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Full-Text Articles in Law

The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany Apr 2018

The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany

BYU Law Review

By offering an international and interdisciplinary point of comparison, Hamann and Vogel demonstrate that current American forays into corpus-based legal scholarship reflect only a small sliver of the full range of possibilities for such research. This Comment considers several key branching points that may lie ahead, as the nascent literature begins to mature. In particular, the Comment examines two vexing ambiguities in the corpus-linguistic agenda: the first centers on the ambiguous meaning of legal “empiricism”; the second, on the ambiguous relationship between words and actions. To achieve its full potential, legal corpus linguistics will need to move beyond mere description ...


The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics Apr 2018

The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics

BYU Law Review

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics ...


Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record Apr 2018

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record

BYU Law Review

This Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. 2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of ...


Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis Apr 2018

Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis

BYU Law Review

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so, it must more fully incorporate principles from survey and content-analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility, and accuracy in the important quest to determine the meaning of the law. This Article highlights some of those principles to provide a best- practices guide to those seeking to perform law and corpus linguistic analysis.


The Dictionary As A Specialized Corpus Apr 2018

The Dictionary As A Specialized Corpus

BYU Law Review

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word ...


Datamining The Meaning(S) Of Progress Apr 2018

Datamining The Meaning(S) Of Progress

BYU Law Review

No abstract provided.


Corpus Linguistics And The Criminal Law Apr 2018

Corpus Linguistics And The Criminal Law

BYU Law Review

This brief response to Ordinary Meaning and Corpus Linguistics, an article by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive theory for criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.


Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany Apr 2018

Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany

BYU Law Review

German legal thinking is renowned for its hair-splittingly sophisticated dogmatism. Yet, some of its other contributions to research are frequently overlooked, both at home and abroad. Two such secondary streams recently coalesced into a new corpus-based research approach to legal practice: Empirical legal research (which had already developed in Germany by 1913) and research on language and law (following German pragmatist philosopher Ludwig Wittgenstein’s work of 1953). This Article introduces both research traditions in their current German incarnations (Evidence-Based Jurisprudence and Legal Linguistics) and shows how three common features—their pragmatist observation of social practices, their interest in dissecting ...


Ordinary Meaning And Corpus Linguistics Apr 2018

Ordinary Meaning And Corpus Linguistics

BYU Law Review

This Article discusses how corpus analysis, and similar empirically based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to underscore the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Because ordinary meaning must in some sense be ...


A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics Apr 2018

A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics

BYU Law Review

Corpus linguistics is more than just a new tool for legal interpretation. Work in corpus linguistics has generated new ways of thinking about word meaning and about the interpretation of words in context. These insights challenge the assumptions that lawyers and judges generally make about words and their meaning. Although the words that make up a sentence are generally regarded as the basic units of meaning, corpus analysis has shown that in many cases, the meaning of a word as it is used in a given context is a function, not of the word by itself, but of the word ...


Corpus Linguistics As A Tool In Legal Interpretation Apr 2018

Corpus Linguistics As A Tool In Legal Interpretation

BYU Law Review

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas R. Lee and Stephen C. Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when ...


Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis Apr 2018

Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis

BYU Law Review

No abstract provided.


Clark Memorandum: Spring 2018, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society Apr 2018

Tribal Sovereignty And Tobacco Control In State-Tribe Cigarette Compacts Mar 2018

Tribal Sovereignty And Tobacco Control In State-Tribe Cigarette Compacts

BYU Law Review

Compacts are powerful legal tools that states and tribes can use to negotiate agreements. One of the most interesting examples of state-tribe compacts is the cigarette compact, which is useful in combating the illicit cigarette trade. This Note argues that tribal leaders and states can more effectively reach this goal by (1) recognizing tribal sovereignty in and (2) keeping tobacco control at the heart of compact discussions.


A Solution To Utah’S Non-Compete Dilemma: Soliciting The Use Of Non-Solicitation Agreements Mar 2018

A Solution To Utah’S Non-Compete Dilemma: Soliciting The Use Of Non-Solicitation Agreements

BYU Law Review

Utah has become a hub for company growth and innovation, especially in an area known as the “Silicon Slopes.” Well-known companies, like Qualtrics, Adobe, and eBay, have offices along the Wasatch Front. With such newfound relevance in the business community, it may seem odd that Utah’s legislature recently passed the Post-Employment Restrictions Act, which some say threatens Utah’s position as a state where businesses thrive. The Act restricts non-compete agreements to periods not greater than one year and automatically penalizes, through attorney’s fees and costs, any employer who tries to enforce a non-compete agreement that a court ...


Who Decides? The Title Ix Religious Exemption And Administrative Authority Mar 2018

Who Decides? The Title Ix Religious Exemption And Administrative Authority

BYU Law Review

The Title IX religious exemption demonstrates how statutory religious exemptions can help further social change by neutralizing potential conflict with religious dissenters. Part of the reason for its success is that it is narrowly constructed and automatically applies to qualifying institutions. However, the regulations contradict the statutory text by potentially giving the Department of Education discretion to grant or deny exemptions. Were the Department to fully exercise this power, its actions would conflict with both the language of the statute and the Constitution. The Department of Education’s recent scrutiny of the “controlled by” language of the exemption provides an ...


Cyber! Mar 2018

Cyber!

