Law Commons^™

The Erosion Of Judicial Discretion: Why Congress And The Court Should Curb Restrictions For Bankruptcy Judges, Mason Spedding

BYU Law Review

This Note argues that reducing bankruptcy courts’ discretionary powers is a policy mistake because broad-sweeping legislation cannot adequately account for every circumstance presented by debtors. Bankruptcy is a unique field of law that requires unique rules; unlike a purely uniform bankruptcy system that is inherently over- and under-inclusive, a system of judiciously broad discretionary powers enables bankruptcy courts to find the optimal solutions to new issues on a case-by-case basis. Rather than restricting the discretionary powers of bankruptcy judges, Congress should enact a set of standards for judges to consider when evaluating individual cases. Under this system, judges would be …

The Esg Gap, Sharon Hannes, Adi Libson, Gideon Parchomovsky

BYU Law Review

The corporate world is undergoing a transformation: there has been a dramatic influx in demand for companies to promote environmental, social, and governance (ESG) values. Yet these preferences do not necessarily translate into effective corporate actions. In this Article, we underscore the structural problems that prevent such preferences from steering the corporate ship full steam ahead toward ESG goals. We analyze the central actors in the corporate sphere that can potentially bring about such change on the ground: managers, institutional investors, and activist hedge funds. We demonstrate that none of these actors have the two central elements required for promoting …

Consumption Governance: The Role Of Production And Consumption In International Economic Law, Timothy Meyer

BYU Law Review

Over the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.

This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe …

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

A Theory Of Corporate Fiduciary Duties, Benjamin Johnson

BYU Law Review

Corporate law lacks a general theory of a board’s power as fiduciary, and consequently, the law governing corporate fiduciary duties is notably unstable. This Article offers a novel theory that grounds corporate fiduciary duties in stronger microeconomic and legal foundations. The theory, coined the Judicial Monitoring Model (JMM), shows that even imperfect judicial monitoring makes shareholders and boards better off, even when there is no claim of a breach of the duties of loyalty or care as currently understood. The JMM synthesizes the law governing corporate fiduciary duties and other doctrines that protect principals, beneficiaries, and creditors from the risk …

Flattening The Curve: Why Amending The International Health Regulations Is The Common-Sense Solution To Future Pandemics, Brittney Graff

BYU Law Review

The COVID-19 pandemic presented an unprecedented challenge for the World Health Organization (WHO) and international community. The outbreak and ongoing pandemic prompted States to reassess the efficacy of the International Health Regulations (IHR). In November 2021, the World Health Assembly (WHA) decided to develop a new agreement to increase international pandemic preparedness. This paper analyzes the current gaps in the IHR to present a pragmatic approach wherein the WHA would amend rather than replace the IHR. It starts by examining the purpose and history of the IHR, including past revisions. It then addresses the constitutional framework of the IHR, and …

Clark Memorandum: Spring 2024, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Facing Fear with Faith
• The Great Law(s) of Peace
• Grace in the Law School

The Market For Bankruptcy Courts: A Case For Regulation, Not Obliteration, Brook E. Gotberg

BYU Law Review

Large corporate debtors typically file for bankruptcy only after conducting a thorough analysis as to the most favorable venue for the case. Recent legislation has proposed to severely limit all corporate debtors’ ability to select bankruptcy venue. The messaging behind calls for venue reform is outwardly altruistic: it is said to be necessary to facilitate access to justice and to prevent abuse of the system. However, the push for venue reform is largely driven by professional envy and a distrust of specific judges based on unpopular high-profile rulings. Placing new constraints on the ability to choose venue will not achieve …

Ukraine, Urban Warfare, And Obstacles To Humanitarian Access: A Predicament Of Public International Law, Harriet Norcross Eppel

BYU Law Review

Humanitarian assistance is not carried out in a vacuum. As urban warfare historically complicates humanitarian aid’s access to civilians in war zones, Ukraine, having suffered and still facing highly publicized violence in civilian-dense areas, has encountered dire obstacles in acquiring necessary resources for civilians’ survival, including both direct and incidental attacks on humanitarian access. Thus, it is vital the international legal community take measures to mitigate current and future dangers of urban warfare, as well as design new solutions, such as strengthening current international law under which obstructing humanitarian access constitutes a violation of jus cogens principles, attempting to induce …

Valuing Esg, Aneil Kovvali, Yair Listokin

BYU Law Review

Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for …

Exploring Flexibility In 83(B) Elections: A Tax Policy Proposal, Brayden Call

BYU Law Review

Property awards, such as equity, are taxable to the recipient and have tax implications for employers, too. Without a recipient making an 83(b) election, property awards are taxable when they are granted. For awards that have vesting requirements or are considered “restricted,” they are generally taxable upon vesting. However, making an 83(b) election allows recipients of restricted property awards to be taxed as if the property were vested, meaning more income will shift from ordinary tax rate treatment to preferential tax rate treatment.

