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Volume 2016, Number 2


Articles

Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press
Erin C. Carroll

Until the modern-day press can determine how to profit from investigative journalism and begin to provide the kind of accountability reporting traditionally practiced by newspaper reporters, it needs a legal boost. Providing legal preferences for the press is nothing new, but it has not been done meaningfully for too long. Preferences  that  account  for  an  unrelenting  news  cycle  and  the possibilities  for instantaneous distribution of the news are needed. FOIA is a logical place to start. Its goal is the promotion of transparency and democracy.  But  it  too  has  long  faltered  in  achieving  this  goal and,  by  many measures,  is  in  desperate  need  of  an  overhaul.  Amending FOIA’s expedited processing provision to create the presumption of “compelling need” for requests by journalists might finally give investigative journalists the quick and complete access to  certain  government  information  that  they  have  long  sought.  In  the  process, journalists would be better able to serve their watchdog function and to continue barking loudly in the years to come.

2016 Utah L. Rev. 193 | (Download PDF)

Counting Casualties in Communities Hit Hardest by the Foreclosure Crisis
Matthew J. Rossman

The Foreclosure Crisis wreaked havoc on the finances of American households in a manner and to a degree not seen in almost a century. While most areas of the country are well on the road to recovery, the Crisis caused fundamental damage to the housing markets of some communities resulting in home-value declines that bear little hope of a meaningful recovery in the near future. Homeowners in these Hardest Hit  Communities  have  suffered  a  serious  economic  loss  on  what  is  likely  their principal asset, due in most cases to circumstances completely beyond their own control. 

2016 Utah L. Rev. 245 | (Download PDF)

Restructuring Municipal Bankruptcy
Laura Napoli Coordes

What sorts of legal relief should be available to a municipality in financial distress? Chapter 9 of the Bankruptcy Code has served as an option of last resort for many municipalities over the years. But as this Article illustrates, Chapter 9 arguably falls short of an effective solution and at times seems to contravene the foundational principles underlying bankruptcy law. By examining recent Chapter 9 filings, this Article presents a comprehensive analysis of how and why Chapter 9 has failed to address the problems that characterize municipal insolvencies. It argues that Chapter 9, in both practice and principle, has proved unsatisfactory in combating the very issues it was designed to resolve. After highlighting Chapter 9’s shortcomings, this Article suggests critical areas of reform that will begin to reconcile Chapter 9 with the broader goals of bankruptcy law. 

2016 Utah L. Rev. 307 | (Download PDF)

Mediation as Regulation: Expanding State Governance Over Private Disputes
Lydia Nussbaum

Across the United States, state legislatures are issuing new mediation mandates that govern how private parties resolve their disputes. Legislatures embed these mediation mandates into specific statutory regimes ranging from foreclosure to health care to insurance coverage. Rather than leave decisions about ADR design to other state institutions, like courts or administrative agencies, legislatures increasingly retain that authority and formalize the mediation process with legal requirements that regulate parties’ behavior and influence mediation outcomes. This Article explains how legislatures wield mediation as a regulatory tool in this latest phase of mediation’s institutionalization. It argues that statutory mediation mandates should be viewed as a form of decentralized governance, a paradigm that reconfigures the relationship between public and private spheres of power. Viewing these mandates as decentralized governance reveals what can be helpful, and also problematic, about formalizing mediation and underscores why legislatures must exercise care when designing procedural architecture.

2016 Utah L. Rev. 361 | (Download PDF)

Note

Property or Currency? The Tax Dilemma Beyond Bitcoin
Scott A. Wiseman

As a result of monumental improvements in technology, a significant amount of currency is spent across the globe in daily transactions made on the internet. A recent trend in American culture is brick and mortar businesses shutting down in favor of online counterparts.1 Some of the many possible reasons behind this online movement may be a decrease in overhead, a convenience factor for consumers, and a drastically expanded market of consumers. In the third quarter of 2015, Americans spent an estimated $87.5 billion dollars on online shopping.2 These e-commerce transactions comprise an impressive 7.4% of total retail sales made in the United States.3 This figure has increased dramatically from the 2.6% of total retail sales made in the first quarter of 2006 and continues to steadily rise.4 Aside from the major financial implication from online purchases made in America, the global market for e-commerce is astronomical. Since it is next to impossible to pay on the internet with cash, bank-issued credit cards are the predominate method of payment. With credit cards, currency can be exchanged on the internet in the blink of an eye. However, there are several drawbacks associated with the global use of these credit cards including fees imposed by major credit card companies and the high risk of credit card fraud. With a continually growing global economy that is largely fueled by internet  transactions,  the  world  could  benefit  tremendously  from  a  safe  and inexpensive globally accepted method of payment.

2016 Utah L. Rev. 417 | (Download PDF)

 



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