Law Commons^™

Web-Scale Discovery And Federated Search, Valeri Craigle

Utah Law Faculty Scholarship

In stark contrast to the library card catalogs of old, today’s library search interfaces offer much more than one-dimensional, item-specific searching. Users are now engaged in a process of discovery in which they are empowered to control not only the sources of content being searched, but also the context into which information is delivered, and the platform onto which information is synthesized. By eliminating the barriers to information discovery, law libraries can position themselves as true partners in this process, defining their mission in new ways, and providing critical services in an ever-complex information ecosystem.

Homeless Issues In Downtown Salt Lake City : Situation Assessment Proposal, Michele Straube

Environmental Dispute Resolution Program

This project proposes to provide a comprehensive Situation Assessment of the homeless issues affecting downtown Salt Lake City – exploring public perceptions and stakeholder willingness to be part of the solution, while also presenting a complete picture of existing efforts to address homeless issues downtown. The information gathered and analyzed should enable city government to move beyond Bandaid fixes and engage in effective and strategic problem-solving to provide long-term solutions to specific problems identified through the situation assessment.

Moving Forward With Indian Water Rights Settlements, Melinda Moffitt

Environmental Dispute Resolution Program

Although water rights have long been a source of conflict, particularly in the Western United States, the future does not have to include long, drawn-out court battles where a judge determines how much water each party is entitled to. Many successful Indian water rights settlements have already been negotiated, and more are possible as States and tribes come together to negotiate for the good of all parties. More practical, flexible solutions are available to parties who are willing to sit down together, develop the necessary trust, and negotiate the settlement of Indian water rights.

Uinta Basin: Elevated Ozone Creates Opportunities, Not Adversaries, John Robinson Jr.

Environmental Dispute Resolution Program

This paper examines rural ozone pollution in the Uinta Basin. The pollution issue is complex—scientific uncertainty compounds with jurisdictional issues under the Clean Air Act. A large number of conservation, government, and economic stakeholders take interest in the region’s air quality and there are no easy answers. This paper seeks to stimulate discussion in hopes of fostering a collaborative approach to solving the problem. It includes both a conflict assessment and proposes a process design for moving forward through cooperation.

Kennecott Groundwater Remediation: Collaborative Problem Solving Builds Trust And Reduces Costs, Lauren Carpenter Devoe

Environmental Dispute Resolution Program

The following case study relies on support from traditional research—all of which is cited throughout—and interviews with representatives from three of the major stakeholders involved in the process analyzed. Interviews were conducted with Dianne Nielson, the former Executive Director of the Utah Department of Environmental Quality (conducted March 15, 2013); Marcelle Shoop, former Kennecott attorney involved in the negotiations and Kelly Payne, Kennecott’s Environmental Manager (conducted March 18, 2013); as well as Richard Bay, CEO of the Jordan Valley Water Conservancy District (conducted March 25, 2013). To protect these individual sources and their ongoing relationships, their statements are not cited …

Conflict Assessment And Environmental Dispute Resolution Process Design Addressing Deposition Of Naturally Occurring Asbestos At Swift Creek, Whatcom County, Washington, Douglas Naftz

Environmental Dispute Resolution Program

Swift Creek presents an unprecedented mixture of complex scientific, geologic, environmental, economic, and sociological issues. Combined, these issues slip into a “seam between the authorities,” making them very difficult to address under the existing regime of environmental law in the United States. As recognized by Melious, as well as the former EPA Region 10 Regional Administrator, Elin Miller the presence of a “seam between authorities” that is not contemplated by existing legal solutions might actually foster the application of a creative collaborative process designed to develop and implement a permanent comprehensive sediment management solution at Swift Creek. In fact, it …

Environmental Dispute Resolution Program: Year 1 Accomplishments: February 2012 – January 2013, Michele Straube

Environmental Dispute Resolution Program

The Stegner Center’s EDR Program encompasses four general categories of activity designed to support and expand the use of EDR in Utah and the Mountain West: academic instruction, capacity-building, public education, and facilitation/mediation services. One primary focus of this first year’s efforts was on meeting with a cross-section of stakeholder interests working on environmental and natural resource issues to introduce the new program and to get their insights on how the program can be most helpful in promoting constructive dialogue on these issues. An equally important focus was to start establishing a track record of accomplishments in each of the …

Digital Democracy: Anderson V. Bell & The Expansion Of Electronic Signatures In Election Law, Barry G. Statford

Utah OnLaw: The Utah Law Review Online Supplement

Electronic signatures have become increasingly accepted in the law, but even so, validation and legitimacy come slowly. Congress and the various states have taken substantial steps to create uniform standards for electronic records and signatures through the passage of legislation like E-SIGN and UETA.

