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Volume 2014, Number 2


Speaking of Science: Introducing Notice and Comment into the Legislative Process
Gregory Dolin

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 the administrative rulemaking process. The comments then would be collected and analyzed, and the final report would be presented to Congress before it votes. Congress would continue to be able to vote as it pleases, but with this process in place, it would be forced to do so with its eyes wide open. By understanding the full scope and the implication for the scientific progress of the bills it wishes to enact, Congress would produce better legislation, which would be less detrimental to the scientific progress.

2014 Utah L. Rev. 1239 | (Download PDF)

Charity at Work: Proposing a Charitable Flexible Spending Account
Alyssa A. DiRusso

In charitable giving, it is not just the thought that counts. American society depends upon a robust third sector to provide public services and benefits, and to lessen the burdens of government. The third sector, in return, depends upon government to regulate charitable organizations and provide mechanisms for their financial support.

The traditional primary mechanism for providing support to nonprofits is the charitable income tax deduction, available to taxpayers who itemize.3 This system, although noble in its aspirations and moderately successful in its application, falls short of the ideal. As an itemized deduction, its incentives reach only taxpayers who itemize. The majority of taxpayers who do not itemize—who tend to be less wealthy—reap no benefit from the tax incentive.

2014 Utah L. Rev. 1240 | (Download PDF)

Sticky Compliance: An Endowment Account of Expressive Law
David E. DePianto

This Article extends the literature on expressive law by developing a model of compliance rooted in the endowment effect. The central premise of the model is that compliance with legal rules, while costly from an ex ante perspective, may also endow individuals with a stream of benefits whose ex post value will increase. Examples of compliance-related benefits would include reductions in risk to one’s own health and safety, enhanced reputation (as a law-abiding individual), and even tangible goods. Under this novel account, once an individual has complied with a law, received some associated benefits, and grown attached to such benefits via the endowment effect, violating the law might thereafter entail a net economic loss—even without the sanction that induced compliance in the first place. While the initial threat of sanction plays a key role in this story, the law’s capacity to change individual endowments through forced compliance, and in turn alter preferences, is the expressive engine of the endowment model. The upshot is not only that the compliance decision is about more than just costs, narrowly conceived; it is that the very act of compliance at one time might change the entire cost structure for future decisions about compliance. The Article distinguishes the endowment model from other expressive accounts and offers a series of antismoking examples as suggestive evidence of the model in action.

2014 Utah L. Rev. 1241 | (Download PDF)


The Ban Has Lifted: Now Is the Time to Change the Accredited-Investor Standard
Larissa Lee

In July 2013, the United States Securities and Exchange Commission lifted an eighty-year ban on general solicitation and general advertising for certain private securities offerings. This was part of a mandate from the Jumpstart Our Business Startups Act (JOBS Act) in an effort to help small and emerging companies grow. Before, private companies had to rely on private connections or hire an investment bank with those connections in order to raise capital. Now, these companies may solicit or advertise securities through the mail, phone, and Internet, but only when they are selling to accredited investors. This new rule does not replace the old rule,
which allowed a portion of the investors to be unaccredited. Rather, the new rule adds to the old rule.

2014 Utah L. Rev. 1242 | (Download PDF)



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