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State of Arizona v. Guy James Goodman: On Petition for a Writ of Certiorari to the Arizona Supreme Court
Get PDFArizona’s pending certiorari petition in Arizona v. Goodman provides the Supreme Court with an opportunity to review the important issue of the circumstances under which the Constitution permits an accused sex offender to be denied bail pending trial. In 2002, Arizona voters amended their state constitution, rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a narrowly divided opinion, the Arizona Supreme Court found that this measure unconstitutional. And yet the Court’s opinion makes clear that the Constitution does not prohibit denying bail to defendants who present (1) “a continuing danger to the community” or (2) “a risk of flight.” Nor does the Constitution prohibit categorically denying bail based on the nature of the charged offense. Indeed, thirty-four states categorically deny bail to persons charged with capital offenses, murder, specified sex offenses, or offenses punishable by life imprisonment.
Review of the Arizona Supreme Court’s decision is needed to resolve the conflict between it and the Court’s precedent on an important issue of constitutional law that affects the criminal justice system, crime victims, and community safety in States across the Nation. The Court’s review is especially needed because of the serious implications for victims and their communities if the judgment below is permitted to stand. Given sex offenders’ high recidivism rates, and the life-altering harm suffered by their victims, Arizona’s legislature was entirely reasonable when it opted to categorically deny bail to sexual-assault defendants on the ground that sexual assault is an adequate proxy for future dangerousness - and to build in procedural protections that go above and beyond in ensuring due process. The Constitution does not prohibit States like Arizona and others from taking these steps to ensure sex offenders are brought to justice, victims are protected, and communities are safeguarded
State of Montana v. Ronald Dwight Tipton: On Petition for a Writ of Certiorari to the Supreme Court of the State of Montana
Get PDFMontana’s pending certiorari petition in Montana v. Tipton provides the Supreme Court with an opportunity to review the important issue of when States are permitted to revive criminal cases based on newly discovered DNA evidence. Until recently, many states have had child sex abuse statutes of limitation that have made it difficult for prosecution to occur. In Stogner v. California, 539 U.S. 607 (2003), the Supreme Court addressed California’s attempt to address the injustice by reviving expired criminal statutes of limitations in all cases of child sex abuse. In a 5-4 decision, the Court held that the California law violated the Ex Post Facto Clause. For a narrow majority of the Court, the blanket revival of criminal claims went too far. Since Stogner, the science of DNA evidence in sex assault cases has become increasingly sophisticated and reliable and states have begun to enact laws to permit prosecution of child rape where conclusive DNA evidence becomes available. This deeply reliable evidence justifies the reopening of a child sexual abuse case even when the statute of limitations previously expired, because it does not raise the risk of unfairness to the perpetrator. It is also necessary to prevent further abuse by the now-identified perpetrator. In this case, eight-year-old L.T. was raped in her home in the middle of the night. Evidence was gathered immediately. The wrong man served a decade in prison due to a false conviction. It is now possible, due to a later-discovered DNA match with the actual perpetrator, to hold the right man accountable. This case is a proper vehicle for the Supreme Court to consider the appropriate interpretation and limits of Stogner v. California. By permitting prosecution of child abuse perpetrators, this Court would not only be providing particular victims access to much-needed justice but would also be aiding in the incarceration of dangerous sexual predators before they could abuse more children. Nothing in the Constitution forbids these laudable conclusions
Tax Law’s Loss Obsession
Get PDFThis Article will address tax law’s inconsistent treatment of gains and losses—focusing in particular on certain instances in which a taxpayer is prevented from shifting a built-in loss to another taxpayer but would be allowed to shift a built-in gain to another taxpayer. The article will explore whether any legitimate justification can explain the inconsistency. Finding no such legitimate justification for at least some of the examples, this Article will conclude that lawmakers ought to have also addressed gains and the failure to do so results from lawmakers crafting an overly narrow response that addressed only the most recent, high-profile gimmick in engineering transactions to reduce tax liability
Felix v. Sero : Brief of Petitioner on Writ of Certiorari to the Utah Supreme Court
Get PDFBest Brief in the 2018 Traynor Moot Court Competition. Drafted by Jen Joslin and Brandon Fuller, S.J. Quinney College of Law.