But as the Utah Supreme Court observed, there are other valid “transactions” in the law where these statutes should apply. In Anderson v. Bell, it applied to an independent candidate’s ballot qualification. The Utah Legislature disagreed, however, and amended the Utah Election Code to exclude electronic signatures.

This Note advocates expanding the reach of an electronic …

Unrepresented And Untimely: The Pcra's Disservice To Indigent Prisoners, Nathan Margioni

Utah OnLaw: The Utah Law Review Online Supplement

The Post-Conviction Remedies Act’s fundamental flaw is its effect on the availability of relief to indigent prisoners. A post-conviction review is often a prisoner’s only opportunity to challenge the failure of appellate counsel to provide effective assistance. Because the legislature has eliminated the common law writ of habeas corpus as a method to challenge a conviction or sentence, the PCRA is the only available avenue for a post-conviction review. The indigent defendant, however, is particularly vulnerable to the PCRA’s restrictions, due to his or her reliance on appointed rather than private counsel during the appeals phase, and lack of resources …

Utah Should Adopt A Modified Version Of The Revised Uniform Limited Liability Company Act, Russell K. Smith

Utah OnLaw: The Utah Law Review Online Supplement

The Proposed Act offers a number of advantages over the Current Act. The Current Act is an outdated one-of-a-kind statute that is a patchwork of other commercial statutes that do not mesh well. It has significant inconsistencies and is decidedly less business-friendly than the Proposed Act. It is time for the Utah legislature to enact an LLC statute that (1) represents the best thinking of some of the nation’s foremost experts on LLCs and LLC legislation, (2) is drafted while taking into account recent developments and national trends, (3) offers the benefits of uniformity and consistency with Utah’s other unincorporated …

Utah's Children Need A Tourniquet, Not A Band-Aid: Why Utah Should Adopt A Separate Involuntary Civil Commitment Statute For Incompetent Sexual Offenders, Tara Pincock

Utah OnLaw: The Utah Law Review Online Supplement

Utah needs to close the loophole that allows ISOs to be released by adopting a separate civil commitment statute. Utah should model its statute after similar statutes passed in Kansas and Washington, except Utah’s statute should only apply to incompetent individuals who are unlikely to regain competency. This separate civil commitment procedure will ensure that the ISO is sequestered until such a time that he is no longer a threat to society. The state could house those committed under this statute at a secure facility, such as the Utah State Hospital. The state could then use the sex-offender-treatment program used …

The Unconstitutional Prosecution Of Controlled Substance Metabolites Under Utah Code § 41-6a-517, Joshua C. Snow

Utah OnLaw: The Utah Law Review Online Supplement

This Article achieves three main goals. First, it explains and explores Utah’s per se metabolite laws against the backdrop of the national landscape of metabolite laws. Second, this Article provides a concise explanation regarding the science of drug metabolites. Finally, this Article presents two constitutional challenges to Utah Code section 41-6a-517. The first challenge argues that the statute creates an impermissible status offense in violation of the Eighth Amendment to the U.S. Constitution. The second challenge argues that the statute violates Utah’s Uniform Operation of Laws Clause found in the Utah Constitution. This Article concludes by asking Utah state courts …

Lawyers, Clients, And Constitutional Rights, Jason Mazzone

Utah OnLaw: The Utah Law Review Online Supplement

Professor Tarkington’s achievement is to show that associational freedom should encompass lawyering. With that, her article should have considerable impact on academic and judicial accounts of associational rights. In practice, however, the impact is likely to come in terms of protections for the ability of organizations to engage counsel—the right to client-attorney association—rather than, as in her focus, on a right that belongs to and is exercised by attorneys.

