Utah law review最新文献

{"title":"Building the Canon of Utah Constitutional Law: Lessons from the Utah Public Interest Standing Doctrine","authors":"J. Dez","doi":"10.5072/ulr.v2014i5.1328","DOIUrl":"https://doi.org/10.5072/ulr.v2014i5.1328","url":null,"abstract":"There exists an uneven dialogue between the Utah judiciary and the Utah bar on pleading under the Utah Constitution. While the bench encourages legal arguments based in the State Constitution, members of Utah’s legal community have noted challenges to succeeding on state constitutional claims. When the bar tries to make a constitutional claim, there is little case law on which to base an argument, and when the Utah Constitution is pleaded, the court will often decide on other grounds.  The bar should anticipate few cases to support a state constitutional proposition. However, in the interest of developing the Utah constitutional canon, advocates should not opt for a mere footnote to the one case remotely on point or undeveloped arguments relying on nothing more than the plain text of the Utah Constitution. Rather, the brief that gives modern and historical meaning to the text by using various interpretational tools that have been offered by the Utah Supreme Court not only has a good chance of being heard but also can push forward new state constitutional doctrine.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785551","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":"Clear as Mud: Recreating Public Water Rights That Already Exist","authors":"Kathryn A. Tipple","doi":"10.5072/ulr.v2014i5.1329","DOIUrl":"https://doi.org/10.5072/ulr.v2014i5.1329","url":null,"abstract":"The federal government has a history of deferring to state water law even in federally owned territories, a deference memorialized in statutes such as the Desert Lands Act of 1877, the Reclamation Act of 1902, and the Federal Power Act. However, in certain circumstances, the federal government continues to assert its primacy with respect to water through reserved land, for federal purposes. Most prominently, the federal government has overriding plenary authority to protect, maintain, and improve navigation for interstate commerce in navigable waters, an authority that gives rise to the federal navigation servitude and that overrides both state and private property interests. Moreover, when the federal government reserves public lands for particular purposes, it impliedly reserves water rights sufficient to support those purposes. Such federal reserved water rights, or Winters rights, ensure as a matter of federal law that tribes, national parks, national forests, and other specifically reserved federal areas have legal rights to the water that they need.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785803","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":"Treating the Blue Rash: Win-Win Solutions and Improving the Land Exchange Process","authors":"Smith Monson","doi":"10.5072/ULR.V2015I1.1323","DOIUrl":"https://doi.org/10.5072/ULR.V2015I1.1323","url":null,"abstract":"The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies—whose mandate is to protect environmentally sensitive areas—and state trust land authorities—whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.\u0000\u0000Legislative land exchanges present potential win-win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the process for administrative exchanges Congress could promote more efficient exchanges and increase cooperation between federal and state trust land managers. Thus, Congress should provide funding for land exchanges involving environmentally sensitive areas. Additionally, Congress should amend FLPMA’s public interest and equal value requirements to incentivize cooperation in the administrative land exchange process.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"241-269"},"PeriodicalIF":0.0,"publicationDate":"2015-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785716","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 Keystone XL Pipeline and the Dormant Commerce Clause: Would Action by Congress Preclude Adequate Environmental Regulation at the State Level?","authors":"S. S. Stroud","doi":"10.5072/ULR.V2015I1.1324","DOIUrl":"https://doi.org/10.5072/ULR.V2015I1.1324","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2015-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785779","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":"Outsiders Looking in: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming","authors":"Jennifer J. Lee","doi":"10.5072/ULR.V2014I5.1327","DOIUrl":"https://doi.org/10.5072/ULR.V2014I5.1327","url":null,"abstract":"The immigrant worker movement faces the age-old problem of social movements: whether change should be pursued from the inside or outside. Shaped by dominant cultural norms, the current legal framework generally disadvantages immigrant workers. They suffer from workplace exploitation, anti-immigrant hostility, and exclusion. By examining the interplay between law and culture, this Article offers a unique perspective on how immigrant workers have the power to change law through cultural narratives. Change pursued from the inside by immigrant workers, community advocates, and public interest attorneys has more immediately provided positive results for immigrant workers. They have done so by mainstreaming immigrant workers with cultural narratives that emphasize their identity as workers who contribute to society and as victims of criminal employers. Such mainstreaming, however, is potentially fraught with well-known perils, which can include the creation of stereotypes and classes of outsiders while obscuring the need for fundamental change. On the other hand, while a transformative or even more radical narrative of universal rights and global citizenship might provide for a more normative ideal, it can be excessively utopian or antagonistic. Presented with this dilemma, the immigrant worker movement must determine how to best advance its agenda. I suggest that the use of “strategic mainstreaming” – mainstream cultural narratives that are owned, shaped, and cleverly deployed by immigrant workers – can best promote the legal rights of immigrant workers and their inclusion into society. This approach corresponds to a vision of advocacy that respects the voice of subordinated individuals and communities, which maximizes empowerment and solidarity while minimizing the damage created by aligning with dominant elites. At the same time, it offers a way that immigrant workers can achieve success, often through the use of multifaceted advocacy with local mainstream institutions. Over time, the hope is that strategic mainstreaming will not only create increased familiarity with immigrants as societal members but also increase their political power.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2015-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785086","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 DSM-5 and Criminal Defense: When Does a Diagnosis Make a Difference?","authors":"Nancy Haydt","doi":"10.5072/ULR.V2015I4.1582","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1582","url":null,"abstract":"In June 2013, the American Psychiatric Association published the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders  (“DSM-5”). The DSM-5 was intended to be an updated guidebook for the  clinical diagnosis of mental disorders. It received mixed reviews from the  mental health community. The reception from the forensic mental health  community is likewise varied. The evolution of conceptualizing mental  illness, its origins and treatment efficacy, may weaken the authority of the  DSM and further confuse its application in forensic situations. 