Utah law review最新文献

{"title":"Legality, Morality, Duality","authors":"Joshua P. Davis","doi":"10.5072/ULR.V2014I1.1246","DOIUrl":"https://doi.org/10.5072/ULR.V2014I1.1246","url":null,"abstract":"This Article proposes legal dualism as a novel resolution to one of the central debates in jurisprudence — that between natural law and legal positivism. It holds that the nature of law varies with the purpose for which it is being interpreted. Natural law provides the best account of the law when it serves as a source of moral guidance and legal positivism when it does not. The Article explores dualism by contrasting it with the defense of legal positivism in Scott Shapiro’s justly renowned book, LEGALITY. Shapiro offers arguably the most sophisticated defense of positivism to date. This Article argues that it does not succeed when the law imposes moral obligations, suggesting a limitation in positivism itself. Dualism has profound implications. First, it allows us to hold judges accountable for their moral judgments, even when they are merely saying what the law is. Legal positivism can foreclose this possibility. Second, dualism permits moral argument in support of a particular account of the law, including the theory Shapiro offers, the Planning Theory. Positivism can render unavailable the moral foundation that a theory of law, like the Planning Theory, deserves and that it needs when the law creates moral obligations. Third, and more generally, dualism holds the potential to move us beyond decades — even centuries — of stalemate between proponents of natural law and positivism. By recognizing that each theory has its place, dualism can advance discussion to the more productive issues of whether the law creates moral obligations and, if so, under what circumstances.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784859","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":"Once Born, Twice Orphaned: Children's Constitutional Case Against Same-Sex Adoption Bans","authors":"Tanya M. Washington","doi":"10.5072/ulr.v2013i4.1163","DOIUrl":"https://doi.org/10.5072/ulr.v2013i4.1163","url":null,"abstract":"In the 2012 state elections, Maine, Maryland, and Washington voters elected to legalize same-sex marriage,1 increasing the number of jurisdictions recognizing same-sex marriage to ten.2 Proponents of same-sex marriage are encouraged by the 2012 election results, which signal greater support for same-sex marriage among the general population.3 As the political climate warms to laws recognizing same-sex relationships, one might expect to see an increase in legislation permitting same-sex adoption, particularly in light of the growing number of children available for adoption.4 Unfortunately, the forecast is less optimistic for orphans whose prospects for permanent placement are compromised by an increase in state laws that limit or proscribe adoption by gay and lesbian couples and individuals. Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:\"Table Normal\"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:\"\"; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:\"Calibri\",\"sans-serif\"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":"19-42"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784601","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":"Oppositional Politics in Criminal Law and Procedure","authors":"Janet Moore","doi":"10.2139/ssrn.2214637","DOIUrl":"https://doi.org/10.2139/ssrn.2214637","url":null,"abstract":"There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracyenhancing theory of criminal law and procedure that modifies traditional justifications of retributivism, deterrence, and rehabilitation by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments across movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Part III turns that theoretical lens on a single jurisdiction to map a previously unnoticed constellation of cutting-edge criminal justice reforms. Part IV explains why those reforms were improbable and identifies some conditions that allowed them to occur and occasionally survive counterattack. The Article concludes that those conditions privilege grasstops over grassroots advocacy, and highlights examples of direct action by low-income people and people of color as a vital component of a more broadly democratic foundation for criminal law and procedure. Copyright © 2012 by Janet Moore † Assistant Professor of Law, University of Cincinnati College of Law. J.D./M.A (Philosophy), Duke University; M.A. (Divinity), University of Chicago. E-mail: janet.moore@uc.edu. I thank the American Association of Law Schools’ Criminal Justice Section for selecting a draft of this article for the 2012 Junior Scholar award, and the Harold C. Schott Foundation for funding this research. For invaluable criticism I thank Lou Bilionis, Dan Richman, Ron Wright, Catherine Grosso, Lisa Kern Griffin, Ron Allen, Mark Godsey, Michael Mannheimer, Sandra Sperino, Stephanie McMahon, Felix Chang, Paul Caron, Joe Tomain, Brad Mank, Verna Williams, Emily Houh, and workshop colleagues at Michigan State University, the Central States Law Schools Association, and the annual Institute cosponsored by the International Society for the Reform of Criminal Law and the Criminal Justice Sections of the American Association of Law Schools and the American Bar Association. Emily Homel, Anthony Robertson, and Krista Johnson Umanos provided excellent research assistance. Any errors are my own. SUBMISSION DRAFT 2/11/2013 7:46:00 