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WARNING: Law students are to engage in no collaboration with, and receive no assistance from, the topic submitter unless (1) the collaboration or assistance is approved by the student’s professor in advance or (2) the project is not for credit, the project is not prohibited by the law school, and the assistance or collaboration will be appropriately acknowledged. 

[247]  “A old remedy with a new millennium twist:  alter ego attachments under Rule B of the supplemental admiralty rules.”  (Submitted 01/12/12)

[246]
  In March 2010, the U.S. Supreme Court in Padilla v. Kentucky held that it is ineffective assistance of counsel if a criminal defense attorney does not advise his client of the possible immigration consequences of pleading guilty to a crime.  Since then it seems that courts across the country have differed when addressing the question of whether this holding applies retroactively to cases determined prior to Padilla’s holding.  Idaho and other states have Post-Conviction Procedure acts in which a criminal defendant may collaterally attack his conviction or sentence under certain grounds, including constitutional grounds.  Defendants routinely assert the ineffective assistance of counsel claim in their Petitions for Post-Conviction Relief.  These petitions have statutes of limitations--specified time periods that defendants have to bring the petitions.  If the criminal conviction is older and a final judgment has been entered before Padilla, is the statute of limitations effectively tolled due to Padilla?  Courts across the country have looked at the retroactive application of Padilla, and have used the Teague v. Kean U.S. Supreme Court case, but have come out with different conclusions.  Does Padilla enable defendants to be able to effectively overcome the Post-Conviction statutes of limitations to assert their claim of ineffective assistance of counsel for failure to inform of immigration consequences of pleading guilty?  (Submitted 01/09/12)

[245]  I believe some great benefit to state and local governments would entail research about incorporating sunset provisions in legislation.  A review of the laws that have incorporated such provisions and commentary may prove useful to legislators.  (Submitted 01/09/12)

[244]  The New Independent Ability to Pay Test for Credit Cards – Not just for those Under 21. Under the CARD Act, lenders should no longer consider an applicant’s household income. Specific language is found in Reg Z, 12 CFR 226.51(a).    (Submitted 01/05/12)

[243]  The Foreign Investment in Real Property Tax Act (“FIRPTA”) has been on the books since the 1980’s.  It irrationally singles out and creates a special tax on the gain from foreigner investment in real property in the U.S.  Other investments by foreigners aren’t subjected to a special tax.  FIRPTA was passed in the 80’s when there was an irrational fear that the Japanese were going to “own” America through investments in real estate.  Recently the federal government has realized the value of foreign investment, and has passed legislation aimed at encouraging foreign investment (by providing green cards, etc.).   The time for FIRPTA to be repealed is now, and a well-researched law review article is needed to advocate this position.  If a law student is looking to collaborate with a practitioner in this area or even co-author, I would be willing to assist, as I have extensive experience with this statute.  (Submitted 01/05/12) (Note that the submitter’s email address and contact information can be made available to individuals interested in writing on this topic, bearing in mind that students may be subject to requirements relating to independent work and that students are responsible to ensure their compliance with such requirements.)

[242] Indian law topic:  Examine how Congress’ repeal of the federal allotment act 25 U.S.C. 331-333 in 2000 might effect tribal court jurisdiction in federally recognized tribes.  (Submitted 01/04/12)

[241]  Update this law review article (Hazard, Geoffrey C. Jr. and Beard, Cameron, “A Lawyer’s Privilege Against Self-Incrimination in Professional Disciplinary Proceedings” (1987).  Faculty Scholarship Series. Paper 2392. http://digitalcommons.law.yale.edu/fss_papers/2392) and then compare the update with Utah Judicial Council Rules of Administration Bar discipline rules 14-501, 503, 504, 510k, 511, 517, and URCP at 63 to see how they fail to meet U.S. Constitutional muster.  (Submitted 01/04/12)

[240]  Is a judgment creditor who recovered attorney’s fees as part of the judgment automatically entitled to recover attorney’s fees incurred in collecting the judgment?  If so, must those fees be submitted by affidavit and approved by a court order before the creditor can recover them through remedies such as writs of garnishment and execution?  (Submitted 01/04/12)

[239]  Conversations with colleagues and my own experience indicate that Utah’s whistle blower laws for state employees (and perhaps others) do not adequately protect whistle blowers. An analysis of Utah’s laws contrasted with other states’ would be an interesting topic.  (Submitted 01/04/12)

[238]  Utah family courts’ dependence on professional custody evaluators presents a real barrier to many low-income parties.  How can the laws and practices of Utah be changed to address this issue?  (Submitted 01/04/12)

[237]  Do the new discovery rules set forth in Rule 26 of the Utah Rules of Civil Procedure help  or harm Plaintiffs in prosecuting their cases in the following areas:  (1) discovery of facts proving the elements of their cause of action?  (2) costs of litigation?  (Submitted 01/04/12)

[236]  What will be the effects of the new corporate legislation passed in 2011 (but won’t take effect for a year or two)?  Many corporate attorneys are expecting significant problems.  (Submitted 01/04/12)

[235]  The extent of state district court jurisdiction while a matter is on appeal.  What can the trial court still do?  (Submitted 01/04/12)

[234]  Civil Procedure Topic:  For Clayton Act claims, 15 U.S.C. sec. 22 provides for nationwide service of process on corporations.  The Ninth Circuit maintains that this statute confers nationwide personal jurisdiction.  The Second Circuit holds that the statute only confers personal jurisdiction when statutory venue requirements are met.  What is the effect of this circuit split in multidistrict litigation where the transferee court is required to apply the law of its own circuit?  Specifically, if an action is filed in the New York, and then consolidated by the multidistrict litigation panel with an action in California, is the corporate defendant in the New York action able to raise the lack of personal jurisdiction upon remand to New York and on appeal to the Second Circuit?  (Submitted 01/04/12)

[233]  Conflicts of Law Topic:  Will California courts reject a choice of law provision (favoring a state other than California) and apply California law to void a non-compete clause in an employment agreement where the employee is a California resident?  Is the answer different if the employee is the resident of another state, but the new employer is located in California?  (Submitted 01/04/12)

[232]  Due to the recent Utah Supreme Court case Goggin v. Goggin, 2011 UT 76, it has become apparent that we may need to consider whether certain assets of a party in a divorce proceeding will lose their premarital nature by being subject to a constructive trust.  This could result in a new evolution of family law where one of the divorcing parties owns a business interest that predates the marriage.  It would be interesting to analyze the extent to which a constructive trust may be imposed and under what circumstances.  (Submitted 01/04/12)

[231]  Justice Lee’s (Utah Supreme Court’s) proposal for computer word usage analysis to determine ordinary meaning in statutory interpretation.  (See In re Baby E.Z. http://www.utcourts.gov/opinions/supopin/InReEZ071911.pdf)   (Submitted 01/04/12)

[230]  It would be great to see a paper comparing and contrasting Utah corporate law to Delaware corporate law.  (Submitted 01/04/12)

[229]  Legality and proper scope of gang injunctions such as the Weber County injunction related to the Odgen Trece gang.  (Submitted 01/04/12)

[228]  I would be willing to help as a co‑author or mentor for an article analyzing the “clearly erroneous” standard as reviewed by the Utah Supreme Court prior to its 1985 decision in Scharf v. BMG Corp., 700 P.2d 1068 (Utah 1985); see also Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985) (which established the duty of the party attacking findings as clearly erroneous to “marshal” all of the facts in favor of the court’s findings before demonstrating that the findings are clearly erroneous.  After 1985, a number of appeals have been denied based on the party’s failure to marshal the facts in favor of the court’s decision.  Some of the decisions are illogical and many find fault based on minor failures.  It is my belief that 1985 is a watershed and that prior to that date the Supreme Court was willing to consider the evidence and reverse findings as clearly erroneous while post 1985, the Supreme Court and the Court of Appeals look for any reason to sustain findings and it is rare that the court reverses a finding as clearly erroneous.

I have attached an article I wrote on this subject and then decided not to publish it because I felt that a more thorough examination was needed, and I do not have the time to do it on my own.  (Submitted 06/01/2011) (Note that the article referenced can be made available to individuals interested in writing on this topic, bearing in mind that students may be subject to requirements relating to independent work and that students are responsible to ensure their compliance with such requirements.)

[227] Can farmers whose rent is calculated as a percentage of the revenue they receive from selling their crop (like a crop‑share, but paid in cash) bring claims for 100% of the property damage done to the crop while growing?  Or are they limited to bringing a claim for only their percentage?  (Submitted 05/17/2011)

[226] Under Utah law a work comp employer and their insurance company are only liable for burial expenses and any medical expenses when a single worker with no children who is killed in the course and scope of their employment.  When there is a spouse or child, the family receives 7 years of that person’s wages up to the state average weekly wage (I believe, I’m not a work comp attorney).

I think it would be interesting to compare this with other states.  With the high number of couples co-habitating and helping to raise their partner’s children, how is or should that be treated.  (Submitted 5/16/2011) (Claimed 9/7/2011)

[225] What is a “discrete subpart” under federal rules of discovery that allow you 25 Interrogatories plus discrete subparts?  (Submitted 5/16/2011)

[224] I practice Criminal Law and have searched for several years for an answer everyone seems to think is so easy yet there is so little written on the subject.

I am asking for a paper on a Motion To Suppress evidence hearing.  Police investigate a crime, uncover evidence and because of some rights violation, defense is asking that some evidence be suppressed.  Rule 12 of the Utah Rules of Criminal Procedure (more specifically Rule 12d) touches on the idea.  But it is surprising how little is written and therefore how little prosecution, defense and even the judiciary know about these hearings.

What is the burden of proof?  Do Rules of Evidence apply at the hearing?  But most importantly ‑ is it true that URCrP Rule 12 (along with the most logical understanding of this process) says that defense must come up with a fact, an irregularity, that already exists in this case, that ‑ if proven ‑ would warrant suppression of the evidence?  And not just that defense gets a fishing expedition, or a hearing to uncover or create an irregularity?  Said another way, defense has to point to a specific fact that already exists in the case; that defense cannot just ask for a hearing and allege that at the hearing an irregularity or a rights violation will be uncovered.  (And if that alleged fact is proven, then the evidence should be suppressed.)

Please contact me if there are any questions about the issue I’m raising.

I look forward to reading about this issue.  (Submitted 5/16/2011)

[223] Someone should write an article about states other than Utah that have statutory formulae for calculating alimony and whether Utah would be wise to adopt a statutory alimony calculation policy.  (Submitted 5/12/2011)

[222] Accomplishing service of process in foreign jurisdictions under the Hague Convention.  (Submitted 5/12/2011)


[221] How is it possible that possession of an inanimate object such as an eagle feather can be illegal and how is it that such a law is constitutional?  Why doesn’t it matter how the possessor came into possession of the eagle feather?  What if it was lying on the ground in the wilderness and the person merely picked it up?  There was no criminal activity involved such as harming or harassing the eagle.  It is merely the act of possessing something that is not harmful or otherwise illegal that violates federal law.  (Submitted 5/12/2011)(Claimed 6/9/2012)

[220] Does Utah law empower some parents to a greater extent than does the Individuals with Disabilities Education Act (IDEA)?  The IDEA requires the development of an Individualized Education Program (IEP) to direct the education of each student with a qualifying disability.  The IEP is developed by a team that usually consists of one or both parents and numerous school personnel.  When there is a disagreement over what placement or services the student needs, school personnel have the upper hand.  Under Utah Code Ann. § 53A‑25b‑301(3)(c), the parent of a child who is “deaf, blind, or deafblind shall make the final decision regarding placement of the child in a Utah Schools for the Deaf and the Blind program or in a school district or charter school program subject to special education federal regulations regarding due process.”  Does this provision operate as a tie‑breaker between parent(s) and school in case of impasse with respect to the issue of placement?  (Submitted 5/12/2011)

[219] Here is a suggested topic for someone interested in Utah Construction Law:

Is it constitutional under the Utah Constitution to deprive a party of mechanic’s lien rights without providing a reasonably equivalent alternate remedy?  Does it matter whether the right that is deprived has a small monetary value?  (Submitted 5/12/2011)

[218] Whether the Legislature encroached on the Executive Branch powers when it passed a bill mandating the schedule of dates/times State offices will be open. Legislature passed a bill requiring offices be open 5 days a week for 9 hours.  Governor had issued an executive order that employees work 4‑10 hour days with some critical facing services open on Fridays.  An ancillary issue is whether the restriction in Utah Constitution Article XVI, Section 6 (eight hours a days labor on public works) was intended to apply to all public sector employees work schedules, and if so, how can the legislature require 9 hours a day?  Or was this section just for factory, smelter and mine employees?  How do you account for overtime, flex schedules, etc.  (Submitted 5/12/2011)

[217] Discuss the consitutionality of workplace discrimination and harassment laws.  For example, does it violate the first amendment’s guarantee of freedom of speech to attach civil penalities to speech that is defined as harassment under Title VII?  If not, why?  If there is a constitutional freedom of association, is that principle violated by prohibiting an employer from following his/her preference as to races when hiring employees with whom he/she will be working on a daily basis?  (Submitted 5/12/2011)
 


[216] Utah’s DUI laws have become progressively more restrictive during the past decade due to pressure by organizations like MADD, reduced traffic fatalities, and local political pressure. However, in the rush to tighten DUI laws, proven solutions such as plea in abeyances, diversions, and restricted driver’s licenses have been eliminated and harsh broad brush penalties have taken their place, resulting in severe first time penalties that often do not satisfy common sense, for example: Ignition Interlock Devices (IID) for a first time strict Mormon offender who took an Ambien by mistake; a year and a half driver’s license suspension for a driver having nothing in their blood whatsoever, due to a policeman’s refusal to explain that a certified phlebotomist would draw blood in a sanitary manner; sixty (60) days jail for a first time low BAC offender who failed to send proof of completion of a MADD VIP panel to the court.  (Submitted 5/11/2011)

More upon request.

