Law Commons^™

Medical Futility And Religious Free Exercise, Teneille R. Brown

Utah Law Faculty Scholarship

A tragic scenario has become all too common in hospitals across the United States. Dying patients pray for medical miracles when their physicians think that continuing treatment would render no meaningful benefit. This situation is unfortunately referred to as “medical futility.” In these cases, physicians, who are less likely than their patients to rely on God as a means of coping with major illness, are at an impasse. Their patients request everything be done so that they can have more time for God to intervene, but in the physician’s professional experience, everything will probably do nothing. What is the physician …

Considering "Citizenship Taxation": In Defense Of Fatca, Young Ran Kim

Utah Law Faculty Scholarship

Inspired by Ruth Mason’s recent article, Citizenship Taxation, which reaches a general conclusion against citizenship taxation, this Article also questions citizen taxation under the same normative framework, but with a particular focus on efficiency and administrability, and takes a much less critical stance towards the merits of citizenship taxation. First, neither citizenship taxation nor residence-based taxation can completely account for the differences between residents’ and nonresidents’ ability to pay taxes under the fairness argument. Second, the efficiency argument, that citizenship taxation may distort both Americans’ and non-Americans’ citizenship decisions, is not convincing. The American citizenship renunciation rate is not particularly …

Justice Scalia And Fourth Estate Skepticism, Ronnell Anderson Jones

Utah Law Faculty Scholarship

The about-face in characterization of the press during Justice Scalia's three decades on the Court is worthy of a discussion about its underlying causes and also a discussion about its potential effects. As I have noted elsewhere, both the explanations for the shift and the possible ramifications of it are complex and multifaceted. Scalia's push for a new, less positive depiction of the press came at a time when the institutional press experienced significant change and its reputation among the American public plummeted-suggesting that Justice Scalia (and, ultimately, his colleagues on the Court) were merely being perceptive observers of the …

It's Not Just An Offshore Wind Farm: Combining Multiple Uses And Multiple Values On The Outer Continental Shelf, Robin Kundis Craig

Utah Law Faculty Scholarship

Marine aquaculture and marine-based alternative energy, especially offshore wind, are increasingly competing for space on the Outer Continental Shelf and the water column above it with each other and with more traditional ocean uses. The laws governing this increasingly crowded space need to become better aware of changing uses of and values for the ocean and to promote rational planning of how this space is used in the future.

In one approach, various regions of the U.S. coast are actively engaged in comprehensive marine spatial planning. Marine spatial planning is a process designed to prioritize, balance, and rationally allocate the …

Sex, Drugs, And Eagle Feathers: An Empirical Study Of Federal Religious Freedom Cases, Luke W. Goodrich

Utah Law Faculty Scholarship

This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.

Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly …

Get Real: Why And How Clinicians Should Record, Transcribe And Study Actual Client Consultations, Linda F. Smith

Utah Law Faculty Scholarship

This article will argue that the legal academy has much to learn by recording, transcribing and systematically studying student-client and attorney-client consultations. Clinical faculty can utilize conversation analysis and other social science techniques to do this. Social scientists and medical providers have studied doctor-patient conversations in this way over many years. Through this systematic study researchers have reached conclusions about effective doctor-patient consultations that form the basis for teaching these skills in medical school. This article will highlight some of these studies and their findings. Some have contended that attorney-client conversations simply cannot be recorded and studied in the same …

E. Bement & Sons V. National Harrow Company: The First Skirmish Between Patent Law And The Sherman Act, Amelia Rinehart

Utah Law Faculty Scholarship

In the 1890s, the Sherman Act presented a host of unknowns for patent owners and lax enforcement enabled the proliferation of trusts like the Harrow Trust embodied in the practices of National Harrow. Bement, a profligate license violator, ended up fighting the trust all the way to the Supreme Court, but the surprising outcome left an enduring impression on the interplay between antitrust and patent law. In this way, the case has been both important and forgotten over time. Given the outcome in Actavis, and the possibility for a change of personnel on the Court that may shift it further …

Listen Up: Conversation Analysis Shows How Law Students Fail-And Succeed-In A Brief Advice Clinic, Linda F. Smith

Utah Law Faculty Scholarship

People with important legal matters are often unable to afford representation. As a result, most parties with family law cases handle these cases themselves. Often, they rely upon brief advice clinics to help them do so. Law schools are required to provide pro bono opportunities for all law students. These pro bono opportunities can include volunteering at brief advice clinics together with volunteer attorneys. Is this a match made in heaven or a disaster waiting to happen?

