Utah law review最新文献

{"title":"Is Congress Now the Broken Branch","authors":"B. Sinclair","doi":"10.5072/ULR.V2014I4.1282","DOIUrl":"https://doi.org/10.5072/ULR.V2014I4.1282","url":null,"abstract":"The Broken Branch: How Congress is Failing America and How to Get It Back on Track by Tom Mann and Norm Ornstein was published in 2006. To be sure, criticism of Congress is a staple of American political discourse—the content varies, but the criticism is ubiquitous. Nevertheless, the volume of criticism has ramped up in the past decade or so, and the fact that two highly respected congressional scholars, Thomas Mann and Norman Ornstein—who are also Washington insiders and known to be sympathetic to Congress—have joined in the criticism needs to be taken seriously.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785220","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":"Unequal Inequalities? Poverty, Sexual Orientation, and the Dynamics of Constitutional Law","authors":"Jane S. Schacter","doi":"10.5072/ULR.V2014I4.1289","DOIUrl":"https://doi.org/10.5072/ULR.V2014I4.1289","url":null,"abstract":"To start where we began, there are many differences that distinguish these two movements. The point is decidedly not to flatten these differences or to treat them as more alike than they are. Instead, the fact that some broad themes link even these disparate cases suggests that there are institutional insights here that can help us think critically about the role of courts going forward. Perhaps the clearest takeaway is that courts rarely act in a vacuum. They act in the context of other actors (other courts, political bodies, public opinion), and their decisions are given meaning, in part, by how these other actors, along with social movements, react. For this reason, thinking about the role of courts in 2020 means thinking about the interacting roles of these other actors, as well.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785348","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":"Unfunded Federal Mandates and State Judiciaries: A Question of Sovereignty","authors":"Christine M. Durham, Brian L. Hazen","doi":"10.5072/ULR.V2014I4.1291","DOIUrl":"https://doi.org/10.5072/ULR.V2014I4.1291","url":null,"abstract":"DOJ’s recent demands leave state court systems with a difficult choice. On one hand, they can simply assume the legal legitimacy of the new LEP mandates and try their best to implement the demands despite disagreements or budgetary constraints. On the other hand, state courts could place at risk at least a portion, and potentially all, of their federal funding and prepare to defend against DOJ in civil litigation by refusing to adopt the demands wholesale. The latter option would require courts to take a somewhat more confrontational stand, but as Justice Markman notes, forcing DOJ to carry the burden of proving the legal basis for its demands may provide a viable strategy to ensure that the proper contours of American federalism are preserved, and respect for state sovereignty is maintained.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"10"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785248","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":"This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students","authors":"Abigail A. Patthoff","doi":"10.5072/ULR.V2015I2.1541","DOIUrl":"https://doi.org/10.5072/ULR.V2015I2.1541","url":null,"abstract":"Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate student populations. As their teachers, law professors cannot ignore the palpable presence of this stress in our classrooms – unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness. Yet, in the name of persuasion, professors frequently, and perhaps unwittingly, introduce additional fear into the classroom as a pedagogical tool via a common fear-based narrative: the cautionary tale. By taking lessons from existing social science research about “fear appeals” – scare tactics designed to frighten the listener into adopting a particular behavior – this article suggests that we can actively manage one source of law student anxiety by more thoughtfully using cautionary tales.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2015 1","pages":"391-424"},"PeriodicalIF":0.0,"publicationDate":"2014-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785619","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":"Speaking of Science: Introducing Notice and Comment into the Legislative Process","authors":"Gregory Dolin","doi":"10.2139/SSRN.2211769","DOIUrl":"https://doi.org/10.2139/SSRN.2211769","url":null,"abstract":"Congress enacts, on a nearly continuous basis, a variety of laws that affect scientific research and progress. Some of these laws have an unquestionably positive effect. For instance, Congress’s creation of the National Institutes of Health, the National Academy of Sciences, and NASA; its various appropriations to fund ground-breaking research; and a multitude of other laws have incalculably advanced human knowledge, and it is to Congress’s great credit that these laws have been and are continuing to be enacted. However, not all laws that affect the progress of sciences are an unalloyed good. Quite the opposite, often the laws aim to, and in fact do, retard the progress of scientific research. The question is then whether the benefit from those laws outweighs the costs imposed on scientific progress.Congress, however, often does not fully consider the costs that the legislation imposes on science, either for lack of information or as a result of conscious disregard for the views of a politically insignificant group. The public is not able to hold Congress accountable because it lacks an ability to participate in the process and lacks an objective basis against which to measure congressional action. The problem is not congressional malfeasance or ignorance but rather the structure of the legislative process itself. The general public is often taught and told that lawmaking is a process that begins in a committee where the proposal is carefully studied, debated, amended, and voted on. The reality, of course, is much different. First, bills often skip the committee process, and amendments are often added last minute without a chance for a meaningful debate. But even where the process is followed, it is often hard to portray the committee hearings as a true deliberative process. Instead, they are often described as a Kabuki theater, where the Chair and the Ranking Member designate the witnesses they wish to call to support the preformulated position. Interested parties cannot provide testimony unless asked to do so by the relevant committee. Thus, oftentimes the people with the deepest knowledge, but low political skills, are cut out of the process. The end result is that Congress votes on legislation without fully understanding the implication thereof. The voters also are injured in that it is hard to hold Congress accountable if one cannot point out that it ignored the views of the scientific communities.This Article proposes a solution to the problem. Bills that affect the progress of science ought to be evaluated by an independent body similar to the Congressional Budget Office. Like the CBO, this body would not have any authority to block a