[215] Whether a debtor in an involuntary chapter 7 bankruptcy can pursue an appeal of the Order for Relief under the direction of its pre‑bankruptcy management after the appointment of a Chapter 7 Trustee?  (Submitted 5/11/2011)

This probably doesn’t make sense, just reading it, but it is the subject of a Tenth Circuit opinion dated 2/14/2011 in In re C.W. Mining Co.  It’s actually pretty interesting.  (Submitted 5/11/2011)

[214] In McDonald v Chicago, the USSct held the right to keep and bear arms is a fundamental individual right (it was conceded by Washington DC in Heller v DC during the oral arguments that self‑defense is an inalienable, fundamental right).   Anecdotal evidence exists that gun‑free zones attract mass killers like chumming attracts sharks.  Murderers who plan to kill dozens and then check out in a “blaze of Glory” are not deterred from bringing guns into gun‑free zones by  “NO Weapons” signs.  The innocent who obey such signs are constitutionally deprived of their fundamental right to have a means of self‑defense.  Utah is the only state in the US that unequivocally gives teachers and students with concealed weapon permits the constitutional right to defend themselves and others.  Given the anecdotal and statistical evidence that casualties are greatly reduced during attempted mass killings when one or more of the intended victims is armed, it is morally wrong and intellectually backward to establish gun‑free zones so that mass killers can kill dozens of innocents like fish in a barrel and encounter no armed resistance until the police arrive (when seconds count, the police are only minutes away)!  Public entities, including universities, that deprive students and teachers of the right to defend themselves have committed a civil rights violation.   Civilly, when private organizations deprive citizens of a fundamental constitutional right to defend themselves, this should create an implied duty to defend.  Those who disarm the innocent through the establishment of gun‑free zones have a duty to protect those whom they have deprived of a fundamental right.   Breaching this duty should create civil liability for injuries or death that would not have occurred had the innocent victims not been deprived of their sole means of defense against the illegal use of deadly force against them.  Therefore, it is unsafe, unconstitutional and negligent to create and maintain a gun free zone.  (Submitted 5/11/2011)(Claimed 6/12/2012)

[213] Recently a friend contacted me in regards to some flooding on condominium property, which appears to be partially caused by the surrounding community channeling water into condo drainage pipes without permission.

The city has no record of accessing the condo drain system, but it seems clear that the water is coming from city property.


What is the law?  What is the remedy and what is the procedure to be used by the Condo Association?

It appears that a condo or PUD is a legal island in the local jurisdiction.  What happens when the
city trespasses on the island?  (Submitted 5/11/2011)

[212] There’s a gap for children in foster care who qualify for DSPD services (Division of Services for People with Disabilities) and reaching permanency goals of adoption or permanent custody and guardianship.  Once a child is qualified for DSPD services the child has to remain in the custody in order to retain the level of services needed.  If the child is adopted then a good portion of those services disappear leaving the new family on its own.
 
Is the breakdown just a policy issue?  Is it federal funding requirements?  What drives a child in custody to be seen as requiring more services than one who has family to take care of him?  Can anything be done on State level to change the problem?  (Submitted 5/11/2011)
 
[211] Dually adjudicated youth in the Juvenile court system.  Kids that come into custody due to neglect or abuse by the parents don’t always have the right coping skills to deal with the extra court scrutiny.  If parents don’t fix the issues and the kids don’t go home, many don’t find permanency and “rebel,” i.e. running away, stealing from foster parents, doing damage to foster homes.  Often these kids are charged for actions that kids in regular homes doing the same “stuff” would never see the inside of a courtroom.

How often do judges find a child in contempt of court for running away?  How does that compare to youth not under court jurisdiction?  Should a minor be subjected to possible “jail time” in detention for stealing food in a foster home?  Should a young child 10 years old or younger, be charged with crimes derived from his/her own victimization? i.e. battery, assaults, sexual abuse, etc.  When is the appropriate age to charge a child?  (Submitted 5/11/2011)

[210] Is PPACA constitutional?  (Submitted 5/11/2011)

[209] What every real estate agent should know about real property law but probably doesn’t!  (Submitted 5/11/2011)
 
[208] What is the difference between real property law and contract law in real estate transactions and why it matters!  (Submitted 5/11/2011)
 
[207] Why that trust you just set up isn’t saving you any estate or gift taxes!  (Submitted 5/11/2011)

[206] Are punitive damages assessed against non‑profit organizations and churches appropriate under the 14th amendment due process clause?  (Submitted 5/11/2011)


[205] An interesting paper could be written on the potential legal and regulatory implications, including conflicts of interest, relating to Visa International’s investment in or acquisition of certain payments‑industry companies such as Cybersource and Square.  (Submitted 5/11/2011)

[204] What are the 4th Amendment parameters for police officers searching the contents of a cellphone/ipod/other electronic device capable of holding vast amounts of information?  Can they search incident to arrest?  Can they search under the automobile exception, with the device being considered a container?  (Submitted 5/11/2011) (Claimed 3/29/12)

 

[203] A Russian national comes to ski in Utah.  They really like what they see, and want to move here.  How can they move their Russian businesses here and ultimately move here permanently?  (Submitted 5/11/2011)

[202] One topic that could be addressed is whether counties in Utah will need to fund the provision of an immigration attorney to indigent defendants post‑Padilla, as the regular public defenders do not have that expertise, and Padilla (and related cases) seems to say that not rendering any opinion is perhaps ineffective assistance of counsel, yet the attorneys don’t have the expertise to render any valid opinion on immigration matters.  (Submitted 5/11/2011)

[201] Dram shop act

The mandatory dram shop insurance for bars, etc was recently increased to $2 million.   What is the application of liability to homeowners and businesses who serve alcoholic beverages to guests or employees at parties and what policies provide coverage to such hosts?  (Submitted 5/11/2011)

[200] Effect of invoking the Fifth Amendment privilege in parallel proceedings (cases where a civil case and criminal investigation involving the same subject matter are going forward at the same time).  (Submitted 5/11/2011)

[199] What factors and discounts Utah courts should apply in determining “fair value” in minority shareholder oppression cases.  (Submitted 5/11/2011)

[198] Can Congress delegate to the President under Section 1034 of the proposed National Defense Authorization Act authority whether, where and why to go to war anywhere in the world?  (Submitted 5/11/2011)

[197] Is the U.S. Patent Office’s PCT outsourcing policy a positive development for quality, timely patent examinations?  (see http://www.uspto.gov/ip/global/patents/ir_pat_pct.jsp, see materials from Patent Cooperation Treaty (PCT) Task Force Meeting)  (Submitted 5/11/2011)

[196] Does the WTO TRIPS agreement need amending to promote a more balanced global intellectual property system? (see http://www.ip‑watch.org/weblog/2011/05/06/trips‑amendments‑needed‑to‑restore‑balance‑in‑ip‑researchers‑say/)  (Submitted 5/11/2011)


[195] Does Righthaven have a leg to stand on in its copyright infringement cases?  (Submitted 5/11/2011)

[194] Is the policy of U.S. Patent Office patent application fee diversion an effective tax on innovation?  (Submitted 5/11/2011)

[193] Grandparent visitation and whether as a policy matter that should continue even where a parent’s rights have been terminated.  (Submitted 5/11/2011)

[192] Impact of ERISA (especially self‑funded programs) being inequitable in taking all of plaintiff’s funds from settlement and its direct opposition to the made whole doctrine in Utah.  (Submitted 5/11/2011)

[191] FCC Electromagnetic Radiation

Non Ionizing Radiation is increasing by hundreds of times over background levels.  FCC is setting the emissions levels. The FCC is not a health agency. Cell towers are sources of high EMR and are being place near schools and residences. WiFi is in most schools. Our government has known of the dangers of EMR since radar was first used.  Electrosensitivity is a recognized impairment in UK and Sweden.  Suggested information sources “The Signal” documentary. Powerwatch.org.  You tube Dr. George Carlo.  (Submitted 5/11/2011)

[190] The trial by jury was an idea conceived by the founding fathers of this country‑‑has technology and changing times made this form of determining an outcome in tort cases obsolete?  Juries are now bringing in preconceived ideas from the rhetoric and propaganda that impact the outcome‑‑‑example McDonald’s coffee case‑‑should mediation or arbitration be a better avenue for resolving tort issues and replace the jury‑‑?  (Submitted 5/11/2011)

[189]  Here is a thought:  The development by the UN Environment Programme of a legally binding instrument on mercury and how a determination is made of what is a “global” issue and therefore fitting for an international treaty versus what is a local issue.   The instrument was initially supposed to address releases to air because airborne mercury is a global pollutant ‑ it is transported globally.  The proposed scope of the instrument has been expanded to releases to water and land which is more of a local issue.  (Submitted 5/11/2011)

[188] When is an electronically submitted complaint in Utah state courts actually “filed” for purposes of the applicable statute of limitations?  (Submitted 5/11/2011)

[187] Can a judgment creditor collect post‑judgment attorney’s fees through garnishment or execution without submitting a fee application and having the court grant that application?  (Submitted 5/11/2011)


[186] Should justice courts be courts of record?  Justice courts have come under fire recently for rogue decisions, mistreatment of citizens, and general lack of accountability.  This year, a bill was considered by the state legislature that would have made justice courts keep a record of their proceedings.  The bill was not passed.  Why all the secrecy?  Should we do away with justice courts altogether?  Are they still true to their founding purpose?  Or are they simply revenue hogs that bring the judicial system into disrepute?  (Submitted 5/11/2011)

[185] As the “Crossroads of the West” Utah is home to various transportation and trucking companies.

Many transportation brokerages are starting up.

A very hot item in the trucking industry right now is commonly known as “broker liability.”

I would be interested in a well‑researched article explaining how a transportation broker can best avoid this respondeat superior liability.

I would be happy to provide further materials or direction to anyone interested in the topic.  (Submitted 5/11/2011)

[184] In these trying times, and with all the governmental “help” for people to be able to stay in their homes, should a person in a chapter 7 bankruptcy be able to strip a junior lien holder on their home if that lien holder is wholly unsecured?  (Submitted 5/11/2011)

[183] When a married person is filing bankruptcy on their own, without their spouse, but doesn’t qualify for a chapter 7 bankruptcy because of their spouse’s income, and therefore must file a chapter 13 bankruptcy, who should bear the burden of those chapter 13 payments?  Should the payments go beyond the filer’s income and tap into the spouse’s income if the analysis on schedules I and J dictate such a high payment?  Should the payments be up to 100% of the filer’s income but no more?  What if the spouses are both willing to testify that each person maintains their own income and expenses and therefore the filing spouse would effectively be left without means after making the chapter 13 payment?  What if the filing spouse is unemployed, voluntarily or otherwise, and therefore any payment would come from the non‑filing spouse?  (The underlying question to this topic is whether a person obligates themselves to pay their spouse’s debts, even if accrued prior to marriage, just by virtue of getting married.)  (Submitted 5/11/2011)

[182] May a person on unending FMLA intermittent leave be terminated?  Or more generally, what rights does a person have to FMLA intermittent leave and what rights does an employer have?  Currently, an employee could work 80% of the time by using intermittent leave.  Was this intended by the FMLA?  (Submitted 5/11/2011)

[181] Judicial Performance Evaluation–An emerging field

Judicial Performance Evaluation is a relatively new concern of states nationwide.  What are the trends?  What works?  What doesn’t?  What are the most effective models for judicial performance evaluation?  How do programs balance the need for public accountability with the need for judicial independence?  (Submitted 5/11/2011)


[180] What is left of the absolute priority rule under 11 USC 1129(b) in an individual debtor’s Ch 11 case, and how does such a debtor satisfy the rule?  (Submitted 5/11/2011)

[179] The new proposed changes to the Utah Rules of Civil Procedure, a return to trial by ambush, or the enabling of fraud up to $50,000.  (Submitted 5/11/2011)

[178] Consider a paper on a practical formula to distinguish between the application of law to facts and legal conclusions as contemplated by URCP Rule 36.  (Submitted 5/11/2011)

[177] There are lots of materials on how to foreclose deeds of trust or mortgages on realty, and other materials on how to foreclosure security interests in personalty, but very little that discusses foreclosure in a mixed property scenario (e.g., a hotel or factory).  Article 9 has a section & comment on mixed foreclosures, but very little discussion.  A survey of cases for practical problems encountered and judicial approaches would be very helpful.  (My guess is that lots of folks may be doing it wrong.)  (Submitted 5/11/2011)

[176] Whether Utah’s scheme for attorney discipline adequately protects attorneys against public discipline without due process.  In particular, does the informal complaint adjudicative process permit an attorney adequate opportunity to defend himself, prior to entry of a screening panel recommendation that the attorney receive a public reprimand?  Does that statutory scheme provide an attorney with adequate appellate rights (i.e. the exception hearing) to challenge a screening panel’s recommendation as to public discipline?  (Submitted 5/11/2011)

[175] Given the FINRA Arbitration Code’s limited availability of a motion to dismiss, and FINRA arbitrators’ extremely high standard for granting them, is it really beneficial for broker‑dealers to use FINRA Dispute Resolution to resolve disputes?  (Submitted 5/11/2011)

[174] Expensive and dangerous wildfires are a serious issue in Utah, not only in terms of prevention, and suppression, but also in terms of determining liability, hence the research question about “rolling evidence.”

