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Issues Arising Out of Mass Arbitrations & Solutions to Combat Them
Full text linkArbitrations have been around for thousands of years. The benefits derived from arbitrations are numerous, as they provide individuals with a more efficient and cost-effective way of disputing their claims. Importantly, arbitrations provide consumers with a network to dispute claims they may not otherwise litigate in civil court. However, within the last few years, the rapid spread of mass arbitrations throughout the nation has contributed to various ethical issues within our justice system.143 Combatting the issues presented with mass arbitration is crucial to maintaining and creating a more efficient adjudication process. To address the issues associated with mass arbitrations, companies should consider splitting costs of initial filing fees equally, demand that arbitration providers handle issues associated with mass arbitrations more efficiently and resolve certain small claim disputes in a state’s small claims court.
The solutions to mass arbitration will hold attorneys to the proper ethical standard of care and will prevent abuse of the arbitration system. Since arbitrations are beneficial to both the individual and the corporation, these changes will help benefit both parties to ensure the practice of arbitrations will continue to be an efficient dispute resolution method
Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?
Full text linkSome observers recently have wondered whether actions by the U.S. Food and Drug Administration (“FDA”) could federally preempt increasingly common state restrictions on gender-affirming care, particularly prohibitions on the use of puberty blockers and cross-sex hormones in adolescent patients. In theory, such a legal strategy might sidestep the need to lodge increasingly unsuccessful challenges under the Fourteenth Amendment. The Supremacy Clause offers little assistance, however, in attempting to get around these state laws. Indeed, even if the FDA eventually approved such uses for currently marketed drugs, implied preemption doctrine as currently configured probably would not do the trick, though securing a federal license for a brand-new pharmaceutical product labeled solely for use in transgender adolescents might just work to displace state prohibitions.
Treating different things the same can generate as much inequality as treating the same things differently. -Kimberlé Crensha
Banning Plastic
Full text linkThe disgusting nature of plastic pollution has finally captured the attention of policymakers and driven legal change. Local, state, and national bans on various plastic consumer items coupled with voluntary industry switching creates momentum toward a full-scale end to unnecessary plastic products. Bans have the capacity to create an important tipping point. This Article extolls the effectiveness of consumer bans and explores the challenges to achieving this highest level of environmental control. Plastic is essentially pure petroleum.1 Its persistence and destructiveness in the environment presents unique reasons to eliminate its use altogether. Plastics should only be used for essential products for which we have no replacements. The evidence is clear that banning single-use plastic products achieves environmental protection with negligible impact on consumers. The harm caused along the full lifecycle of plastic requires an appropriate regulatory response. This Article argues for a ban of non-essential plastics to address the scope and scale of plastic pollution facing the world today
The Criminalization of Care: Health and the Home
Full text linkIn this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities. Noa Ben-Asher and Margot Pollans describe how “regret” has been exploited by conservative groups in campaigns to paternalistically ban abortion and genderaffirming care. They lay out how the parallel legal strategies between bans on abortion and gender-affirming care are hardly coincidental. Rather, there is a coordination effort to pervert informed consent doctrine to promote “traditional family values,” and to police reductive heteronormative visions of identity
Mass E-Carceration: Electronic Monitoring as a Bail Condition
Full text linkOver the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects on individuals’ economic stability, relationships with family and their community, and physical and mental health.
Pretrial electronic monitoring should be severely limited if decisionmakers follow the inquiries required by the Eighth Amendment, Due Process Clause, and state law and require the government to prove that the bail condition is the least restrictive condition that could mitigate the risks of flight and to public safety. This Article examines those standards in depth and observes that electronic monitoring provides an opportunity to clarify some of the uncertainty that has surrounded these inquiries when previously applied primarily in the context of monetary bail
25 Is the New 18: Extending Juvenile Jurisdiction and Closing Its Exceptions
Full text linkCourts are in broad agreement that juveniles—defined as people under 18-yearsold — are less culpable than adults and thus punish them differently. Indeed, few would disagree that the adult criminal system should apply only to adults—people “fully developed and mature.” If separating adults and juveniles based on culpability is the goal, it begs a simple question: should the split happen at age 18? Some U.S. institutions imply that they believe an 18-year-old lacks the requisite maturity to assume certain responsibilities, including the House of Representatives and car rental agencies, which permit participation at 25. Looking globally, important institutions like the United Nations mark the start of adulthood at age 25. These entities align with mounting evidence from brain development research suggesting that a rational brain fully forms around age 25
Remembering a Giant—Alex Tallchief Skibine
Full text linkOn February 4, 2023, the world lost a legal giant, as Professor Alex Tallchief Skibine passed away following a battle with an aggressive form of brain cancer. Professor Skibine’s passing was an enormous loss for both our S.J. Quinney College of Law community and the field of Indian Law. Professor Skibine was intellectually curious, funny, and always kind––truly a pillar of our SJQ Law community. I am delighted that this issue of the Utah Law Review is dedicated to his memory
Creating a Transparent Methodology for Measuring Success Within a Continuum of Conservation for the America the Beautiful Initiative
Full text linkOn January 27, 2021, the Joseph Biden Administration identified the national goal of conserving at least 30% of our lands and waters by 2030. With this order, the America the Beautiful Initiative (“ATB Initiative”) was born, and the United States joined many other nations in adopting the 30 x 30 conservation target. However, beneath the lofty aspiration lay ambiguity. The Administration has not defined the term “conservation” or explained how it will be measured. Without a clear definition or metric for measuring the outcome of conservation projects, the ATB Initiative will lose credibility. The Biden Administration should avoid this result by adopting Conservation Report Cards. This approach enables recognition of the full “continuum of conservation,” without suggesting that each project has the same ecological benefit. A similar reporting methodology is already available and being utilized in the voluntary carbon credit market, which includes a wide range of conservation projects with varying degrees of conservation efficacy. Conservation Report Cards would preserve the credibility of the ATB Initiative and facilitate future conservation efforts by transparently disclosing the goals, management protocols, outcomes, and durability of projects included within the ATB Initiative
After eBay: Valid Patents and the Economics of Post-Trial Judicial Options
Full text linkThe Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made whole, at least in principle, by monetary compensation. In decisions subsequent to eBay, the Federal Circuit has added to the uncertainty by equivocating about whether the holder of a valid patent is entitled to monetary compensation for infringing uses of its patent between the end of a trial and the expiration of the patent if an injunction is not issued.
I suggest a simple two-part rule: the prevailing plaintiff is entitled to an injunction unless the infringer can persuade the district court that an injunction will impose social costs that outweigh the benefits of protecting a patentee’s exclusive right to its invention; if the infringer prevails, the patentee is entitled to an ongoing royalty through the life of the patent.53 This rule adequately protects patent holders’ investment in their patent and avoids the uncertainty created by eBay
Religious Gerrymandering: A New Avenue for Redistricting Challenges?
No full textRecently, the Supreme Court significantly limited review of partisan gerrymandering claims, closing the door to a substantial portion of redistricting challenges. However, religious-based redistricting is an overlooked area that should be explored under both federal and state Constitutions. Existing redistricting standards can easily be applied to religious gerrymandering claims. In addition, the federal Establishment Clause may provide a basis for some especially egregious instances of religious gerrymandering. However, perhaps the least explored and most viable avenue for relief is through reliance on state constitutional protections, such as the unique language of Utah’s Constitution. Using Utah as a case study, I suggest that religious gerrymandering is an area ripe for development through legal challenges