This case turns on the great import of protecting and preserving the best interests of children. There are two questions for this Court to determine: (1) the extent to which a parent’s right to travel should influence a custody determination, and (2) the extent to which one parent may avoid paying a share of childcare expenses by asserting an equitable defense of laches. Though both questions implicate the rights and interests of the parents, this Court’s holding should come down to the best interests of the children
The History of Misdemeanor Bail
Get PDFBail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of theoretical scholarship explaining defendants’ rights when it comes to misdemeanor bail. There is also a lack of historical perspective in determining how we have dealt with misdemeanor crimes. Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only recently that they have become a serious problem and that their impact has become as serious as felony offenses. This Article strives to a first step toward creating a theoretical footing for misdemeanor bail decisions by considering the historical role of misdemeanors and discussing the importance of creating an analytical framework for making these decisions
Needles, Haystacks, and Next-Generation Genetic Sequencing
Get PDFGenetic testing is becoming more frequent and the results more complex. Not infrequently, genetic testing conducted for one purpose reveals information about other features of the genome that may be of clinical significance. These unintended findings have been referred to as “incidental” or “secondary” findings. In 2013, the American College of Medical Genetics (“ACMG”) recommended that clinical laboratories inform people if their genetic analyses indicate that they have certain secondary mutations. These mutations were selected because they probably cause a serious disease, which is treatable, and may go undetected. The ACMG’s recommendations galvanized critical responses by the genetics and ethics community. One of the most important open questions concerns the scope of negligence liability for clinical laboratories if they failed to provide any of these SFs to patients who never requested them. To answer this question, this article argues that while there might be an ethical or professional obligation to share knowledge about these specific genetic mutations, laboratories should not be subject to tort liability for failure to share secondary findings directly with patients
Uniform Conservation Easement Act Study Committee Background Report
Get PDFThis report was prepared by Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, in her role as Reporter for the Uniform Law Commission\u27s Uniform Conservation Easement Act Study Committee. The report provides an overview of the Uniform Conservation Easement Act (UCEA), which was approved by the Commission in 1981, and examines the provisions in individual state conservation easement enabling statutes that differ from the provisions in the UCEA
The Trump Administration and Lessons Not Learned from Prior National Monument Modifications
Get PDFIn the debate surrounding President Trump’s monument reductions, a critical and as-yet unanswered question is whether prior presidential monument reductions create a precedent for contemporary actions through the doctrine of congressional acquiescence. This article undertakes a historical survey of prior presidential reductions to determine whether—and if so to what extent—there is a pattern of presidential action sufficient to support the congressional acquiescence argument
Where Are the Gatekeepers? Challenging Utah’s Threshold Standard for Admissibility of Expert Witness Testimony
Get PDFUtah’s Rule 702 on the admissibility of expert witness testimony is far too low. Utah trial courts cannot to fulfill their role as gatekeepers because the threshold standard forces them to admit almost everything without ensuring reliability. Accordingly, Utah evidence law will benefit from amending Rule 702 whether it reverts to the federal rule or elects the Minnesota approach. Either is preferred to the almost nonexistent standard currently in place, which has drifted far from the “inherent[ly] reliab[le]” tradition and is no longer “the touchstone of admissibility” in Utah. The State should amend Rule of Evidence 702 to allow judges to make meaningful decisions on the admissibility of expert testimony once again
The Control of Methane and Voc Emissions from Oil and Gas Operations in the Western United States
Get PDFThis article discusses the regulation of hydrocarbon emissions, including the emissions of methane, a potent greenhouse gas, from the oil and gas industry in the western United States. It covers the regulations of the Environmental Protection Agency, the Bureau of Land Management, and other Federal agencies. It also discusses the state laws of the major oil and gas producing western states: California, Colorado, New Mexico, Utah, and Wyoming. It covers operations on public, state, and private lands, but it does not cover oil and gas operations on Indian lands that are the subject of the author’s previous article