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Articles 1 - 30 of 406
Full-Text Articles in Law
Bill Of Rights Nondelegation, Eli Nachmany
Bill Of Rights Nondelegation, Eli Nachmany
BYU Law Review
Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In …
Free Exercise Of Abortion, Elizabeth Sepper
Free Exercise Of Abortion, Elizabeth Sepper
BYU Law Review
For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …
Schrödinger’S Cat: A Constitutional Alien In Australia?, Benjamen Franklen Gussen
Schrödinger’S Cat: A Constitutional Alien In Australia?, Benjamen Franklen Gussen
Brigham Young University Journal of Public Law
No abstract provided.
Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman
Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman
BYU Law Review
Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …
The Trouble With Time Served, Kimberly Kessler Ferzan
The Trouble With Time Served, Kimberly Kessler Ferzan
BYU Law Review
Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …
Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore
Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore
BYU Law Review
No abstract provided.
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
BYU Law Review
In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in …
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
BYU Law Review
No abstract provided.
The Constitutional Model Of Mootness, Tyler B. Lindley
The Constitutional Model Of Mootness, Tyler B. Lindley
BYU Law Review
Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various "exceptions" to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court s claims about Article III and that …
Frederick Douglass And The Original Originalists, Bradley Rebeiro
Frederick Douglass And The Original Originalists, Bradley Rebeiro
BYU Law Review
Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
BYU Law Review
No abstract provided.
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
BYU Law Review
In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due …
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
BYU Law Review
In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the …
The Realities Of Takings Litigation, Dave Owen
The Realities Of Takings Litigation, Dave Owen
BYU Law Review
This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States' …
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
BYU Law Review
No abstract provided.
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
BYU Law Review
Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
BYU Law Review
In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …
Political Partisanship And Sincere Religious Conviction, Mark Satta
Political Partisanship And Sincere Religious Conviction, Mark Satta
BYU Law Review
In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political …
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
BYU Law Review
No abstract provided.
Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith
Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith
BYU Law Review
No abstract provided.
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
BYU Law Review
The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court …
The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones
The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones
Brigham Young University Journal of Public Law
This article will propose and explain a draft amendment to the United States Constitution that would secure an intermediate degree of political representation for Americans living in U.S. territories. While concerned principally with U.S. territories, the amendment would also address Congressional representation for the District of Columbia.
Informal Governance Of The United States, Edward Lee
Informal Governance Of The United States, Edward Lee
Brigham Young University Journal of Public Law
No abstract provided.
On Criminalizing Violent Speech, Amitai Etzioni
On Criminalizing Violent Speech, Amitai Etzioni
Brigham Young University Journal of Public Law
There is an increasingly high number of threats to kill, made by citizens against each other, and against public officials. These threats terrorize people, force them to take protective measures, make them reluctant to assume public office, and, when they do, make them feel as though they have to act cautiously. State and federal laws currently exist that prohibit such threats. This article examines the ways the courts have affected how these laws function. It concludes by suggesting ways these laws can be rendered more effective. Drawing on liberal communitarianism, this article seeks to offer practical recommendations for how the …
Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith
BYU Law Review
For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …
Christian Accounts Of Religious Liberty: Two Views Of Conscience, Joel Harrison
Christian Accounts Of Religious Liberty: Two Views Of Conscience, Joel Harrison
BYU Law Review
No abstract provided.
Catholicism, Liberalism, And Populism, Andrea Pin, Luca P. Vanoni
Catholicism, Liberalism, And Populism, Andrea Pin, Luca P. Vanoni
BYU Law Review
No abstract provided.
Dignity And Discrimination, Frederick Mark Gedicks
Dignity And Discrimination, Frederick Mark Gedicks
BYU Law Review
Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of dignity in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustration s. Part V lists other sites of accommodation …
Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk
Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk
BYU Law Review
No abstract provided.
False Positivism: The Failure Of The Newest Originalism, Guha Krishnamurthi
False Positivism: The Failure Of The Newest Originalism, Guha Krishnamurthi
BYU Law Review
Originalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to "original meaning."The newest effort in this struggle is the so called "positive" turn …