BYU Law Review

This Article challenges the basic assumptions of the emerging legal area of “cyber” or “cybersecurity.” It argues that the two dominant “cybersecurity” paradigms—information sharing and deterrence—fail to recognize that corporate information security and national “cybersecurity” concerns are inextricable. This problem of “reciprocal security vulnerability” means that in practice our current legal paradigms channel us in suboptimal directions. Drawing insights from the work of philosopher of science Michael Polanyi, this Article identifies three flaws that pervade the academic and policy analysis of security, exacerbating the problem of reciprocal security vulnerability—privacy conflation, incommensurability, and internet exceptionalism. It then offers ...


Copyright Infringement’S Blurred Lines: Allocating Overhead In The Disgorgement Of Profits Mar 2018

Copyright Infringement’S Blurred Lines: Allocating Overhead In The Disgorgement Of Profits

BYU Law Review

In Williams v. Bridgeport Music, Marvin Gaye’s estate alleged that the popular song “Blurred Lines” infringed Gaye’s 1977 song “Got to Give It Up.” As part of the remedy for the infringement, the Gaye estate sought to disgorge the profits derived from defendants’ infringement, but the parties disagreed about how to calculate those profits. Specifically, they disagreed about whether the infringing song’s revenues should be offset by the infringers’ $7 million in overhead costs allocable to the song. The district court determined that the infringers’ ability to offset overhead costs would depend on whether their infringement was ...


Trading Safety For Innovation And Access: An Empirical Evaluation Of The Fda’S Premarket Approval Process Mar 2018

Trading Safety For Innovation And Access: An Empirical Evaluation Of The Fda’S Premarket Approval Process

BYU Law Review

Congress created the premarket approval process (PMA) to provide a rigorous safety evaluation of high-risk medical devices before they may be sold on the U.S. market. Evaluating a PMA application requires the Food and Drug Administration (FDA) to conduct a lengthy, complex, and costly assessment of the extensive data a manufacturer must submit. But other policy concerns, notably a fear of hampering innovation and a desire to assure timely access to new technologies, have led Congress to relax some of the rigorous data requirements the PMA process imposes on manufacturers. Congress mandates that the FDA employ the “least burdensome ...


Frontmatter Mar 2018

Frontmatter

Brigham Young University Education and Law Journal

No abstract provided.


Thinking Outside Of The Race Boxes: A Two-Pronged Approach To Further Diversity And Decrease Bias, Samia E. Mccall Mar 2018

Thinking Outside Of The Race Boxes: A Two-Pronged Approach To Further Diversity And Decrease Bias, Samia E. Mccall

Brigham Young University Education and Law Journal

No abstract provided.


Addressing The Bullying And Harassment Of Students With Disabilities Through School Compliance To Avoid Litigation, Bryson King Mar 2018

Addressing The Bullying And Harassment Of Students With Disabilities Through School Compliance To Avoid Litigation, Bryson King

Brigham Young University Education and Law Journal

No abstract provided.


Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care Feb 2018

Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care

BYU Law Review

No abstract provided.


Freedom Of Religion In India: Current Issues And Supreme Court Acting As Clergy Feb 2018

Freedom Of Religion In India: Current Issues And Supreme Court Acting As Clergy

BYU Law Review

Religion is an indispensable part of human existence. Freedom of religion is considered as the third most important civil liberty after the right to life and personal liberty and the freedom of speech and expression. The Indian Constitution guarantees freedom of religion and acknowledges the individual’s autonomy in his or her relationship with God. However, the Supreme Court of India, through the creation and continued use of the essentiality test, has tried to reform religion by restricting the scope of this freedom. The judiciary has taken over the role of clergy in determining what essential and non-essential religious practices ...


The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary Feb 2018

The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary

BYU Law Review

No abstract provided.


The European Union And Freedom Of Religion Or Belief: A New Momentum Feb 2018

The European Union And Freedom Of Religion Or Belief: A New Momentum

BYU Law Review

No abstract provided.


The Agreements Between Church And State: The Italian Perspective Feb 2018

The Agreements Between Church And State: The Italian Perspective

BYU Law Review

This Article explores the recent approach of the Italian Constitutional Court regarding agreements between the Italian State and religious denomination, which regulate matters of common interest. The Italian approach is compared to the contemporary approach of the Spanish legal system. The Italian approach grants strong discretion in favor of the Government in this context, but by doing so, it risks inadequately protecting the religious freedom of religious denominations in light of current jurisprudence. Moreover, the broad discretion given to the Italian government seems not to be in line with the current jurisprudence of the European Court of Human Rights in ...


Law And Religion In Bangladesh Feb 2018

Law And Religion In Bangladesh

BYU Law Review

The Indian subcontinent (India, Pakistan, and Bangladesh) has been a center for a variety of religious traditions. Its multicultural and multireligious character makes it a crucible for religious tolerance. The resurgence of local cultural and religious consciousness under the influence of modernity and globalization has resulted in increasing complications in relation to the interaction between religious traditions. Religious tolerance in independent Bangladesh also has always been a fundamental value. It has been cherished by the followers of all religions. The object of this article is to trace the history of religious freedom of religious minorities in Bangladesh. It also examines ...


A Muslim Registry: The Precursor To Internment? Feb 2018

A Muslim Registry: The Precursor To Internment?

BYU Law Review

Being political scapegoats in the indefinite “war on terror” is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures—extreme vetting, categorical bans, and mass deportations—to regulate and exclude Muslim bodies from U.S. soil. The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim ...


Off-Campus Sexually Harassing Expression: What Legal Standard Applies?, Martha Mccarthy Feb 2018

Off-Campus Sexually Harassing Expression: What Legal Standard Applies?, Martha Mccarthy

Brigham Young University Education and Law Journal

No abstract provided.