Advocacy And Association, John D. Inazu

Utah OnLaw: The Utah Law Review Online Supplement

The lawyer as advocate (who files briefs and delivers arguments) flows out of the lawyer as counselor (who listens to clients, shapes arguments, and forms relationships). In this sense, Professor Tarkington’s focus on attorney-client association mirrors the ways in which many groups function as the pre-political spaces in which ideas and relationships are formed in the first place. It is not enough for us to focus on the moment of expression (or the moment of advocacy) because we will never arrive at these moments without sufficient protection for the background circumstances in which they are crafted. That to me is …

Lawyer Conflicts Of Interest And Sophisticated Clients, Kevin C. Mcmunigal

Utah OnLaw: The Utah Law Review Online Supplement

I like many things about Professor Milan Markovic’s article on which I have been invited to comment. He has chosen an interesting, important, and timely topic and provides a detailed and persuasive critique of the ability of sophisticated clients to understand and protect themselves from the dangers presented by attorney conflicts of interest. I found particularly interesting his examination of the psychological issues that surround a lawyer obtaining a client’s consent to a conflict of interest.

I devote this commentary, though, to two aspects of Professor Markovic’s article I find puzzling. The first is the modesty of the remedial measures …

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Utah OnLaw: The Utah Law Review Online Supplement

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment, Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

In The Turbulent Wake Of Anderson V. Bell: Protecting Core Political Speech And Utahn's Right To Initiative, Daniel W. Boyer

Utah OnLaw: The Utah Law Review Online Supplement

Since the court in Anderson already affirmed the validity of electronic signatures in Title 20 through statutory rules of construction and common law principles, it will likely have to address the constitutional challenges it declined to reach in that case when it is visited with new challenges to the State’s ban on e-signatures in ballot petitions and initiatives. This Note offers an alternative to the uniform operation of laws analysis, which plaintiffs have recently employed against the Lieutenant Governor and S.B. 165. Free speech analysis supplies parameters that are more closely suited to address the type of constitutional wrong that …

Oral Argument Reform In Utah's Appellate Courts: Seeking To Revitalize Oral Argument Through Procedural Modification, Clark Collings

Utah OnLaw: The Utah Law Review Online Supplement

The current institution of oral argument in the national and Utah appellate court systems must be revitalized to save a legal practice that has positively contributed to the development of the law. The purposes served by oral argument—client advocacy and equitable appellate review—cannot be lost merely because the procedure is outdated. By implementing a tentative-opinion program, oral argument will be more focused and meaningful. By reformatting the procedural logistics of oral argument, the parties will be uninhibited in their approach to the conversation. Finally, by employing judicial debiasing strategies, the judges will be aware of their confirmation bias propensities and, …

State V. Worthen: Demonstrating Utah's Need For An Expanded, Absolute Victim-Counselor Testimonial Privilege, Barry G. Stratford

Utah OnLaw: The Utah Law Review Online Supplement

Evidentiary privileges have generated disagreement since they were first recognized in the law. These privileges exist to prevent a witness from being compelled to disclose certain information. Such protections acknowledge that certain relationships or communications are so important in society that they warrant heightened confidentiality. A number of privileges are designed to protect communications made during professional relationships. These include the relationship between attorney and client, physician and patient, psychotherapist and patient, and clergyman and penitent. In practice, these privileges require “some sacrifice of availability of evidence relevant to the administration of justice.” When parties seek communications and records arising …

Removing The Presumption Of Innocence: A Constitutional Analysis Of The Ogden Trece Gang Injunction, Megan K. Baker

Utah OnLaw: The Utah Law Review Online Supplement

Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as …

Accommodating Labor And Antitrust, Stephen F. Ross

Utah OnLaw: The Utah Law Review Online Supplement

Short of its two critical premises—that sports labor restraints may harm players but benefit fans and the sport’s popularity, and that the Sherman Act must always step aside to protect the “entire collective bargaining process”—Professor LeRoy’s thorough research loses much of its normative force. This provocative contribution is particularly revealing in one respect that he does not explicitly mention, however, akin to Sherlock Holmes’ famous insight that the telling clue was that the sleeping dog did not bark.34 All of the lawsuits Professor LeRoy studied involved challenges by union-represented players; none involved challenges by the principal beneficiaries of the Sherman …

The Economics And Perplexing Utah Law Of Prejudgment Interest, Mark A. Glick, James R. Kearl, Cory D. Sinclair

Utah OnLaw: The Utah Law Review Online Supplement

Legal rules are often designed to provide different incentives to plaintiffs and defendants. With regard to prejudgment interest, however, it is not clear why there should be a bias in either direction. Absent a convincing argument for leaning toward one party or the other, we conclude that as a normative matter, the ideal rule for prejudgment interest should be neutral with regard to delay: plaintiffs are compensated fully for delay and defendants pay the market rate for the benefits they implicitly derive from holding money that belongs to the plaintiff. This simple “neutrality rule” implies, of course, that all claims …

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

Unwed Putative Fathers: Beware Utah Adoption Law, Samuel C. Johnston

Utah OnLaw: The Utah Law Review Online Supplement

Utah’s adoption statute makes compliance unfairly difficult for unwed putative fathers. The difficulty is compounded by the possibility that predatory adoption agencies may be working with mothers to use Utah’s strict adoption laws to purposely deceive putative fathers who oppose adoption.

