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Shares of Water Stock in Utah: Personal Property or Real Estate?
Get PDFUtah deserts supply the state with exquisite beauty and are a definitive part of Utah’s identity. However, a consequence of this arid beauty is aridity itself. Because Utah is one of the driest states in the nation, water is an important resource. Accordingly, Utah legislators have enacted statutes that ensure that those who own water will use it beneficially and that ownership of water can be transferred easily from one owner to another. Water ownership is categorized as either ownership of a water right or a share of water stock. This Note focuses on the need for a resolution in Utah law regarding the transfer of shares of water stock. Under Utah statutes, shares of water stock transfer as securities according to the principles of Utah’s Uniform Commercial Code. However, Utah courts have ignored these statutes and have applied judicially made rules in an ad hoc manner to determine whether the shares of stock in question should transfer as securities or as real property. This Note advocates that Utah courts should acquiesce to the Utah Legislature and hold that shares of water stock are transferred per the Utah Uniform Commercial Code
Negative Freedom in Crisis Times
Get PDFContemporary U.S. jurisprudence thus treats public health orders requiring masks or limiting attendance at religious services as conflicts between individual freedoms and the public safety. Courts have left unquestioned the scope of individual liberties. Choices about whether to cover one’s face or attend religious services are not, however, fully analogous to protections from physical injury by others. Instead, they are choices that may result in risks to others. It is thus at least open to question whether they are within the scope of protected individual liberties in the first place. The scope of personal liberty—whether liberty is distinct from license—is the question at the foundation of the Jacobson decision over 100 years ago. Courts today, however, rely solely on whether the public health interest is sufficiently strong to override presumed individual liberties.
This construction of individual rights to personal liberty as license, pitted in conflict with public health, is particularly damaging in times of crisis such as the current pandemic. It encourages people to see governmental efforts to protect the public health as overweening intrusions, to be protested and defied. The pandemic emergency thus forces careful re-examination of the outer limits of personal liberty itself. Without such re-examination, the U.S. faces not only the consequences of the absence of positive liberties, but also a crisis within what has traditionally been viewed as negative liberty itself
Crime and the Mythology of Police
Get PDFThe legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating a voice for community members to express their needs. These preeminent policing theories do not fully address a core cause of police mistrust and disaffection of communities of color and the poor. To address these symptoms of policing failure requires a consideration of the purpose and function of police. Though at the core of police function is a misunderstanding of policing that this Article terms “the police myth.” The police myth is the two-fold belief that a primary function of police is crime control and that police solve crimes with regularity. Reliance on the police myth may provide societal comfort but has made it difficult to address rudimentary policing failure. Without understanding what police actually do and their relationship with crime, it is impossible to reimagine policing. This Article seeks to understand the myth that in large part contributes to the anomie between police and communities of color, but also creates a structural dissonance regarding the nature and function of police and their role in a community. Dispelling this myth recasts the policing function and the underlying expectations of public security, while pointing towards a new instrumentalist approach to police reform
Failing to Protect the Vulnerable: The Dangers of Institutional Complicity and Enablers
Get PDFCriminal liability has typically been reserved for those who have both actus reus and mens rea. Omission liability is infrequent in modern criminal codes. Despite wide public support for aiding those in peril, Western democracies have historically refused to impose any penalty upon those who fail to aid someone in danger.However recent high profile abuse scandals—including those of the USA gymnastics team, University of Michigan and the Catholic Church have caused scholars and policymakers to rethink these assumptions. In recent years, some jurisdictions have slowly come to criminalize those who witness another in peril and fail to provide aid. However, governments remain silent on whether to punish actors not present, but who learn of ongoing peril to someone they have power to protect, but nevertheless choose to not act on their behalf. Indeed, unlike other threats to society, no legislation currently exists to effectively criminalize these enablers of crime.What is more, the failure of governments to recognize omission as a crime has directly led to the phenomenon of institutional complicity. Institutional complicity, as defined in this Article, is where an individual turns a blind eye to abuse out of a sense of duty to an institution. This Article proposes a legal framework and definitional language to allow prosecution of actors who discover sexual assault, and yet fail to contact law enforcement. It also distinguishes between enables and bystanders of crime and facilitates the consideration of these issues of omission by legislatures.In examining the issue from the perspective of the person in peril, the article provides a path towards more effectively redressing the harms suffered by crime victims
Advice
Get PDFThis Article seeks to resurrect an ancient technology for enhancing the welfare of others: peer advice. For decisions as variable as whether to eat a marshmallow or which dialysis treatment to undergo, advice-giving is a powerful and as-yet-unrecognized debiasing tool. In fact, it is one of the most comprehensive and effective debiasing tools ever studied. People who succumb to motivated reasoning, hyperbolic discounting, and a host of other biases offer advice that is untainted by them. When advising others, we are more creative, process information and probability more rationally, and see the forest rather than the trees. Far from the blind leading the blind, our friends and family see us and our situation far more clearly than we do. Currently, peer advice is an entirely untapped resource. Promoting, incentivizing, or even sometimes mandating advice can help us improve our decision-making in numerous contexts such as consumer contracts, health care, education, and financial planning
Reforming State Bail Reform
Get PDFWe are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention in different states and have caused other unanticipated problems. This invited piece aims to create a relatively short guide for those contemplating the best path to reform bail. It lays out steps to reform state bail reform efforts by focusing on seven considerations often neglected in bail reform discussions
Constance Baker Motley’s Forgotten Housing Legacy
Get PDFConstance Baker Motley led the legal assault on Jim Crow and became the first Black woman appointed to the federal bench. She spent two decades with the NAACP’s Legal Defense and Educational Fund, assisting Thurgood Marshall in Brown v. Board of Education. Afterward, she desegregated the South’s public schools and universities and argued ten cases before the Supreme Court, winning nine. Motley also represented countless protestors jailed for their activism, including Martin Luther King, Jr.
