Utah law review最新文献

{"title":"Extending Positive Identification from Persons to Places: Terrorism, Armed Conflict and the Identification of Military Objectives","authors":"Laurie R. Blank","doi":"10.5072/ulr.v2013i5.1188","DOIUrl":"https://doi.org/10.5072/ulr.v2013i5.1188","url":null,"abstract":"This Article addresses the identification of military objectives in a variety of non-international armed conflict contexts, including conflicts with terrorist groups operating transnationally and conflicts with non-state actors located outside the state’s borders. In particular, the nature of non-international armed conflict can alter how the basic definition and analysis of the term \"military objective\" is applied. To the extent that the application of the definition of military objectives in non-international armed conflicts introduces complications and conceptual challenges that blur the lines between civilian and military, and exacerbate existing difficulties, it is important to tease out and better understand those conceptual challenges. Building on foundational discussions of the law of targeting and the definition of military objective as set out in Additional Protocol I and customary international law, this Article analyzes the legal and operational complexities of identifying military objectives in non-international armed conflicts. The first question centers on the meaning of the criterion of \"nature\" and whether it is substantially narrower in the identification of military objectives on the non-state actor side of the conflict. A second major question concerns dual-use objects -- does the nature of non-international armed conflict result in nearly all objects being dual-use objects? Finally, this Article explores the ramifications of cross-border and transnational conflicts in particular for jus ad bellum and operational considerations as well in applying and interpreting the definition of military objectives.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784852","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 Humanitarian Problem with Drones","authors":"F. Mégret","doi":"10.2139/SSRN.2228659","DOIUrl":"https://doi.org/10.2139/SSRN.2228659","url":null,"abstract":"One of the difficulties with the debate on drones is how it has become a sort of lightning rod for all kinds of anxieties about the use of force in today’s world. Drones are, often problematically, the emblematic weapon for a range of other phenomena and so, unsurprisingly, attract much polemic. The challenge, thus, is to find what is problematic specifically with drones as a technology in armed conflict that could not be dealt with better by invoking a larger genus of problems. In order to do this, I outline a series of ways in which drones have been seen as problematic which I argue are either not specifically humanitarian, or really interested in something else such as what the legal framework applicable to the “war on terror” should be. Separating these very important debates from the humanitarian questions that ought to be asked about drones as such is crucial if one is to make conceptual headway. I then examine the issue of whether there is anything that is specific and/or inherent to drones, and address the question of whether it is that drones cause unwarranted harm to civilians. I seek to explain how, regardless of the answer to that complicated question, drones are much more likely to be perceived as inflicting excessive damage due to their highly discriminatory potential but also, crucially, the way in which they maximize the safety of the drone operator. If anything, it is this aspect that is most specific and novel about drones. I argue that this absolute safety of the operator not only maximizes states’ ability to minimize collateral harm, as has already been observed elsewhere, but also has the potential to fundamentally alter the laws of war’s tolerance for collateral harm, which was always based on the assumption of a tradeoff between harm to the attacker and to “enemy civilians.” It is this tradeoff that is increasingly at risk of being rendered moot. I finish with an attempt to contextualize the drone problem within a larger history of exogenous technological shock to international humanitarian law and how it has addressed them. Overall, the article is interested not just in determining whether drone use may or may not be “legal” but also more broadly how it impacts some of the moral underpinnings of the laws of war.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68008598","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":"Bikinis and Efficient Trespass Law","authors":"J. Martinez","doi":"10.2139/SSRN.2227127","DOIUrl":"https://doi.org/10.2139/SSRN.2227127","url":null,"abstract":"On Valentine’s Day 2013, a mother and her two daughters walked into a Barnes & Noble bookstore and put sticky notes strategically on the cover of the Sports Illustrated Swimsuit Issue featuring Kate Upton in a skimpy bikini. Current trespass law at times emphasizes that a mere physical intrusion suffices. Under that “right to exclude” approach, Barnes & Noble could easily prove that a trespass had occurred. At other times, however, trespass law focuses on the “right to use,” and instead seeks to determine whether any given intrusion interferes with the present beneficial use of the landowner’s premises. Using economic efficiency analysis, this article suggests that the right to exclude approach leads to fewer transaction costs and therefore is the economically efficient - and therefore preferable - legal rule.