Is there legal authority for law enforcement officers to stop a train suspected to have caused a wildfire, if the railroad operator refuses to voluntarily stop the train?  Practically speaking, how could such a “search and seizure” take place?  (Submitted 5/11/2011)

[173] Attorneys strive to prepare a full set of estate planning documents.  One of the documents is a Health Care Directive prepared under the law enacted January 1, 2008.  Frequently a client will go to the hospital because they are sick or need a surgical procedure.  The physician frequently fills out a form referred to as a POLST order.  I believe the acronym is for Physicians order concerning life sustaining treatment.  How do the two documents relate.  I believe the POLST form trumps the Health Care Directive.  (Submitted 5/11/2011)

[172] Remedies available in Small Claims Court.  (Submitted 5/11/2011)


[171] Here is a topic which local prosecutors and defense attorneys often see differently and in my opinion needs some clarification.

We prosecute many domestic violence cases where the victim spouse is not particularly cooperative.  If married to the suspect, she holds a spousal privilege and can’t be compelled to testify.  The question becomes who, if anyone has a duty to inform her of that privilege.  Is it the duty of the prosecutor who is hoping she won’t invoke that privilege.  Is it the court?  Is it no one’s duty, and she needs to find legal counsel if she wants legal advice?  

Finally, what role can the defense attorney play in this process?  Often it’s to the defendant’s advantage for his spouse to know she doesn’t have to testify.  However, most prosecutors believe it is a conflict for the defense attorney to give legal advice to the spouse of a client when the spouse is the victim of the crime.  Therefore, what role, if any, can the defense attorney play in informing, advising and/or helping the victim exercise her spousal privilege?  (Submitted 5/11/2011)

[170]  A review of the current state of the law on fraudulent non‑disclosure in Utah.  With the recent decision in Hess v. Canberra the Court has made it so that fraud can now be proven as strict liability.  Smart practitioners will now plead fraud as fraudulent non‑disclosure and be able to easily circumvent R. 9 of the Utah R. Civ. P.  (Submitted 5/11/2011)

[169] Real case I am working right now.  Numbers are hypothetical.

×         Couple marries in 2004 and purchases house for $120,000; first & second mortgage combine to $110,000.
×         In 2006 couple uses wife’s inheritance to pay off second mortgage leaving encumbrance for first mortgage of $90,000.
×         2007 couple divorces, husband exchanges his ½ interest in equity of home for wife’s agreement to assume all marital debt.
×         18 months later, wife attempts refinance and discovers husband never recorded deed transferring his ½ interest to her.  Mortgage is now $85,000 and appraisal on house is $125,000.
×         Husband finally records deed three months later.
×         Six weeks after recording deed husband files bankruptcy.

Issue: Chapter 7 Trustee is now trying to avoid the transfer of husband’s equity under Uniform Fraudulent Transfers Act and 11 USC 547.  Trustee will prevail unless wife can prove transfer was for substantially equivalent value.  Is this fair and just?  Wife did nothing wrong.  Should a third party be able to force wife to pay out $20,000 as penalty for accepting that to which she was contractually entitled?

I am willing to assist a student who decides to write on this topic and would dearly love any input from students on how to resolve this matter for my client (I represent wife).  (Submitted 5/11/2011)


[168] The new Dodd‑Frank law includes a new standard for marketing certain financial products. The old standard used to be “unfair or deceptive.” The DF law changed that to “unfair, deceptive or abusive.” What might be the analytical framework to determine what “abusive” means in this context?  (Submitted 5/11/2011)

[167]  Balancing the rights of Tenants and Landlords in the legal process. Many landlords get frustrated when tenants who refuse to pay rent avoid service, file sham answers to force the matter to go to trial, or avoid any communication at all. The current shortage of funds and employees in the court system slows down access to justice, favoring the Tenant who wants to stay in the home as long as possible at no cost. This makes it hard simply to evict someone who refuses to pay.

An additional problem is the fact that many tenants have no money, leaving landlords spending several hundred to evict, only to win a judgment for unpaid rent, attorney’s fees, and damage to the property with no way to collect from tenant.

There are many attempted checks in the system, such as possession bonds, military affidavits, and treble rent as damages, however, many of these have limited effect on the balance between landlord and tenant.  (Submitted 5/11/2011)

[166] Requirements for collecting a deficiency amount from an unpaid auto loan after repossession and sale of the collateral.  (Submitted 5/11/2011)

[165] Enforceability of employment agreements with restrictive covenants across jurisdictions (i.e., Enforcing a Utah non‑compete against a former employee who has relocated to California – a state which does not recognize restrictive covenants in employment agreements); bonus points for investigating the ability to bring a tortious interference claim against a California employer who knowingly employs an individual in violation of a Utah non‑compete.  (Submitted 5/11/2011)

[164] Should a company that has been found violate to antitrust law be estopped from enforcing patents that it obtained through the fruits of its illegal behavior?

For example, company A violates antitrust law during years 1‑5, and as a result is very successful, earns $Bs in profits, and grows its engineering and research efforts, earning many new patents. In year 8 it is penalized $x hundred million as a fine for illegal behavior.  In years 10‑15 it aggressively uses the patents it developed in years 1‑5 and ends up suing many of its competitors for patent infringement.   Should there be restrictions on use of those patents, should they be regarded as ill‑gotten gains?  (Submitted 5/11/2011)

[163] The Constitutionality of crony capitalism

Though it might be a little too complicated, though it can be a general topic, maybe a paper on the Constitutionality of “crony capitalism,” that is, where the federal government picks winners and losers, as they let Lehman Bros. fail but not its competitors like Goldman Sachs, whom the Federal Reserve loaned billions of dollars.


Here’s a recent article about how the new Frank‑Dodd Financial Reform Act may actually be encouraging crony capitalism on a new level:

http://www.businessinsider.com/ken‑griffin‑citadel‑anti‑dodd‑frank‑regulation‑2011‑5#ixzz1LxnHabZ0

Crony capitalism is actually fascism.  It is where the federal government picks the winners and the losers and promotes business with those it favors.  That is what Obama is doing with General Electric, AIG and Goldman Sachs.  That is reminiscent of Hitler’s Germany.  Are we actually headed there?  (Submitted 5/11/2011)

[162]  In personal injury actions the plaintiff may have billed medical expenses of $20,000, but his/her health insurer fully satisfies the bills at a reduced, contractually‑negotiated amount, say $15,000, retaining a subrogation interest of $15,000 in any recovery by the plaintiff.  There is a split among Utah district court judges as to whether the plaintiff should be allowed to recover the full $20,000 or whether the recovery should be limited to the amount actually paid by the health insurance company to completely satisfy the bills‑‑$15,000.  In some states (most recently Oklahoma) this issue has been addressed by state statute to limit recovery to the amount actually paid by the health insurance company, in order to avoid a “windfall” to the plaintiff. Other states continue to permit recovery of the full billed amount. There has been and will be an effort in the Utah legislature (SB 208 in the 2010 session) to pass similar legislation on the “billed vs. paid” issue.  The Utah Supreme Court, in Tschaggeny v. Milbank Ins. Co., 163 P.3d 615 (Utah 2007) recognized the issue, but did not reach a decision on it because the issue was not properly preserved on appeal.  Other cases that have dealt with the issue in other jurisdictions include 765 A.2d 786 and 531 S.E.2d 316.  There are also treatises reaching conflicting conclusions. This issue is a hot topic right now between insurance companies, plaintiff counsel and defense lawyers.  The issue needs to be addressed, either by Utah’s appellate courts or by the Legislature.  I would very much like to see a local article on this “billed vs paid” topic.  (Submitted 5/11/2011)

[161] The Utah State Legislature has weakened the independence of the Constitutional Review Committee (CRC).  This further reduces one of the checks on the legislature, already one of the most lopsided in the country.  What has the effect been of the CRC in the past, and what is the predictable impact of weakening its authority?  (Submitted 5/11/2011)

[160] The law in Utah is currently a bit muddy when it comes to children born to a woman who is married to someone other than the biological father of the child.  Pearson v. Pearson, 2008, indicates that biological fathers do not have standing to sue for rights to their children in these situations.  The Uniform Parentage Act doesn’t slam the door shut like that.  Compare and contrast--is the caselaw in conflict with the statute?  (Submitted 5/11/2011) (Claimed 9/8/2011)

[159] The role of tithing to religious organizations in Bankruptcy.   Debtors may contribute up to 15% of their income to charity while repaying nothing to their creditors in a Chapter 13.  Is this ethical?  Should the law be changed?  Should Churches take a position and discourage this?  (Submitted 5/11/2011)


[158] Utah provides for two (formerly three) forms of government for Cities.  City Manager (changed), Mayor/Council, or Strong Mayor/ Council.  The Strong Mayor/Council form of government has an inherent tension between the two branches.  There is only one Utah court case dealing with this form of Government (Logan City).  Over the years there have been many questions regarding the balance of government and where the authority for various aspects of government lies.

There are several cities in Utah that would love to have some thorough research on this.  (Submitted 5/11/2011)

[157] Split of opinion re sec. 546(e) of bankruptcy code – should safe harbor defense apply to private transaction of privately‑held stock.  Note very recent opinion of Judge Mosier in Utah.  (Submitted 5/11/2011)

[156] What anti‑trust remedies could a judge use to resolve NFL owner/player conflict?  (Submitted 5/11/2011)

[155] In the wake of the largest housing crisis in American history, what is the animus for federal court judges in Utah to make a concerted and conscious effort to shield banks, lenders, loan originators and appraisers from liability, while holding ignorant borrowers and consumers liable for all the wrongful acts of those aforementioned.  (Submitted 5/11/2011)

[154] Although statute provides that immigrants each can have one opportunity to file to reopen their cases, the government has a regulation 8 CFR 1003.2d that bars aliens no longer in the country from reopening their cases.  There has been a recent movement by several circuits to invalidate the regulation that appears to contradict the statute.  The Tenth Circuit has a petition for rehearing pending, supported by multiple amici briefs.  See Contreras‑Bocanegra v. Holder, 629 F3d 1170, en banc petition pending (10th 2010).  (Submitted 5/11/2011)

[153] Someone needs to do an analysis of the effect of Judge Kimball’s ruling in the federal case on “duty to warn” on actions that could be brought under the Utah Governmental Immunity Act, particularly in light of the recent dismissal of the USU/Starks case.  Basically need a thoughtful analysis of the difference between a “duty to warn” negligence case under the Federal Tort Claims Act and the UGIA.  (Submitted 5/11/2011)

[152] Is a defendant convicted by jury in Justice Court entiled to another jury trial on a de novo appeal under the doctrine of continuing jurisdiction?  (Submitted 5/11/2011)

[151] Recent changes in the law dramatically change how this type of insurance is settled and evaluated.  There are now procedures in place requiring parties to disclose medical providers and tender undisputed amounts. It is a new area of the law and used by many lawyers.  (Submitted 5/11/2011)

[150] Environmental Permitting of Industrial Facilities and the Local Public Input


How can industry deal with a situation when it is willing to comply with all appropriate regulatory requirements but the local public opposes the facility which results in the regulators denying the permit to construct?  (Submitted 5/11/2011)

[149]  In Machock v. Fink, 2006 UT 30, 137 P.3d 779, the Utah Supreme Court stated that Utah’s one‑action rule (Utah Code Ann. § 78B‑6‑901) was passed by the legislature to “eliminate harassment of debtors and multiple litigation which sometimes occurred under the common‑law rule which allowed a creditor to foreclose and sell the land, and to sue on the note.”  2006 UT 30, ¶ 17.  The court further stated that “[a]s application of the one‑action rule to guarantors would not lessen harassment of debtors or eliminate multiple litigation against debtors, the purpose of the rule is not served by applying it to actions against guarantors.”  Id.

This argument is based on semantics alone (relying on the fact that guarantors are technically not debtors), and does not address the spirit behind the one‑action rule (eliminating harassment).  In almost all cases, the guarantor of a loan is closely related to the debtor (if that were not so, why is the guarantor guarantying this note?).  Thus, a non‑judicial foreclosure on property held by an LLC and a suit against an individual guarantor who is the sole member of the LLC together constitute two concurrent forms of collection against the same person, and are often used by lenders as forms of “harassing” the individual – which is what the one‑action rule was designed to prevent.

Furthermore, the Utah Supreme Court stated in Machock that if a suit against the guarantor is initiated and then the non‑judicial foreclosure occurs, the complaint against the guarantor will need to be amended to reflect the provisions of the deficiency statute (Utah Code Ann. § .  2006 UT 30, ¶ 28.  Thus, if the lender files against the guarantor and then begins the foreclosure only days or weeks later, it is readily apparent that the guarantor suit was only a “placeholder” suit designed to harass the guarantor.

