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Volume 2015, Number 2


Deselecting Biased Juries
Scott W. Howe

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 by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This 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. The Court in the Batson cases only obliquely confronted that problem, because constitutional rulings cannot appropriately resolve it. 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.

2015 Utah L. Rev. 289 | (Download PDF)

Anticipating a Sea Change for Insider Trading Law: From Trading Plan Crisis to Rational Reform
John P. Anderson

The Securities and Exchange Commission is poised to take action in the face of compelling evidence that corporate insiders are availing themselves of rule-sanctioned Trading Plans to beat the market. These Trading Plans allow insiders to trade while aware of material nonpublic information. Since the market advantage insiders have enjoyed from Plan trading can be traced to loopholes in the current regulatory scheme, increased enforcement of the existing rules cannot address the issue. But, simply tweaking the existing rule structure to close these loopholes would not work either. This is because the SEC adopted the current rule as a part of a delicate compromise with the courts in the “use versus possession” debate over the proper test of scienter for insider trading liability. The current rule reflects the SEC’s preferred test (mere “awareness”), but it provides for Trading Plans as an affirmative defense in order to pass judicial scrutiny. Thus, any attempt to simply close the loopholes in Trading Plans while maintaining the awareness test would upset this delicate compromise. Only a comprehensive change to the current insider trading enforcement regime can address the issue.

2015 Utah L. Rev. 339 | (Download PDF)

This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students
Abigail A. Patthoff

Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate-student populations. As their teachers, we cannot ignore the palpable presence of this stress in our classrooms—unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness. 

By more thoughtfully using cautionary tales, we can actively manage one source of law student anxiety. Although reining in cautionary tales will certainly not be a panacea to law student distress, elimination of all law student anxiety is neither a realistic nor a desirable goal. Fear-based stress, in moderation, can compel students to overcome challenges they never thought possible; it can encourage independent learning; and it can prepare students for the pressures of practice. Yet, fear appeal research teaches us that “fear is wielded most effectively as a scalpel rather than a cudgel.” Indeed, Aristotle long ago recognized the importance of this balance: “If there is to be the anguish of uncertainty, there must be some lurking hope of deliverance, and that this is so would appear from the fact . . . that fear sets [people] deliberating—but no one deliberates about things that are hopeless.

2015 Utah L. Rev. 391| (Download PDF)

Ending the Higher Education Sucker Sale: Toward an Expanded Theory of Tort Liability for Recruitment Deception
Aaron N. Taylor

Admissions officers live a dual, often conflicted, existence. In one sense, they are counselors responsible for advising prospective students. In another sense, they are salespeople with obligations to meet enrollment goals. The pressures fostered by these roles sometimes prompt unscrupulous individuals to use misrepresentations and other forms of deception to induce students to enroll. Unfortunately, students who are induced to enroll based on recruitment deception are afforded few options for redress. The purpose of this Article is to conceptualize a tort-based solution to this utter inequity. The Article proposes a broadening of negligent misrepresentation to encompass a new negligent educational recruitment. This tort would employ approaches to determining duty and causation that account for the distinctive nature of the educational process, and, thus, overcome the concerns that often doom negligent misrepresentation lawsuits in the higher education context.

2015 Utah L. Rev. 425 | (Download PDF)

A Market Reliance Theory for FRAND Commitments and Other Patent Pledges
Jorge L. Contreras

Patent holders are, with increasing frequency, making public promises to refrain from asserting patents under certain conditions, or to license patents on terms that are “fair, reasonable and nondiscriminatory” (FRAND). These promises or “patent pledges” generally precede formal license agreements and other contracts, but are nevertheless intended to induce the market to make expenditures and adopt common technology platforms without the fear of patent infringement. But despite their increasing prevalence, current contract, property, and antitrust law theories used to explain and enforce patent pledges have fallen short. Thus, a new theory is needed to secure the market-wide benefits that patent pledges can offer.

This Article proposes a novel “market reliance” theory for the enforcement of patent pledges. Market reliance is rooted in the equitable doctrine of promissory estoppel, but adds a rebuttable presumption of reliance borrowed from the “fraud-on-the-market” theory under federal securities law. Under this approach, a patent holder’s public commitment is enforceable by any participant in the relevant market absent a showing that it knowingly rejected the commitment. The market reliance theory offers a robust means for enforcing legitimate patent pledges by third party market participants, and it extends the effect of such pledges to downstream purchasers of patents. As such, the market reliance theory could fill a critical gap in the existing patent enforcement landscape and give greater assurance to the technology markets that depend on them.

2015 Utah L. Rev. 479 | (Download PDF)


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