Law Commons^™

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 …

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, …

Jailing Black Babies, James G. Dwyer

Utah Law Review

Children-in-prison programs reflect a commendable sympathy for the lifelong disadvantage and deprivation that most prison inmates have suffered and a wish to transform their lives. But acting primarily on the basis of that sympathy and wish, rather than focusing realistically on what is truly best for children, is a moral and policy mistake. Available evidence suggests that the extreme form of connecting incarcerated birth parents with their offspring, prison nurseries, harms the great majority of those children, especially when the impact is compared to the life the children might have had if adopted immediately after birth. Advocacy for this practice …

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 …

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, …

Plain Meaning, Precedent, And Metaphysics: Interpreting The “Addition” Element Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people. EPA in particular has confused “addition” with “navigable waters” to such an extent that it threatens to eviscerate half of the CWA’s regulatory strategies and programs: water quality standards and the § 404 program protecting wetlands. This Article examines the interpretation of “addition” …

Setting The Table For Urban Agriculture, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

This article provides context for the various roles that law plays in the cultivation of urban agriculture. This article first reflects on how popular support for the development of a legal framework that promotes urban agriculture is rooted deeply in American agrarian traditions. The article then notes the palatable tension between the rhetoric in support of urban agriculture and the modes of urban law and planning that dominated the twentieth century. It considers how various approaches to urban planning have facilitated or thwarted urban agriculture and surveys recent legal developments designed to accommodate and encourage urban agriculture projects as alternatives …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Faculty Scholarship

Should employees have the legal right to "be themselves" at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee's gender, race, or religion? And what if the basis for the employer's workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

Pooling Clauses And Statutes, Gina S. Warren

Faculty Scholarship

Pooling is a tool used to bring together small or irregular tracts of land or mineral interests to form one drilling unit for the purposes of oil or gas production. In general, pooling can be accomplished in a variety of ways, including separate pooling agreements, community leases, voluntary pooling clauses within leases, and compulsory pooling statutes.

This article will focus on voluntary pooling lease clauses and compulsory pooling statutes. This article will discuss the requirements for valid pooling under a voluntary lease provision and look at the remedies available for invalid or improper pooling. It will analyze the effect of …

Introduction, Symposium Lsu J. Energy L. & Resources, Roger Meiners, Andrew P. Morriss

Faculty Scholarship

The intersection of property rights and energy resource development is an increasingly important, and contentious, area of the law. From local fracking ordinances to federal overrides of state sovereignty in permitting multistate infrastructure projects, the law is in flux. In this symposium, a group of lawyers, law professors, and economists were gathered to look at some of these issues.

Involuntary Cotenants: Eminent Domain And Energy And Communications Infrastructure Growth, Andrew P. Morriss, Roy Brandys, Michael M. Barron

Faculty Scholarship

The spread of renewable energy mandates, new discoveries of unconventional oil and gas, and the need to harden and upgrade telecommunications infrastructure will lead to expansions in large infrastructure easements over the next decade. Many of these easements will be taken by eminent domain. In this paper we examine the problems posed by this involuntary creation of co-ownership of land. Existing eminent domain laws are insufficient to address the problems created because they allow the courts to vary only one term: price. Given difficulty in pricing many of the other terms to the easements (e.g. indemnification agreements for landowners, controlling …

The Implications Of Recent Icsid Arbitrator Disqualifications For Latin America, Nora Ciancio

Arbitration Law Review (2009 - Present)

No abstract provided.

No Constitutional Right To Be A Bully: The First Amendment Principle Of Content Neutrality And Regulating Bullying In Public Schools, Paola A. Guido

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Vacating Legally-Erroneous Arbitration Awards, Stephen J. Ware

Arbitration Law Review (2009 - Present)

In the United States, arbitrators’ decisions are legally binding. Courts generally confirm and enforce, rather than vacate, arbitration awards. Suppose, however, that the arbitration award is very different from the judgment a court would have rendered had the dispute been litigated, rather than arbitrated. And suppose this is because the arbitrator did not correctly apply the law. If the party that lost in arbitration (the party that would have done better with a correct application of law) asks a court to vacate the award because it is legally erroneous, will the court vacate or confirm the award? And does the …

Adhesive Arbitration: The Sustainable Grace For The Future Of The World's Most Profitable Sports Leagues, Evan Goldsmith

Arbitration Law Review (2009 - Present)

No abstract provided.

