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Articles 1 - 30 of 40
Full-Text Articles in Law
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, Edward Finegan
BYU Law Review
No abstract provided.
A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics, Neal Goldfarb
A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics, Neal Goldfarb
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’s …
Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum
Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum
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 …
Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Hanjo Hamann, Friedemann Vogel
Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Hanjo Hamann, Friedemann Vogel
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 legal authority, …
Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis, 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, James C. Phillips, Jesse Egbert
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.
Corpus Linguistics As A Tool In Legal Interpretation, Lawrence M. Solan, Tammy Gales
Corpus Linguistics As A Tool In Legal Interpretation, Lawrence M. Solan, Tammy Gales
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 …
Ordinary Meaning And Corpus Linguistics, Stefan Th. Gries, Brian G. Slocum
Ordinary Meaning And Corpus Linguistics, Stefan Th. Gries, Brian G. Slocum
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 …
Datamining The Meaning(S) Of Progress, Jake Linford
Datamining The Meaning(S) Of Progress, Jake Linford
BYU Law Review
No abstract provided.
Corpus Linguistics And The Criminal Law, Carissa Byrne Hessick
Corpus Linguistics And The Criminal Law, Carissa Byrne Hessick
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.
The Dictionary As A Specialized Corpus, Jennifer L. Mascott
The Dictionary As A Specialized Corpus, Jennifer L. Mascott
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 is …
The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, Lee J. Strang
The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, Lee J. Strang
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 to originalism. This …
The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Mark C. Suchman
The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Mark C. Suchman
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, …
Copyright Infringement’S Blurred Lines: Allocating Overhead In The Disgorgement Of Profits, Layne S. Keele
Copyright Infringement’S Blurred Lines: Allocating Overhead In The Disgorgement Of Profits, Layne S. Keele
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 willful; it …
Cyber!, Andrea M. Matwyshyn
Cyber!, Andrea M. Matwyshyn
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 a new paradigm—reciprocal …
Trading Safety For Innovation And Access: An Empirical Evaluation Of The Fda’S Premarket Approval Process, George Horvath
Trading Safety For Innovation And Access: An Empirical Evaluation Of The Fda’S Premarket Approval Process, George Horvath
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” approach …
Who Decides? The Title Ix Religious Exemption And Administrative Authority, Elise S. Faust
Who Decides? The Title Ix Religious Exemption And Administrative Authority, Elise S. Faust
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 example …
Tribal Sovereignty And Tobacco Control In State-Tribe Cigarette Compacts, Arielle Sloan
Tribal Sovereignty And Tobacco Control In State-Tribe Cigarette Compacts, Arielle Sloan
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, Jerrick Robbins
A Solution To Utah’S Non-Compete Dilemma: Soliciting The Use Of Non-Solicitation Agreements, Jerrick Robbins
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 later finds unenforceable …
The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary, Justice Tassaduq Hussain Jillani
The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary, Justice Tassaduq Hussain Jillani
BYU Law Review
No abstract provided.
Law And Religion In Bangladesh, Jahid Hossain Bhuiyan Dr. Md.
Law And Religion In Bangladesh, Jahid Hossain Bhuiyan Dr. Md.
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 …
Freedom Of Religion In India: Current Issues And Supreme Court Acting As Clergy, Faizan Mustafa, Jagteshwar Singh Sohi
Freedom Of Religion In India: Current Issues And Supreme Court Acting As Clergy, Faizan Mustafa, Jagteshwar Singh Sohi
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 are. …
Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs
Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs
BYU Law Review
No abstract provided.
The Agreements Between Church And State: The Italian Perspective, Elena Ervas
The Agreements Between Church And State: The Italian Perspective, Elena Ervas
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 …
The European Union And Freedom Of Religion Or Belief: A New Momentum, Ján Figel’
The European Union And Freedom Of Religion Or Belief: A New Momentum, Ján Figel’
BYU Law Review
No abstract provided.
When Facts Don't Matter, Eric Berger
When Facts Don't Matter, Eric Berger
BYU Law Review
We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing …
Chevron’S Pure Questions: Searching For Meaning In Ambiguity, Neal A. Hoopes
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 …
Take The Fifth . . . Please!: The Original Insignificance Of The Fifth Amendment’S Due Process Of Law Clause, Gary Lawson
Take The Fifth . . . Please!: The Original Insignificance Of The Fifth Amendment’S Due Process Of Law Clause, Gary Lawson
BYU Law Review
The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law”—from the principle of legality forbidding executive or judicial action in the absence of law, to the requirement of notice before valid judicial judgments, to the limitation on arbitrary governmental action that today goes under the heading of “substantive due process”—is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms …
What Happens In Delaware Need Not Stay In Delaware: How Trulia Can Strengthen Private Enforcement Of The Federal Securities Laws, Ryan Lewis
BYU Law Review
Class-action lawsuits have been used by private plaintiffs to enforce the federal securities laws since those laws were enacted in the 1930s. With the SEC retaining concurrent authority to enforce federal securities laws, a debate has emerged as to whether the private right of action helps or hinders public enforcement. The primary criticism of private securities litigation is that rent-seeking attorneys abuse the system by bringing frivolous litigation aimed at achieving a settlement and a fee. In the public merger context, the potentially disastrous consequences of failing to close an announced deal on time make corporations eager to settle potentially …
Deceptive Patents: Deconstructing Juicy Whip, Paul Spiel
Deceptive Patents: Deconstructing Juicy Whip, Paul Spiel
BYU Law Review
Moral utility largely prevents the granting of a patent if the patent would be injurious to the well-being of society. The moral utility doctrine has prevailed through much of American patent history and still endures in many parts of the world. In Juicy Whip I, the Federal Circuit chose to abandon the doctrine, but the court’s rationale in support of the decision was ill-suited. The court’s holding sanctioned deceptive patent applications but, intentionally or unintentionally, neglected applicable unfair competition, free speech, and consumer deception doctrines. In light of the Intellectual Property Clause of the U.S. Constitution, deceptive patents should be …
A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz
A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz
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 ban” issued by …