AM","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67997944","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":"The Public Trust in Wildlife","authors":"M. Blumm, Aurora Paulsen","doi":"10.2139/SSRN.2189134","DOIUrl":"https://doi.org/10.2139/SSRN.2189134","url":null,"abstract":"The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — in view of the fact that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67976188","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":"The Skeptic's Guide to Information Sharing at Sentencing","authors":"R. Scott","doi":"10.5072/ULR.V2013I1.1095","DOIUrl":"https://doi.org/10.5072/ULR.V2013I1.1095","url":null,"abstract":"The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.This Article takes a skeptical view of the information sharing model, arguing that it suffers from three fundamental weaknesses as an alternative to other structured sentencing reforms. First, there are information collection challenges. To succeed, the model requires sentencing information that is written, comprehensive, and representative. Due to acute time constraints, however, courts cannot routinely generate that kind of information. Second, there are information dissemination challenges. Sharing sentencing information raises concerns about the privacy of offenders and victims. Also, the volume and complexity of sentencing decisions create practical difficulties in making relevant information accessible to sentencing judges. Third, the model’s voluntariness is an important drawback. The information sharing model rests on the heroic assumption that judges will respond to information about previous sentences by dutifully following the decisions of their colleagues. That is unrealistic. Judges just as easily can disregard the information, ignore it, or even move in the opposite direction.Despite those grounds for skepticism, information sharing can play a valuable role as a supplement to other sentencing reforms. In particular, information sharing would benefit from a system of sentencing guidelines, whether mandatory or advisory, and from open access to the information on the part of defense counsel and prosecutors.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784692","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":"E-VERIFY DURING A PERIOD OF ECONOMIC RECOVERY AND HIGH UNEMPLOYMENT","authors":"Ellie Patten","doi":"10.5072/ULR.V2012I1.693","DOIUrl":"https://doi.org/10.5072/ULR.V2012I1.693","url":null,"abstract":"In the last twenty years, there has been quantifiable growth in the number of unauthorized aliens in the United States. In March 2010, there were “11.2 million unauthorized immigrants living in the United States,” with “8 million unauthorized immigrants in the workforce”; these numbers are substantially greater than the “3.5 million unauthorized immigrants [who were] living in the United States in 1990.” Unauthorized aliens only accounted for 5.2 percent of the national workforce. However, this percentage varies from state to state, and states with large shares of unauthorized aliens typically have a proportionately larger share in their workforce. Because of this, national and state governments have addressed immigration reform, with states that have a higher proportion of unauthorized aliens in their workforce being most aggressive in reform. Unfortunately, under the United States’ current economic conditions, some states have taken reform measures that could actually further cripple the economy. One such measure is the use of an online status verification system called E-Verify. Illegal immigration is fueled in part by labor pressures and “the need of U.S. employers for low-skill, low-wage labor, a need that is compounded by the shortage of legal workers as the ‘baby bust’ generation enters the labor market.”","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70782925","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":"RECANTATIONS RECONSIDERED: A NEW FRAMEWORK FOR RIGHTING WRONGFUL CONVICTIONS","authors":"A. Heder, Michael Goldsmith","doi":"10.5072/ULR.V2012I1.686","DOIUrl":"https://doi.org/10.5072/ULR.V2012I1.686","url":null,"abstract":"800x600 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ \u0000 table.MsoNormalTable \u0000 {mso-style-name:\"Table Normal\"; \u0000 mso-tstyle-rowband-size:0; \u0000 mso-tstyle-colband-size:0; \u0000 mso-style-noshow:yes; \u0000 mso-style-priority:99; \u0000 mso-style-parent:\"\"; \u0000 mso-padding-alt:0in 5.4pt 0in 5.4pt; \u0000 mso-para-margin:0in; \u0000 mso-para-margin-bottom:.0001pt; \u0000 mso-pagination:widow-orphan; \u0000 font-size:10.0pt; \u0000 font-family:\"Times New Roman\",\"serif\";} \u0000 This Article demonstrates that modern courts have uncritically deferred to conventional wisdom debunking recanted testimony, and it proposes a new analytical framework. This new framework acknowledges grounds for judicial skepticism but requires courts to consider whether corroborating circumstances lend credence to any particular recantation. Part I of this Article reviews the reasons the courts have historically viewed recantations with suspicion and why some of those reasons have become outdated. Part II considers the principal procedural contexts in which recantations arise, the differing legal standards that correspond to each procedural setting, and some problems inherent with those procedures. Part III examines the Bermudez and Davis cases as a vehicle for highlighting some of the problems with judicial practice in this area. Part IV discusses various scholars' past efforts to address this problem. Part V offers this Article's proposed framework for analyzing recantations, in which we suggest statutory reform that could help mitigate the effects of courts' reluctance to consider recanted testimony. Part VI applies the proposed framework to the Davis and the Bermudez cases to show how those two cases could have been handled differently. There are many competing interests in this area of law. It is our hope that under the statutory scheme proposed in this Article, we can create a more precise system of filtering the unreliable recantations from the reliable ones, and come one step closer to our society's ultimate goal of convicting only the truly guilty.