Arbitration Agreements: The Perfect Defense For Law School Deceit, Jeremy Alm

Arbitration Law Review (2009 - Present)

No abstract provided.

An Alternative Approach To Justice: The Past, Present, And Future Of The Mediation Program At The U.S. District Court For The Southern District Of New York, Rebecca Price

Arbitration Law Review (2009 - Present)

The practice of mediation has gone through enormous change in the last twenty-five years. No longer simply an "alternative," mediation has in some settings become commonplace. At the same time, many courts across the country struggle to maintain staffing and support for programs that offer alternatives for dispute resolution. While private mediation firms have seen an increase in cases, some academics and practitioners question whether mediation has been co-opted by a litigation model such that it no longer serves as a meaningful alternative.

The Mediation Program at the U.S. District Court for the Southern District of New York, which has …

Combating Structural Bias In Dispute System Designs That Use Arbitration: Transparency, The Universal Sanitizer, Lisa Blomgren Amsler

Arbitration Law Review (2009 - Present)

No abstract provided.

Third-Party Mediation Of Interstate Conflicts: Actors, Strategies, Selection, And Bias, Scott Sigmund Gartner

Arbitration Law Review (2009 - Present)

While arbitration remains more common than mediation as an alternative to litigation in domestic legal disputes, the opposite occurs in resolving violent interstate conflicts, where third-party mediation represents the most frequently employed method of conflict resolution. In order to understand the similarities and differences between international and domestic mediation, this article identifies key attributes of international conflict management generally and third-party mediation of violent disputes specifically, and four critical patterns commonly found in third-party mediation of international conflicts. These patterns, each of which is illustrated with a vignette involving US foreign policy, include: 1) the complex role of mediator bias …

When Sovereign Nations Are Forced To Arbitrate: Spain And France And The Prestige Oil Spill, Erika Dixon

Arbitration Law Review (2009 - Present)

No abstract provided.

The Italian Way Of Mediation, Giuseppe Conte

Arbitration Law Review (2009 - Present)

No abstract provided.

South African Revolutionizing Foreign Investment Protection System, Jennifer Reed

Arbitration Law Review (2009 - Present)

No abstract provided.

Copper, Gold, Corruption, And No Arbitral Relief: A Recent Pakistan Supreme Court Calls Into Question The Doctrine Of Separability, Sara E. Myirski

Arbitration Law Review (2009 - Present)

No abstract provided.

Indian Court Expands Its Jurisdiction Over Foreign Arbitral Panels, Dru Miller

Arbitration Law Review (2009 - Present)

No abstract provided.

If There's A Will, There's A Way: The California Supreme Court's Sidestep Of The U.S. Supreme Court, Ryan Cummins

Arbitration Law Review (2009 - Present)

No abstract provided.

Bezio V. Draeger: A Missed Opportunity For A Doctrinal Solution To The Jurisdictional Split As To The Arbitrability Of Legal Malpractice Claims, Brian Cressman

Arbitration Law Review (2009 - Present)

No abstract provided.

Arbitration And The Constitution, Gabrielle Gilbeau

Arbitration Law Review (2009 - Present)

No abstract provided.

Skills And Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, And Arbitration, Guy Bowe

Arbitration Law Review (2009 - Present)

No abstract provided.

Unringing The Bell: Publicly Funded Art And The Government Speech Doctrine, John Barlow

Loyola of Los Angeles Entertainment Law Review

This Article advances the novel argument that within the domain of removing publicly funded art from public display, the application of the Government Speech Doctrine is improper because of the current scope and policy considerations of the Doctrine, the mutable nature of art speech, and artist moral rights. As an alternative, this Article proposes a model statute legislatures should adopt that outlines an appropriate analytical framework for removing public art from public display that takes into consideration individual free speech rights, the government’s right to control its own messages, the nature of art speech, and artist moral rights.

Democracy, Solidarity, And The Rule Of Law: Lessons From Athens, Paul Gowder

Buffalo Law Review

No abstract provided.