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Volume 2014, Number 5


Finding the Lost Involuntary Public Figure
Jeffrey Omar Usman

Though their quarry is shrouded in mystery, and indeed sometimes thought to be only a creature of myth or legend, a number of judges, both those acting alone and those concentrated in groups, claim to have seen an involuntary public figure cross their paths. Descriptions have been offered, and those descriptions have been dutifully reported. It is not clear though that the judges saw either the same thing or the same thing from the same angle.

2014 Utah L. Rev. 951 | (Download PDF)

Warning: A Post-Sale Duty to Warn Targets Small Manufacturers Account
Jill Wieber Lens

The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers—the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.

This Article is the first to identify a problem with a factually dependent post-sale duty to warn—it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seems like a perfect solution to the overburdening problem, courts should not adopt it.

2014 Utah L. Rev. 1013 | (Download PDF)

Outsiders Looking in: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming Law
Jennifer J. Lee

How can subordinated groups best advance their agenda? The recent success of undocumented immigrant youth activists (“DREAMers”) can be instructive, from the creation and extension of the program for deferred action for childhood arrivals (DACA) that provides for temporary immigration relief to the passage of numerous state laws providing for in-state tuition regardless of immigration status. At the same time, those within the movement have questioned the adherence to a DREAMer identity of the successful and culturally integrated student, who endorses mainstream exclusionary immigration norms while undermining the affirmation of a broader immigrant identity of all ages and backgrounds. As a result, some DREAMers have rejected the heavily compromised “comprehensive” immigration reform approach that provides a direct road to U.S. citizenship for some undocumented youth because it also continues to treat “immigrants as criminals.”

2014 Utah L. Rev. 1063 | (Download PDF)


Building the Canon of Utah Constitutional Law: Lessons from the Utah Public Interest Standing Doctrine
Jordan Dez

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.

2014 Utah L. Rev. 1111 | (Download PDF)

Clear as Mud: Recreating Public Water Rights That Already Exist
Kathryn A. Tipple

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.

2014 Utah L. Rev. 1131 | (Download PDF)



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