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Subconstitutional Checks
Get PDFConstitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. Subconstitutional checks are stopgaps formed in the three branches of government to effectuate the rights in the Constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when two or more branches have colluded with one another. The need for subconstitutional checks is evident in the criminal arena. In the modern criminal state, plea agreements have virtually replaced jury trials, discipline and electoral competition between prosecutors is rare, separation of powers does not serve its purpose because the interests of all branches are often aligned, and individual constitutional rights have little real power to protect defendants from the state. As a result, the lack of structural constitutional checks in criminal law has led to constitutional dysfunction. Though never recognized as such, constitutional dysfunction in criminal law is evidenced by mass incarceration, wrongful convictions, overly harsh legislation, and an inability to stop prosecutor and police misconduct. This Article sheds light on the lack of constitutional checks by performing an external constitutional critique of the criminal justice system to explore this structural gap in the three branches and concludes that creating subconstitutional checks has the potential of reducing criminal dysfunction and creating a more balanced criminal justice system
Can We Protect the Innocent Without Freeing the Guilty? Thoughts on Innocence Reforms that Avoid Harmful Tradeoffs
Get PDFIt is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.With this caution in mind, it is possible to craft reforms that help to protect the innocent without allowing the escape of the guilty. A common theme underlying many of these proposals is that they reorient the criminal justice system away from adjudicating procedural issues and toward considering substantive issues – i.e., issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure. We ought to give serious consideration to measures that move the criminal justice system in that direction
Emerging Shadows in National Solar Policy? Nevada\u27s Net Metering Transition in Context
Get PDFNevada recently overhauled its net energy metering policy, and instituted a new net billing program in its place. Nevada’s decision received significant attention across the nation, and raised the question whether other states will follow suit. This article reviews the process and decisions in Nevada that led to these policy changes, and puts Nevada’s experience in the context of national solar industry and net metering policy trends. Observing that pressure to change net metering policies is likely to increase across the U.S., the article concludes with insights that other states can glean from Nevada’s experience
Transparency
Get PDFTransparency is one of the key concepts of privacy protection. Transparency means openness about data collection, use, and retention. Individuals need to know what information about them is being collected, how it is being collected, how it is to be used and shared, how it is protected, what has been learned from data use, how what has been learned might benefit them, and how they can seek correction or redress for security breaches or other unjustified uses or disclosures of data. This chapter begins with a highly salient recent example of transparency in action: the principled commitment to transparency in the precision medicine initiative (PMI) and the limited extent to which it has been developed in the initiative to date. The chapter then provides an overview of justifications for transparency and challenges inherent in providing consumers with understanding that is meaningful to them. The chapter then considers methods for achieving transparency through publication or notice and what is known about the success or failure of these methods. For example, privacy notices have grown bloated and legalistic; patients rarely read them and if they do, they do not understand them. The chapter concludes with a discussion of emerging solutions
The CAA Motor Vehicle Inspection and Maintenance Program: Is it Cost Effective?
Get PDFUnder the Clean Air Act, state-run vehicle inspection and maintenance (I/M) programs aim at preventing both manufacturers and consumers from circumventing or tampering with emissions control technology. Recent manufacturer cheating scandals, however, were detected by means other than I/M programs, and much I/M enforcement has been targeted at relatively low-level offenses. This Article traces the evolution of the I/M program and examines whether it currently provides benefits greater than its costs to vehicle owners, using Utah’s Wasatch Front (which includes Salt Lake City) to illustrate how the program operates in practice. It concludes that there is little current information to support or reject the efficacy of the I/M program, and that a fresh look is warranted to improve its effectiveness
Recognizing Women\u27s Rights at Work: Health and Women Workers in Global Supply Chains
Get PDFIn 2002, shortly after Paul Hunt was named as the first UN Special Rapporteur on the right to health, he presented his vision for promoting the right to health as a fundamental human right, clarifying the content of this right and identifying good practices at the community, national, and international levels. His vision remains true today for women’s health at the workplace in global supply chains. In an era where women and families must often migrate to find work, leaving behind their homes and support networks, the workplace can be a site where they can access resources and information to actualize their right to health. But in global supply chains, the workplace becomes a place that frequently puts up barriers to their right to health, if not direct violations. For women workers in these labor markets the violations to their right to health remain unrecognized due to the narrow focus on occupational safety and health violations by advocates, corporations, and others. Moreover, gender inequality and gendered biases within global supply chains and the legal frameworks meant to protect these workers exclude women’s experiences and ignore how the workplace impacts the personal lives of women workers
The Reference Assistant
Get PDFIn 2017, the authors conducted the third survey in an unofficial series about a type of law student employee that the authors call the reference assistant. This article analyzes the survey results, argues the advantages of the reference assistant, and details a case study of successful implementation of the reference assistant model at the BYU Law Library
EU SEP Communication Summary and Commentary - TILEC 2nd Conference on Competition, Standardization and Innovation
Get PDFThese slides briefly summarize the main points of the European Commission\u27s Nov. 29, 2017 Communication on Standards Essential Patents (SEPs
The Transfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs and other Examples of Legal Falsehoods and Revisionist History
Get PDFLike the sagebrush rebels before them, today’s transfer advocates feel left behind by evolving public land management priorities that depart from their vision of how the West should be managed. The TPLA and its progeny appeal to that pain and frustration, but offer only empty answers to real questions, and in so doing, distract us from opportunities to address the root causes of frustration over public land management. The law is clear, the federal government possesses plenary power over the public domain, including the power to retain the land in federal ownership, and to do so indefinitely. The federal government is not obligated to dispose of additional public land — beyond the almost 400 million acres of land surface it already gave up in the eleven contiguous Western states — and statehood enabling acts do nothing to change this settled legal reality. Even if transfer advocates overcome long legal odds and a disposal obligation is found to exist, such an obligation would not necessitate giving the land away, let alone giving the land to the states. Furthermore, that duty to dispose would almost certainly not extend to lands that are mineral in character, leaving states without the revenue they would need to manage the lands they fought so hard to obtain. States would be faced with significant fiscal and policy challenges, and the public would see fewer and fewer opportunities to engage in land management decisions. The fate of our Western public lands matters, as does the fate of those communities that depend on our public lands. We must look beyond the empty promise of easy riches and begin the hard work needed to address profound questions raised by evolutions in public land management policies, including what we owe to those who live closest to the public domain. Their pain and frustration are real, and that pain and frustration need to be addressed if the next generation is to avoid revisiting these same battles. There are opportunities to improve public land management: updating laws, consolidating lands, fully funding agencies and community development, and cooperating with our neighbors all hold promise
Labeling Genetically-Engineered Foods: An Update from one of the Front Lines of Federalism
Get PDFConsumers in the United States have increasingly demanded that manufacturers of foods that are either directly genetically engineered or that contain genetically engineered ingredients (“GE foods”) label their products as such. In general, federal law, in the form of the Food, Drug, and Cosmetic Act, lodges primary authority for approving and regulating the labeling of GE foods in the Food and Drug Administration (FDA), but the FDA has been reluctant to mandate labeling of GE foods. In light of this federal regulatory void, states have proposed their own GE food labeling requirements, generating protests from manufacturers and federalism challenges in the form of federal preemption claims. In July 2016, Congress settled this federalism conflict, mandating that the Secretary of Agriculture promulgate federal regulations to govern GE food labeling and preempting state labeling requirements. This article explores the history of GE food labeling federalism in the United States, concluding that the 2016 statute leaves the relationship between state and federal authority fairly clear but creates new ambiguities regarding the relationship of the FDA and FDCA to the U.S. Department of Agriculture and the new law