2 This  Article explores the possible effects of the DSM-5 in criminal cases.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"847-879"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786737","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 DSM-5: Implications for Health Law","authors":"Stacey A. Tovino","doi":"10.5072/ULR.V2015I4.1580","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1580","url":null,"abstract":"In May 2013, the American Psychiatric Association released the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Among other changes, the DSM-5 includes new entries for hoarding disorder and premenstrual dysphoric disorder as well as a reclassified entry for gambling disorder. Using these changes as examples, this Article examines the implications of the DSM-5 for key issues in health law, including health insurance coverage, public and private disability benefit eligibility, and disability discrimination protection. As a descriptive matter, this Article illustrates how the addition  of new disorders and the reclassification of existing disorders in the DSM- 5 can significantly impact health insurance coverage and has some  relevance to disability benefit eligibility and disability discrimination  protection. From a normative perspective, this Article offers guidelines  designed to prevent attorneys, judges, and other nonclinicians from  abusing the DSM-5 in civil and administrative health law proceedings.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"11"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786610","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":"Diagnosis Dangerous: Why State Licensing Boards Should Step in to Prevent Mental Health Practitioners from Speculating Beyond the Scope of Professional Standards","authors":"J. Bard","doi":"10.5072/ULR.V2015I4.1584","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1584","url":null,"abstract":"This Article reviews the use of mental health experts to provide testimony on the future dangerousness of individuals who have already been convicted of a crime that qualifies them for the death penalty. Although this practice is common in many states that still retain the death  penalty, it most frequently occurs in Texas because of a statute that makes  it mandatory for juries to determine the future dangerousness of the  defendant they have just found guilty. Both the American Psychiatric  Association and the American Psychological Association have protested  the use of mental health professionals in this setting because there are no  scientifically valid methods to make these predictions for people who face  long periods of incarceration in maximum-security prisons. Existing  models of prediction consider the behavior of individuals in the free world.  Moreover, the Supreme Court has upheld these predictions of  dangerousness in capital sentencing hearings on the grounds that neither  of the protesting professional organizations actually license mental health  professionals. Therefore, this Article suggests that these state licensing  boards be held responsible for assuring mental health professionals do not  testify beyond the scope of medical support or evidence. In so doing, it  analyzes cases in which health care professionals, in general, have been  held responsible by state licensing boards for testimony that is beyond  what is acceptable practice in that profession.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"929-954"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786410","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":"'I Expected It to Happen/I Knew He'd Lost Control': The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5","authors":"M. Perlin","doi":"10.5072/ULR.V2015I4.1583","DOIUrl":"https://doi.org/10.5072/ULR.V2015I4.1583","url":null,"abstract":"The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of that Manual, it will force them to seriously confront - in a wide variety of cases - the impact of PTSD on sentencing decisions. And this may lead to more robust debates over the impact of mental disability generally on sentencing outcomes. My optimism here is tempered by (1) the reality that courts deal teleologically with mental disability evidence in general (subordinating it when it is introduced by the defendant, and privileging it when introduced by the state), and (2) the power of sanism - an irrational prejudice of the same quality and character as other irrational prejudices that cause, and are reflected in, prevailing social attitudes such as racism, sexism, homophobia, and ethnic bigotry - in this entire inquiry. On the other hand, we must also consider the impact of therapeutic jurisprudence on the question in hand. Therapeutic jurisprudence (TJ) presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences. Although some scholars have considered TJ in the context of the Federal Sentencing Guidelines, it remains mostly an “under the radar” topic. I believe it is essential we give it a new and urgent focus. I am convinced that, if courts take seriously the new treatment of PTSD in DSM 5, and couple that with an understanding of sanism and an application of TJ, that will lead to an important sea change in the ways that defendants with that condition - especially those who are Iraqi and Afghanistani war veterans - are sentenced. This paper proceeds in this manner. First, I briefly review the law of sentencing as it relates to persons with disabilities, focusing on developments that followed the Supreme Court’s decision in United States v. Booker (making the Federal Sentencing Guidelines advisory rather than mandatory) , the role of sanism, and the significance of therapeutic jurisprudence. Then, I look at how courts have, until this moment, treated PTSD in sentencing decisions. I will then look at DSM 5 to highlight its definitional changes. I then try to “connect the dots” to show how DSM 5 demands changes in sentencing practices, and explain how this change can be consonant with the principles of TJ. I will end with some modest conclusions.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"881-927"},"PeriodicalIF":0.0,"publicationDate":"2014-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70786781","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":"Managing Political Polarization in Congress: A Case Study on the Use of the Hastert Rule","authors":"Holly B. Fechner","doi":"10.5072/ULR.V2014I4.1284","DOIUrl":"https://doi.org/10.5072/ULR.V2014I4.1284","url":null,"abstract":"The rise of the Tea Party and the ideological divisions within the Republican Party created challenging conditions for Speaker Boehner. The strategic use of the “go-it-alone” Hastert Rule allowed Speaker Boehner to successfully navigate a treacherous political path of managing his divergent caucus, preserving his leadership position, and passing selective legislation when necessary even when the majority of his caucus did not support it. This manufactured procedural tool served substantive and political purposes. The routine use of the Hastert Rule strengthened the hand of the Tea Party members to influence legislation. At the same time, selectively ignoring the Hastert Rule allowed Speaker Boehner to relieve some of the political pressure that the Tea Party members exerted in an effort to preserve the future electoral viability of his party. The Hastert Rule, an informal but accepted practice in the House of Representatives, created the latitude for Speaker Boehner to maneuver through this difficult period. It is an example of the remarkable ability of Congress to adapt and address internal challenges and threats.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"53 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785279","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}