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Articles 1 - 30 of 35863

Full-Text Articles in Law

The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee Dec 2022

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 …


Abolishing The Evidence-Based Paradigm, Erin Collins Dec 2022

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …


Nontraditional Investors, Jennifer S. Fan Dec 2022

Nontraditional Investors, Jennifer S. Fan

BYU Law Review

In recent years, nontraditional investors have become a major player in the startup ecosystem. Under the regulatory regime of U.S. securities law, those in the public realm are heavily regulated, while those in the private realm are largely left alone. This public-private divide, which is a fundamental organizing principle of securities law, has eroded with the rise of nontraditional investors. While legal scholars have addressed the impact of some of these nontraditional investors individually, their collective impact on deal terms, deal timelines, due diligence, and board configuration has not been discussed in a holistic manner; neither has their impact on …


The Original “Market” Understanding Of The Commerce Clause: Insights From Early Federal Government Practice And Precedent, Robert J. Pushaw Jr. Dec 2022

The Original “Market” Understanding Of The Commerce Clause: Insights From Early Federal Government Practice And Precedent, Robert J. Pushaw Jr.

BYU Law Review

No abstract provided.


Nonconsensual Family Obligations, Emily J. Stolzenberg Dec 2022

Nonconsensual Family Obligations, Emily J. Stolzenberg

BYU Law Review

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a …


America The Divisible: Local Taxes And The Salt Subsidy, Matthew S. Johnson Dec 2022

America The Divisible: Local Taxes And The Salt Subsidy, Matthew S. Johnson

BYU Law Review

The state and local tax (SALT) deduction subsidizes localities in a way that has not fully been appreciated by policymakers, practitioners, or academics. While the state portion of the SALT deduction captures headlines and receives significant attention from academics, the local portion has been overlooked. Local taxes introduce concerns that are not relevant to state-levied taxes. The local tax deduction provides a greater subsidy, per capita, for wealthy localities than it does for economically heterogeneous or less wealthy localities. This Note is the first to quantify the subsidy received by localities through the SALT deduction. This Note contributes to the …


2022 Byu Law Review Masthead Nov 2022

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.


The Congruent Constitution (Part One): Incorporation, Jay S. Bybee Nov 2022

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 …


Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba Nov 2022

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

BYU Law Review

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …


Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet Nov 2022

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

BYU Law Review

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation.

But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …


Public Lands In Public Hands: Analysis Of The Underpinnings Of Utah’S Public Trust Doctrine, Brittany Bunker Thorley Nov 2022

Public Lands In Public Hands: Analysis Of The Underpinnings Of Utah’S Public Trust Doctrine, Brittany Bunker Thorley

BYU Law Review

Utah Lake, the largest freshwater lake in the third driest state, is a vital, yet underappreciated natural resource. In 2018, the Utah State Legislature passed the Utah Lake Restoration Act in an attempt to restore and enhance the lake’s ecological and recreational value. Yet the new law has been met with strong public resistance because it leaves the lake vulnerable to exploitation and further ecological degradation, a concern made real by a proposed development plan that would build a city of islands on top of the lake. Community members cite specific concerns about threats to native species, disruption of water …


Procedural Wrongdoing, Matthew A. Shapiro Nov 2022

Procedural Wrongdoing, Matthew A. Shapiro

BYU Law Review

Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of …


Clark Memorandum: Fall 2022, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society Nov 2022

Clark Memorandum: Fall 2022, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum


Systemic Risk Of Contract, Tal Kastner Oct 2022

Systemic Risk Of Contract, Tal Kastner

BYU Law Review

Complexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this …


Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling Oct 2022

Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling

BYU Law Review

No abstract provided.


Taxing Data, Omri Marian Oct 2022

Taxing Data, Omri Marian

BYU Law Review

The Article offers a new theory of tax on data collection and transmission as a primary source of government revenue. This tax does not depend on the monetary value of data. This "data tax" can supplement, and in some instances replace, income taxes. The data tax can (1) mitigate some of the failures of income taxes in a globalized data based economy, and (2) serve to alleviate some of the externalities of a data based economy. The Article advances the following four arguments. First, current challenges to tax systems stem largely from the fact that traditional models of taxation were …


Reshaping College Athlete Sports Betting Education, Becky Harris, John T. Holden Oct 2022

Reshaping College Athlete Sports Betting Education, Becky Harris, John T. Holden

BYU Law Review

Legal sports wagering has been rapidly expanding across the United States since 2018. In the wake of the Supreme Court's Murphy decision, more than twenty five states have legalized sports betting and billions of dollars have followed the cascades of legalization. As the legal market continues to grow, professional sports leagues have been quick to embrace the regulated expansion, but the National Collegiate Athletic Association (NCAA) has not changed their steadfast opposition. Despite the NCAA's vehement opposition, the organization has seemed to gain little traction in getting states to either wholly exclude wagering on collegiate sports or getting the federal …


Is Trade Sexist? How “Pink” Tariff Policies’ Harmful Effects Can Be Curtailed Through Litigation And Legislation, Miranda Hatch Oct 2022

Is Trade Sexist? How “Pink” Tariff Policies’ Harmful Effects Can Be Curtailed Through Litigation And Legislation, Miranda Hatch

BYU Law Review

No abstract provided.