The preferential tax system is foundational to the 83(b) election. Advocates believe that preferential tax rates in …

Garrity Immunity And The U.S. Armed Forces, Bretton H. Laudeman, Gabriel J. Chin

BYU Law Review

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by …

War And Ip, Peter K. Yu

BYU Law Review

This Article examines wartime and postwar protection of intellectual property rights, with a focus on the Russo-Ukrainian War that broke out in February 2022. It begins by showing that armed conflicts are not new to the international intellectual property regime and that this regime already contains robust structural features and carefully drafted safeguards, limitations, and flexibilities to protect intellectual property rights holders during wartime. The Article then explores the international intellectual property obligations of countries that are parties to an armed conflict as well as those that are not directly involved but have imposed sanctions on belligerent states. This Article …

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.

“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, …

Hidden Contracts, Shmuel I. Becher, Uri Benoliel

BYU Law Review

Transparency is a promising means for enhancing democratic values, countering corruption, and reducing power abuse. Nonetheless, the potential of transparency in the domain of consumer contracts is untapped. This Article suggests utilizing the power of transparency to increase consumer access to justice, better distribute technological gains between businesses and consumers, and deter sellers from breaching their consumer contracts while exploiting consumers’ inferior position.

In doing so, this Article focuses on what we dub “Hidden Contracts.” Part I conceptualizes the idea of hidden contracts. It first defines hidden contracts as consumer form contracts that firms unilaterally modify and subsequently remove from …

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 …

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 …

Byte A Carrot For Change: Uprooting Problems In Data Privacy Regulations, Sarah Terry

BYU Law Review

There is a growing gap between technology advancement and a lagging regulatory system. This is particularly problematic in consumer data privacy regulating. Companies hold collected consumer data and determine its use largely without accountability. As a result, ethical questions that carry society-shaping impact are answered in-house, under the influence of groupthink, and are withheld from anyone else weighing in.

This Note poses a solution that would address multiple data privacy regulation issues. Namely, an incentive approach would help even out the information-imbalanced system. Incentives are used as tools throughout intellectual property law to foster commercial progress, discourage trade secrets, and …

Clark Memorandum: Fall 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Five Ways Law School Contributes to Life’s True Purpose
• Faith in Law: A Q&A with President Dallin H. Oaks
• Personal Religious Conviction and the Practice of Law

The Right To Be Proselytized Under International Law, Ryan Cheney

BYU Law Review

Legal analyses of proselytism have tended to focus on the rights of the proselytizer and on the right of the target of proselytism, or “proselytizee,” to be free from such “interference.” However, such analyses do not fully account for all rights involved in proselytism. When people are prevented from being proselytized, such as by law or by persecution, an important consequence is that they are cut off from a significant source of information on and mechanism for exploring and joining other religions. Despite stigmatizations of proselytism, many people regularly accept it and learn about and join other faiths through it. …

When “Close Enough” Is Not Enough: Accommodating The Religiously Devout, Dallan F. Flake

BYU Law Review

Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” employees’ religious practices that conflict with work requirements unless doing so would cause undue hardship to their business operations. Can an accommodation be reasonable if it only partially removes the conflict between an employee’s job and their religious beliefs? For instance, if a Christian employee requests Sundays off because he believes working on his Sabbath is a sin, and his employer responds by giving him Sunday mornings off to attend church services but requires him to work in the afternoon, has the employer provided a reasonable …

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 …

Dignity, Deference, And Discrimination: An Analysis Of Religious Freedom In America’S Prisons, Elyse Slabaugh

BYU Law Review

The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing …

The Impact Of Religion And Religious Organizations, Elizabeth A. Clark

BYU Law Review

Legal scholars often see religion as a mere private preference, choice, value, or identity with no more meaning or positive social impact than any other preference, choice, value, or identity. If anything, religion’s negative impacts are often highlighted. For example, a focus on the harms of religion often underlies contemporary legal debates about religious exemptions and tensions between religious rights and LGBTQ rights or reproductive rights. Conversely, scholars in other fields have documented religion’s distinctive pro-social features, proposing mechanisms by which religion has unique positive impacts on individuals, families, and society. While recognizing that, for its practitioners, religion has its …

Don’T Say Gay Or God: How Federal Law Threatens Student Religious Rights And Fails To Protect Lgbtq Students, Stephen Mcloughlin

BYU Law Review

Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious …

Byu Law 50th Anniversary, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"We are privileged to participate in this great venture. It is our duty to make it great. . . .

. . . [It] must attain a greatness that transcends religious lines and establishes itself in the eyes of legal educators, scholars, the judiciary, the legal profession, the business world, officials of local, state, and federal government, and citizens at large."

– Rex E. Lee (quoting and expanding on remarks by Dallin H. Oaks)

Frontmatter

Brigham Young University Journal of Public Law

No abstract provided.

Race, Ethnicity, And Fair Housing Enforcement: A Regional Analysis, Charles S. Bullock Iii, Charles M. Lamb, Eric M. Wilk

Brigham Young University Journal of Public Law

This article systematically compares how federal, state, and local civil rights agencies in the ten standard regions of the United States enforce fair housing law complaints filed by Blacks and Latinos. Specifically, it explores the extent to which regional outcomes at all three levels of government are decided favorably where, between 1989 and 2010, a racial or ethnic violation of the Fair Housing Act of 1968 or the Fair Housing Amendments Act of 1988 is alleged. The results reveal significant variations in outcomes between these groups across the country. Most importantly, the probability of an outcome favorable to the complainant …

Byu Journal Of Public Law Volume 37 Number 2

Brigham Young University Journal of Public Law

No abstract provided.