Utah law review最新文献

{"title":"Who will check the checkers: false factcheckers and memetic misinformation","authors":"Andrew V. Moshirnia","doi":"10.26054/0DDVTA6FPV","DOIUrl":"https://doi.org/10.26054/0DDVTA6FPV","url":null,"abstract":"This Essay sets out the need for disciplined fact-checking networks and the likely counterattacks of domestic and foreign propagandists. Part I sets out the continuing social media disinformation campaigns infecting elections worldwide, which stoke internal divisions and undermine public discourse. Part II details factchecking efforts and their effectiveness, with specific attention paid to the neutralization of memes designed to inflame racial hatred. Part III examines disturbing trends that threaten the fact-checking mission, including an internally driven tendency towards false equivalence and foreign-directed efforts to create imposter fact-checkers. Part IV offers an overview of potential solutions and areas for future study.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"16973"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43308759","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":"In a World of \"Fake News,\" What's a Social Media Platform to Do?","authors":"Evelyn Aswad","doi":"10.26054/0D-TGXD-4V9T","DOIUrl":"https://doi.org/10.26054/0D-TGXD-4V9T","url":null,"abstract":"While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as the International Covenant on Civil and Political Rights and explains several key ways in which the guidance that these instruments provide is relevant to social media companies in tackling false information on their platforms.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"16972"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45170519","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":"Networks of Empathy","authors":"T. Kadri","doi":"10.26054/0D-QSHR-9WVA","DOIUrl":"https://doi.org/10.26054/0D-QSHR-9WVA","url":null,"abstract":"Digital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.\u0000\u0000Although law can be a powerful tool to regulate digital abuse, legal responses are by no means the only option. This Essay explores how both computer code and social norms can prevent and mitigate forms of digital abuse that aren’t easily addressed through law. These regulatory responses should be grounded in empathy for victims of digital abuse. Empathy demands imaginatively putting oneself in a victim’s place and attempting to feel as they feel—a trying task made easier by heeding victims’ stories. We can neither understand nor address digital abuse unless we view technology in a deeper social context and grapple with how and why digital abuse is harmful. This Essay urges key figures to exhibit greater empathy in developing code and norms to help victims, proposing ways that technologists, police officers, educators, employers, and victims can use these extralegal means to combat an increasingly pervasive form of abuse.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"17070"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44405100","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":"Disentangling Disinformation: What Makes Regulating Disinformation So Difficult?","authors":"J. Pielemeier","doi":"10.26054/0D-CJBV-FTGJ","DOIUrl":"https://doi.org/10.26054/0D-CJBV-FTGJ","url":null,"abstract":"This Essay articulates some of the critical ways in which disinformation differs from other categories of harmful content and explores some of the early efforts by platforms and governments to address the issue. It begins by analyzing the semantics around disinformation, explaining how specific terminology can allude to distinct concerns. It then explores the similarities and differences between disinformation and related categories of harmful content, like hate speech and terrorist incitement, before examining some of the corporate and regulatory initiatives that have emerged. It concludes with some observations and cautionary notes for corporate and governmental policy makers as they consider how best to address disinformation.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"16799"},"PeriodicalIF":0.0,"publicationDate":"2020-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45333729","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":"Before Loving : The Lost Origins of the Right to Marry","authors":"Michael Boucai","doi":"10.26054/0KFFY1GN4Y","DOIUrl":"https://doi.org/10.26054/0KFFY1GN4Y","url":null,"abstract":"For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: conjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"69-176"},"PeriodicalIF":0.0,"publicationDate":"2020-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48247501","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":"Indigenous Rights and Climate Change: The Influence of Climate Change on the Quantification of Reserved Instream Water Rights for American Indian Tribes","authors":"Dylan R. Hedden-Nicely, Lucius K. Caldwell","doi":"10.26054/0D-6T19-BFKE","DOIUrl":"https://doi.org/10.26054/0D-6T19-BFKE","url":null,"abstract":"The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millenia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models result in water right claims for fixed quantities of water, which—although not required by law—result in instream water rights that are decreed without any means for adjustment to account for changing conditions. Ultimately, climate change will likely alter the amount of water necessary to protect aquatic habitat, rendering obsolete any water right that is based on a fixed quantity. As climate change continues to worsen, we argue that quantifying reserved water rights for inflexible fixed quantities imposes an unreasonable burden on American Indian tribes. Instead, we suggest the application of a number of integrated technical and legal solutions to mitigate the uncertainty Indian tribes currently face from climate change as they seek to protect their rights, resources, and homelands.