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68007151","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":"Roundtable Discussion Transcript: The Legal and Ethical Limits of Technological Warfare Symposium, February 1, 2013, University of Utah, S.J. Quinney College of Law","authors":"A. Guiora, Harry Soyster, D. Irvine, G. Corn, J. Carafano, C. Finkelstein, Laurie R. Blank, Monica Hakimi, George Lucas, Trevor W. Morrison, F. Mégret","doi":"10.5072/ULR.V2013I5.1193","DOIUrl":"https://doi.org/10.5072/ULR.V2013I5.1193","url":null,"abstract":"The Utah Law Review brought in a panel of experts for a symposium on the legal and ethical limits of technological warfare. This roundtable discussion crystalized the issues discussed throughout the symposium. The collective experience and diversity of viewpoints of the panelists produced an unparalleled discussion of the complex and poignant issues involved in drone warfare. The open dialogue in the roundtable discussion created moments of tension where the panelists openly challenged each other’s viewpoints on the ethics and legality of drone warfare. The discussion captured in this transcript uniquely conveys the diversity of perspectives and inherently challenging legal and moral questions associated with drone warfare.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784400","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":"ANTI-EVASION DOCTRINES IN CONSTITUTIONAL LAW","authors":"Brannon P. Denning, Michael B. Kent","doi":"10.2139/ssrn.1997260","DOIUrl":"https://doi.org/10.2139/ssrn.1997260","url":null,"abstract":"Recent constitutional scholarship has focused on how courts — the Supreme Court in particular — “implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision making — strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts — usually designed as standards, as opposed to rules — that supplement other doctrines (designed as rules) to implement particular constitutional principles.AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles — by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “when authorized to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AE","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"25 1","pages":"1773"},"PeriodicalIF":0.0,"publicationDate":"2013-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67838117","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":"THIRD NATIONAL GUARDIANSHIP SUMMIT STANDARDS AND RECOMMENDATIONS","authors":"Guardianship Summit","doi":"10.5072/ULR.V2012I3.833","DOIUrl":"https://doi.org/10.5072/ULR.V2012I3.833","url":null,"abstract":"From October 13–15, 2011, the ten National Guardianship Network (NGN) sponsoring organizations, with eleven diverse cosponsors, convened the Third National Guardianship Summit at the University of Utah S.J. Quinney College of Law in Salt Lake City. With ninety-two delegates, observers, authors, funders, and facilitators participating, the Summit was a consensus conference on post-appointment guardian performance and decision-making for adults. The Summit delegates adopted a far-reaching set of recommendations for guardian standards, as well as additional recommendations for action by courts, legislatures, and other entitles. These documents from the Summit offer the groundwork for nationally recognized standards for guardians of adults.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783515","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":"STANDARDS FOR FINANCIAL DECISION-MAKING: LEGAL, ETHICAL, AND PRACTICAL ISSUES","authors":"E. B. Fleming, R. Morgan","doi":"10.5072/ULR.V2012I3.835","DOIUrl":"https://doi.org/10.5072/ULR.V2012I3.835","url":null,"abstract":"This Article reviews the standards for guardians of the estate when making financial decisions. Guardianship is a particularly statutory mechanism, and there are differences among the states as to the statutes. Thus, in discussing the standards for guardians in making financial decisions, this article will focus generally on the National Guardianship Association (NGA) Standards, with some state statutes or cases provided as illustrations.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783651","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":"PERSON-CENTERED PLANNING IN GUARDIANSHIP: A LITTLE HOPE FOR THE FUTURE","authors":"A. Johns","doi":"10.5072/ULR.V2012I3.840","DOIUrl":"https://doi.org/10.5072/ULR.V2012I3.840","url":null,"abstract":"Across the states, territories, and the District of Columbia, American guardianship functions as a statutory grant of legal authority to a person or entity over an adjudicated incompetent or incapacitated person (“AIP”). It is widely described as the most intrusive of the fiduciary powers, having earned such a reputation in recent decades as to have AIPs declared “legally dead.” America’s inherited collective form of guardianship originated over the course of centuries and across many cultures of western civilization. A primary component rooted in the inheritance was the doctrine of parens patriae. The focus of parens patriae was the Crown’s (now state probate and guardianship judges’) exercise of its paternal royal prerogative over its subjects unable to protect themselves, but with the singular objective of protecting the subjects’ properties for the Crown. This myopic concern