Is this an appropriate basis upon which to disagree with the Utah Supreme Court’s reasoning in Machock on that specific point? If so, how can the protections of the one‑action rule be revived as protecting the individual in the hypothetical from lender harassment?  (Submitted 3/7/2011)

[148]  There is no uniform rule on children testifying in Domestic Matters.  One Judge will state that there is no exception to the hearsay rules for children in Domestic Matters, hence neither party is allowed to state what the child has said to them.  Another Judge will state that he/she will accept some hearsay statements of the child, but will then determine the weight of the same in the final analysis.  Another Judge will state that he/she is not going to compound the trauma that children go through in divorce proceedings by putting the child on the stand and therefore each party is free to restate anything that the child may have said to the parent.  (Submitted 1/18/2011)

[147]  There is no good procedure in being able to withdraw as Counsel when a trial date has been set.  For example, suppose that your client insists that they are going to lie about some fact and demands that you go along with it.  As Counsel you need to withdraw but you cannot tell the trial judge the real reason why without doing dirt to your client’s cause of action.  (Submitted 1/18/2011)

[146]  There are some things in the law that seem exactly backwards.  For example in an adoption proceeding if the child to be adopted is new to one parent and the biological issue of the other, like a step parent adoption, the child needs to reside with the adopting parent a full year before the adoption can be completed.  Whereas, if the child is new to both parents then the child needs to reside with the adopting parents only six months.  Another example is in divorce proceedings, if there are children the ninety day waiting period is readily waived, but if there are no children then the ninety day waiting period cannot be waived.  (Submitted 1/18/2011)


[145]  Small claims rules of procedure ‑ history and/or compare to the full Rules of Civil Procedure.  (Submitted 12/2/2010)


[144]  TOPIC FOR PAPER FOR STUDENT INTERESTED IN PARENTAL ALIENATION
    What it is, how it has evolved as a diagnosis, how it has been treated in the past in the courts, and what, if anything is changing.  This is a topic of timeless importance, which needs all the exposure it needs.  (Submitted 11/22/2010)


[143]  Why, after nearly eighty years, have we learned nothing from this nation’s experience with prohibition.  The generation of the 1920’s learned that criminalizing the possession of alcohol did nothing to curb its use.  Prohibition merely created a thriving industry for criminal elements.  With prohibition came a considerable upswing in violence; bootleggers fought authorities and fought with each other over territory.  Does any of this sound familiar?  We kill more people by making drugs illegal than are killed by the drugs themselves.  The enormous amounts of money circulating in the illegal drug trade corrupts every community in our country and corrupts every nation to the south of us.  (Submitted 11/19/2010)


[142]  Here’s a topic:  how easy it is to go to prison.  There are some stupid laws.  For example, if a person needing money picks up a rock from the ground and offers it to someone for cash, representing that it’s a controlled substance as opposed to a mere rock, and this happens in a park, or within 1000 feet of a mall, that person can be found guilty of a first degree felony, even if there is no sale.  Given that the prison is full (See, Salt Lake Tribune, 9/30/10 – only 2 more beds left) – it might be interesting to know what “heinous crimes” get people there.  It might be enlightening for taxpayers to know what they’re paying for.  (Submitted 11/18/2010)


[141]  Before the Civil War marriage in Utah was treated as a familial and religious matter.  State entities played no role in regulating or governing marriage.
 
However, as part of the federal campaign against polygamy and theocracy in Utah (1865‑1900), the federal government adopted laws directed at the regulation of marriage to combat perceived social evils in Utah.   Under extreme pressure, Utah eventually adopted state laws to regulate marriage to conform with the federal mandates.
 
As the Utah pioneer past faded, Utah continued to incorporate federal regulatory mandates concerning family structure into its own body of law as a means of divorcing Utah society and government from a now uncomfortable past.   Along the way, Utah institutions "forgot" that the social mandates it now mandated originated with the federal government.
 
Now, as the federal approach to regulating marriage and family structures begins to change to reflect new national mores about same gender marriage, Utah will once again find itself more and more isolated as it struggles to apply a state regulatory approach that was first imposed on Utah by the federal government.
 
As federal compulsion in the field of marriage and family life recedes, how will Utah institutions respond?  Is there a possibility that Utah  will once again recognize that marriage is a matter to be regulated by familial and religious institutions rather that by the state?  Or would doing so force Utah to and unwelcome confrontation with  issues that were buried in the 1890‑1910 period.  (Submitted 11/15/2010)
 


[140]  Improved and increasingly efficient systems for multi‑municipal, multi‑state, and regional government services and governance  (Submitted 11/15/2010)

[139]  A 21st century intellectual property system for improved innovation  (Submitted 11/15/2010)


[138]  Is the one year statute of limitations in Utah's Post‑Conviction Remedies Act (78B‑9‑107) constitutional?  Did removing the "interests of justice" exception and replacing it with a tolling provision (78B‑9‑107(3) affect the constitutionality of the statute of limitations?  (Submitted 11/15/2010)


[137]  Is the use of a keylogging device or keylogger software to confirm an extramarital affair illegal in Utah?  I am getting mixed responses from the sources I am consulting.  I come to the agency charged with enforcing the Interception of Communications Act, asking whether a specific action in a specific circumstance constitutes a violation of the Act or any other Utah State statutory provisions.

My sense is that keylogging devices and keylogging software, or more particularly, sufficiently restricted keylogging devices and keylogging software, are not illegal for use to confirm an extramarital affair, misuse of marital funds, and other behavior of the suspected spouse.

See this Wikipedia entry for a description of what a keylogger is.

http://en.wikipedia.org/wiki/Keylogger

A key logger is either a recording device or a software application that can be installed on a computer.  In divorce actions, it is proposed that use of a keylogger is one of the few ways to document/obtain evidence of a spouse’s behaviors that would stand up in court.

The keylogger records all the keystrokes which are made by the computer user and then saves the information, providing a detailed account of what the user did on/with the computer.  It is often used or suggested for use by some attorneys (not me, yet) to catch a cheating spouse's communications with his/her paramour, to track secret financial accounts, and communications that belie a spouse's claims made in pleadings, hearings, or depositions.

There is case law in other jurisdictions on whether keylogger use by spouses seeking to gather evidence against the other spouse in divorce actions constitutes a violation of state and/or federal wiretapping or telecommunications intercept law(s).  Your office may find that helpful in making your own analysis of Utah's law(s) governing the issue:

Intercept

Edited by Mdscott

http://itlaw.wikia.com/wiki/Intercept

Definition 

Intercept is defined in the Electronic Communications Privacy Act (ECPA) as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”[1]

As the Ninth Circuit stated in Konop v. Hawaiian Airlines, Inc.[2]:


“Standing alone, this definition would seem to suggest that an individual ‘intercepts’ an electronic communication merely by ‘acquiring’ its contents, regardless of when or under what circumstances the acquisition occurs. Courts, however, have clarified that Congress intended a narrower definition of ‘intercept’ with regard to electronic communications.[3]”

Application to electronic communications 

The Act broadly bars all intentional interception of electronic communications.[4]

The Act enumerates several exceptions to this prohibition.[5]

1.            Law enforcement officers are authorized to conduct interceptions pursuant to a court order.

2.            For ISPs and other service providers, there are three exceptions.

·              “necessary incident”  exception[6]

·              “consent  exception",[7] and

·              “business use” exception.[8]

Application to keylogger software 

By interpreting the term “intercept” narrowly, the courts have essentially made it impossible to apply the ECPA to keylogger software.

As stated in United States v. Steiger,[9]:

“[T]here is only a narrow window during which an E‑mail interception may occur — the seconds or milli‑seconds before which a newly composed message is saved to any temporary location following a send command.

Therefore, unless some type of automatic routing software is used (for example, a duplicate of all of an employee’s messages are automatically sent to the employee’s boss), interception of E‑mail within the prohibition of [the ECPA] is virtually impossible.”

To avoid any possible implication of the ECPA, when the FBI in United States v. Scarfo,[10] installed a keystroke logging device on the computer of suspected bookie, it configured the software to cease operations if the modem was being used, thus, preventing interception of messages being transmitted over an interstate computer system. The court said the keylogger software did not violate the ECPA because of its cessation when the modem was being used.


In United States v. Ropp,[11] the court held that the interception of keystroke transmissions from the wire connecting the keyboard to the CPU was not an “electronic communications” under the ECPA, since it occurred before the transmission reached the interstate computer network. The court deemed relevant the fact that the keystrokes of an email are temporarily stored in the computer until the messages is completed; then and only then is the messages transmitted over the network as a complete message. Intercepting the individual keystrokes before they are contained in a completed email message do not fall within the ECPA.

 Finally, in O’Brien v. O’Brien,[12] a wife used spyware to see if her husband was cheating on her. The software secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed [the spyware] to capture and record all chat conversations, instant messages, e‑mails sent and received, and the websites visited by the user of the computer.” Applying a Florida state statute, which was patterned after the ECPA, the court held that there was an illegal wiretap “because the particular facts and circumstances . . . reveal that the electronic communications were intercepted contemporaneously with transmission.” Taking regularly spaced “snapshots” of screens makes it unlikely that this conclusion is actually true.

References
1.  18 U.S.C. §2510(4).
2.  302 F.3d 868, 876 (9th Cir. 2002)(full‑text) (citations omitted) 3.  See also O’Brien v. O’Brien, 899 So.2d 1133 (Fla. App. 5th Dist. 2005)(full‑text) (“The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are not retrieved from storage”); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 461‑62 (5th Cir. 1994)(full‑text) (“Critical to the issue before us is the fact that, unlike the definition of ‘wire communication,’ the definition of ‘electronic communication’ does not include electronic storage of such communications. . . . Congress’ use of the word ‘transfer’ in the definition of ‘electronic communication,’ and its omission in that definition of the phrase ‘any electronic storage of such communication’
. . . reflects that Congress did not intend for ‘intercept’ to apply to ‘electronic communications’ when those communications are in ‘electronic storage’”).
4.  18 U.S.C. §2511(1).
5.  Id. §2511(2).
6.  Id. §2511(2)(a)(i) ("It shall not be unlawful under this chapter for an .  .  .  electronic communication service, whose facilities are used in the transmission of a[n] .  .  . electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service.”).
7.  Id. §2511(2)(d): “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a[n] . . . electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception . . . .”
8.  Id. §2510(5) ("any device or apparatus which can be used to intercept a[n] .  .  .  electronic communication other than — (a)any telephone or telegraph instrument, equipment or facility, or any component thereof . . . (ii) being used by a provider of. . . electronic communication service in the ordinary course of its business . . . .”).
9.  318 F.3d 1039, 1050 (11th Cir.)(full‑text), cert. denied, 538 U.S. 1051 (2003).
10.  180 F.Supp.2d 572 (S.D.N.Y. 2001)(full‑text).


11.  347 F.Supp.2d 831 (C.D. Cal. 2004)(full‑text).
12.  899 So.2d 1133 (Fla. App. 5th Dist. 2005)(full‑text).  (Submitted 11/10/2010)


[136] Deeds of Trust:  Effectiveness of dragnet clauses, the “obligatory advance rule” and other issues surrounding priorities of competing lienors  (Submitted 11/10/2010)


[135] Section 10‑9a‑705(2) of the Utah Code addresses the due process rights of those appealing municipal land use decisions to a municipal appeal authority.  It states that the municipality “shall respect the due process rights of each of the participants.”  What due process rights does the participant have?  Does an individual appealing a denial of land use entitlements have the right to cross examine witnesses?  Many municipalities limit the amount of time (sometimes to 15 minutes or less) of appellants to present their material.  Is this a due process violation?  Generally the appeal authority is made up of common citizens who receive their training from the City Attorney.  The City Attorney is then often the person that argues in favor of the denial that is being appealed so that the very person that trained the board and is considered the expert is now advocating on behalf of the municipality.  Is this a violation of due process?  In most cities an appeal has to be filed in 10 days after a decision.  Is this a violation of due process?  I could go on and on, but this is an interesting and important topic.  (Submitted 11/10/2010)


[134]  Do a study on the incidents of elder abuse and exploitation by fiduciaries. Is the court‑ordered guardians or non‑probate fiduciaries the culprit?  (Submitted 11/10/2010)


[133]  The holes and unanswered questions in the application of the Utah's Child Support guidelines.  (Submitted 11/10/2010)


[132]  Eminent domain ‑‑ damages. Should there be compensation paid to property owners under the takings clause or in eminent domain for loss of value to property caused by increasing the difficulty to access the property? For example, as part of road improvements, UDOT may no longer allow left turns in and out of property, making access to the property right‑in/right‑out only. For a business such as a fast food restaurant, doing so could significantly impact the ability to conduct business there, and therefore the attractiveness of the property to purchasers, and thereby negatively reduce the fair market value of the property.  On the other hand, however, UDOT must modify traffic patterns on the road in order to increase safety. In addition, such damages would be speculative in amount. Courts therefore have historically declined to award them. Nevertheless, such damages are virtually certain. Should they be compensable? See Utah DOT v. Ivers, 2005 UT App 519  (Submitted 11/10/2010)
 
[131]  Regulatory Takings. Is it possible to make a claim for a regulatory taking? Smith Inv. Co. v. Sandy City, 958 P.2d 245, sets a very high standard. Many government regulatory actions will negatively effect the value of property, but how far does it need to go to be a taking? How does one establish a regulatory taking? Does the government action need to go so far and do so much damage that effectively, it is nearly impossible to establish a regulatory taking? Is that how it should be?  (Submitted 11/10/2010)
 
[130]  Development and Land Use ‑‑ Exactions.  B.A.M. Dev., L.L.C v. Salt Lake County, 2008 UT 74 tried to clarify how to use the exaction test, but did it actually muddy the water? How is a city to analyze and measure the monetary cost of impact to new development? If the City would just have to pay for the improvements that they are asking the developer to pay for, isn't the cost to the City always equivalent to the cost to the developer?   (Submitted 11/10/2010)


[129] As a domestic relations practitioner, I am continually challenged by the question, How much alimony should be paid. We have child support guidelines that have made child support relatively easy.

Is it feasible to adopt an alimony guidelines?  If so, what would they be?

How other states adopted alimony guidelines.  How well do they work?  (Submitted 11/10/2010)


[128] A very recent case in Utah County – where a jury convicted an 18‑year‑old of sodomy and attempted rape on a 14‑year‑old (first‑degree felonies) –  placed in direct conflict the wishes of the victim, a desire to prevent an alleged perpetrator that had already pled guilty pre‑trial to attempted kidnapping (3rd degree felony) and sexual abuse of a 16‑year‑old occurred a week after the conduct charged in this case. Issues relating to Alcohol Fetal Syndrome, Sub‑"Normal" Mental Capacity or Mental Illness and clinical depression were not included to trial; the victim sought to ban copies of her personal Journal submitted for sentencing purposes by her mother, without any disclosure or permission from her; counsel for victim alleged violation of victim's right statutes, Utah constitutional provisions including Article I sections 1, 4, 14 and Article III section 1; trial judge refused to ban Journal entries except those related to religious matters and gave no explanation of ruling; Journal entries have been the basis of a motion for new trial and had been specifically subpoenaed a pre‑trial, but the subpoena was late and no one requested the input or involvement of the victim regarding the same.  The trial judge suspended the prison penalties for the 2 first‑degree felonies, impose the year in the county jail, followed by 3 years probation, with one‑year within ankle monitor.
 
