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Some Thoughts on Utah Originalism: A Response
Jeremy M. Christiansen

Scholars have spilt a lot of ink debating the merits of the interpretative philosophy known as "originalism." According to this interpretive theory, generally speaking, the objective meaning of constitutional language at the time that language was ratified governs its application in subsequent cases. Although debates over the propriety of originalism generally revolve around its application to the United States Constitution, it is no surprise that the debate has begun to occupy the sphere of state constitutional law. Recent commentary has raised two thoughtful and important questions regarding originalism as applied to the Utah Constitution. First, is originalism the dispositive method of constitutional interpretation? And second, would proper application of originalism in Utah allow for public policy considerations in determining the meaning of constitutional provisions? The answers to these questions are vital.

2014 Utah L. Rev. OnLaw 1 | (Download PDF)

Doctrine and Deep Questions
Garrick B. Pursley

This brief essay responds to Brannon P. Denning & Michael B. Kent, Anti-Evasion Doctrines in Constitutional Law, 2012 Utah L. Rev. 1773. I assess Denning and Kent's contribution to the growing metadoctrinal strand of constitutional theory and their contention that Anti-Evasion Doctrines—doctrinal rules, tests, and standards that help courts implement constitutional norms in concrete cases by patching up gaps in previously announced implementing doctrines—are a conceptually distinct category of constitutional decision rule. While I conclude that this claim is questionable, I also argue that Denning and Kent's contribution to metadoctrinal theory is nevertheless significant: They identify a previously understudied set of reasons that bear on the process of doctrinal formulation. These anticircumvention considerations—considerations of the extent to which existing constitutional doctrines fail to capture some set of constitutional violations—are relevant in a broad array of doctrinal contexts and understanding them adds to our general account of how courts formulate constitutional doctrine.

2013 Utah L. Rev. OnLaw 317 | (Download PDF)

Utah Should Adopt a Law Allowing Courts to Apply Cash Bail Toward Restitution
Amy J. Lavin

This Note analyzes Utah's current restitution process and identifies its weaknesses. Then it proposes a cash bail plan to improve the collection of restitution. Finally, it examines potential problems to having a cash bail system and how Utah can avoid those problems to create a successful restitution collection system. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 303

Posted in Fall 2013 |

Desalination and International Watercourse Law
Aaron Schwabach

This is a response to Rhett B. Larson, Innovation and International Commons: The Case of Desalination Under International Law, 2012 UTAH L. REV. 759. In this response, Professor Schwabach agrees with Professor Larson as to the economic, human, and environmental importance of desalination technology, and as to the possible disruptive impact of rapid technological change on an international legal regime not yet equipped to deal with widespread large-scale desalination. Next, Professor Schwabach points out that, while Professor Larson addresses primarily brackish-water desalination within drainage basins, the greatest potential use of desalination technology may eventually lie in ocean-water desalination, making drainage basin concepts less relevant. Finally, Professor Schwabach examines Professor Larson's proposed collaborative and adaptive management (CAM) approach, and welcomes this important contribution to this emerging area of international environmental law. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 297

Posted in Fall 2013 |

Bikinis and the Efficient Trespass Law
John Martinez

Current trespass law at times emphasizes that a mere physical intrusion suffices, whereas at other times it focuses on the right to use, and instead seeks to determine whether an 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 thereby the preferable legal rule. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 290

Posted in Fall 2013 |

The Darker Side of Overparenting
Zvi Triger

In response to David Pimentel's article, Criminal Child Neglect and the "Free Range Kid": Is Overprotective Parenting the New Standard of Care?, 2012 Utah Law Review 947.(PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 284

Posted in Fall 2013 |

"I'm going to Let You Walk Home"
Dave Lieber

In response to David Pimentel's article, Criminal Child Neglect and the "Free Range Kid": Is Overprotective Parenting the New Standard of Care?, 2012 Utah Law Review 947. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 281

Posted in Fall 2013 |

Reflections from the Montana Mall Mother
Bridget Kevane

In response to David Pimentel's article, Criminal Child Neglect and the "Free Range Kid": Is Overprotective Parenting the New Standard Of Care?, 2012 Utah L. Rev. 947 (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 276

Posted in Fall 2013 |

Removing The Presumption Of Innocence: A Constitutional Analysis of the Ogden Trece Gang Injunction
Megan K. Baker

Gang activity poses a substantial problem in many communities. The city of Ogden, Utah, is home to many gangs, and law enforcement is constantly looking for a way to decrease gang violence. In an attempt to reduce gang violence in Ogden, Judge Ernie Jones issued the Ogden Trece gang injunction on September 27, 2010, in Weber County, Utah. The injunction, based on several similar injunctions in California, affects hundreds of alleged Ogden Trece gang members and spans an area including virtually the entire city of Ogden. The injunction prohibits those enjoined from engaging in various illegal activities as well as many otherwise legal activities.

This Note analyzes the unconstitutionality of the Ogden Trece gang injunction, specifically focusing on three main theories. First, the injunction removes the due process rights of those enjoined. Second, the injunction limits the rights to assemble and associate with family members. Finally, the injunction is overly vague and open to excessive interpretation.(PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 240

Posted in Fall 2013 |

In the Turbulent Wake of Anderson V. Bell: Protecting Core Political Speech and Utahns' Right to Initiative
Daniel W. Boyer

Recently, initiative and referenda proponents in Utah have encountered resistance from the legislature in the form of Senate Bill 165, which was passed in the waning days of the 2011 legislative session.  The bill came in the wake of Anderson v. Bell, where the Utah Supreme Court upheld the use of electronic signatures in petition-gathering efforts to put gubernatorial candidates who are unaffiliated with a political party on the ballot. Such signatures must now be "holographic"—that is, handwritten to qualify candidates for the public vote.

This Note examines how S.B. 165 has violated Utah voters' core political speech rights by creating an undue burden on both grassroots political campaigns and circulation of initiatives and referenda. Ultimately, a free-speech challenge cuts closer to the constitutional harm caused by S.B. 165 than the uniform operation of laws challenges brought by plaintiffs in earlier initiative and referenda cases, such as Gallivan v. Walker. Whereas uniform operation of laws challenges were successful in preventing rural Utah counties from exercising disproportionate voting power over multi-county petitions, they likely would not succeed against the new constitutional harm brought by S.B. 165. A free-speech challenge more accurately identifies the constitutional violation created in S.B. 165. The bill thwarts the politically expressive conduct of the voter memorialized in signature, as well as the persuasive communication preceding it.(PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 220

Posted in Fall 2013 |




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