Pro bono law students vary in their professional demeanor and skills interacting with clients in a brief advice clinic. They have a strong …

Frontiers In Precision Medicine Ii: Cancer, Big Data And The Public, Emily Coonrod, Jorge L. Contreras, Willard Dere, Jeffrey Botkin, Leslie Francis, Jim Tabery

Utah Law Faculty Scholarship

Precision medicine is being developed within a complex landscape of public policy, science, economics, law, and regulation. In these and other policy areas, the goal of developing individually-tailored therapies poses novel challenges for health care research, delivery and policy. In this symposium, a range of experts in genetics, medicine, bioinformatics, intellectual property, health economics and bioethics identified and discussed many of the pressing questions raised by the development and practice of precision medicine. These and other issues will need to be taken into account as precision medicine moves ahead and becomes the standard of medical practice and care in the …

Amici Curiae Brief Of Law Professors, Belk V. Commissioner, U.S. Court Of Appeals For The Fourth Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of five law professors filed in the U.S. Court of Appeals for the Fourth Circuit in support of affirming of the Tax Court's holding in Belk v. Commissioner, T.C. Memo 2013-154, and Belk v. Commissioner, 140 T.C. 1 (2013).

Incomplete Integration: Water, Drought, And Electricity Planning In The West, Lincoln L. Davies, Victoria Luman

Utah Law Faculty Scholarship

The water-energy nexus is increasingly important as climate change alters social, policy, and economic tradeoffs and choices. This is particularly true in the arid western United States. This article provides an original empirical assessment of 33 integrated resource plans (IRPs) of electric utilities in that region. The analysis shows that only a minority of utilities address the risk of drought in their IRPs. Even fewer use their IRPs to develop concrete plans to address drought risk. Consequently, we suggest four different strategies for utilities to better integrate water and electricity planning. Importantly, our analysis reveals that legal and policy changes …

Is Surrogacy Ethically Problematic?, Leslie P. Francis

Utah Law Faculty Scholarship

This chapter takes up less well-trodden questions about whether a surrogacy arrangement in which one person carries a pregnancy for another is ethically problematic in itself—and if so, why. Pregnancy and delivery are quintessential bodily labor. One set of arguments tests whether carrying a pregnancy is the type of bodily labor one person ethically may perform for another, whether or not for pay. These arguments contend that surrogacy cannot be a permissible service, no matter how well intended or structured. Another set of questions probes the value and identity of the child, asking whether surrogacy is inevitably akin to baby …

Solar Climate Engineering And Intellectual Property: Toward A Research Commons, Jorge L. Contreras, Jesse L. Reynolds, Joshua D. Sarnoff

Utah Law Faculty Scholarship

Climate change is one of the greatest challenges confronting society today. Solar climate engineering (SCE) has the potential to reduce climate risks substantially. This controversial technology would make the earth more reflective in order to counteract global warming. Though the science of SCE is still in its infancy, SCE research and development should proceed in a coordinated, responsible, and expeditious fashion. However, the role of patents, research data, and trade secrets in SCE research remains unclear and contested. To this end, this article identifies concerns that may arise through the acquisition of intellectual property rights in SCE and proposes the …

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

Bridges Ii: The Law-Stem Alliance & Next Generation Innovation, Jacob S. Sherkow

Articles & Chapters

No abstract provided.

Immigration Adjudication: The Missing Rule Of Law, Lenni B. Benson

Articles & Chapters

No abstract provided.

Open To Justice: The Importance Of Student Selection Decision In Law School Clinics, Deborah N. Archer

Articles & Chapters

No abstract provided.