Utah lawmakers commendably want their state to be on the cutting edge of adoption law such that the interests of adoptees are served with speedy and efficient adoptions. But those lawmakers should also recognize that they can increase the legitimacy and perceived fairness of Utah laws by inserting new provisions into Utah’s adoption statute or tweaking existing requirements to …

The Legal And Ethical Limits Of Technological Warfare: Introduction, Amos N. Guiora

Utah Law Review

Deciding a year in advance the theme of a law review symposium is, at best, a tricky proposition. The considerations are varied: what topic will be relevant to academics and policymakers, who shoul dbe invited as panelists, how will invited individuals mix and collaborate with each other, what issue will be of interest to the larger community, and what kind of contribution will the symposium and subsequent publications make to the issue chosen? In conjunction with the Utah Law Review Board and faculty collegues, we decided that addressing the legal and ethical aspects of technological warfare met the criteria we …

Future Technology And Ethics In War, James J. Carafano

Utah Law Review

The influence of technology on war is overrated. Technology does not win wars. It does not lose wars. It does not even fight wars. People do. New technology is the handmaiden of change, but even technologies that take the human "out of the loop" have a hand behind the handmaiden. New technologies pose far fewer new ethical challenges to warfare than is often supposed. The current wave of technological innovation, which is largely derivative of innovations in data processing and transmission, will not change the traditional relationship between technology and ethics in war very much.

The Humanitarian Problem With Drones, Frédéric Mégret

Utah Law Review

One of the difficulties with the debate on drones is that it has become a sort of lightning rod for all kinds of anxieties about the use of force in today’s world. Drones are, often problematically, the emblematic weapon for a range of other phenomena, and unsurprisingly, attract much polemic. The challenge, therefore, is to find the specific problem with drones as a technology in armed conflict that could not be dealt with better by invoking a larger genus of problems. To do this, this Article outlines ways in which drones have been seen as problematic, which this Article argues …

Roundtable Discussion Transcript, Amos N. Guiora

Utah Law Review

Roundtable Moderator:

Amos Guiora, Professor of Law, Co-Director of the Center for Global Justice, University of Utah S.J. Quinney College of Law.

Roundtable Participants:

Harry Soyster, United States Army Lieutenant General (Ret.); former Director, Defense Intelligence Agency;

David Irvine, United States Army Brigadier General (Ret.); former Deputy Commander for the 96th Regional Rediness Command;

Geoffrey S. Corn, Professor of Law; Presidnetial Research Professor, South Texas College of Law;

James Carafano, Vice President, Foreign and Defense Policy Studies; E.W. Richardson Fellow; and Director of the Kathryn and Shelby Cullom Davis Institute for International Studies, The Heritage Foundation;

Claire Finkelstein, Algernon Biddle …

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joëlle Anne Moreno, Brian Holmgren

Utah Law Review

Even if it is not true that law school is the consolation prize for those whose freshman biology grades make medical school impossible, judges, law professors, and lawyers are not (as a general rule) scientists. But they increasingly shape our understanding of scientific ideas by determining how law interprets and applies scientific information and by ensuring that bad science does not create bad law. As law becomes more science-dependent and expert witnesses play a greater role in a wide range of criminal and civil cases, there has been a concomitant increase in the need to ensure that the expert testimony …

Human Rights, Civil Rights: Prescribing Disability Discrimination Prevention In Packaging Essential Health Benefits, Anita Silvers, Leslie P. Francis

Utah Law Faculty Scholarship

The promise of health care as a right has all too often proved hollow for people with disabilities. In this article, we argue that the understanding of health care as a human right, as found in the CRPD, fails to provide the theoretical machinery for responding to the pressing challenges of health care costs. These challenges are real and potentially devastating. We develop instead an account of health care as a civil right. What this right requires is dependent on the context and resources of the time, so long as all have meaningful access to the benefits provided. The ACA …