bill, but it would be able to “score” it (i.e., provide information on the effect the bill will have on research). In order to accomplish its task, this newly created body would be required to provide notice of pending legislation and then seek comments from the interested parties, much like what is done in t","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2014 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2014-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67993862","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":"Deselecting Biased Juries","authors":"S. Howe","doi":"10.5072/ULR.V2015I2.1539","DOIUrl":"https://doi.org/10.5072/ULR.V2015I2.1539","url":null,"abstract":"Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky, 476 U.S. 79 (1986), by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. But the article shows that something other than inequality harm to excused persons is actually the central problem. The Court in the Batson cases only obliquely confronted it, because constitutional rulings cannot appropriately resolve it. That problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. The problem can arise often -- whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"41 1","pages":"289-337"},"PeriodicalIF":0.0,"publicationDate":"2014-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70785477","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":"Actually We Should Wait: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action","authors":"William P. Marshall","doi":"10.5072/ULR.V2014I4.1285","DOIUrl":"https://doi.org/10.5072/ULR.V2014I4.1285","url":null,"abstract":"Although once committed to diminishing the expansion of presidential power, President Obama has become a proponent of energetic unilateral executive-branch action. Faced with a relentless and uncompromising opposition in Congress, the President has come to believe that it is only through the exercise of his unilateral powers that he will be able to accomplish his agenda and meet the promises that he made to the American people.Some defend President Obama’s expansive use of presidential power because Congress has been so defiant. According to this view, the President should have the authority to aggressively use executive power when Congress does not act responsively or appropriately. This article contests that position. It agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good. It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.Part I of this article provides the necessary background by briefly describing the partisan political gridlock faced by President Obama and identifying some of the unilateral uses of presidential power employed by the Obama administration in its efforts to overcome or circumvent its political opponent's obduracy. Part II places the Obama administration's actions in context by discussing why presidential power had already become so expansive and why it continues to expand. Part III discusses the paradoxical role that congressional obstruction plays in relation to presidential power. Part IV identifies some of the concerns related to the centering of power in the presidency and questions whether, for whatever reasons, including congressional obstruction, presidential power should be expanded in a manner that accentuates those concerns. Weighing the concerns of government breakdown and harm to the national interest on one side versus aggrandized presidential power on the other, it contends that the constitutional answer to this question, with minimal exceptions, should be no.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"81 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784877","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":"Unintended Consequences: Lucas, the Public Trust Doctrine, and the Erosion of Private Property Rights Under the Takings Clause","authors":"Timothy M. Bagshaw","doi":"10.5072/ULR.V2013I6.1202","DOIUrl":"https://doi.org/10.5072/ULR.V2013I6.1202","url":null,"abstract":"This Note considers the relationship between the public trust doctrine and private property rights under the Takings Clause. Traditionally, the public trust doctrine vests authority in state governments to protect navigable waterways and related lands. But in recent years, state governments and state courts have begun to use the doctrine to achieve broader environmental ends. While increased environmental protection at the state level serves vital public interests, it is not an unambiguous good. Under current takings analysis, the public trust doctrine constitutes one of several affirmative defenses to just compensation liability; where state governments invoke the public trust doctrine, they are not required to pay just compensation to property owners, even for complete takings. The expanded public trust doctrine can therefore frustrate constitutionally rooted private property rights. This Note proffers some recommendations to resolve the tension between states' interest in environmental protection and private property owners' constitutional guarantee of just compensation. Under a codification and declaration regime, states can continue to expand their public trust doctrines while at the same time providing property owners more meaningful protections. 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-top:0in;\u0000 mso-para-margin-right:0in;\u0000 mso-para-margin-bottom:10.0pt;\u0000 mso-para-margin-left:0in;\u0000 line-height:115%;\u0000 mso-pagination:widow-orphan;\u0000 font-size:11.0pt;\u0000 font-family:\"Calibri\",\"sans-serif\";\u0000 mso-ascii-font-family:Calibri;\u0000 mso-ascii-theme-font:minor-latin;\u0000 mso-hansi-font-family:Calibri;\u0000 mso-hansi-theme-font:minor-latin;}","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784570","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 Legal and Ethical Limits of Technological Warfare: Introduction","authors":"A. Guiora","doi":"10.5072/ULR.V2013I5.1187","DOIUrl":"https://doi.org/10.5072/ULR.V2013I5.1187","url":null,"abstract":"Deciding a year in advance the theme of a law review symposium is, at best, a tricky proposition.  The considerations are varied: what topic will be relevant to academics and policymakers, who shoul dbe invited as panelists, how will invited individuals mix and collaborate with each other, what issue will be of interest to the larger community, and what kind of contribution will the symposium and subsequent publications make to the issue chosen?  In conjunction with the Utah Law Review Board and faculty collegues, we decided that addressing the legal and ethical aspects of technological warfare met the criteria we outlined for ourselves: it is an issue of enormous public interest, significant scholars would facilitate extrodinary discussion, and we would be able to impact the public debate.  The remaining question was whether the issue would be \"hot\" at conference time.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784661","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":"Utah Law Review","authors":"D. Balwin","doi":"10.5072/ULR.V2013I5.1196","DOIUrl":"https://doi.org/10.5072/ULR.V2013I5.1196","url":null,"abstract":"","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784504","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}