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State of Utah v. Omar Jesus Cortez-Izarraraz
Get PDFRule 23B Motion and Supporting Memorandum (Public
State of Utah v. Omar Jesus Cortez-Izarraraz
Get PDFAppellant’s Opening Brief On appeal from the Third Judicial District Court, Salt Lake County, Honorable McKelvie, District Court No.201907555 Mr. Cortez-Izarraraz is incarcerated
Remand Without Vacatur and the Ab Initio Invalidity of Unlawful Regulations in Administrative Law
Get PDFAn important administrative law doctrine developed by the lower federal courts called remand without vacatur rests on a mistaken premise. Courts that embrace the doctrine maintain that when they find that a federal agency regulation is unlawful, they have discretion to remand the regulation without vacating it. The remand gives the regulatory agency an opportunity to correct the flaws that render the regulation unlawful. When a regulation is remanded but not vacated, the courts assume the regulation binds regulated parties despite its illegality. Unlawful regulations, however, are in general void ab initio, just as unconstitutional statutory rules are void ab initio. No affirmative judicial act is required to cause an unlawful regulation to become non-binding. In that respect, agency regulations are unlike lower-court decrees, which are binding when issued even if erroneous. Reviewing courts therefore do not have the option of allowing unlawful regulations to remain in effect because unlawful regulations never go into effect. This article uncovers the implicit and undefended assumption of ab initio validity of unlawful regulations on which remand without vacatur rests, shows that the assumption is in general unsound, and lays out some of the implications of that conclusion
On the Place of Self-Defense in Public Life: A Hobbesian Critique of the Supreme Court’s Second Amendment
Get PDFContemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of modern political philosophy: squaring popular sovereignty with natural rights, and particularly the right to use violence in self-defense. Curiously, however, the philosopher who first and most influentially established how self-defense and popular sovereignty bear on each other, Thomas Hobbes, is absent from Second Amendment analyses. The article explains why this absence is unfortunate and then rectifies it.
Ruling that self-defense is a necessary component of the good state puts the Second Amendment in Hobbesian terrain. However, while Hellerian Second Amendment law might appear to vindicate Hobbes’s protoliberal bases for justice, with the necessary adjustments for a constitutional democracy, Hobbes does very different things with the same ingredients. Hobbes would recognize the conclusions that the Supreme Court reaches as exactly those that we ought to overcome. The Second Amendment’s self-defense is hierarchical and moralistic: it is a just infliction of violence and an individual right to designate fellow citizens as criminals. Hobbes’s self-defense is egalitarian and materialistic: it is a matter of self-preservation. Hence, for Hobbes, self-defense is neither a moral nor a social achievement. It will always have a place in public life, but that does not make the presence of self-defense a desirable one. Self-defense is base, as we are when we are left alone; we contract to no longer be left alone. Rather than come naturally and be discarded if they don’t, Hobbes thought that peace and sociability require work.
The article focuses on four critiques of the Supreme Court’s Second Amendment that Hobbes helps to flesh out. First, Hobbes conceptualized self-defense as directed toward safety, whereas the Supreme Court adopts the Lockean view, which links self-defense to autonomy and hence allows private appeals to morality to cut through political associations and assert themselves by force. Second, Hobbes held an egalitarian understanding of political subjectivity, and ascribed corresponding representation and protection responsibilities to state institutions. The Heller-Bruen line of cases, in contrast, favors a patriarchal order of hierarchy and self-sufficiency. Third, Hobbes viewed self-defense as natural but unfortunate, a right that we have but that should not dictate our everyday lives. The phenomenon of mass shootings epitomizes the dangerous repercussions of a contrasting cultural script, according to which the ultimate American citizen is a self-defender. Fourth, Hobbes linked self-defense and popular sovereignty to cultivate a flourishing public life, but the Hellerian Court translates this relationship into constitutional fetishism. For the Second Amendment Supreme Court, self-defense serves not to bring about a social contract but to break one up
R & M DURRANT FAMILY, LLC, Appellee, Vs. ROGER RIGBY DURRANT, Appellant
Get PDFAppeal from a final judgment and underlying rulings entered by the Third Judicial District Court of Utah, in and for Tooele County, the Honorable Teresa Welch, Presidin
Gender, Credentials, and M&A
Get PDFFor the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20% to 25% of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10% of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials—both educational and professional—matter. But they matter more for women. And one credential—attending a top law school—seems to matter a lot. Using conversations with senior lawyers, we try to get answers for why
The Trouble with Time Served
Get PDFEvery jurisdiction in the United States gives criminal defendants credit against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this : Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies.
This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting ti me served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned. This Article then begins the discussion of what should replace time served, suggesting the possibility that detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane
Rebuilding Grid Governance
Get PDFAs climate change sharpens the focus on our electricity systems, there is widespread agreement that the institutions that govern our electric grid must change to realize a clean energy future in the timescale necessary. Scholars are actively debating how grid governance needs to change, but in this Article we demonstrate that current proposals are insufficient because they do not contemplate “rebuilding.” This Article defines “rebuilding” as ending entities tasked with grid governance and creating new ones to take their place. We propose what no one else has: an overarching framework for rebuilding any grid governance institutions.
This Article discusses when rebuilding is necessary, arguing that incrementalism has slowed progress toward more clean energy and that much bolder solutions are imperative. Policy proposals to date have been accommodative, tending to lead to slower progress toward clean energy goals than necessary. A further challenge is that utility dominance in regulatory conversations has led to inefficient and unjust outcomes, and would not be addressed sufficiently by current reform proposals. Addressing these challenges, this Article identifies three criteria for deciding when specific grid governance institutions should end, terming these administrative dysfunction (continued dithering over a subject without making sufficient progress), utility indifference to the common good, and incapacity of the current governance structure to achieve positive outcomes.
This Article concludes that rebuilding is essential to ensure that grid governance will effectively mitigate climate change and address the shortcomings of our current grid governance structures. To guide the rebuilding of grid governance, this Article details three overriding principles for new entities, which are: resource agnosticism, broad-based participation, and a lack of self-centricity. This Article applies these principles to a specific setting – the “Minimum Offer Price Rule” prevalent in wholesale electricity markets that hampers clean energy development – and concludes that regional transmission organizations should not continue to disfavor clean energy in their markets