Many on the prosecution as well as the defense side are adamant that laws proposing to encourage, prevent or revise the foregoing will be introduced at this next legislative session.
 
How to address these issues ‑‑ and in particular when participants are impeded by alcohol feel effects or syndrome, mental handicap or mental illness ‑‑ while upholding the moral standards of the community ‑‑ and respecting the protections afforded in the State of Utah to crime victims, and determining at what point, and for what kinds of crimes should youth (teenagers) be treated as adults – including a right to independently assert priest penitent privilege if they have received religious, spiritual or counseling from an ecclesiastical person is regarding the matter are all issues that could be explored in depth.
 
I have done basic research from an interdisciplinary perspective and legal perspective on these issues and would be happy to help a law student narrow the scope on any one of them and give them direction on how to research a legal topic in depth, identify competing policy issues, and work on creative solutions in the legislative and administrative law arena that can bring some degree of resolution of competing claims and establish avenues for enforcement that encourages protection of victims, the community and rehabilitation of perpetrators.  (Submitted 11/10/2010)


[127]  What is the potential legal liability for a law firm, accounting firm or other business receiving a cash payment greater than $10,000 in the ordinary course of business, how long does that liability exist and how can such liability be eliminated (other than by refusing to accept cash payments for amounts greater than $10,000)?  (Submitted 11/9/2010)


[126]    I have always been puzzled why those appointing judges in the State of Utah seem to have a preference for appointing career prosecutors to be judges.

This seems counterintuitive to me for two reasons‑‑first of all, a career prosecutor who has never handled any criminal defense matters at all would seem to have a built‑in, subconscious bias in favor of the prosecution on criminal cases, and would seem to have no experience whatsoever in civil cases‑‑where experience is often the difference between making a good and fair judicial decision or a bad one.  It would be interesting to find out through an objective analysis whether ex‑prosecutors really do make better judges‑‑or if their chance for success as a judge is no better or no worse than an attorney with a different background.  (Submitted 11/9/2010)


[125]    With the recent emphasis on ethics and professionalism by the Utah Supreme Court and the Utah State Bar, it appears to me that prosecutorial ethics have been somewhat left out.  Having been a prosecutor early in my career, I was always taught that (1) a prosecutor is not there just as a "rubber stamp" for every police officer or private citizen that may want to file a criminal complaint against someone, and (2) a prosecutor's role is not just to try win every criminal case and to make sure every defendant serves the longest possible sentence.

Rather, I was taught that a prosecutor is to exercise prosecutorial discretion to ensure that justice is done, and to serve the entire community‑‑including those persons in the community accused of crimes.  I was taught that the proper exercise of prosecutorial discretion may mean electing not to prosecute certain cases where the evidence is weak, where the legal theory is convoluted or where other considerations would make prosecution extremely unfair or draconian‑‑or that the proper exercise of prosecutorial discretion may require giving a criminal defendant a "break" on a suggested plea bargain or sentence in appropriate circumstances.

Although there are many extremely professional, extremely fair‑minded prosecutors in Utah, I have also had the displeasure to come across many prosecutors who don't seem to know that prosecutorial ethics and discretion even exist.  Those prosecutors seem to think their sole reason for existence is to "rubberstamp" anything their local police ask them to do, to win every
criminal case at all costs, to blurt out the memorized "hardline" prosecutorial position when arguing every motion or sentencing‑‑and to refuse to be creative in structuring a fair plea bargain‑‑regardless of the circumstances.  I believe that prosecutors with these types of attitudes
clearly abuse their power and create the opportunity for those who enforce the law to abuse the system.

I would like to see the Utah Supreme Court and Utah State Bar impose higher standards on prosecutors in the State of Utah, so they are actually required to evaluate how justice would best be served‑‑taking all considerations into account in a case‑‑rather than just acting as a hired gun for the police department, and using their power to ruin people's lives, rather than to do justice.  I think this would be a good issue for a student paper or law review article.  (Submitted 11/9/2010)


[124]  Foreclosure Defense in Utah  (Submitted 11/9/2010)


[123]  Explore the constitutionality of Title VII and other laws that govern interactions at work, i.e. do anti‑harassment laws infringe on freedom of speech; do laws preventing consideration of certain factors in hiring (race, age, etc) infringe on freedom of association and is that a constitutional right; do wage and hours laws infringe on freedom of contract and is that a constitutional right?  (Submitted 11/9/2010)


[122]  Don’t exactly know how to phrase this but I think it would be interesting to do a survey of lawyers and laypeople as to how the uncertainty of tax laws affect the lawyer’s business and also laypeople’s business and lives.  (Submitted 11/9/2010)


[121]  It is a common practice in commercial real estate transactions for a buyer to get a “free look” at the property before the earnest money deposit becomes “hard” (non‑refundable).  The idea is that the buyer ties up the property for a given period and sets the purchase price, but is given time to do its due diligence without risking any money (other than the costs of due diligence, which are often quite significant).  In recent years, California courts have called into question this practice.  Attorneys for sellers who want to get out of the deal (“seller’s remorse”) have been arguing that these contracts are in essence options without consideration.  Attached is an article from the Real Estate Section of the California Bar Association that discusses the current situation in California.  I would think an interesting article could be written about the Utah law in this area.  Please note that this matter comes up every day in commercial real estate, in very significant transactions, and yet it involves legal analysis of an issue covered in first year contract law class.  (Submitted 11/9/2010)


[120]  What is the impact of Cabaness v. Thomas, an April 2010 Utah Supreme Court decision, on employers and their written policies/handbooks?  (Submitted 11/9/2010)


[119]  Estate Tax in the sunset of EGTRRA on 1/1/11. (Economic Growth and Tax Relief Reconciliation Act of 2001 (Pub.L. 107‑16, 115 Stat. 38, June 7, 2001))  (Submitted 11/9/2010)


[118]  There has been a growing tension between the Utah and United States Supreme Courts’ attitudes regarding whether the exclusionary rule should be applied where a police department employee, but not the police officer, has erred, causing an unnecessary intrusion.  For instance, a department employee failed to enter car registration in a timely manner, causing a traffic stop (which led to an arrest for a DUI) where the car had in fact been properly registered.  The US Supreme Court has recently ruled (5‑4) that the exclusionary rule should not apply; the Utah Court of Appeals has disagreed and held to stronger Fourth Amendment protections.  The Utah Supreme Court is currently considering the question.

What is the history of Utah taking such a stronger stand in protecting individual rights?  (Submitted 11/9/2010)


[117]  Whether custodial interrogation of those who are particularly vulnerable (young, disabled, mentally ill, etc.) is tantamount to kidnapping, in that it induces the captor‑pleasing behaviors of Stockholm syndrome; in this case, false confessions.  (Submitted 11/9/2010)


[116]  Whether the individual and employer mandate in federal health reform are unconstitutional.  (Submitted 11/9/2010)


[115]  An unleveled playing field of its own: Conflicting state regulations of internet deferred deposit lenders. (Internet borrowers make it difficult for internet lenders to know exactly who they are dealing with (where they are at the time of contracting for a loan), yet states have carved out unique and harsh penalties for deferred deposit lenders faced with diverse state regulations. It would be novel to see a law review article take on the creditor's side of this issue.  (Submitted 11/8/2010)


[114]  Jr. High School students and sex.  Is it really rape?  Statutory language supports rape charges for Jr. High School students under 14 to have voluntary sex.  Should legislation be changed or should it be left prosecutor discretion where defendants in juvenile court are not entitled to a jury trial?  (Submitted 11/8/2010)


[113]  The Impact of Social Media and the Practice of Law and/or Employee Relations.  (Submitted 11/8/2010)


[112]  With Utah being the second‑driest state in the US, how can its water law be revised/updated to encourage wiser/more efficient use?  (Submitted 11/8/2010)


[111]  The scope of Rule 11 sanctions.  (Submitted 11/8/2010)


[110]  How to “fire” a client.  (Submitted 11/8/2010)


[109]  The constitutionality of charging individuals convicted of a misdemeanor for their days spent in jail as opposed to felons who are in county jails who do not pay for time served.  (Submitted 11/8/2010)
 


[108]  What law applies to govern a condominium, the law that was in effect at the time the condo was created, the law that was in effect at the time the CC&Rs are amended, or the law in effect at the time an issue arises?  (Submitted 11/8/2010)


[107]  The maximum jurisdictional limit for smalls claims cases was recently raised to $10,000.  This has caused many more claims to be brought in the small claims court.  Does the statute establishing the small claims court violate the rights guaranteed under the Utah and Federal Constitutions to trial by jury?  Does it violate the equal protection of the laws in that discovery is not allowed in small claims court but is allowed in District Court?  Does the new jurisdictional limit promote forum shopping for a court that does not allow discovery, does not enforce the Utah Rules of Evidence, and does not have a jury as the finder of fact?  Does it violate any other rights I cannot think of at the moment?  (Submitted 11/8/2010)


[106]  Do tax incentives create the desired behavior, and if so are the benefits worth the costs?
States offer millions of dollars in tax incentives in an effort to induce businesses to build plants, drill oil and gas wells, create new jobs in enterprise zones, movie production, manufacturing, mining, agriculture, etc.  How effective are these incentives in actually getting business to do something that they would not do absent the incentive.  If they actually influence behavior, what is the net benefit to the state after deducting the costs of the incentives?  (Submitted 11/8/2010)

[105]  How does Utah compare in terms of state revenue received from its natural resources?
Utah is rich in natural resources, oil. gas, coal, gold,  silver, copper, beryllium, molylendeum, helium, sand and gravel.  However because we do not tax production of many of our resources , or have comparatively low taxes on others, or provide tax credits as in severance tax, does Utah rank high in production, but low in revenue received?  (Submitted 11/8/2010)


[104]  Criminal investigations:  The evolution from grand juries to prosecutorial investigations.  (Submitted 11/8/2010)

[103]  Price fixing in public procurement:  Can agreements between a manufacturer and an architect to include specifications written by the manufacturer in the architect's contract documents for a public building project, without the knowledge or approval of the public entity owner, violate the Sherman Act?  (Submitted 11/8/2010)


[102]  The path to compliance:  How can employers expect to comply with the new health‑care laws without timely regulations?  (Submitted 11/8/2010)


[101]  As per your request, here is a research suggestion:  Rule 404(c) as it relates to sex crimes against children.  This is a newer Utah law and it would be nice to pull in case law from other states that have a similar law to argue how it should apply in court.  (Submitted 11/8/2010)


[100]  What would the legal architecture be for an orderly transition from the water doctrine of Prior Appropriation to a state government based market system for water acquisition, disposal and exchange?  (Submitted 11/8/2010)

[99]  With the state penal system being broke and broken what alternatives are there for punishing criminals?  (Submitted 11/8/2010)

[98]  Individuals and businesses do banking via the internet.  How could the same digital information system be used to allow citizen oversight of governmental budgets?  (Submitted 11/8/2010)

[97]  Given the lack of informed citizen participation in state judicial retention elections, how could voters better understand and participate in the retention elections?  (Submitted 11/8/2010)


[96]  In deciding an issue under the Utah State Constitution, to what extent should the courts rely upon original meaning and to what extent should they rely upon policy concerns and modern social values?  If they rely upon either or both, how should they go about determining original meaning and/or policy concerns and modern social values?  (Submitted 11/8/2010)


[95]  I believe a topic ripe for study and analysis is the exception in 11 U.S.C. section 1322(b), which allows a debtor in a chapter 13 to modify executory contracts, except for contracts involving the debtor's primary residence.  Especially in today's economic climate, I think there is little logical justification for the exception, which is causing untold problems for debtors facing foreclosure who otherwise might not even need to file bankruptcy.  An additional benefit of removing the exception might be to provide an additional incentive to modify mortgages.  (Submitted 11/8/2010)


[94] Utah law states that corporate directors and officers (D&O) only owe fiduciary duties to shareholders in a collective capacity.  Therefore, such shareholders can only file lawsuits against such D&O in a derivative capacity under Utah R. Civ. P. 23A.  Only a narrow possible exception has been recognized in Utah for this rule, called the close‑corporation exception.  But even that was questioned in the Supreme Court’s recent Dansie case.

            Sometimes, this derivative action requirement can result in patently unfair results whereby D&O can use their superior knowledge and power in corporations to unfairly take advantage of shareholders.  For instance, they can orchestrate all kinds of self‑dealing benefits for themselves at the expense of shareholders to whom they owe fiduciary duties.

            There are situations where a derivative action cannot be filed because the plaintiff is no longer a shareholder, but that shareholder was cheated out of money by a D&O breaching his fiduciary duties.  Utah law thus seems to incorporate a loophole through which unscrupulous D&O can blatantly violate fiduciary duties so long as they conceal their wrongdoing for long enough.  Seems like it’s sending the wrong message and, in fact, encourages fraudulent conduct.

            Multiple other jurisdictions allow a direct action to be maintained by former shareholders who parted with their shares before learning of managements’ breaches of fiduciary duties.   In Watson v. Button, 235 F.2d 235 (9th Cir. 1956), the court acknowledged the general rule (that requires Rule 23A type derivative actions), but held that: 

 “a former stockholder, who parted with his shares without knowledge of prior wrongful misappropriation of corporate assets by the directors, may recover from the directors the amount by which the misappropriation had reduced the value of his prior shareholdings.”  Id. at 237.

