smart meters compel the development of use restrictions on collected data. The benefits of smart meters are potentially enormous, such that categorically prohibiting public utilities from collecting smart meter data is likely beyond the pale. Yet allowing law enforcement agents to obtain detailed or intimate data about the home without a warrant …