Utah law review最新文献

{"title":"Accelerated Civil Rights Settlements In the Shadow of Section 1983","authors":"Katherine Macfarlane","doi":"10.2139/SSRN.2924931","DOIUrl":"https://doi.org/10.2139/SSRN.2924931","url":null,"abstract":"The families of Eric Garner, Laquan McDonald, Freddie Gray and Walter Scott have obtained multi-million dollar settlements from the cities in which their family members lost their lives. This paper identifies this new phenomenon as accelerated civil rights settlement, and defines it as a resolution strategy that uses the threat of 42 U.S.C. § 1983 litigation rather than litigation itself. The paper explains how accelerated civil rights settlement involves no complaint. Its goal is to focus on one incident, as opposed to a pattern or practice. It effects no widespread social change. But the strategy’s aim is pure: it seeks only compensation. To that end, it is successful, and has allowed some victims’ families to avoid the toll prolonged litigation exacts. Accelerated civil rights settlement stands in sharp contrast to the protracted and painful Section 1983 litigation undertaken by Michael Brown’s parents. Trial in that case is set for 2018, three years after it was filed. Discovery has been brutal, requiring Brown’s parents to produce their son’s medical records from age 10 onward. It is an innovative litigation alternative that shields victims’ families from the pain of federal discovery and trial. Accelerated civil rights settlement relies on Section 1983, but in a way previous civil rights plaintiffs have never used it. But, it concludes that this new kind of Section 1983 reliance is no less meaningful than previous applications. The paper recounts Section 1983’s history as a malleable tool. It ties Section 1983’s current role to its past incarnations, including its Reconstruction Era origin as a federal law aimed squarely at the Klan. It considers the law’s purpose in 1960s Chicago, when it was employed to challenge racist police practices. It looks to how it was relied upon in impact litigation concerning the 1999 shooting of Amadou Diallo. Choosing accelerated civil rights settlement can help victims’ families avoid litigation’s worst moments. In the wake of so many failed prosecutions of the officers involved in police shootings and custodial deaths, it may also be the only way in which the law helps honor lost lives.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2018 1","pages":"639-670"},"PeriodicalIF":0.0,"publicationDate":"2017-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2924931","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49194146","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":"Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy","authors":"Rebecca L. Scharf","doi":"10.2139/SSRN.2929104","DOIUrl":"https://doi.org/10.2139/SSRN.2929104","url":null,"abstract":"This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones? The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such as the use of photography, audio recording, heat sensors, or GPS violated an individual’s Fourth Amendment right to privacy. But now, one of the most complex and innovative technological advances in recent years, the unmanned aerial vehicle, or drone, has created an especially difficult issue for courts. Because a single drone can be fitted with multiple technologies, courts need to employ a multidimensional analysis to determine whether an individual’s Fourth Amendment rights have been violated. Thus, with technology advancing quicker than the Court can address, lower courts are left without direction on how to handle this important constitutional quandary, leaving individual right to privacy vulnerable. This Article builds on other scholars’ work promoting a “technology-based” definition of what constitutes a search, by creating a three-factor test for courts to utilize when faced with a drone privacy issue. Specifically arguing that courts should apply a presumption that a warrant is necessary absent exigent circumstances when law enforcement uses drones to survey an individual’s home or curtilage by considering: 1) What type of technology is the drone employing in the search, 2) What is the extent of the surveillance?; and 3) What is the extent of the privacy interference? No longer are the days of addressing the use of a singular technology, as courts will soon, if not already, be inundated with cases involving the intersection of multiple technologies through the use of drones and privacy. Although other scholarship explores drones and privacy concerns, this Article is novel in that it offers a practical approach for courts and law enforcement to utilize, while offering the historical framework for each factor. Guiding courts and law enforcement to handle privacy concerns with the use of drones will provide a structured and approachable analysis that can apply regardless of the drone-in-question’s capabilities and the amount of technologies used.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2018 1","pages":"457-502"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68435581","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 Entrepreneurial Commons: Reframing the Relationship Between Intellectual Property and Entrepreneurship","authors":"Michael J. Burstein","doi":"10.5072/ULR.V2016I4.3579","DOIUrl":"https://doi.org/10.5072/ULR.V2016I4.3579","url":null,"abstract":"Framing the relationship between intellectual property and entrepreneurship in the terms described here leads both to a positive and normative research agenda. As a descriptive matter, there is much to be gained from systematically studying these questions in a variety of different contexts. Indeed, a fuller picture of the relationship requires numerous case studies of different firms and different industries. From this descriptive knowledge base, normative conclusions about changes to our intellectual property laws and rules that would benefit entrepreneurs can more readily and justifiably be drawn.