 Similarly, in Blocker v. Meehan, 1989 WL 134473 (D.Kan. 1989), the Court also noted  the general rule, and then recognized the Watson exception by stating:

 “former shareholders [have] standing to bring a direct action against the ¼ former president of the corporation who allegedly caused diminution of the value of their previously owned shares by breaching his fiduciary duties.”  Id. at *1.

             Other courts have also recognized that rejecting the Watson exception would have the “terribly burdensome result” of allowing corporate executives to escape liability for blatantly unlawful practices.  See, e.g., Kirk v. First Nat. Bank of Columbus, 439 F.Supp. 1141, 1149 (M.D. Ga., 1977); Davis v. Ben O'Callaghan Co., 232 S.E.2d 53, 55‑56 (Ga. 1977). 

            The Watson exception has been applied to allow direct claims in the form of a Rule 23 class action for all former shareholders who parted with their shares before discovering a breach of fiduciary duty.  See, e.g., Eagle v. American Tel. and Tel. Co., 769 F.2d 541 (9th Cir. 1985) (permitting former minority shareholders to bring class action in their individual capacities).


            From what I can tell, there has been almost no development in this law for decades.  What is the status of it?  Would Utah appellate courts recognize another exception to the derivative action requirement in such a situation?  If so, under what parameters?  Is it consistent with Utah law that states fiduciary duties are only owed to shareholders in a collective instead of individual capacity?

I will be filing an appeal on this in a near future, but thought it might be an interesting topic for a law review. I would be happy to discuss this for a few minutes with a student.  (Submitted 11/8/2010)
Claimed 3/8/2011)


[93]  Topic:  Utah's Trust Deed Statute‑ Is it constitutional under the Due Process Clause?

        Why is it that in states like Utah with non‑judicial foreclosure, you do not get a court hearing or any judicial review of the process when a private trustee forecloses on your family home and sells it to the highest bidder at a private sale whereas for something like a wage garnishment, no matter how small, you do get a court hearing and judicial review?  (Submitted 11/8/2010)


[92] Please consider whether in Utah, if a trust deed or a mortgage on real property is enforceable when the promissory note or trust deed note is unenforceable because of the statute of limitations.  See, 36 A.L.R.6th 387.  There is no Utah law on point, but I suggest that if the note has expired, so has the underlying mortgage or trust deed.  If this is the case, must a quiet title action be filed to clear the title of the property and rid the chain of title of the mortgage or trust deed note?  (Submitted 11/8/2010)


[91]  The Shaken Baby Syndrome – Valid Diagnosis or Not?

Several law review articles have been published around the United States suggesting that there is no scientific validity underlying this medical diagnosis.  All of those articles were influenced and even sponsored by defense‑oriented attorneys or their staff members with a particular goal of giving the defense something “authoritative” to cite in opposition to this diagnosis in the courtroom.

None of the existing articles considered the overwhelming scientific and clinical medical evidence which supports the diagnosis of Shaken Baby Syndrome – acting as though the literally hundreds of articles don’t even exist.  Many prior articles, such as that authored by Genie Lyons at the University of Utah, are based solely upon mistaken and distorted assumptions both about how experts go about reaching a diagnosis and about how prosecutors charge and pursue cases in court.

It’s time for a balanced, objective, and unbiased Law Review or Law Journal Article which accurately and fairly represents the current state of the art in both science and law relating to this frequent maimer and killer of children.  Some of the most objective and qualified experts in the world reside in Utah and work for Primary Children’s Medical Center.  (Submitted 11/8/2010)


[90] Topic: Should Utah consider a jury exemption for full‑time parents of young children?

Background:  Many states have created jury exemptions for full‑time parents of young children. The exemptions vary in form and structure.  While Utah statute states that an undue hardship exists if the perspective juror would “(a) be required to abandon a person under his or her personal care or incur the cost of substitute care which is unreasonable under the circumstances,”  this is not an automatic exemption.  It places the burden of proof on the prospective juror and leaves all the discretion with the judge.  In addition, under the statute a parent could be forced to hire a baby sitter that he/she is not comfortable with, so long as the baby sitter would not charge an unreasonable amount for the service.  For parents without babysitters available during the school day or family members that can help, this can be stressful and frustrating.  Is it time that Utah joins other states by creating an automatic exemption for a full time parent that is called to jury duty?  (Submitted 11/8/2010)


[89]  The impact of affirmative action programs in Utah state government contracting, employment and education.  (Submitted 11/8/2010)


[88]  Should the court recognize informal immunity agreements between prosecutors and defense attorneys (ala DJ Bell case)?  (Submitted 11/8/2010)


[87]  Are texts between city council members during a public meeting subject to GRAMA?

Other issues relating to social media and open meeting laws and/or GRAMA.  (Submitted 11/8/2010)

[86]  There are many things attorneys can do to help fight prescription drug abuse, e.g., help promote the different ways to properly dispose of unused prescription drugs.  The question is, what are the reasons why attorneys should help with that?  E.g., do some attorneys deal with clients who take a lot of prescription drugs; are attorneys often community leaders with influence; and do some attorneys have problems with prescription drug addiction?  (Submitted 11/8/2010)


[85]  Because Obama has lost the House of Representatives, many, including the pundit, Charles Krauthammer, are saying that Obama will try to do through the "back‑door," that is, through Administrative Rule, what he cannot accomplish and pass through Congress.  For example, there have been several articles about granting some sort of amnesty for illegal aliens through Administrative Rule simply because the House will never approve an amnesty bill and Obama needs amnesty for illegals to get re‑elected in 2012.  In fact, the Democrats need amnesty to hold on to power and add 30 million people to their voting rolls.  The EPA has already gone down this road in classifying CO2 as a pollutant, something Congress never would have done.  This is a daring and bold move in that it affects everyone in the country, yet we never heard a debate about it or voted on it.
 
This kind of brazen rulemaking‑‑‑actually law making‑‑‑‑creates serious Separation of Powers issues.  To what extent can federal Administrative Agencies actually "make law," laws within the province of Congress, all under the guise of exercising their so‑called Rulemaking authority?  Has this been abused?  If so, why?  If not, why not?  Where will it end?  Where are the limits on this sort of conduct?
 
This is a big and serious issue in our government, state and federal, and it will only get bigger.  I think this issue needs a serious debate.  Numerous federal agencies make rules all day long, by publishing them, seeking comment, comments they ignore, and then simply implementing them.  The public can do nothing.  These "rules" then have the full force and effect of law.  This is the "soft tyranny" that Alexis de Tocqueville talked about and he said this very thing with regard to Administrative Agencies some 150 years or more ago.  (Submitted 11/8/2010)
 
[84]  A second topic might be the Constitutionality of federal government unions.  If you know your history, FDR did NOT want government employee unions.  He was dead‑set against the concept.  Even as a socialist, FDR thought this was going too far.  Yet government unions today essentially take our tax money and spend it on campaign contributions that will only make them more powerful and influential.  It becomes a freight train that can't be stopped.  ObamaCare is more about eventually creating a government health care workers union of 7 million people than anything else.  Anyone who doesn't realize this or believe it is misinformed and naive.  So if this is so, what is the legality of it?  What impact will it have on all of us?  Cicero said that Rome was falling, or would fall, because the government was using the people's money to buy their votes.  That is what is going on now.  Is this what we want?  What will happen if it continues unchecked?  Is it Constitutional?  Are there any limits on it?  If so, what should they be?  Accordingly, this is another excellent topic for a debate or law student paper.  (Submitted 11/8/2010)


[83]  Is an attorney required to identify his or her client(s) when lobbying state or federal legislative or executive officials?  (Submitted 11/8/2010)


[82]  Use of states’ rights doctrine to increase the Federal minimum CMS 90 for Big Rig Truck Crashes.  The Federal minimum is only $750,000.00.  Here in the Crossroads of the West, Utahns bear a disproportionately high risk of being tragically injured in Big Rig Truck Crashes, compared to the rest of the country.  If a Utahn is run down by an 80,000 lbs Big Rig Truck, the Utahn will also most certainly be critically or of fatally injured.  The burden falls on the injured Utahn, the family, the LDS Church and the Utah State Medicaid resources.  In my view, Utahns should not kow‑tow to the Federal minimums in protecting our fellow citizens, our families and our State.  This really is both a States’ Rights issue and an issue of fundamental fairness.  (Submitted 11/8/2010)


[81]  Preventing residential mortgage foreclosures by claiming illegality in the execution of the mortgage by the mortgage broker.  (Submitted 11/8/2010)

[80]  Lien stripping by using bankruptcy to wipe out junior liens on houses with mortgages.  (Submitted 11/8/2010)

[79]  Implied warranty of habitability for residences recently imposed by the Utah Supreme Court in the Davencourt case.  (Submitted 11/8/2010)


[78]  Utah law should be changed such that when a party files for no‑fault divorce there is a rebuttable presumption that the complainant spouse is entitled to no alimony.  Why?  Given that the complainant is alleging no fault and the other spouse is willing to remain married and remains willing to support the complainant spouse, if the complainant spouse wants out of the marriage, fine, but don’t ask your allegedly innocent spouse to give you the support benefits of a spouse when you no longer wish to be married to your spouse.  (Submitted 11/8/2010)

[77]  Change the physical custody presumption from sole physical custody to a presumption that joint physical custody is in the best interest of the child.  The fight should not be over whether a parent is awarded sole physical custody, but whether joint physical custody cannot function successfully in the lives of both the child and his parents.  (Submitted 11/8/2010)

[76]  Change the standard for custodial determinations (both physical and legal custody) from best interests of the child to best interests of the (immediate) family at large.  To treat the interests of parents as if they do not exist when contemplating a child custody award is inequitable, irrational, immoral, and arguably unconstitutional. The “best interest of the child”  standard forces loving parents (who desperately wish to retain the companionship of their children and to retain parental contact and influence) to frame arguments based upon benevolent self‑interest as contrived arguments for why the child and the child alone would benefit from a proposed custodial award.  (Submitted 11/8/2010)

[75]  Now that the Utah Court of Appeals has held (Mark v. Mark, 223 P.3d 476, 645 Utah Adv. Rep. 15, 2009 UT App 374 (Utah App.,2009) that the courts cannot consider fault in divorce actions on the subject of alimony until the legislature defines fault (see specific comment below), how should the legislature define fault (and not only for alimony purposes but for fault‑based complaints for divorce generally as well)?

"¶ 18 As currently written, Utah Code section 30‑3‑5(8)(b) provides no meaningful guidance on this issue. Rather, the plain language simply grants trial courts discretion to consider fault in fashioning alimony awards. See Utah Code Ann. § 30‑3‑5(8)(b) (2008) (“The court may consider the fault of the parties in determining alimony.”). However, the Utah Legislature has provided no definition of what, exactly, constitutes fault. Accordingly, it is unclear whether fault relates to the alternate grounds for divorce contemplated by Utah Code section 30‑3‑1(3), see id. § 30‑3‑1(3) (listing grounds for divorce, including impotency, adultery, desertion, neglect, habitual drunkenness, felony conviction, cruel treatment, irreconcilable differences, and insanity), or if it means how the parties dealt with, for example, marital assets or liabilities, or some other behavior unrelated to the cause of the divorce. Where the legislature has not defined fault in the statute, it is virtually impossible for trial courts to quantify it, and the consequences thereof, when fashioning alimony awards. This is especially true in light of the sound no‑punishment/no‑reward precedent, see Davis, 2003 UT App 282, ¶ 9 n. 1, 76 P.3d 716, Christiansen, 2003 UT App 348U, para. 9, 2003 WL 22361312, which we decline to disturb here.


"¶ 19 Furthermore, consideration of fault is already built into the system on virtually every issue that arises in domestic cases. For example, if one spouse is at “fault” for dissipating assets or incurring substantial debt, the trial court may require that spouse to repay what has been lost, impute income, or compensate the other spouse with a property award or other assets. Moreover, if one spouse's bad behavior has caused the other spouse to have medical issues, the trial court may consider the bad behavior when determining the recipient spouse's increased financial needs. Where the system is replete with ways in which fault is taken into account, any additional consideration of undefined fault seems superfluous.

"¶ 20 We will not substitute our judgment for that of the legislature. Accordingly, until the legislature clearly defines fault in the statute, it is inappropriate to attach any consequence to the consideration of fault when making an alimony award."  (Submitted 11/8/2010)

[74]  What is the legal effect of a non‑disturbance clause within an unrecorded real estate lease once the lease has been extinguished through a completed foreclosure?  Most commercial leases contain such a provision together with compatible attornment language, but are the priority lender or other purchaser at the foreclosure sale bound by such extinguished language?  (Submitted 11/8/2010)


[73]  The very real injustice caused by under funding public defenders in rural Utah.  (Submitted 11/8/2010)


[72]  What is an intellectual passport (see http://www.usdsystem.com/passport.html) and what protection does it offer?  Also, how does it relate to the unauthorized practice of law?  (Submitted 11/8/2010)


[71]  Does the Marketable Record Title Act apply to transfers of water rights ‑ which are rights in usufruct?  (Submitted 11/8/2010)


[70]  An interesting topic would be exploring the Visa/MasterCard member regulations – the holy bible of the global payment processing industry – as compared to relevant laws regulating payments companies in various worldwide jurisdictions.  (Submitted 11/8/2010)


[69]  If a Bank wrongfully forecloses on a home owner and sells the home at foreclosure (when owner was not in default or owner had not been given notice or owner had been informed sale was canceled and they were processing loan modification paper work and there would not be a sale etc.) and a third party BFP buys the home at auction, can the home owner have the sale rescinded and have court take title away from BFP and put back with home owner?  Can you void the trustee’s sale to a BFP in Utah?  See UCA 57‑1‑28(2)(b) and (c) and UCA 57‑1‑28(3).  See also Occidental/Nebraska Federal Savings Bank v. Herh, 791 P.2d 217, 221 and Concepts Inc. F. First Security Realty Services, Inc. 743 P.2d 1158.  (Submitted 11/8/2010)


[68]  Occupational Stress is covered under Utah Workers Compensation law if particular criteria are met (34A‑2‑402 for sudden events (accidents) and 34A‑3‑106 for stress over time causing a medical condition).  The issue was well examined by the Courts in the Nancy M. Wood v. Labor Commission series of cases.  In 2005 (128 P.3d 41) the requirements of 34A‑2‑402 were reviewed by the Court of Appeals and the case was remanded, in 2007 (158 P.3d 1115) after the Commission realized this was a stress over time and revised their decision to apply 34A‑3‑106 the case returned to the Court of Appeals for an excellent analysis of how long term occupational stress is evaluated under 34A‑3‑106 and 110, but the matter was remanded again for further facts.  Finally, in June of 2010 (2010 UT App 154), the Commission's decision was upheld denying Ms. Wood's claim for workers compensation benefits because, from a medical standpoint, her work related stress was not greater than her non‑work related stress according to the Medical Panel of the Labor Commission.

