The Questionable Value of Utah Appellate Courts' Use of "Any State of Facts" as the Standard for 12(B)(6) Motions
This article traces the “any state of facts” rule and competing formulations of the standard for a 12(b)(6) motion to their respective origins and argues for the “any state of facts” language to be retired.
2016 Utah L. Rev. OnLaw 160 | (Download PDF)
A Declining Water Supply: How Utah Became Adept at Adapting to the Impacts of Climate Change
Water sustains human life and the ecosystems that make life possible. Yet Utah’s current water management places the vital resource in jeopardy. When climate change is included in the calculation of projected water supply, the future looks much more bleak. As Utah’s climate changes, its water supplies will diminish. Likewise, the overall quality of water will decrease as demands for potable water reach an all-time high. This Comment suggests adaptation strategies that Utah can pursue to improve its adaptive capacity and fortify its water governance. Ultimately, this Comment recommends that Utah start developing an adaptation framework in order to prepare for the impacts of climate change before it is too late.
2016 Utah L. Rev. OnLaw 120 | (Download PDF)
In Fisher v. University of Texas Derrick Bell's Interest Convergence Theory is on a Collision Course with the Viewpoint Diversity Rationale in Higher Education
L. Darnell Weeden
Professor Derrick Bell is necessarily and properly acknowledged because of his leading community service as a civil rights lawyer, a scholarly intellectual, law professor, and political activist. Professor Derrick Bell helped to set in place the basis for Critical Race Theory. After Professor Bell became a member of the faculty of Harvard Law School in 1969, he shared his experience and reflections regarding the civil rights movement and issues of racial inequality with the academic community in a very profound and prolific manner.
2016 Utah L. Rev. OnLaw 101 | (Download PDF)
Air Pollution Emissions During Startups, Shutdowns, and Malfunctions
Arnold W. Reitze, Jr.
Air pollution emission limitations on stationary sources are usually based on what is achievable during normal operation, but these requirements cannot always be met during the startup or shutdown of either specific processes or the entire facility. Moreover, malfunctions occur even at facilities that are well designed and operated. How startup, shutdown, and malfunction (SSM) events should be handled under the Clean Air Act (CAA) is controversial. The issue is complicated by the fact that under the CAA the implementation and enforcement of the Act is usually delegated to the states, which have parallel requirements in their federally approved state implementation plans as well as in their state permit program regulations
2016 Utah L. Rev. OnLaw 90 | (Download PDF)
#Love Wins!* *But Only if You Marry One of Us
Erin B. Corcoran
On June 26, 2015, the U.S. Supreme Court in the 5-4 decision, Obergefell v. Hodges, held that the U.S. Constitution—specifically the Fourteenth Amendment—requires a State to provide a marriage license between two people of the same sex and to also recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Twitter registered more than 3.5 million tweets within an hour of the announcement, millions of Facebook profiles were backlit with rainbows, and the Niagara Falls were lit with the colors of the rainbow. This historic civil rights struggle for gay rights and equality under the law that culminated in the Obergefell v. Hodges decision is worthy of such celebration.
2015 Utah L. Rev. OnLaw 77 | (Download PDF)
Edward Said, Orientalism, and the Identification of a Neglected Source Behind the Reynolds v. United States Anti-Polygamy Decision
Although disdained by those who wish to either decriminalize or legalize polygamy, the Reynolds decision written by Chief Justice Waite in 1878/1879 remained good law, at least until a recent challenge. Because this decision was a major obstacle for those who wish to reverse the legal status of polygamy, considerable scholarship exists regarding how Waite constructed his argument. Scholars have paid particular attention to the sources that he used, which included at least one prominent person and important historical documents. Despite extensive scholarship, however, Waite’s most perplexing and controversial analogies to polygamy—to religiously based human sacrifice and Hindu sati—remained inexplicable, even among scholars who appreciate how he used them as examples of harmful extremism that laws should never allow. I identify the probable source for that controversial passage, which is a chapter on Mormonism in a reference book from the period on religion, written by an ordained Christian minister. The controversial passage itself provided the basis for a Utah judge rejecting Reynolds’s authority, claiming that it made Orientalist assumptions (along the lines identified by Edward Said) which were colonialist and hegemonic regarding Western Occidental beliefs and practices. I respond by arguing that solid non-Orientalist scholarship on polygamy and related practices in China, India, and various Islamic countries actually reinforce Chief Justice Waite’s critical judgment about polygamous practices
2015 Utah L. Rev. OnLaw 48 | (Download PDF)
In the mid-1990s, Laura Kalman wrote of the crisis of legal liberalism. Legal realism sparked academic lawyers to “search for criteria that would enable them to identify objectivity in judicial decisions.” Kalman noted the many (now discarded) liberal constitutional theories: the turn to Rawls, Dworkin’s body of work, Ely, and the attempt to intertwine the Founding Era’s republicanism with legal liberalism. Indeed, it was only twenty years ago that a liberal law professor could write: “We are all republicans now.”
That search for objectivity failed. This is because, at bottom, constitutional law and constitutional interpretation are inextricably intertwined with politics. As the New Deal coalition faded, so too did legal liberalism. As the New Right emerged, originalism seemed to “make sense.” Just as the New Deal coalition faded, so will the New Right, and with it originalism, at least in any form recognizable today. The paradigm war will soon claim originalism as a casualty. A new theory will emerge and perhaps, at least for a while, we can “all be [ ] now.”
2015 Utah L. Rev. OnLaw 29 | (Download PDF)
Why Marijuana is Not Regulated Like Alcohol in Colorado: A Warning for States Seeking to Legalize Recreational Marijuana
Colorado is unique in a number of ways. Colorado hosts some of the best skiing and snowboarding in the world, was one of the first states in the nation to operationally legalize marijuana for recreational use, and Colorado has particular tax restrictions unlike any other state. While competing with world-class skiing may not be an option for all states, any state contemplating legalizing recreational marijuana in a similar manner to Colorado may want to consider what sets Colorado apart; how legalized recreational marijuana works for Colorado; and ways to address tax and regulation issues in new marijuana legalization efforts.
2015 Utah L. Rev. OnLaw 1 | (Download PDF)
Utah's Fine Particulate Air Pollution Problem
Arnold W. Reitze, Jr.
For those living along Utah’s Wasatch Front, the air quality problem is visibly obvious. The air pollution, especially in the winter when inversions trap pollutants between the surrounding mountains, is hazardous to people’s health. Several counties along the Wasatch Front violate the Clean Air Act’s air quality standard for particulate matter and are currently designated as “nonattainment” areas. The Environmental Protection Agency requires that affected areas take action to reduce the levels of pollution. This Article will discuss the Clean Air Act and the state’s role in ensuring compliance. This Article then examines some of the reasons for the Wasatch Front’s poor air quality. Finally, this Article proposes solutions and identifies issues that demand further study in order to combat the area’s air pollution problem.
2014 Utah L. Rev. OnLaw 113 | (Download PDF)
The legal profession faces two unprecedented crises: underserved middle class clients and underemployed lawyers. On September 27, 2013, members of the Utah bench, bar, and academy gathered to discuss these crises at the Twin Crises in the Law CLE, sponsored by the Utah State Bar and Utah Law Review OnLaw. Papers from the CLE presenters are collected in this volume of Utah Law Review OnLaw.