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"611"},"PeriodicalIF":0.0,"publicationDate":"2016-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786947","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":"Alice Was No Rabbit Hole: Why Software Inventors Should Be Neither Surprised, Nor Alarmed","authors":"Sherman Helenese","doi":"10.5072/ULR.V2016I4.3583","DOIUrl":"https://doi.org/10.5072/ULR.V2016I4.3583","url":null,"abstract":"Gottschalk, Diehr, Alice, and Tenon all held that computer programs that do not transform a business method or process are patent ineligible if the applicable method or process is not transformed into a new, inventive concept. Although patent protection provides a limited monopoly on the applicable invention, the business practices of NPEs and legislation purposed to mitigate the perils of practicing patents have created an ecosystem of uncertainty and risk that many are not willing or able to expose themselves to. Fortunately, patents are not the only game in town. Trade secrets offer an alternative to patent-ineligible innovations and to the problems and perils of protecting, defending and enforcing patents. Although there is currently limited trade secret legislation on the national level, nearly all states have adopted, with little substantive variation, the Uniform Trade Secrets Act. Unlike patent-eligibility requirements that precluded software in Gottschalk, Diehr, Alice, and Tenon from patent protection, no trade secret is automatically deemed out of scope. Trade secrets encompass anything of value, so long as it is not generally known and reasonable steps are taken, such as the use of employment agreements that include confidentiality and non-compete clauses, to preserve the secrecy of the invention. Moreover, there are active efforts to put into place a more robust federal system of trademark protection, including the Defend Trade Secrets Act and the Trade Secret Protection Act, which both seek to create benchmark standards for civil trade secret misappropriations in federal courts by amending the Economic Espionage Act.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"675-688"},"PeriodicalIF":0.0,"publicationDate":"2016-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786997","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":"Employer-Mandated Vaccination Policies: Different Employers, New Vaccines and Hidden Risks","authors":"Teri Dobbins Baxter","doi":"10.2139/SSRN.2814405","DOIUrl":"https://doi.org/10.2139/SSRN.2814405","url":null,"abstract":"The overwhelming weight of authority confirms that vaccines save lives. But vaccine opponents have been vocal and influential, and even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the legal and ethical implications of compulsory vaccine policies. While many scholars have made important contributions to this discussion, most of the legal scholarship has focused on a single vaccine for a limited class of employees: the influenza (flu) vaccine for healthcare workers. Moreover, the focus of the literature is on healthcare employers’ potential liability if they require employees to get the flu vaccine. However, new diseases threaten our communities constantly, and as new vaccines are developed (such as the Zika and Ebola vaccines currently being developed and tested) healthcare and non-healthcare employers must reconsider imposing mandatory vaccination policies. This Article considers the factors those employers should consider when deciding whether to require employees to be vaccinated against diseases other than the flu. Similarly, most arguments in support of or in opposition to flu vaccination policies do not address whether healthcare or other employers may face liability if they fail to require employees to be vaccinated. The question is critically important because mandating vaccines is almost unheard-of outside of the healthcare context. Many lawyers and government agencies advise employers to encourage but not mandate employee vaccination, and the only risks identified are the risks of being sued for imposing a mandate in violation of anti-discrimination statutes. The unstated premise is that there is no liability if the employer chooses not to require vaccination. This Article considers the accuracy of that premise and concludes that employers whose employees are likely to transmit diseases to other employees, vulnerable clients, or patients may face liability if they do not to require their employees to be vaccinated.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2017 1","pages":"885-938"},"PeriodicalIF":0.0,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68345585","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 Supreme Court Screws Up the Science: There is No Abusive Head Trauma/Shaken Baby Syndrome 'Scientific' Controversy","authors":"J. A. Moreno, B. Holmgren","doi":"10.5072/ULR.V2013I5.1195","DOIUrl":"https://doi.org/10.5072/ULR.V2013I5.1195","url":null,"abstract":"Even if it is not true that law school is the consolation prize for those whose freshman biology grades make medical school impossible, judges, law professors, and lawyers are not (as a general rule) scientists. But they increasingly shape our understanding of scientific ideas by determining how law interprets and applies scientific information and by ensuring that bad science does not create bad law.1 As law becomes more science-dependent and expert witnesses play a greater role in a wide range of criminal and civil cases, there has been a concomitant increase in the need to ensure that the expert testimony admitted [at trial] is not just flimsy or interested speculation, but reliable enough to be more helpful than misleading; and one factor that courts have sometimes taken as indicating that proffered scientific testimony may not be reliable is that it is based on “litigation-driven” science.