Law Commons^™

“Any”, James J. Brudney, Ethan J. Leib

BYU Law Review

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

BYU Law Review

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

On The Place Of Self-Defense In Public Life: A Hobbesian Critique Of The Supreme Court’S Second Amendment, Rafi Reznik

Brigham Young University Journal of Public Law

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of …

A Juror’S Religious Freedom Bill Of Rights, Antony Barone Kolenc

BYU Law Review

The prosecution of Democrat Congresswoman Corrine Brown for campaign corruption was perhaps the most significant and dramatic political trial ever to hit Northeast Florida—and that was before the Holy Spirit showed up and spoke to Juror 13 during deliberations. The Brown case is the springboard for the article’s focus on a juror’s right to religious liberty, one of the nation’s most precious constitutional rights. The Article addresses first principles behind the process of jury selection in the United States, as well as the importance and safeguarding of religious liberty in the U.S. Constitution. It then proposes six tenets to be …

The Unconstitutional Assertion Of Inherent Powers In Multidistrict Litigations, Robert J. Pushaw, Charles Silver

BYU Law Review

This Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multidistrict litigations (MDLs), which comprise over half of all pending federal cases.

The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges …

Remand Without Vacatur And The Ab Initio Invalidity Of Unlawful Regulations In Administrative Law, John Harrison

BYU Law Review

An important administrative law doctrine developed by the lower federal courts called remand without vacatur rests on a mistaken premise. Courts that embrace the doctrine maintain that when they find that a federal agency regulation is unlawful, they have discretion to remand the regulation without vacating it. The remand gives the regulatory agency an opportunity to correct the flaws that render the regulation unlawful. When a regulation is remanded but not vacated, the courts assume the regulation binds regulated parties despite its illegality. Unlawful regulations, however, are in general void ab initio, just as unconstitutional statutory rules are void ab …

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 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 …

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

BYU Law Review

This Article uses two recent decisions — one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors — to explore deeper connections between class action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention …

Saying What The Law Should Be, F. Andrew Hessick

BYU Law Review

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …

Implications Of Azar V. Allina Health Services On Rulemaking: How To Know When Notice And Comment Is Required Under The Medicare Act, John Geilman

Brigham Young University Journal of Public Law

No abstract provided.

Christian Faith-Based Organizations As Third Party Interveners At The European Court Of Human Rights, Eugenia Relaño Pastor

BYU Law Review

No abstract provided.

Courts Beyond Judging, Michael C. Pollack

BYU Law Review

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk

BYU Law Review

No abstract provided.

It’S Whose Party? Accurately Defining Political Parties In First Amendment Cases, Makade Claypool

BYU Law Review

No abstract provided.

School To Students: Post That, And You Won't Play, Ashley Waddoups

BYU Law Review

No abstract provided.

Native American Religious Freedom As A Collective Right, Michael D. Mcnally

BYU Law Review

No abstract provided.

"To The Person": Rfra's Blueprint For A Sustainable Exemption Regime, Tanner Bean

BYU Law Review

No abstract provided.

Immigration Law's Looming Rfra Problem Can Be Solved By Rfra, Stephanie Acosta Inks

BYU Law Review

No abstract provided.

Establishing Paternity Under The Indian Child Welfare Act, Carlie Smith

BYU Law Review

No abstract provided.

Changing Family Courts To Help Heal And Build Resilient Families, Carrie E. Garrow

BYU Law Review

No abstract provided.

Courts As Information Intermediaries: A Case Study Of Sovereign Debt Disputes, Sadie Blanchard

BYU Law Review

When foreign sovereigns default on their debt, creditors sometimes sue them. These creditors are sophisticated actors, and they know that if they sue, courts can do little to force a sovereign to satisfy a judgment. Why do they sue? This Article argues that these creditors sue because they use litigation to produce information about the debtor state or its government that induces third parties to sanction or refuse to deal with the state or the government. The ability to produce such information strengthens the litigating creditors’ bargaining position in settlement negotiations. Courts thus serve as information intermediaries that strengthen reputational …

Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan

BYU Law Review

State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law …

The Federal Circuit's Summary Affirmance Habit, Andrew Hoffman

BYU Law Review

The Federal Circuit is certainly unique among the circuit courts of appeals. Its exclusive jurisdiction over patents places it in a powerful position. But with that power comes a responsibility to oversee the development of the law. And in the last decade, the court has fallen short of fulfilling this obligation—particularly with regard to clarifying provisions of the America Invents Act. The court has repeatedly disregarded important questions of law by use of Rule 36 summary affirmance. Though other courts of appeals regularly use summary disposition as a means of dealing with burgeoning dockets, the Federal Circuit uses summary affirmance …

The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary, Justice Tassaduq Hussain Jillani

BYU Law Review

No abstract provided.

Chevron’S Pure Questions: Searching For Meaning In Ambiguity, Neal A. Hoopes

BYU Law Review

Since implied congressional intent is the basis for the Chevron doctrine, courts cannot simply presume that Congress intends all unclear statutes to signal deference to agencies. Instead, courts must make some inquiry into whether that rationale remains true under the particular circumstances. This Note contends, then, that the Chevron framework, from the outset, asks the wrong question. Instead of inquiring whether the statute is clear, courts should determine whether Congress intended courts to defer to an agency on the question of statutory interpretation. Instinctively deferring to an agency in the face of every ambiguity undermines congressional intent. While implied congressional …

An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky

BYU Law Review

This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and …

Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell

BYU Law Review

No abstract provided.

The Courts And Foreign Affairs At The Founding, Kevin Arlyck

BYU Law Review

No abstract provided.

Wonky Walden: The Dizzying New Personal Jurisdiction Rule, Adam Balinski

BYU Law Review

No abstract provided.