What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

The Price Of Climate Deregulation: Adding Up The Costs And Benefits Of Federal Greenhouse Gas Emission Standards, Nadra Rahman, Jessica A. Wentz

Sabin Center for Climate Change Law

Federal climate regulations are currently under attack, in part due to the perception that these regulations will impose excessive costs on regulated industries and society as a whole. But according to federal projections, the benefits of these regulations would significantly outweigh the costs. We added up the projected economic impacts of major federal rules aimed at reducing greenhouse gas emissions and found that the net benefits could reach nearly $300 billion per year by 2030. The rules will also generate a variety of non-monetized benefits, such as improved public health outcomes and the creation of jobs, as well as climate …

Fool's Gold? Equity Compensation & The Mature Startup, Abraham Cable

Faculty Scholarship

No abstract provided.

Trading Safety For Innovation And Access: An Empirical Evaluation Of The Fda’S Premarket Approval Process, George Horvath

Faculty Scholarship

Congress created the premarket approval process (PMA) to provide a rigorous safety evaluation of high-risk medical devices before they may be sold on the U.S. market. Evaluating a PMA application requires the Food and Drug Administration (FDA) to conduct a lengthy, complex, and costly assessment of the extensive data a manufacturer must submit. But other policy concerns, notably a fear of hampering innovation and a desire to assure timely access to new technologies, have led Congress to relax some of the rigorous data requirements the PMA process imposes on manufacturers. Congress mandates that the FDA employ the “least burdensome” approach …

Rebellious Deaning: One African American Woman's Vision Of A Progressive Law School, Shauna Marshall

Faculty Scholarship

No abstract provided.

Human Rights From The Ground Up: Building The First Law School Legal Aid Clinic In Haiti, Kate Bloch, Roxanne Edmond-Dimanche

Faculty Scholarship

No abstract provided.

Historical Gloss, Constitutional Conventions, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to …

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

Faculty Scholarship

This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows:

(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.

(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …

City On A Hill: The Democratic Promise Of Higher Education, Rachel F. Moran

Faculty Scholarship

When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of …

Fracking Health Care: How To Safely De-Medicalize America And Recover Trapped Value For Its People, William M. Sage

Faculty Scholarship

The wealth trapped within American health care is simultaneously a tragedy and a miracle. It is a tragedy because stagnating wages, widening disparities in income, ballooning deficits, and stunted investments in education and social services make such medical profligacy shameful. It is a miracle because it still exists, whereas other U.S. economic resources of similar magnitude have already been dissipated by global market forces without addressing any of the aforementioned failings – indeed, sometimes having contributed to them. It therefore can be released and used.

It is time to “frack the health care system” and innovate the de-medicalization of America. …

A New International Legal Regime For A New Reality In The War Against Drugs, Guillermo J. Garcia Sanchez

Faculty Scholarship

The paper reviews the existing international legal regime on the war against drugs and argues that it has become obsolete in the face of the trend to legalize the consumption of certain drugs, such as marijuana, in developed nations. It particularly analyzes the contradictory practice of the United States to pressure producing states, such as Mexico and Colombia, to enforce the regime and at the same time allow the legalization of consumption in local U.S. states.

The Rcep And Intellectual Property Normsetting In The Asia-Pacific, Peter K. Yu

Faculty Scholarship

Commissioned for the CEIPI-ICTSD Series on Global Perspectives and Challenges for the Intellectual Property System, this article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms it seeks to develop. It begins by briefly discussing the partnership’s historical origins and ongoing negotiations. It then examines the latest leaked draft of the RCEP intellectual property chapter, highlighting the key provisions concerning copyright and related rights, trademarks, patents, trade secrets and undisclosed information, and intellectual property enforcement. This article concludes by exploring three scenarios concerning the future of this chapter--namely, the lack of an intellectual property …

Response To Professor Holper's Article, "Redefining 'Particularly Serious Crimes' In Refugee Law", Fatma Marouf

Faculty Scholarship

An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship exploring how a PSC should be defined. The term, which comes from the UN Refugee Convention, was incorporated into the Immigration and Nationality Act in 1980.

Professor Holper’s article, Redefining “Particularly Serious Crimes” in Refugee Law, makes an important contribution to the literature by showing how the historical trajectory of the PSC definition mirrors the “severity …