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":"1357"},"PeriodicalIF":0.0,"publicationDate":"2016-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784453","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":"Property or Currency? The Tax Dilemma Behind Bitcoin","authors":"S. Wiseman","doi":"10.5072/ULR.V2016I2.2788","DOIUrl":"https://doi.org/10.5072/ULR.V2016I2.2788","url":null,"abstract":"As a result of monumental improvements in technology, a significant amount of currency is spent across the globe in daily transactions made on the internet. A recent trend in American culture is brick and mortar businesses shutting down in favor of online counterparts.1 Some of the many possible reasons behind this online movement may be a decrease in overhead, a convenience factor for consumers, and a drastically expanded market of consumers. In the third quarter of 2015, Americans spent an estimated $87.5 billion dollars on online shopping.2 These e-commerce transactions comprise an impressive 7.4% of total retail sales made in the United States.3 This figure has increased dramatically from the 2.6% of total retail sales made in the first quarter of 2006 and continues to steadily rise.4 Aside from the major financial implication from online purchases made in America, the global market for e-commerce is astronomical. Since it is next to impossible to pay on the internet with cash, bank-issued credit cards are the predominate method of payment. With credit cards, currency can be exchanged on the internet in the blink of an eye. However, there are several drawbacks associated with the global use of these credit cards including fees imposed by major credit card companies and the high risk of credit card fraud. With a continually growing global economy that is largely fueled by internet  transactions,  the  world  could  benefit  tremendously  from  a  safe  and inexpensive globally accepted method of payment","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2016-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70787326","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 Neoliberal Turn in Environmental Regulation","authors":"Jason J. Czarnezki, K. Fiedler","doi":"10.5072/ULR.V2016I1.2030","DOIUrl":"https://doi.org/10.5072/ULR.V2016I1.2030","url":null,"abstract":"Regulation has taken a neoliberal turn, using market-based mechanisms to achieve social benefits, especially in the context of environmental protection, and promoting information dissemination, labeling, and advertising to influence consumer preferences. Although this turn to neoliberal environmental regulation is well under way, there have been few attempts to manage this new reality. Instead, most commentators simply applaud or criticize the turn. If relying on neoliberal environmental reform (i.e., facing this reality regardless of one’s view of this turn), regulation and checks on these reforms are required. This Article argues that in light of the shift from traditional to neoliberal “substantive” environmental regulation, “procedural” checks are required through regulation and legislation to improve the quality of the market-based and informational neoliberal approaches, including oversight via regulation that ensures accuracy in valuation of natural resources, increases and improves the quality of the information provided by consumers, and requires greater accountability and accuracy from institutions making green claims to consumers.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2016-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786563","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":"RLUIPA and the Limits of Religious Institutionalism","authors":"Zachary Bray","doi":"10.5072/ULR.V2016I1.2031","DOIUrl":"https://doi.org/10.5072/ULR.V2016I1.2031","url":null,"abstract":"What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about religious institutionalism. But as this Article will show, there are many good reasons to reject an institutional interpretation of RLUIPA. An institutional interpretation of the statute is inconsistent with RLUIPA’s stated purpose, and will create two tiers of religious claimants, thereby providing unnecessary advantages to existing religious institutions while denying those advantages to new religious institutions. Moreover, reading and applying RLUIPA through the lens of religious institutionalism threatens to exacerbate existing problems that surround what is already a very difficult statute. In short, an institutional interpretation of RLUIPA would not fix the statute’s many flaws; rather, it would make a bad statute much worse.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2016-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786625","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":"Public Participation in Risk Regulation: The Flaws of Formality","authors":"E. Hammond","doi":"10.5072/ULR.V2016I1.2033","DOIUrl":"https://doi.org/10.5072/ULR.V2016I1.2033","url":null,"abstract":"Dread risks draw significant public attention in both the administrative process and the courts. Yet there are a number of dysfunctions at the intersection of procedures, participation, and agency decision-making regarding such risks. This Article elaborates the participatory dysfunctions for dread risk regulation, considering formal APA procedures as well as casting complexity as a variety of formality. Inspired by recent executive actions for improving participation and incorporating social science insights into the regulatory process, this Article sets a research agenda that spans the fields of risk perception, procedural justice, and administrative law.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2016-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70787157","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}