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February-1994-Vol-7-No-2.Pdf THE BREAKTHROUGH THAT MAKES WESTLAWøi THE FIRST RESEARCH SERVICE To UNDERSTAND PLAIN ENGLISH. It's so simple, even inexperienced users No wonder lawyers are calling WIN frt/tt are getting great results the first time. "remarkable;' and "incredibly accurate... 18 of Compare a search request in the Boolean lan- 20 cases WIN found were right on point." øi 4' 4!Øi guage with the same request using WIN in Combined with West's exclusive head- If computer language seems like hiero- plain English and you'll see what we mean. notes, timesaving synopses and key number glyphics to you, then do your research in system, WIN is further proof that WESTLAW plain English on WESTLAW. Here's a Boolean query with terms really does give you more ways to win. and connectors: Because WESTLAW has broken the Call 1-800-328-9352 now for more Boolean computer language batTier with manufacturer /s disclos! Is side-effect /s drug information. WIN~ The technological breakthrough that Here's the same search with WIN in makes your research faster and easier than plain English: ever before. Must a manufacturer disclose the side effects Just describe your issue in a simple sen- ofadrug? i\tJ¡ti. l4WA tence and WESTLAW automatically searches lI through milions of documents for you. More ways to iv (91993 WEST PUBLISHING 3-9721-6/11-93 i 4150191 Utah~ - UTAH BAR JOURNAL - Published by Thc Utah Statc Bar 645 South 200 East Vol. 7 NO.2 February i 994 Salt Lake City, Utah 84111 Telephone (801) 531-9077 Letters....................................................................................................4 President H. James Clegg President's Message ..............................................................................5 President.Elcct by H. James Clegg Paul T. Moxley ) Commissioner's Report.........................................................................7 Executive Director John C. Baldwin by Charlotte L. Miller Bar Journal Committee The Evolution of Court Consolidation ..................................................9 and Editorial Board by Harold G. Christensen Editor Calvin E. Thorpe Views About Utah's Judicial Selection Process .................................. 15 Associate Editors The Judiciary's Perspective: The Merits of Merit Selection M. Karlynn Hinman by Kay S. Cornaby and Ronald W Gibson Wiliam D. Holyoak Randall L. Romrell One Legislator's Perspective: More Executive, Less Judicial by S. K. Christiansen Articles Editors David Brown Perspective of the Governor: Modify, Not Abandon, the Process Christopher Burke by Governor Mike Leavitt Leland S. McCullough Jr. Derek Pullan How To Letters Editor Basic Utah Water Law......................................................................... 19 Victoria Kidman by J. Craig Smith Views from the Bench Editors Judge Michael L. Hutchings State Bar News ....................................................................................23 Judge Stephen VanDyke Legislative Report Editors The Barrister...................................................................................... ..26 John T. Nielsen Barbara Wyly Views from the Bench Case Summaries Editors What Do I Know?................................................................................28 Scott A. Hagen by Judge Glenn K. Iwasaki Clark R. Nielsen Case Summaries................................................................................. .30 Book Review Editor Betsy L. Ross Utah Bar Foundation ...........................................................................32 "How to . ." Editors Brad Betebenner \ David Hartvigsen CLE Calendar ......................................................................................33 Patrick Hendrickson Classified Ads......................................................................................35 ADREditor Cherie P. Shanteau Utah Bar Journal Subject Index 1988-1993........................................36 Law and Technology Editor R. Bruce Findlay COVER: Left fork of Blacksmith Fork Canyon, East of Hyrum, Utah, by Richard R. Glen Cook Medsker of Fan', Kaufman, Sullivan, Gorman, Jensen, Medsker & Perkins, Ogden, Utah. Stephen K. Christiansen David Erickson Members of the Utah Bar who are interested in having photographs published on the cover of the Utah Bar Hakeem ¡shola Joiimal should contact Randall L. Romrell. Associate General Counsel, Huntsman Chemical Corporation, Thomas Jepperson 2000 Eagle Gate Tower. Salt Lake City. Utah, 84111, 532-5200. Send both the slide (or the transparency) and D. Kendall Perkins a print of each photograph you want to be cousidered. Artists who are interested in doing ilustrations are also 1. Craig Smith invited to make themselves known. Denver Snuffer The Utah Bar Joiimal is published