Utah law review最新文献

{"title":"Shenanigans (Internet Takedown Edition)","authors":"E. Volokh","doi":"10.26054/0D-NM4V-8RVR","DOIUrl":"https://doi.org/10.26054/0D-NM4V-8RVR","url":null,"abstract":"Protecting one’s own reputation and livelihood—whether protecting it against lies, against opinions, or against the truth—is likely high on many people’s willing-to-lie-for lists. Making money is, too. Yet though I don’t think of myself as naive on this score, the sheer magnitude and brazenness of these schemes surprised me. My sense is that it surprised many of my colleagues. Perhaps it surprised you. And this reminder of just how common fraud can be might help keep us alert to shenanigans in many other fields as well— and might help us design systems that deal better with such risks.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"238-318"},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48542769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"“Corruptly” Continues Consistently Confounding Courts: A New Look at “Corruptly Persuades” in 18 U.S.C. § 1512(b) Obstruction of Justice","authors":"Connor Nelson","doi":"10.26054/0D-690C-SNZJ","DOIUrl":"https://doi.org/10.26054/0D-690C-SNZJ","url":null,"abstract":"The word “corruptly” presents significant interpretation problems to courts construing the word in statutes. This word has created a circuit split between the Second and Third Circuits over 18 U.S.C. § 1512(b), which forbids corruptly persuading witnesses not to cooperate with federal authorities. The Second Circuit requires defendants to have an improper purpose for persuading a witness not to cooperate. The Third Circuit requires defendants to know they have a corrupt motive behind their persuasion. Rather than declare one approach superior to the other, this Note instead contends that both Circuits achieve the same outcome for two reasons. First, both circuits rely on equivalent connotations for interpreting “corruptly.” Second, both circuits recognize that some motives for persuading a witness are not corrupt, and thus should not be prosecuted under § 1512(b). Even though the Third Circuit better clarifies that persuasion undertaken for innocent purposes should not be prosecuted, this Note demonstrates that the circuit split over § 1512(b) is not as drastic as other analyses claim.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"479-500"},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49435517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evidentiary Policies Through Other Means: The Disparate Impact of “Substantive Law” on the Distribution of Errors Among Racial Groups","authors":"G. Ribeiro","doi":"10.26054/0D-4130-SKEX","DOIUrl":"https://doi.org/10.26054/0D-4130-SKEX","url":null,"abstract":"This Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”\u0000\u0000To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a central objective of evidence law. But improving the accuracy of legal fact-finding is not an exclusive function of evidence law. Different substantive rules and doctrines also influence the accuracy of legal decisions. Albeit valuable, accuracy is neither free nor cheap. A second important consideration in evidence law is the cost of litigation—and the cost of fact-finding in particular. Substantive law also plays a role in determining the expense of adjudication. Since we cannot eliminate errors from an adjudicative system with limited resources, we must decide which errors we are willing to accept and which are worthy of spending more resources to avoid. The third example of evidentiary policy affected by substantive law, and the one this Article focuses on, is allocating the risk of mistaken judgments of fact between parties.\u0000\u0000Standards of proof stand out as a particularly important evidentiary mechanism to distribute the risk of errors. The final error distribution, however, is also a function of other factors, such as the accuracy of the legal fact-finding and how rules are designed and applied. Substantive rules can alter the error distribution in a myriad of ways. Through graphs and other analytical tools, this Article develops a framework to identify and assess these impacts on various situations, including racial disparities between Black and White defendants.\u0000\u0000The effects of substantive law on allocating error risk between parties raise important concerns for different doctrines, particularly for procedural due process. Courts have consistently held that procedural due process requires an error-distribution strongly biased in favor of criminal defendants. This requirement is primarily enforced through standards of proof and other evidentiary rules. However, this Article argues that substantive law changes can move us away from an errordistribution strongly biased in favor of criminal defendants. Scholars and practitioners often fail to consider these effects when discussing changes to existing laws. This omission comes at a potentially high cost for defendants’ procedural due process and other constitutional safeguards, especially for minority groups.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"441-478"},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45067272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"If You Don’t Have a Cow (or Chicken or Pig), You Can’t Call It Meat: Weaponizing the Dormant Commerce Clause to Strike Down Anti-Animal- Welfare Legislation","authors":"Jessica J. Berch","doi":"10.26054/0D-SKFE-TVG0","DOIUrl":"https://doi.org/10.26054/0D-SKFE-TVG0","url":null,"abstract":"Industrial meat producers and proponents of plant-based diets are locked in legislative and litigation battles. On the legislative battlefront, meat producers are attempting to prohibit vegetarian and vegan food manufacturers from calling their products “meat,” “burgers,” “pork,” or other similar “meaty” descriptions. At the same time, animal-welfare advocates are urging states to pass laws to better the lives of animals in various ways, such as requiring meat producers to provide farm animals more space or other enhanced conditions. On the litigation side, both the meat producers and the plant-based companies are attempting to deploy the Dormant Commerce Clause (“DCC”) to strike down the laws inimical to their industries; but each side also ardently argues that the DCC permits the laws that benefit its industry. This Article describes the legislative battle and provides a theoretical framework for understanding how the litigation battle should be resolved under the DCC.