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69256877","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":"Restoring the Public Interest in Western Water Law","authors":"Mark S. Squillace","doi":"10.26054/0D-0BBW-PGXM","DOIUrl":"https://doi.org/10.26054/0D-0BBW-PGXM","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2020 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69256796","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":"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis","authors":"L. Beletsky","doi":"10.2139/SSRN.3185180","DOIUrl":"https://doi.org/10.2139/SSRN.3185180","url":null,"abstract":"Nearing the end of its second decade, the overdose crisis in the United States continues to claim tens of thousands of lives. Despite the rhetorical emphasis on a “public health” approach, criminal law and its enforcement continue to play a central role among policy responses to this crisis. A legacy of the 1980s War on Drugs, statutory provisions that implicate drug distributors in overdose fatalities are on the books in many U.S. jurisdictions and federally. This Article articulates an interdisciplinary critique of these “drug-induced homicide” laws at a time of their increased popularity, expanding scope, and aggressive prosecution. That these policy mechanisms are deployed under the banner of overdose prevention invites a critical public health lens to their reexamination. After tracing the trajectory of the overdose crisis, this Article examines the role of drug-induced homicide laws as exemplars of U.S. drug policy’s reliance on criminal law to address problematic substance use. An empirical analysis of publicized drug-induced homicide cases documents a rapid and accelerating diffusion of prosecutions in many hard-hit jurisdictions; pronounced racial disparities in enforcement and sentencing; and broad misclassification of friends, partners, family members, and others as “dealers.” In addition to crowding out evidencebased interventions and investments, these policies and prosecutions run at direct cross-purposes to public health efforts that encourage witnesses to summon lifesaving help during overdose events. At a time of crisis, drug-induced homicide laws and prosecutions represent a false prophecy of retribution, deterrence, and incapacitation. These findings support further efforts to demobilize criminal law and criminal justice actors from responding to drug-related harms in the U.S. as elsewhere.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2019 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2019-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3185180","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48685591","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":"Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era","authors":"C. Chabot","doi":"10.2139/SSRN.3107788","DOIUrl":"https://doi.org/10.2139/SSRN.3107788","url":null,"abstract":"As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree whether political factors predict retirement. \u0000 \u0000This Article identifies key reasons why past studies have found Justices' retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices' success in obtaining like-minded replacements. \u0000 \u0000The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice’s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire while presidents who share their their ideology are in office.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2019 1","pages":"527-579"},"PeriodicalIF":0.0,"publicationDate":"2019-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46530733","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":"#MeToo, Statutory Rape Laws, and the Persistence of Gender Stereotypes","authors":"Leslie Y. Garfield Tenzer","doi":"10.2139/SSRN.3120348","DOIUrl":"https://doi.org/10.2139/SSRN.3120348","url":null,"abstract":"In the late 1970’s and early 1980’s, feminists pushed for reform of statutory rape laws. At that time, states’ laws explicitly provided that only males could be charged with the crime of having sexual intercourse with a female below a certain age. The victims of statutory rape were always female. Feminists advocated that the law should be rewritten in gender-neutral terms. They hoped that formal equality in statutory rapes laws would lead to the recognition that both males and females have sexual agency and greater equality in society as a whole. Unfortunately, the prosecutorial discretion granted by the language of these laws perpetuate rather than abolishes traditional male/female stereotypes. \u0000In October 2017, a social movement erupted out of the unacceptable exercise by men of their power over female subordinates. The #MeToo movement exposed the widespread prevalence of sexual harassment, sexual abuse, and sexual violence that women experience in the workplace. The #MeToo movement’s objective is not dissimilar to the goal of proponents of gender-neutral statutory rape laws, which seek to have men and women treated equally. Unfortunately, #MeToo and state adoption of gender-neutral statutory rape laws share another phenomenon. Both the #MeToo movement and the practical enforcement of gender-neutral laws create a “victimology paradigm.” It seems that recognizing inequality among genders requires conceding perceived female frailties. \u0000Using the example of statutory rape laws, this article explains how movements for increased equality between men and women can fail to meet their stated goals. The article begins by exploring traditional statutory rape laws, which stereotypically gendered perpetrators and victims. It follows with a discussion of the political forces behind the nation-wide change to neutralize gendered statutes. The article dedicates significant attention to the flaws of gender-neutral statutory rape laws, which, by removing gender designations of victims and perpetrators, grant prosecutors unchecked discretion to choose which partner to charge in cases of mutual consent to the same prohibited conduct. Today prosecutors are three times more likely to charge males with statutory rape than they are to charge females with the crime. Parents of females’ alert authorities of prohibited sexual activity of their daughters at a rate that is largely disproportionate to that of parents of males. Prosecutorial stereotyping as it pertains to prohibited sexual intimacy between consenting teens has created an unfortunate return to the female-victim paradigm that proponents of gender-neutral statutory rape laws sought to erase. The article concludes with a recommendation for achieving a more balanced application of gender-neutral laws. \u0000Cultural movements can have unintended consequences. This article explains how the women’s rights movement’s campaign to neutralize gendered statutory rape laws failed to achieve its goal of an equal society. Today","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2019 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2018-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3120348","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47494689","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}