monthly, except July aud August. by the Utah State Bar. One copy of each Barrie Vernon issue is furnished to members as pai1 of their State Bar dues. Subscription price to others, $30: single copies, Terry Welch $4.00. For information on advertising rates and space reservation. call or write Utah State Bar offices. Judge Homer Wilkinson Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and Committee Liaison publication of advertisements is not to be considered an endorsement of the product or service advertised. Leslee A. Ron Copyright (Q 1994 by the Utah State Bar. All rights reserved. Februmy 1994 3 1 i I ~LETTERS i Dear Editor: ity. A safe harbor from suit should result if the disrespectful view to the clients she supposedly corporate records show the director did so. serves. And as for her cries of being oppressed, In response to my article in the August- Officers and directors of a depository institu- tell that to some actual production line workers September 1993 issue of the Utah Bar Journal tion have a responsibility for the prudent and see how they react. criticizing the adoption of the 1993 Amend- investment of other people's money - the funds Sorry Sue, while the pursuit of happiness ment to the Utah Business Corporation Act of its depositors, both private and governmental. may be an inalienable right, it is not an limiting liability of corporate directors to The public interest in the safe and sound man- employer's duty to deliver happiness to its "gross negligence," Lawrence Alder justifies agement of depository institutions should take employees. If it's not making you happy, or if that Amendment on the basis of over-zealous- precedence over concern by directors that the you are unwilling to trade some psychic ness of the FDIC in pursuing officers and business judgment rule does not adequately pro- happiness for the ability to pay your rent, then directors of closed depository institutions. The tect them from liability for breach of their duty you are perfectly free to try some other line result of the FDIC's suit against officers and of care. Safeguarding the savings of Utah's citi- of work. directors of Tracy-Collins Bank & Trust, zenry and the deposits of state and local according to Mr. Alder, has created a reluc- governmental entities deserves better steward- Ira B. Rubinfeld tance of Utah's citizens to serve on the board ship than "gross negligence." Mr. Alder's of directors of Utah's depository institutions. experience as President of the Utah Banker's I submit that my position that the 1993 Association should have convinced him of that Amendment fixing "gross negligence" as the fact. Only recently the Comptroller of the cur- standard of liability for directors and officers of rency, who regulates national banks, pointed out Dear Editor: all Utah corporations is not good policy is not that safety and soundness of depository institu- met by Mr. Alder's response. The curbing of It's easy to see the gears turning at the Utah tions is not only important to protect depositors alleged overzealousness of the FDIC in seeking Bar Journal. The goobs out here in Salt Lake but also to promote long-term economic growth. to reduce the cost to taxpayers of protecting It should also be noted that the "gross negli- just can't wait to lap up the latest self-serving piece of navel-contemplation from the final depositors by suits against a closed financial gence" standard defended by Mr. Alder applies institution's offcers, directors, lawyers, auditors, frontier, California. Your recent article, "The to all Utah corporations, not just depository insti- Expendable Professional", by Sue Vogel Flo- or accountants is a matter for Congress to remedy. tutions. Should investors in any Utah business be Mr. Alder does not explain why (1) the res-Sahagun, recycles every cheap Marxist restricted to that standard of protection? Should business judgment rule as defined and class-warfare slogan in order to establish that, Utah depository institutions invest their deposi- explained in § 4.0l(c) of the American Law gee, my life sucks, and it's somebody else's tors' money in loans to a Utah corporation whose Institute Principles of Corporate Governance, fault. It's one thing to hear this kind of garbage officers and directors have only that standard of from alienated factory workers; but from alien- (2) the test for recovery in derivative actions in care to meet in conducting its business? § 7.18, and (3) provisions for limitations on ated yuppies making $75,000 a year? damages in § 7.i 9 do not provide a "safe harbor" Ms. Flores-Sahagun has got one thing right: Peter W. Bilings, Sr. for any conscientious outside director, nor why by and large, lawyers don't do anything usefuL. "reckless indifference to or deliberate
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