Utah law reviewPub Date : 2016-04-18DOI: 10.5072/ULR.V2016I1.2032
S. Saxer
{"title":"When Local Government Misbehaves","authors":"S. Saxer","doi":"10.5072/ULR.V2016I1.2032","DOIUrl":"https://doi.org/10.5072/ULR.V2016I1.2032","url":null,"abstract":"In this article, Dean Saxer examines the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. Saxer argues that “in lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regarding to a specific project. Accordingly, Koontz’s application should be limited to “the special context of land-use exactions” rather than be extended to all regulatory monetary obligations.Saxer begins by identifying the various levels of scrutiny applied to land use decisions and shows how these levels are designed to prevent the abuse of power, particularly when actions are exercised at the individualized level. She concludes by suggesting that exactions that result in a permanent physical occupation of real property should be subject to heightened scrutiny. However, only administrative, individualized, monetary exactions, designed to replace a physical exaction, such as the kind involved in Koontz, should be subject to heightened scrutiny to control the potential for abuse. Legislatively-determined monetary conditions such as impact fees, but not taxes, should be subject to review under state law standards, which range from a reasonableness test to more stringent tests under statutory or judicial determinations. In the absence of a state standard of review, legislatively-enacted impact fees challenged in federal court should be analyzed under the standard rational basis test for land use regulation.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"105-168"},"PeriodicalIF":0.0,"publicationDate":"2016-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786707","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}
Utah law reviewPub Date : 2016-03-01DOI: 10.2139/SSRN.2921537
D. P. Olson
{"title":"A Declining Water Supply: How Utah Can Become Adept at Adapting to the Impacts of Climate Change","authors":"D. P. Olson","doi":"10.2139/SSRN.2921537","DOIUrl":"https://doi.org/10.2139/SSRN.2921537","url":null,"abstract":"Water sustains human life and the ecosystems that make life possible. Yet Utah’s current water management places the vital resource in jeopardy. When climate change is included in the calculation of projected water supply, the future looks much more bleak. As Utah’s climate changes, its water supplies will diminish. Likewise, the overall quality of water will decrease as demands for potable water reach an all-time high. This Comment suggests adaptation strategies that Utah can pursue to improve its adaptive capacity and fortify its water governance. Ultimately, this Comment recommends that Utah start developing an adaptation framework in order to prepare for the impacts of climate change before it is too late.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68433433","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}
Utah law reviewPub Date : 2016-01-25DOI: 10.5072/ULR.V2016I4.3578
J. Coyle
{"title":"Altering Rules, Cumulative Voting, and Venture Capital","authors":"J. Coyle","doi":"10.5072/ULR.V2016I4.3578","DOIUrl":"https://doi.org/10.5072/ULR.V2016I4.3578","url":null,"abstract":"California shareholders have long enjoyed the statutory right to elect directors in private companies via cumulative voting. While this rule is often described as mandatory, it is more accurately characterized as a sticky default that is subject to a complex array of altering rules. Many of these altering rules are negative; they forbid the parties from contracting around the cumulative voting rule in particular ways. A few of these altering rules are positive; they tell the parties how to contract around the rule. This symposium contribution provides a detailed account of this legal regime and describes the ways it has influenced corporate practice in Silicon Valley. It then draws upon this account to offer some observations as to the utility — and disutility — of altering rules and cumulative voting more generally.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"28 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2016-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70787299","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}
Utah law reviewPub Date : 2015-11-25DOI: 10.5072/ULR.V2015I4.1570
Rebecca A. Johnson
{"title":"Does the DSM-5 Threaten Autism Service Access?","authors":"Rebecca A. Johnson","doi":"10.5072/ULR.V2015I4.1570","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1570","url":null,"abstract":"The present paper addressed the question: how will the DSM-5 revisions impact access to autism services? While media commentators posited a straightforward link between DSM-5 changes and service access, we should consider the different strength of couplings between a DSM diagnosis and entitlement access by investigating the factors that result in a diagnoses translation into service access. The Article began by outlining the pre DSM-5 policy background for autism entitlements. This background helps contextualize the policy environment into which the DSM-5 changes entered. Rather than examining autism medical and educational services in isolation, we should conceive of these services as interdependent, and investigate how changes to the uptake or depth of medical service access affect changes to the uptake or depth of educational service access. Taking this interdependent perspective, the Article showed how the passage of private insurance mandates for autism services has led to more rapid uptake of special education services for autism, showing how one entitlement that creates a close DSM diagnosis-service link (an insurance mandate) increases uptake of another entitlement with a looser DSM diagnosis-service link (special education services). This shows that if DSM-5 revisions undermine access to medical entitlements there will be a corresponding impact on access to educational entitlements.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"803-845"},"PeriodicalIF":0.0,"publicationDate":"2015-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786487","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}