What stress claims fall under 402 (accidents) and what is evaluated under 106 (occupational disease) is an intricate area of law that has not been evaluated fully since a Workers Comp. Seminar in 1993 and the law has changed significantly since then.  Most notably, in 2009, the Smith case determined that all occupational disease claims are paid only proportionately, so an injured worker under this statute may have only a percentage of their medical expenses and other benefits paid.  The decisions in Wood provide a good basis for evaluation of current law.  The Commission's decisions on the Wood case (as well as other stress claims) are available on the Labor Commission's website.  Lexis also carries Labor Commission decisions.  (Submitted 11/8/2010)


[67]  Availability of punitive damages in tort actions against non‑profit organizations.  (Submitted 11/8/2010)


[66]  What about items falling outside the 3 year statute of 75‑3‑107?  If not discovered to be necessary to appoint a PR within 3 years, no statutory provision for appointment is available.  (Submitted 11/8/2010)


[65]  Survey of alimony awards:  What's happening in the courtroom?  How is alimony really awarded?  Gender differences in amounts and duration of awards, jurisdictional differences, etc.  (Submitted 11/8/2010)


[64]  Why the lack of civility by an attorney is a direct consequence of judicial negligence and unrelated to any actions of opposing counsel   (Judges keep preaching that we need more civility.  If they would lower their tolerance for, and quit rewarding or ignoring, misbehavior, it would stop after the next motion.  There is no excuse for tolerating a single word characterizing, let alone disparaging, counsel or his case, in oral hearings or in court filings.  These behaviors are easily recognizable, and have no place in the law.  They are not the same as vigorous advocacy.  If judges gave zero tolerance to such acts, they would stop tomorrow.  Behavior is a function of consequences.  Create the consequences.)  (Submitted 11/8/2010)

[63]  Why KSR v. Teleflex was wrong and wrongly decided   (In patent law, the supreme court continues to flounder.  It hardly even looked at the statute it is obligated to interpret.  It instead substituted its own judgment, a very uninformed judgment, absolutely contrary to the intent and the language of the 1952 patent statute.  The standard is novelty, and obviousness is just a last sanity check.  Now, obviousness has consumed the law with a completely unworkable approach contrary to the statute.)  (Submitted 11/8/2010)

[62]  One of ordinary skill in the art  (again, patent law has words that are selectively ignored.  The courts always give lip service to the level of skill of “one of ordinary skill in the art.”  It controls the inquiry into what is obvious, and it has become like “proximate cause,” a place where judges simply make an outcome determinative decision and call it how they want to.  The analysis is never actually done, and certainly not done as specified in the law.  Thus, you may as well flip a coin.)  (Submitted 11/8/2010)

[61]  Congress v. Courts  (Congress created the patent act of 1952 in order to rein in the wild ideas built into tests established by the Supreme court on what was patentable.  People with no grasp of science or technology are still not shy about having an opinion on the subject of patentability.  The result is a violation of the statute by modern courts.  What is the point of a statute if the courts ignore it?)  (Submitted 11/8/2010)


[60]  In a expressly granted easement for ingress and egress, can it be interpreted under Utah law for the ingress to be water line (a utility) and the egress be a sewer line (a utility)?  (Submitted 11/8/2010)


[59]  The subject of “billed v. paid” medical bills in personal injury cases is heating up in Utah.  Many other states have decided this issue, but some are still grappling with it.  Briefly, the issue is this:  When an injured person recovers his medical bills in a personal injury lawsuit, should he recover the amount of the medical services “billed” (i.e., the amount showing on the bill before any discounts), or should he recover the amount actually “paid” (i.e. the amount the medical provider was paid by the insurer after contractual discounts).  The Plaintiffs’ bar argues that the amount recovered should be the “billed” amount.  The Defense bar argues that the amount recovered should be the “paid” amount.  The issue was raised in Tschaggeny v. Milbank Ins. Co., 163 P.3d 615 (Utah 2007), however, the Court refused to address the issue on appeal because the alleged error committed by the trial court in its ruling on the Defendant’s motion in limine was induced by the conduct of Plaintiff’s counsel, i.e., “invited error”.  Therefore, Utah still has no defined rule on this, and it remains to be seen what action the Legislature may take.  (Submitted 11/8/2010)


[58]  Open range laws and livestock owner liability in the intermountain West.  (Submitted 11/8/2010)


[57]  I think a good topic would be to pick some aspect of the new proposed Utah Rules of Civil Procedure to discuss.  For instance, what will be the impact of doing away with expert discovery?  (Submitted 11/8/2010)


[56]  Constitutionality of Patient Protection and Affordable Care Act (PPACA)
Due process protections for disruptive physicians who violate contract provisions with the hospital through their behavior  (Submitted 11/8/2010)


[55]  Under UCA 54‑3‑7 (no public utility shall ¼[or] extend to any person any form of contract or agreement except such as regularly and uniformly extended to all corporations . . .)
 
What is the limit on changes to a form contract for retail service to a business?
Assuming that non‑substantive changes are allowable – fixing typos or restating a sentence to impose the same obligation – are substantive changes allowed without obtaining an exception from the commission?
 
For example, are any of the following preferential treatment:

    * Allowing a particular customer the option of withholding disputed payments when all other customers are required to pay disputed amounts and obtain a refund (+interest) – if most disputes are resolved in the utility’s favor, the utility loses immediate use of the disputed payment amount.  It also provides a form of utility‑subsidized financing to the customer’s operations.  Time value of money is a consideration when setting utility rates.
    * May the utility take on more risk for one customer than for others
    * May the utility agree to limit its legal remedies to a greater extent for one customer than for others (i.e. to waive all claims for economic losses when it normally does not).  (Submitted 11/8/2010)


[54]

GARCIA v. GARCIA
Diane GARCIA, Respondent and Appellee, v. Amado GARCIA, Petitioner and Appellant.
No. 20010656‑CA.
November 15, 2002

The Utah Court of Appeals has ruled that a divorced woman’s right to alimony was terminated when she began living with another woman in a sexual relationship. The decision, reversing a trial court, terminated alimony payments from Amado Garcia to Diana Garcia.

Under Utah’s divorce law, the court’s grant of alimony rights to Diana could be terminated if Amado proved that Diana was “cohabitating with another person.” Amado filed a petition with a district court, seeking a modification of his divorce decree, on the ground that Diana was living with Kimberly Ellis. According to Amado’s petition, Diana and Kimberly began living together in a sexual relationship in September 1997.  Diana failed to file a timely response to the petition, so the court treated Amado’s allegations as being true.

District Judge Jon Memmott ruled that a finding of cohabitation is based on two factors––that the ex‑spouse is sharing a residence with another person, and that couple have “sexual contact evidencing a conjugal association.” Memmott found that a “conjugal association” means a relationship similar to a marriage and, because Utah does not allow same‑sex marriages, same‑sex cohabitation cannot qualify as a “conjugal association.” Memmott denied Amado’s petition.

On appeal, Presiding Justice Norman H. Jackson wrote that Memmott had misconstrued the statute.  Jackson pointed out that the statute used the term “with another person,” and so clearly did not require that the cohabitant be of the opposite sex.

“The plain language of the statute requires only that the alimony payee cohabit ‘with another person,’ and contains no requirement that the other person be a member of the opposite sex,” wrote Jackson.

Thus, Amado’s petition, unchallenged by his former wife, met both requirements of the statute, and the court of appeals reversed the trial court’s decision. The case was sent back down to the trial court for appropriate follow‑up.

I am an instructor at SLCC teaching Family Law to Paralegals and future attorneys.  When this case is covered in class my students always question how a court can be sure a relationship is “conjugal”.  Because in this case, the former wife did not contest that issue, the question of evidence needed to prove the relationship was not addressed.  What evidence would meet this standard of proof, what does co‑habitation mean and why can the court find this relationship to be similar to marriage in this case and not similar to marriage in others?  (Submitted 11/8/2010)
(Claimed 2/2/2011)


[53]  Despite the clear successes achieved in other states and local jurisdictions, Utah has thus far not initiated a sanctioned mediation foreclosure program.  Utah foreclosures continued to rise dramatically, even while foreclosure rates elsewhere were falling.  Exploration of the foreclosure landscape in Utah ‑ and the reticence apparently shared by at least the executive and legislative branches of state government to initiate mediation programs in the commercial sector ‑ could be coupled with a review of cases involving alternative dispute resolution in other areas including family law.  Better understanding of the interplay of alternative dispute resolution with court‑based action could result.  (Submitted 11/8/2010)


[52]  Literally, billions of dollars are spend every year suppressing wildland fires in the United States.  Recently, more money was spent suppressing such fires than the entire budget for the National Park Service.  These fires jeopardize lives as well cause damage to personal property and public and private lands.

Some of these fires are started by railroad trains.  The factual problem is that these “mobile fire‑starters” are just that – highly mobile, and might be many miles away before the fire is discovered.  The legal issue, worthy of a law review article is:  “Is there legal authority, either state or federal, to ‘seize’ a railroad train as ‘evidence’ until such time as it can be inspected to determine if it, indeed, was the cause of a wildland fire?”

In the past, in Utah, a railroad company has refused to stop, or even give the location of a train, when law enforcement authorities notified the railroad that a train was causing a series of fires along the train’s path.  (Submitted 11/8/2010)


[51]  Do the rules of professional responsibility make me an ethical person or do the rules establish a minimum base line for ethical conduct?  (Submitted 11/8/2010)


[50]  What will be the effect of USA Power’s seemingly restrictive holding on summary judgment motions in Utah?  (2010 UT 31)  (Submitted 11/8/2010)


[49]  Mechanic and construction liens in Utah:  What is the proper procedure to file; what is the priority of the lien; how do none bond around; and what is the risk to a lender once broken lien priority occurs?  (Submitted 11/8/2010)


[48]  The Impact of Electronic medical records on the discovery process in malpractice litigation.  (Submitted 11/8/2010)


[47]  Should federal estate tax law include a "spread the wealth" deduction of $500,000 per natural person devisee, provided the recipient had a net worth of less than $1,000,000 prior to the devise?  (Submitted 11/8/2010)

[46]  Should courts apply the same standard of review to parental decisions concerning children that they apply to administrative agencies?  (Submitted 11/8/2010)


[45]  What civil or criminal charges might be brought against those who leak classified government documents?  Are there “whistleblower” protections for government employees who might be involved, or do “whistleblower” protections only apply to private industries?  What if the government employees are unionized, does this provide any extra protection?  (Submitted 11/8/2010)

[44]  How do military tribunals compare with and contrast with civilian criminal trials?  What are the reasons to favor one or the other for alleged terrorists and/or their sympathizers?  (Submitted 11/8/2010)

[43]  Is there a danger in having too many lawyers in the U.S. Senate or the U.S. House of Representatives?  (Submitted 11/8/2010)

[42]  Are there special types of accidental death and disability claims unique to mountain climbers, spelunkers, deep sea divers, etc.?  (Submitted 11/8/2010)

[41]  What is an inherently dangerous activity?  (Submitted 11/8/2010)


[40]  Topic:   What representation is it that rises to the level of "materiality" as an element of fraud?

