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)
Addressing Twin Crises in the Law: Underserved Clients and Underemployed Lawyers
James R. Holbrook & Jonathan R. Hornok
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.
2014 Utah L. Rev. OnLaw 15 | (Download PDF)
Renewing the "Social Contract" Between Law Schools, Lawyers, and Society
Robert W. Adler
In this essay, I suggested five "action items" that can help law schools and the legal profession renew their implicit "social contract" with the general public. The root cause of the "twin crises" may be that both law schools and the legal profession have lost track of their obligation to provide justice to all segments of society in return for the privileges society confers on the legal profession. Although these actions alone may not suffice to restore the social contract fully and to solve all of the problems inherent in the "twin crises," we can move a long way in the right direction if we admit students with a commitment to serving the public as well as their own interests, to instill in those students a career-long sense of public service, to keep student debt low enough that law school graduates can seek a rewarding range of careers, to teach students the skills and substance necessary to perform as professionals, and to help develop a wider range of career options to provide legal services to everyone in society.
2014 Utah L. Rev. OnLaw 19 | (Download PDF)
Fixing Our Third World Access to Justice Problem
Keith A. Call
America has a serious access to justice problem. According to one survey, the United States ranks in the bottom third of world nations when it comes to providing affordable access to civil justice. We need to change this.
This Article briefly reviews the access to justice problem. It then provides some specific steps individual lawyers can take to help remedy this problem.
2014 Utah L. Rev. OnLaw 37 | (Download PDF)
Law Graduate Employment in Utah by the Numbers
This Article surveys the employment, debt, and wage data available for law school graduates in Utah. Further, this Article recommends adjustments to current ABA employment survey information that will paint a more comprehensive picture of law graduate employment.
2014 Utah L. Rev. OnLaw 43 | (Download PDF)
Reflections on the Future of Legal Education
James R. Holbrook
Legal education must adapt to address the changing demands on law school graduates. The ABA Task Force's Report and Recommendations addresses some of these concerns. However, there are some valid criticisms of the Task Force's approach. Law schools should address these issues for themselves by doing their own research, leveraging existing practice-oriented programs, and informing students of the importance of practice-related education before they graduate.
2014 Utah L. Rev. OnLaw 53 | (Download PDF)
Being a Leader in the Law: Reflections on Meeting the Responsibilities of the Legal Profession
Curtis M. Jensen & Gregory H. Gunn
The practice of law has changed and, in the words of Yogi Berra, "[t]he future ain't what it used to be." Not too long ago, lawyers were the sole source from which nonlawyers could access legal information and services. With a strong economy and a demand for legal services, legal practices were growing. All indicators seemed to point to the continuation of a strong legal market.
However, the practice of law has evolved. The line between professions has blurred, the economy has changed, and technological advances have resulted in greater public access to legal information. Public perception of the legal profession has continued to decline with many (including small business owners and the middle class) who are now unable to afford the legal services lawyers provide. The story does not end there. There are also growing numbers of lawyers (mostly new graduates) that are either unemployed or underemployed. The combination of these changes has affected the current legal market, and there is disagreement on how to move through this transitional period.
While there is a true challenge facing the profession, there seem to be many voices and many perspectives on how to respond. Law schools seem to think it is about changing law schools; bar associations think it is about creating new programs; and nonlawyers and perhaps even some lawmakers think that market forces will be the answer. Regardless of your voice and perspective, we remain firm that lawyers of the Utah State Bar can work together with others to provide a solution for the future of the practice of law within the state of Utah.
2014 Utah L. Rev. OnLaw 63 | (Download PDF)
The Way Forward: Underserved Clients, Underemployed Laywers—What Can Law Schools Do?
Brett G. Scharffs
Some lawyers are in the position where they would find it difficult to afford to hire themselves if they needed an attorney. The "twin crises" of underserved clients and underemployed lawyers might seem like a problem that would correct itself if we had a market that was working efficiently, but that does not appear to be the case.
This Article suggests that these are multifaceted problems, reflecting not just specific challenges facing law schools, such as declining applicants, declining minority enrollment, dramatic increases in law school tuition, falling salaries and too few jobs for graduates, and the high costs of clinical education, but also the "twin crises" are affected by a number of disquieting problems within the larger American economy and culture, including stubbornly high unemployment, falling median household income, the growing gap between the wealthy and poor in America, and trends with respect to marriage and family.
The Article focuses on what law schools can do to address these two problems. The Article's recommendations reflect mainly what we already know about contemporary legal education: law schools should become more affordable, law schools should emphasize public service, law schools should admit more students who are likely to serve middle-class client, and law schools should focus on preparing students for today's job markets.
The Article makes two modest proposals: eliminating the per student expenditure factor in law school rankings and facilitating market corrections rather than trying to engineer macro solutions. The Article concludes by expressing skepticism about some "big ideas" that currently seem quite popular: reducing law school to two years or implementing a third-year apprenticeship.
2014 Utah L. Rev. OnLaw 79 | (Download PDF)
It Is Time To Burn the Boats: "Twin Crises in the Law" Keynote Address
Michael D. Zimmerman
Two crises exist in modern day law: first, the many people with legal needs who are underserved, and second, the many lawyers who are underemployed. Both are changing law practice as we know it. This address discusses each of these problems and identifies topics to consider when generating solutions.
2014 Utah L. Rev. OnLaw 97 | (Download PDF)
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
Desalination and International Watercourse Law
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
Bikinis and the Efficient Trespass Law
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
The Darker Side of Overparenting
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
"I'm going to Let You Walk Home"
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
Reflections from the Montana Mall Mother
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
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
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