for guardianship property has continued in American jurisprudence, where concern for the AIPs themselves was considered beyond the expertise of the courts, and better relegated to public and private social agencies. This continues to be the indictment of guardianship, where vulnerable citizens, those mentally ill or mentally or physically challenged ,  have been condemned to a perverse legal system that protects property over the person. While countless American studies have found that guardianship protects those adults amongst us who are helpless and vulnerable, they have also uncovered evils in guardianship: removing all individual rights; denying access, connection, and voice to those lost in guardianship’s gulag; and still continuing a process rooted in systemic perversities. Recent reexaminations of monitoring and public guardians acknowledge that guardianship still limits the autonomy, individuality, self-esteem, and self-determination of AIPs.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784191","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 Constitutionality of Lame-Duck Lawmaking: The Text, History, Intent, and Original Meaning of the Twentieth Amendment","authors":"E. Larson","doi":"10.5072/ULR.V2012I2.811","DOIUrl":"https://doi.org/10.5072/ULR.V2012I2.811","url":null,"abstract":"By setting deadlines for the end of 2012, recent congresses left resolution of the budget sequestrations and Bush Era tax cuts to the lame-duck meeting of the 112th Congress. Acting in its final days, the lame-duck Congress passed legislation to avert the so-called fiscal cliff. Two years earlier, the 111th Congress voted on major issues after the November 2010 elections had shifted partisan control of the incoming House of Representatives. On both occasions, echoing arguments made by legal scholars, members of the House of Representatives’ Tea Party Caucus challenged the constitutionality of laws passed by the outgoing congresses. Such “lame-duck lawmaking” violates the Twentieth Amendment, they charged. These claims have become part of the partisan rhetoric. This article examines the text, history, intent, and meaning of the Amendment in light of arguments that its overriding intent, and perhaps enforceable duty, is to bar lame-duck Congresses from conducting regular business after the elections. The extensive history of congressional deliberation on the Amendment shows that the sponsors’ principal goals were to advance the date for the installation of a new Congress and administration, abolish the old short session of Congress, and assure that a newly-elected Congress resolves disputed presidential elections. These purposes are captured in both the text of the Amendment and the original meaning of the arguments made by its supporters. The constitutional history, sponsors’ intent, and original meaning for the Amendment do not in any way call into question the constitutionality of lame-duck lawmaking. The Twentieth Amendment is a clear, precisely worded, and virtually self-enforcing provision that substantially advances democratic norms of popular governance. Its sponsors apparently realized that there would be occasions such as in 2012 when a lame-duck congress could best address pressing issues. Although not noted in the article, the popular new movie Lincoln, which came out after the article and suggests that only a lame-duck congress could have passed the 13th Amendment abolishing slavery, illustrates the role of lame duck lawmaking in American history.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2012 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70783723","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":"A Right to Contribution and Federal Restitution Orders","authors":"Jonathan R. Hornok","doi":"10.5072/ULR.V2013I2.1114","DOIUrl":"https://doi.org/10.5072/ULR.V2013I2.1114","url":null,"abstract":"Amy and Vicky are victims of two of the most widely traded series of child sex-abuse images. The Violence Against Women Act requires courts to order full restitution for these women. However, with millions of dollars in requested restitution and thousands of defendants, the United States courts of appeals are split over whether to interpret the mandatory restitution provision broadly (providing a victim with comprehensive recovery from each defendant) or narrowly (frequently allowing only limited, expensive, and time-consuming recovery from many defendants). Partially motivating this circuit split are courts’ opposing views on whether a defendant has a right to contribution from other victimizers for restitution payments. Without a right to contribution for defendants, these victims must file suits throughout the country asking courts for restitution. This paper argues that, under the Supreme Court’s holdings in Northwest Airlines, Inc. v. Transportation Workers Union of America, Texas Industries, Inc. v. Radcliff Materials, Inc., and Musick, Peeler & Garrett v. Employers Insurance of Wausau, courts should imply a right to contribution for defendants ordered to pay restitution under 18 U.S.C. §§ 2259 and 3664. Such an interpretation enables a victim to receive comprehensive restitution and permits a defendant who pays full restitution to seek contribution from other liable defendants.","PeriodicalId":83442,"journal":{"name":"Utah law review","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70784535","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}