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783123","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":"REMOVING THE UMPIRE’S MASK: THE PROPRIETY AND IMPACT OF JUDICIAL APOLOGIES","authors":"Maxine D. Goodman","doi":"10.5072/ULR.V2011I4.679","DOIUrl":"https://doi.org/10.5072/ULR.V2011I4.679","url":null,"abstract":"72 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */\u0000 table.MsoNormalTable\u0000 {mso-style-name:\"Table Normal\";\u0000 mso-tstyle-rowband-size:0;\u0000 mso-tstyle-colband-size:0;\u0000 mso-style-noshow:yes;\u0000 mso-style-priority:99;\u0000 mso-style-parent:\"\";\u0000 mso-padding-alt:0in 5.4pt 0in 5.4pt;\u0000 mso-para-margin:0in;\u0000 mso-para-margin-bottom:.0001pt;\u0000 mso-pagination:widow-orphan;\u0000 font-size:10.0pt;\u0000 font-family:\"Times New Roman\",\"serif\";}\u0000 This paper addresses two related phenomena concerning judges apologizing and Noonan's mask metaphor. First, this Article addresses when a judge removes her mask and apologizes to a party or lawyer in her courtroom, thereby revealing her humanity. Second, this Article describes when a judge peers through a party's mask, views the humanity underneath, and apologizes to that party for something that occurred in the courtroom. Specifically, this Article addresses the motivations for, propriety of, and impact of judicial apologies from the bench. 72 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */\u0000 table.MsoNormalTable\u0000 {mso-style-name:\"Table Normal\";\u0000 mso-tstyle-rowband-size:0;\u0000 mso-tstyle-colband-size:0;\u0000 mso-style-noshow:yes;\u0000 mso-style-priority:99;\u0000 mso-style-parent:\"\";\u0000 mso-padding-alt:0in 5.4pt 0in 5.4pt;\u0000 mso-para-margin:0in;\u0000 mso-para-margin-bottom:.0001pt;\u0000 mso-pagination:widow-orphan;\u0000 font-size:10.0pt;\u0000 font-family:\"Times New Roman\",\"serif\";}\u0000 This paper addresses two related phenomena concerning judges apologizing and Noonan's mask metaphor. First, this Article addresses when a judge removes her mask and apologizes to a party or lawyer in her courtroom, thereby revealing her humanity. Second, this Article describes when a judge peers through a party's mask, views the humanity underneath, and apologizes to that party for something that occurred in the courtroom. Specifically, this Article addresses the motivations for, propriety of, and impact of judicial apologies from the bench.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2011 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70782739","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":"THE PARADOX OF POLITICAL POWER: SAME-SEX MARRIAGE AND THE SUPREME COURT","authors":"K. Yoshino","doi":"10.5072/ULR.V2012I2.807","DOIUrl":"https://doi.org/10.5072/ULR.V2012I2.807","url":null,"abstract":"I wish to discuss the issue of same-sex marriage, and more specifically the case of Hollingsworth v. Perry , a federal challenge to a state restriction on marriage on appeal to the United States Supreme Court.  Perry ’s development has served at least one function of our multi-tiered judicial system, which is to generate several options for the Court. I first review five possibilities, which range from a holding that same-sex marriage is constitutionally required in no states to a holding that same-sex marriage is constitutionally required in all fifty. I then turn to the question of how far I believe the Court should go along this continuum. In particular, I consider how the often-invoked question of the political power of gays and lesbians should affect that determination.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783040","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":"THE FRAUD ENFORCEMENT AND RECOVERY ACT OF 2009 AND THE EXPANSION OF LIABILITY UNDER THE FALSE CLAIMS ACT","authors":"Cynthia Love","doi":"10.5072/ULR.V2012I2.819","DOIUrl":"https://doi.org/10.5072/ULR.V2012I2.819","url":null,"abstract":"This Note proceeds in two main parts. Part II of this Note outlines the history of the FCA and the ongoing back-and-forth between the Supreme Court and Congress over the proper scope of liability under the Act before describing the changes made to the FCA’s subcontractor liability with the FERA amendments. Part III argues, first, that courts should interpret FERA’s retroactivity provision narrowly, applying the newly expanded liability only in cases where fraudulent requests for payment were pending on the retroactivity date. Second, Part III argues that retroactive application of the FERA amendments would violate the Ex Post Facto Clause of the United States Constitution because it punishes conduct that was not punishable at the time of its commission.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783753","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}