The Realities Of Takings Litigation, Dave Owen Oct 2022

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' …


Discrimination Because Of Sex[Ual Orientation And Gender Identity]: The Necessity Of The Equality Act In The Wake Of Bostock V. Clayton County, Rachel Eric Johnson Oct 2022

Discrimination Because Of Sex[Ual Orientation And Gender Identity]: The Necessity Of The Equality Act In The Wake Of Bostock V. Clayton County, Rachel Eric Johnson

BYU Law Review

No abstract provided.


Utah Marriage And Divorce Laws, Kory Staheli, Stephen Elmo Averett Oct 2022

Utah Marriage And Divorce Laws, Kory Staheli, Stephen Elmo Averett

BYU Law Library Publications

A summary of current Utah domestic relations law, updated annually. Selected sample filing documents and links to current legal forms are included in the Appendix.


The Byu Advocate, J. Reuben Clark Law School Aug 2022

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"… I am inspired with a sense of hope and gratitude. We will continue to experience adversity and to face obstacles—socially, personally, and politically—that may at times seem intractable. But judging by the successes of our past and seeing in our students a glimpse of our future, I am confident that BYU Law and the BYU Law community will continue to flourish in adversity." – D. Gordon Smith


The Million-Dollar Diversity Docket, Steven Gensler, Roger Michalski Jul 2022

The Million-Dollar Diversity Docket, Steven Gensler, Roger Michalski

BYU Law Review

Congress has always imposed an amount in controversy requirement for general diversity jurisdiction. Congress initially set the jurisdictional amount at $500 in 1789 and has raised it six times, most recently in 1996 to its current $75,000 threshold. That requirement has been described as ensuring that the federal courts not become bogged down by “petty” or “insubstantial” state-law cases. Given that it has been twenty-five years since the last increase, we are probably overdue for another one. But to what amount? For what purpose? And with what effects on the size and composition of the diversity docket? What would happen …


The Copyright Wasteland, Shani Shisha Jul 2022

The Copyright Wasteland, Shani Shisha

BYU Law Review

The Copyright Act grants certain exclusive rights to authors of creative works. But many of these exclusive rights are notoriously underspecified. And while a rich body of case law grapples with one copyright entitlement—the right to reproduce the copyrighted work— courts rarely engage in earnest with other exclusive rights. As a result, courts appear to have only a rudimentary understanding of the precise scope of copyright law. Because courts focus almost singularly on questions of reproduction, other exclusive rights fall by the wayside. This Article contends, counterintuitively, that the problem is traceable to a much-maligned feature of our copyright system: …


The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee Jul 2022

The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee

BYU Law Review

No abstract provided.


The Legitimacy Of International Human Rights Law—Addressing The Justification Gap, Brock M. Mason Jul 2022

The Legitimacy Of International Human Rights Law—Addressing The Justification Gap, Brock M. Mason

BYU Law Review

No abstract provided.


Public Trauma: Why Utah Should Waive Immunity For Mental Anguish Injuries, Adam Reed Moore Jul 2022

Public Trauma: Why Utah Should Waive Immunity For Mental Anguish Injuries, Adam Reed Moore

BYU Law Review

No abstract provided.


Intellectual Property In E-Commerce Retail Arbitrage: An Analysis Of The Legality Of Using Intellectual Property In Drop-Shipping, Kara J. Bloomer Jun 2022

Intellectual Property In E-Commerce Retail Arbitrage: An Analysis Of The Legality Of Using Intellectual Property In Drop-Shipping, Kara J. Bloomer

BYU Law Review

No abstract provided.


Innovation’S Hidden Externalities, Stephanie Plamondon Bair Jun 2022

Innovation’S Hidden Externalities, Stephanie Plamondon Bair

BYU Law Review

When commentators discuss innovation’s externalities, they often classify them into one of two categories. On the positive externalities, or “spillovers” side, legal and economics scholars often speak of the benefits innovation confers on other innovators. Future innovators profit from past innovation as they “stand on the shoulders of giants” to develop progressively new and better innovation. Discussion of innovation’s negative externalities, on the other hand, has mainly focused on social harms not directly related to future innovation that particular advances impose on third parties—the classic example being pollution. Thus, the common understanding is that innovation’s spillovers positively impact innovation (among …


The Internet Immunity Escape Hatch, Gregory M. Dickinson Jun 2022

The Internet Immunity Escape Hatch, Gregory M. Dickinson

BYU Law Review

Internet immunity doctrine is broken, and Congress is helpless. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And all have come together to criticize Section 230’s protection of bad-actor websites. The law’s defects have put it at the center of public debate, with more than …