Utah law reviewPub Date : 2015-11-01DOI: 10.5072/ULR.V2015I3.1549
N. Duru
{"title":"Hoop Dreams Deferred: The WNBA, the NBA, and the Long-Standing Gender Inequity at the Game's Highest Level","authors":"N. Duru","doi":"10.5072/ULR.V2015I3.1549","DOIUrl":"https://doi.org/10.5072/ULR.V2015I3.1549","url":null,"abstract":"The WNBA’s top three 2013 draft picks – Brittney Griner, Elena Delle Donne, and Skylar Diggins – were perhaps the most talented top three picks in league history, and they were certainly the most celebrated. Each could likely have competed in the WNBA straight out of high school, and after their first collegiate seasons – during which Griner led the nation in blocked shots, Delle Donne was third in the nation in scoring average, and Diggins led her team in scoring, steals, and assists – each was clearly WNBA ready. All three women, however, were prohibited from entering the league under a rule that restricts WNBA eligibility to women four years removed from high school. Male collegiate basketball players are eligible to declare for the draft in the WNBA’s brother league, the NBA, after their freshman year (when they are one year removed from high school), and many of Griner’s, Delle Donne’s, and Diggins’ fellow rising sophomores did just that. Were the NBA and WNBA distinct, unaffiliated organizations, their disparate age eligibility rules would be an unfortunate but unactionable gender-based reality. However, in that the NBA founded the WNBA as a subsidiary corporation, has long funded the WNBA, instituted the WNBA’s age eligibility rule, and has generally exercised control over the WNBA throughout the great bulk of the WNBA’s existence, the disparate age eligibility rules raise sex discrimination concerns. This paper explores these concerns and concludes that because of the NBA’s involvement in and dominance over the WNBA, the NBA is potentially liable for Title VII sex discrimination caused by the WNBA’s age eligibility rule.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"117 1","pages":"559-603"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785689","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}
Utah law reviewPub Date : 2015-10-28DOI: 10.2139/ssrn.2682733
Gary Lucas, Jr.
{"title":"Behavioral Public Choice and the Carbon Tax","authors":"Gary Lucas, Jr.","doi":"10.2139/ssrn.2682733","DOIUrl":"https://doi.org/10.2139/ssrn.2682733","url":null,"abstract":"In response to the historic Paris Agreement on climate change and to the Environmental Protection Agency’s recently finalized Clean Power Plan, economists and other climate policy experts have renewed the call for the United States to adopt a carbon tax. Opposition among the public presents a major obstacle. While a majority of the public supports government action on climate change, most people favor the use of “green�? subsidies and command-and-control regulations—a fact that frustrates economists of all political stripes who contend that a carbon tax would be much cheaper and more effective. This Article argues that a cognitive bias known as opportunity cost neglect pervades the public’s thinking about climate policy instruments, causing people to ignore the hidden costs of subsidies and command-and-control and, for that reason, to support these less efficient alternatives to the carbon tax. The Article will help proponents of the carbon tax better tailor their advocacy efforts. The Article also contributes to the burgeoning literature on behavioral public choice, which shows how the cognitive biases of political actors (including voters) influence the law. In addition, the Article points to the possibility of a Pyrrhic victory for conservative policymakers who oppose the carbon tax. Rather than averting major government action on global warming, defeating the carbon tax will very likely facilitate adoption of more costly substitutes that the public strongly favors as a result of cognitive bias. In that respect, the Article lends support to recent proposals by a small but growing group of conservative scholars who argue for a policy swap in which conservatives agree to a revenue-neutral carbon tax in exchange for support from environmentalists for abandoning the government’s current regulatory approach. The Article also suggests that conservative policymakers rethink their position on the carbon tax given that the states are currently considering which policy options to pursue in satisfying their respective obligations to reduce carbon emissions under the Clean Power Plan.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2682733","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68254526","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}
Utah law reviewPub Date : 2015-08-31DOI: 10.5072/ULR.V2015I3.1550
A. Kyriakakis
