Utah OnLaw

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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 |

The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6A-517
Joshua C. Snow

This Article achieves three main goals. First, it explains and explores Utah's per se metabolite laws against the backdrop of the national landscape of metabolite laws. Second, this Article provides a concise explanation regarding the science of drug metabolites. Finally, this Article presents two constitutional challenges to Utah Code section 41-6a-517. The first challenge argues that the statute creates an impermissible status offense in violation of the Eighth Amendment to the U.S. Constitution. The second challenge argues that the statute violates Utah's Uniform Operation of Laws Clause found in the Utah Constitution. This Article concludes by asking Utah state courts and state legislature to examine the validity of Utah Code section 41-6a-517 and ultimately to overturn the statute. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 195

Posted in Summer 2013 |

Oral Argument Reform in Utah's Appellate Courts: Seeking to Revitalize Oral Argument Through Procedural Modification
Clark Collings

This Note explores and prescribes several procedural reforms that are designed to revitalize the format of appellate oral argument and restore its purpose in the national appellate court system. The Note proposes that the Utah appellate court system implement the prescribed solutions as a preliminary test and set an example for the rest of the nation. Parts II and III of this Note address the general purpose of oral argument, then emphasize the negative impact of current appellate procedures on the judicial process along with the difficulties courts face when approaching oral argument. Part IV delineates the Utah state appellate court structure and the progression of the current procedural rules governing oral argument in Utah. The Note concludes by exploring and proposing solutions to the problems discussed throughout the Note. These solutions include a proposal to implement a tentative-opinion program, a proposal to redesign the current format of oral argument, and strategies to overcome confirmation bias among the judges. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 174

Posted in Summer 2013 |

Utah's Children Need a Tourniquet, Not a Band-Aid: Why Utah Should Adopt a Separate Involuntary Civil Commitment Statute For Incompetent Sexual Offenders
Tara Pincock

The Utah legislature recently amended the civil commitment statute to expand the definition of substantial danger to include harmful sexual conduct. The amendment allows the state to involuntarily commit sexual offenders who are incompetent to stand trial. The amendment, however, will not protect the residents of the state, nor will it help those committed receive the treatment they desperately need. This Note proposes that Utah adopt a more stringent statute similar to the sexually-violent-predator ("SVP") statutes that have recently swept the nation. Currently, Utah's statute only applies to recidivist sex offenders who are incompetent to stand trial. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 159

Posted in Summer 2013 |

State v. Worthen: Demonstrating Utah’'s Need For An Expanded, Absolute Victim-Counselor Testimonial Privilege
Barry G. Stratford

This Article uses State v. Worthen, 222 P.3d 1144 (Utah 2009), to advocate for an absolute victim-counselor confidentiality privilege for all crime victims that seek counseling, not just the traditional protections offered to victims of child abuse and sexual assault. The underlying public policy interests of privileges in general, the policy interests regarding victims of crime in particular, and crime victim's statutory and constitutional rights, all support establishing an absolute victim counselor testimonial privilege. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 124

Posted in Spring 2013 |

Unwed Putative Fathers: Beware Utah Adoption Laws
Samuel C. Johnston

Three Utah cases involving adoptions that were contested by out-of-state, unwed, putative fathers highlight the prejudice in Utah's adoption law against unwed biological fathers of adoptees. This Note explores the mechanisms employed by Utah's statute that make it difficult for unwed fathers to preserve their rights, how the statute invites fraud by adoption agencies and adoptees' mothers seeking adoptions against fathers' wishes, and how recent decisions by the Utah Supreme Court have strained the statute's provisions and made preservation of rights even more difficult for putative fathers. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 104

Posted in Spring 2013 |


The Economics and Perplexing Utah Law of Prejudgment Interest
Mark A. Glick, James R. Kearl, & Cory D. Sinclair

This Article demonstrates that Utah law on prejudgment interest is inconsistent with established principles of economic theory. In reaching this conclusion, the authors present several, simple examples that show that the underlying purpose of compensatory damages is not always achieved under Utah law because of the inconsistent application and amount of prejudgment interest sometimes awarded. (PDF Version)

 Citation: 2013 Utah L. Rev. OnLaw 63

Posted in Spring 2013 |

Digital Democracy: Anderson v. Bell and the Expansion of Electronic Signatures in Election Law
Barry G. Stratford

The recognition and application of electronic signatures has increased in the past few decades through various measures, such as the federal Electronic Signatures in Global and National Commerce Act ("E-SIGN") and Utah's Uniform Electronic Transactions Act (the "UETA"), which both passed in 2000. Since then, the most dramatic step forward in making electronic signatures as legally effective as hand signatures is the 2010 Utah Supreme Court decision in Anderson v. Bell. The court held that electronic signatures were a legally effective and enforceable alternative to handwritten signatures when qualifying a candidate for the ballot under Utah's Election Code. The incorporation of electronic signatures in election law would likely have a positive impact on access and involvement in democratic participation, especially with citizen-led initiatives and referenda.

Part II of this Note examines the laws surrounding electronic signatures. Part III argues that the expansion of electronic signatures in election law is a logical extension of those laws. Specifically, this Note argues that the Utah Supreme Court's application of electronic signatures in qualifying a candidate for the ballot was proper. Part IV further advocates that lawmakers should incorporate the use of electronic signatures into the election code wherever feasible, arguing that it will increase citizen participation and improve citizen access and usage of initiative and referendum petitions. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 46

Posted in Spring 2013 |

Utah Should Adopt a Modified Version of the Revised Uniform Limited Liability Company Act
Russell K. Smith

Since Wyoming passed the first Limited Liability Company Act in 1977, the limited liability company ("LLC") has grown to be a favored form of business entity throughout the nation. By the end of 1996, all of the states, Puerto Rico, and the U.S. Virgin Islands adopted LLC acts. Utah enacted its first LLC statute in 1991 and, after several revisions, the entire statute was replaced in 2001 with the Utah Revised Limited Liability Company Act (the "Current Act"). On March 28, 2011, Governor Gary R. Herbert signed into law S.B. 131, the Unincorporated Business Entity Uniform Acts, which included a modified version of the Revised Uniform Limited Liability Company Act ("RULLCA"). The modified version of RULLCA, included in S.B. 131, has been further modified in S.B. 21 to make certain corrective and harmonized changes (the "Proposed Act").

It is the basic premise of this Article that replacing the Current Act with the Proposed Act will provide a number of valuable improvements for businesses formed as LLCs in Utah. Part II of this Article provides a brief history of the evolution of LLC acts. Part III reviews the current state of law relative to Utah LLCs, with a particular focus on potentially problematic provisions found in the Current Act. Part IV then provides a general overview of certain provisions of the Proposed Act, paying particular attention to problematic issues associated with the Current Act and discussing how they can be alleviated or improved by adoption of the Proposed Act. (PDF Version)

Citation: 2013 Utah L. Rev. OnLaw 12

Posted in Spring 2013 |




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