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"73-100"},"PeriodicalIF":0.0,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44833334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Shares of Water Stock in Utah: Personal Property or Real Estate?","authors":"Michael P. Affleck","doi":"10.26054/0D-R4A7-0W09","DOIUrl":"https://doi.org/10.26054/0D-R4A7-0W09","url":null,"abstract":"Utah deserts supply the state with exquisite beauty and are a definitive part of Utah’s identity. However, a consequence of this arid beauty is aridity itself. Because Utah is one of the driest states in the nation, water is an important resource. Accordingly, Utah legislators have enacted statutes that ensure that those who own water will use it beneficially and that ownership of water can be transferred easily from one owner to another. Water ownership is categorized as either ownership of a water right or a share of water stock. This Note focuses on the need for a resolution in Utah law regarding the transfer of shares of water stock. Under Utah statutes, shares of water stock transfer as securities according to the principles of Utah’s Uniform Commercial Code. However, Utah courts have ignored these statutes and have applied judicially made rules in an ad hoc manner to determine whether the shares of stock in question should transfer as securities or as real property. This Note advocates that Utah courts should acquiesce to the Utah Legislature and hold that shares of water stock are transferred per the Utah Uniform Commercial Code.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69257230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"National Security Policymaking in the Shadow of International Law","authors":"Laura A. Dickinson","doi":"10.26054/0D-RX16-7Q19","DOIUrl":"https://doi.org/10.26054/0D-RX16-7Q19","url":null,"abstract":"Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily adopted than formal legal interpretations. For all of these reasons, the impact of international law on national security policymaking is a crucial unexplored area in the debate about the efficacy of international law. This Article describes how the norms and values embedded in international human rights law can sometimes be adopted, if not as a matter of formal law at the international level, then as a matter of official policy and practice. In addition, it surveys the advantages and disadvantages of such an approach, using two different Obama administration counterterrorism policies and Trump administration successor policies as case studies. Ultimately, I argue that the emergence and persistence of such policies is evidence of international law’s constraining impact. International law, it turns out, casts a long shadow as its paradigms get translated into policy. I also analyze the attributes of these policies, including their “legalistic” character and the consequences of creating policies of this type. This analysis suggests that importing international law paradigms into national security policymaking can be a pragmatic and effective alternative to formal international lawmaking, though it also may side-step the process of creating robust new international law rules. Therefore, it is a practice that executive branch officials from the United States and other countries, human rights organizations, and administrative, constitutional, and international law scholars should at least consider, while weighing both the pros and cons. In addition, the stickiness of such policymaking, even across administrations, illustrates the importance of institutional path dependence, the role of lawyers, the constraint of interoperability with key U.S. allies in multilateral military actions, and the way norms get embedded in government organizations.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69257282","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Certificates of Confidentiality: Mind the Gap.","authors":"L. Wolf, L. Beskow","doi":"10.26054/0d-80m8-7v82","DOIUrl":"https://doi.org/10.26054/0d-80m8-7v82","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"178 1","pages":"937-950"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69256932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Red Flag Laws and Procedural Due Process: Analyzing Proposed Utah Legislation","authors":"J. Richardson","doi":"10.26054/0D-EFFB-XHTS","DOIUrl":"https://doi.org/10.26054/0D-EFFB-XHTS","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69257174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human as Animals - Pluralizing Humans","authors":"K. Bradshaw","doi":"10.26054/0D-4TQQ-35C7","DOIUrl":"https://doi.org/10.26054/0D-4TQQ-35C7","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2021 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69256833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Media Literacy Beyond the National Security Frame","authors":"L. Levi","doi":"10.26054/0D-ZMAD-AW8Z","DOIUrl":"https://doi.org/10.26054/0D-ZMAD-AW8Z","url":null,"abstract":"The Trump administration’s delegitimizing refrain characterizing legacy media as “fake news” institutions has doubtless exacerbated growing public distrust in government and accountability institutions. It has also promoted arrogation of power by the Executive. Media literacy must be broadened to encompass the more capacious goal of helping citizens understand the structure, operations, and structural role in democracy, and the interconnected ways in which it is threatened. Expanding the public’s understanding of the proper role of the press and the ways in which modern information industries operate attention markets, promoting the audience’s awareness of its own cognitive blind spots, increasing reporters’ critical acumen when dealing with information, and reframing newsworthiness norms and awareness of disinformation techniques in order to lessen the mainstream press’s vulnerability to informational manipulation can all be positive expansions of the notion of media literacy beyond the ability to spot factual errors in particular articles.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"16800"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43877299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}