Despite Motley’s achievements, scholars have largely overlooked her career. And those who have examined Motley’s work have generally focused on her efforts to dismantle school segregation. Public school desegregation was foundational to Motley’s LDF litigation, but her practice also extended beyond school desegregation. Motley filed scores of cases challenging racial discrimination in voting rights, public accommodations, and housing access.
Using archival research, this Article explores the latter category— Motley’s housing docket—through the lens of Stewart v. Clarke Terrace Unit No. 1, a case she litigated in Shreveport, Louisiana. Filed in 1954, Clarke Terrace was LDF’s first lawsuit challenging discrimination in privately constructed but federally insured housing developments. It sought to enforce the rights of African Americans who purchased homes in a new subdivision only to have nearby white residents sabotage the development. Uncovering Clarke Terrace challenges conventional narratives pigeonholing Motley as an education attorney. It highlights her housing advocacy and demonstrates that this work was pivotal to Motley’s clients, even if forgotten by historians. This analysis powerfully advances appreciation for and understanding of Motley’s civil rights legacy
Patent Reality Checks Eliminating Patents On Fake, Impossible And Other Inoperative Inventions
Get PDFThe recent assertion of patents originally held by Theranos, the defunct blood analysis company whose founders are under federal indictment for fraud, highlights the existence of patents that claim non-existent and inoperative inventions. While such patents may ultimately be subject to validity challenges in court, their issuance nevertheless has harmful effects on markets and innovation. I propose several modest administrative and legislative measures directed toward the elimination of patents on inoperative inventions including (1) increasing PTO efforts to detect potentially inoperable inventions, (2) heightening examination requirements, including a certification of enablement, for certain inventions, (3) enabling greater public input into the examination process, and (4) increasing penalties for fraudulent conduct before the PTO. In addition to addressing inoperative inventions, some of these reforms could help to alleviate broader enablement concerns that have been identified by scholars over the past decade. Given the serious consequences that these issues have on markets and innovation, such measures merit serious consideration by the PTO and Congress
Problematic Interactions Between AI and Health Privacy
Get PDFThe interaction of artificial intelligence (AI) and health privacy is a two-way street. Both directions are problematic. This Essay makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set of entities, the process of data collection while following privacy rules, and the use of non-health data to infer health information. The result is an unfortunate anti-synergy: privacy protections are weak and illusory, but rules meant to protect privacy hinder other socially valuable goals. The state of affairs creates biases in health AI, privileges commercial research over academic research, and is ill-suited to either improve health care or protect patients. The health system deeply needs a new bargain between patients and the health system about the uses of patient data
Taxing Teleworkers
Get PDFSince COVID-19 has forced many governments to restrict travel and impose quarantine requirements, telework has become a way of life. The shift towards teleworking is raising tax concerns for workers who work for employers located in another state than where they live. Most source states where these employers are located could not have taxed income of out-of-state teleworkers under the pre-pandemic tax rules. However, several source states have unilaterally extended their sourcing rule on these teleworkers, resulting in unwarranted risk of double taxation — once by the residence state and again by the source state. At this time, there is no uniform guideline by state or federal governments.
Recently, New Hampshire, supported by fourteen other states, asked the U.S. Supreme Court to exercise its original jurisdiction challenging Massachusetts’ telecommuting taxes of nonresident teleworkers. Tax commentators believed this case would be one of the most significant tax decisions in recent years, but the Supreme Court declined to hear it. New Jersey also opposes New York’s long-standing telecommuting taxes under the “convenience of the employer” rule. This Article examines the constitutional challenges of maintaining pre-pandemic work arrangements for tax purposes, arguing that a source state’s extraterritorial assertion to tax nonresident teleworkers’ income likely violates the Dormant Commerce and Due Process Clauses. Also, this Article finds the Supreme Court’s decision not to exercise original jurisdiction dissatisfying in light of the substantial increase in remote work.
The problem of taxing teleworkers is not temporary because the pandemic drastically reshaped where and how people work. Recognizing the need for a uniform long-term solution, this Article argues Congress should enact federal law to preempt conflicting state law positions and enforce the primacy of residence-based taxation on teleworkers’ income. This proposal would reduce the impact various source states’ tax laws have on interstate commerce, preserve due process, and bolster policy rationales, such as taxpayers’ choice in where they reside and pay taxes as their social obligation to the community