Example:  Short sale lenders are crying fraud in cases throughout the country where investors have purchased property for a lower value, and then sold the property for a higher value, often shortly after the short sale purchase.  Where is the point that determines where the investor legitimately has purchased the property, or where the investor has defrauded the short sale lender?  When does “Buying low and Selling High” become fraud against the short sale lender on the part of the investor?  (Submitted 11/8/2010)


[39]  Issue: as a general matter, the applicability of the exception found in Utah Code Ann. sec. 70A‑9a‑109(4)(f), and more specifically, (1) whether the exception applies if the assignee has de minimis obligations under an assumed contract, and (2) whether the terms “right” and “obligation” are synonymous within the meaning of the statute  (Submitted 11/8/2010)


[38]  The Concept of "Adjudicative Proceeding" in the Utah Administrative Procedures Act as an Antedote to judicial problems of Final Agency Action.  The student interested in this topic may be assisted by the scholarship already done in Thorup and Wood, Utah’s Administrative Procedures Act: a 20‑Year Perspective.  (Ex Libris 2009) (available through Amazon or Barnes & Noble online.)  (Submitted 11/8/2010)


[37]  The new L3C' and BCorps‑‑blending  for‑profit and not‑for‑profit. Will the new hybrids work or do they create an irresolvable conflict? (And how can they be optimally organized to avoid conflicts and anticipate these problems?)  (Submitted 11/8/2010)


[36]  There is a footnote in the MUJI (2d) instruction on superseding cause asserting that superseding cause is not compatible with the comparative fault statute, and that a defendant wanting to assert superseding cause may have to prove an intentional act.  What is the role of superseding cause under the comparative fault scheme?  Why would an intentional act be a superseding cause, but not a negligent act?  (Submitted 11/8/2010)


[35]  In my practice the new laws for arbitrations under Section 321 and for UM/UIM are changing how we handle lawsuits.  (Submitted 11/8/2010)


[34]  ULS represents low‑income tenants against whom an eviction action has been filed if the tenant has a meritorious defense. Unfortunately, landlords in Utah can turn any eviction action into a monetary challenge, akin to betting in a game of poker.  See Utah Code  §78B‑6‑808. Until about 3 years ago, possession bonds (“pbonds”) were frequently filed by landlords. While the occurrence of pbonds has diminished (due to changes in the unlawful detainer process that allow for expedited hearings in nonpayment and criminal nuisance cases), the effect on low‑income tenants is the same: if the tenant cannot afford to post the counterbond set by the court, the tenant loses possession of the premises before a hearing on the merits of the eviction. There is some question whether this process violates due process but the research required to challenge this statutory scheme will be quite time consuming.

Possible bookends for reviewing this pbond process:
Lindsey v. Normet, 405 US 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972)
Bichler v. DEI Systems, Inc., 220 P. 3d 1203, 2009 UT 63 (Utah 2009)  (Submitted 11/8/2010)


[33]  2009 Changes in the Special Assessment Area law (Municipal law).  (Submitted 11/8/2010)


[32]  The Utah State Bar under a Rule promulgated by the Utah Supreme Court now requires all new lawyers to take part in the Bar Association's mentoring program, the New Lawyer Training Program.  A student paper can analyze and evaluate the Utah program comparing it to a similar program in Georgia, one in Ohio and proposed programs being considered in Wyoming and Oregon.  (Submitted 11/8/2010)


[31]  Discuss the rights of homeowners to defend their home with deadly force against intruders.  (Submitted 11/8/2010)


[30]  What is the legal standard of proof for Social Security Disability Cases?  (Case law?)

What is the distinction between preponderance of the evidence and substantial evidence in Social Security Disability cases?  (Submitted 11/8/2010)


[29]  Compare – Nevada’s mandatory mediation related to foreclosure and the proposed adoption of mediation in Utah.  Cost and expense added to foreclosure process, actual use of the program.  (Submitted 11/8/2010)


[28]  An interesting topic that I worked on about twenty years ago as a clerk for Justice I. Daniel Stewart was the federal‑state equivalent of the full faith and credit clause. The doctrine of res judicata is also relevant to this issue. At the time, the person that had addressed this topic most fully was the late Professor Arvo Van Alstyne. There is also a footnote in the Utah Supreme Court opinion in State of Utah v. Perank that may be helpful. I have always wanted to write an article on this topic but have never done it.  (Submitted 11/8/2010)


[27]  The Clash Between Civility and Rules of Professional Conduct

Subtopics:

What about the client?

Defining “zealous representation”

Can "professionalism" be a smokescreen for mediocre lawyering?  (Submitted 11/8/2010)


[26]  How the Padilla decision (US Supreme Court decision issued this past spring) affects immigration matters in criminal court vis a vis an ineffective assistance of counsel claim.  (Submitted 11/8/2010)


[25]  Research the constitutionality of Agricultural Protection Areas and whether or not they constitute a “taking” for neighboring land owners.  This is a relatively new area of law, with most states adopting some form of this law in the mid to late 90’s.  There haven’t been court cases in Utah on this matter, but in other jurisdictions it has been split.  This would be a great topic for someone who is interested in real property and constitutional issues.  (Submitted 11/8/2010)
Claimed 3/8/2011)


[24]  Discrepancies in Justice:  Juvenile Court vs. Criminal District Court proceedings:
Main issues:
 
1) Time lines (Juvenile court has an expedited time frame, adjudication must occur within 60 days whereas the criminal court can be prolonged to allow for adequate discovery)
 
2) Burden of Proof standards (Juvenile court "Clear and Convincing" vs. District Court Criminal "Beyond a Reasonable Doubt"  (Submitted 11/8/2010)


[23]  Consequences of a resident Alien pleading guilty to or being convicted of a Felony Criminal Offense. ( = Deportation)  (Submitted 11/8/2010)


[22]  Should the United States adopt a post‑grant opposition proceeding, similar to that provided in Europe, for issued patents?  (Submitted 11/8/2010)


[21]  “Overcoming 35 USC 103 obviousness rejections in a post KSR World”  (Patent Prosecution Issue)  (Submitted 11/8/2010)


[20]  Should Utah have a family court?  (Submitted 11/8/2010)


[19]  Should there be an all inclusive one year bar in the Post Conviction Remedies Act?  (Submitted 11/8/2010)


[18]  A National Perspective on the emerging field of Judicial Performance Evaluation  (Submitted 11/8/2010)


[17]  Most insurance contracts (whether auto or homeowners) include provisions to defend and indemnify the insured.  The topic and issue I would like researched is whether to duty to defend and indemnify in insurance contracts (whether auto or homeowners) extends to a criminal prosecution that arises out of the same acts or occurrences i.e., auto‑accidents, dog bites, etc.  (Submitted 9/28/2010)


[16]  Juvenile Court topic:

There is a split around the country and in Utah about whether it is appropriate to grant a petition to terminate the parental rights to a child when that child is not presently in an adoptive home.  Often children with physical, mental health or emotional/behavioral problems are difficult to place in foster homes or go through multiple foster homes finding a "good fit."  It is still appropriate many times to go down the road toward making the child "legally free," or terminating their bio parents' rights ‑‑ particularly if there is no contact with the parents or they are using drugs and/or unfit ‑‑ but judges seem to be split about whether the bio parents' rights should be finally terminated if the child is not able to be adopted right away.
 
A related side issue is:  "is a child who is not in an adoptive home 'unadoptable?'"  What does "unadoptable" mean as a legal term of art?  (Submitted 9/27/2010)


[15]  I would love to see a primer or summary of tax litigation in Utah.  There does not appear to have been much, from what I can tell, and so it could be an open area for new ideas.

The organization could be something like ‑‑ topic intro, Utah tax commission organization and general Utah tax overview, history of state tax cases (main issues), federal Utah tax cases, recent hot tax issues both federal and state, future Utah tax controversy federal and state.  (Submitted 9/27/2010)


[14] The Utah Legislature’s misunderstanding of (or disregard for) constitutional law is costing Utah taxpayers millions of dollars during a period of substantial budget cuts and layoffs.  How can we better inform our legislators not to fight losing battles at our expense? Or, are there willing parties (PACs or non‑profits) that can bankroll these lawsuits so that Utah taxpayers don’t pay for both sides of the battle (through federal and state taxes), and, if so, what legal/ethical issues would be raised by this approach?  (Posted 9/21/2010)


[13] Does a governmental entity violate the equal protections clause (US or Utah’s) by citing one citizen or company for violations of ordinances or regulations when it does not normally enforce those ordinances or regulations on others?  (Posted 9/21/2010)


[12] Medical malpractice changes in Utah care review privilege and HIPPA and ex parte contact with treating physicians care review privilege and Utah Admin Code R380‑200-‑what happens if hospitals do not report? Public policy arguments, collateral source rule, billed vs paid.  (Posted 9/21/2010)


[11]  Communication and the Deaf Student  (Posted 9/21/2010)


[10] Can punitive damages be assessed against a 403(c) non‑profit organization where they would be paid from the voluntary contributions of donors?  Secondarily, how would the Court assess financial well‑being of a non‑profit dependant upon voluntary contributions?  (Posted 9/21/2010)


[9] It is estimated that several hundred thousand people in Utah now live in some sort of HOA, either a condominium or PUD.  A large percentage of new subdivisions are PUD’s.  They are typically formed by the recording of a “declaration” that contains all sorts of covenants that are construed under Utah law in the same manner as a contract between the owners and the association.

A lingering and complicated legal issue affects all of these associations.

It is reasonably clear that these associations are not affected by substantive changes in the law from the date that they are formed.  The contract clause of the constitution protects these declarations from being affected by subsequent amendments.

The interesting question is what happens when an association amends or replaces its documents.  Is the amendment governed by the law that is applicable to the association when the original declaration was recorded or is it governed by the law at the time the amendment is recorded?  What if the declaration is completely replaced?  What if a declaration is completely replaced but it states in it that it is intended by the parties to be governed by the original law applicable to the original declaration?  Can the association chose which law applies?

Practically, this happens all of the time and it does not appear to me that any real thought has been given to this issue.  Nonetheless, it can have a dramatic impact on associations.  Posted 9/21/2010

Rule 62(d) of the Utah Rules of Civil Procedure permits a party to stay the execution of the judgment pending the appeal by giving a supersedeas bond as security for the appeal. Alternatively, under Rule 62(i)(2) upon a showing of good cause the court may permit Saunders to deposit money in the court instead of giving a bond.

I believe there are some problems with this rule:

[9] First, an irrevocable letter of credit is another alternative to obtaining a stay bond or money deposit with the court. Yet the rule does not say anything about letters of credit. Letters of credit are usually much less expensive than stay bonds. Since bond companies will nearly always require collateral (including letters of credit) before issuing a bond, a letter of credit will ordinarily be less expensive than a stay bond‑‑and may offer other advantages as well. If the creditor will not stipulate to a letter of credit as the basis for a stay, courts should be willing to grant these by motion. My experience with Utah courts, however, is that they are reluctant to enter orders allowing letters of credit in lieu of stay bonds. Courts may be reluctant because Rule 62 does not specifically refer to letters of credit, and if this is the case some consideration ought to be given to revising this rule.  (Posted 9/21/2010)

[8] Courts in other states are catching on to the effective use of letters of credit in lieu of stay bonds, and there are some good articles on this topic (I haven’t seen any Utah articles). See the attached article as an example. I think it would be helpful to educate the Utah bench and bar on the use of letters of credit in lieu of stay bonds.  (Posted 9/21/2010)



[7] Second, some trial courts may be tempted refuse to permit money deposits in lieu of stay bonds because they know stay bonds are much more expensive (the cost of obtaining a stay bond on a $150,000 judgment can be as high as $6,000). Because the cost is so high, if a party is forced to obtain a stay bond it will think twice before appealing the trial court’s judgment. And this can discourage even meritorious appeals. It is true that a party can ask the appellate court to review money deposit motions (if the trial court does not permit a money deposit in lieu of a stay bond (or letter of credit)), but that too becomes expensive. I think it would be beneficial for both the bench and the bar for someone to take a close look at rule 62 and its potential negative effects on meritorious appeals.  (Posted 9/21/2010)


[6] Utah’s one action rule uses the word “solely.”  It’s plain meaning suggests any loan collateralized with personal property is exempt.  I think there is a bar review article holding otherwise.  (Posted 9/21/2010)


[5] A topic that we coming keep across in our practice is the whether the Utah’s non‑parent child custody statute is constitutional.  I would be happy to co‑author a law review article with a student on this topic.  (Posted 9/21/2010)


[4]  Winters v. Schulman, 977 P.2d 1218 (Utah Ct. App. 1999) is an interesting case I stumbled on.  Perhaps things were written about it when it came out.  It holds that an attorney can be liable to a real property owner under the wrongful lien statute for filing (on behalf of a client) a lis pendens later determined to be groundless.  This holding turns the traditional rule on attorney liability to third parties on its head.  Under traditional analysis, one would expect the client to be found liable under the wrongful lien statute and that the client could then sue the attorney for malpractice.  I think you could look at whether any other courts have issued similar rulings.  Is this the only area where attorney liability to third parties is possible?  Regardless of what the answer to that last question is, what circumstances warrant a departure from the general rule, etc.  The article could be on the general rule that attorneys are not liable to third parties and the policies behind that rule and could use this case as just one reference point.  (Submitted 9/13/2010)


[3]  The cost of litigation is forever increasing. The burden upon plaintiffs and defendants is often overwhelming and presents a barrier to free access of the courts.  Often times plaintiffs are underfunded and are fighting corporate interests with near limitless pockets to finance their defense.

Expert witnesses present one of the most expensive litigation costs. Especially in medical malpractice a plaintiff is suing a physician and a hospital. The defendant physician wants to act as his own expert. The defendant also wants to hire another expert in the same specialty as the defendant. In essence, the defendant is designating two experts. Of course this puts an undue burden on the plaintiff who would usually only hire one expert to prove his case. Furthermore the defendant/expert is not under the control of rule 26 in that he does not have to generate reports, testimony history or a fee schedule. Furthermore the defendant/expert often relies on his attorney to provide him with information or discusses with the defendant attorney opinions gained from other experts and material upon which the defendant/expert wishes to base his testimony. The question arises whether the defendant/expert waves his attorney client privilege when he becomes an expert and/or whether he must produce reports. Another side issue is whether the defendant/expert or should be deposed twice, first as a fact witness, and then later in the case as an expert witness.  (Submitted 9/12/2010)


[2]  In light of Utah Rule of Professional Conduct 4.2 and EEOC Opinion Nos. 04‑04 and 04‑06, when can opposing counsel contact former non‑managerial employees of an opposing party on an ex parte basis?  The opinions answer this question somewhat, but there is a lot of gray area.  For example, can the former employer retain the former employees as “consultants” and pay them a consulting fee in order to prevent the other side from having ex parte contact with them?  (Submitted 9/10/2010)


[1]  Relationship between Utah Rule of Evidence 506 and general common law privacy.  (Submitted 4/14/2010)