{"title":"The Missing Victims of Health Care Fraud","authors":"A. Kyriakakis","doi":"10.5072/ULR.V2015I3.1550","DOIUrl":"https://doi.org/10.5072/ULR.V2015I3.1550","url":null,"abstract":"Over the past few decades, combating criminal health care fraud has become one of the highest priorities of federal law enforcement, which views and treats it as a financial crime that causes vast economic losses to the government and private insurers. But the crime also causes, or threatens, physical harms to individual health care patients, a class of victims that the criminal justice system often fails to recognize. This Article is the first to explore how structures and hidden levers of power within the criminal justice bureaucracy lead agents and prosecutors to select—and ignore—particular harms and victims and, more importantly, what drives their selections. The implications extend beyond health care fraud. Questions about this form of prosecutorial discretion are surprisingly absent in the scholarly literature. Through the lens of health care fraud, I show that features of statutory frameworks and sentencing guidelines can have an outsized influence on the selection of harms and victims in complex cases, often in unintended ways that merit greater scrutiny. Internal dynamics within the criminal justice bureaucracy, including those driven by governmental interests as well as the interests of agents and prosecutors themselves, also play a significant role. These factors combine to spur our criminal justice system to treat health care fraud as just another flavor of fraud, devaluing victims and skewing punishments of offenders who exploit patients as a means to enrich themselves.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2015-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785728","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}
Utah law reviewPub Date : 2015-08-31DOI: 10.5072/ULR.V2015I3.1552
K. Quam
{"title":"Unfinished Business of Repealing “Don’t Ask, Don’t Tell”: The Military’s Unconstitutional Ban on Transgender Individuals","authors":"K. Quam","doi":"10.5072/ULR.V2015I3.1552","DOIUrl":"https://doi.org/10.5072/ULR.V2015I3.1552","url":null,"abstract":"Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse , the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway , Sommers , and Ulane —the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse , discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination. As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,” discrimination based on gender identity is a form of discrimination based on sex. Furthermore, transgender individuals are either excluded from the military under DoDI 6130.03 because of the genitalia assigned at birth (which is discrimination based on sex), or because they are acting against the typical gender mores assigned to the sexes (which is discrimination based on sex stereotypes). Regardless, intermediate scrutiny applies.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"78 6 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2015-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785792","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}
Utah law reviewPub Date : 2015-07-09DOI: 10.5072/ULR.V2016I4.3577
Alice Armitage, Evan Frondorf, Christopher Williams, Robin C. Feldman
{"title":"Startups and Unmet Legal Needs","authors":"Alice Armitage, Evan Frondorf, Christopher Williams, Robin C. Feldman","doi":"10.5072/ULR.V2016I4.3577","DOIUrl":"https://doi.org/10.5072/ULR.V2016I4.3577","url":null,"abstract":"To foster innovation, we must find solutions to provide effective, affordable legal services on a large scale to early-stage companies from all backgrounds, while ensuring that companies have the opportunity to receive individualized and accurate advice. Otherwise, legal issues will continue to be a strong impediment to responsible and sustainable startup formation. Using survey data collected from the Startup Legal Garage — our client-based education program at UC Hastings College of the Law that brings startups, students, and supervising attorneys together to resolve legal needs for early-stage startups — we explore the extent of the legal issues facing startups and the burden these issues place on growing companies.We find that almost 90% of the legal matters addressed by Startup Legal Garage teams fall within the categories of general corporate formation, contracts, and non-patent intellectual property. We also discovered that startups generally had difficulty identifying their most pressing legal needs. Startups identified fewer than half of the issues eventually addressed through our program, and over 70% of companies received assistance with at least one issue not listed on their intake application. Most importantly, we find that addressing legal needs, while necessary, presents a costly burden for emerging companies. As a proxy for the expense of ground-level legal work for a startup, we estimate that Startup Legal Garage services are worth between $17,000 and $23,000 on average. Considering that the startups in our sample typically have very limited outside funding, these costs represent an enormous and exclusionary obstacle to growth.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2016 1","pages":"575"},"PeriodicalIF":0.0,"publicationDate":"2015-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70787200","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}
Utah law reviewPub Date : 2015-05-30DOI: 10.5072/ULR.V2015I4.1579
Teneille R. Brown
{"title":"From Bibles to Biomarkers: The Future of the DSM and Forensic Psychiatric Diagnosis","authors":"Teneille R. Brown","doi":"10.5072/ULR.V2015I4.1579","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1579","url":null,"abstract":"There is great anticipation for the RDoC’s neurobiological approach to mental illness to replace the DSM and make everything from research funding to insurance coverage more fair. Whether or not the legal applications of this new system will indeed be an improvement on the DSM depends greatly on how it is used, and what the normative commitments are in that particular legal domain. While the DSM provides one important and useful perspective on what counts as mentally disordered, ultimately for the law this is not a question that science or data can answer. Societies, comprised of people, must grapple with a normative account of when to treat, when to pardon, and when to punish. The DSM cannot decide these questions for us, tempting as it may be to defer to its diagnostic criteria. That we expect it to reveals a deep insecurity about the legal system’s ability to defend its methods and theories of punishment.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786552","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}