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Legal History Commons

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Legal Studies

Brigham Young University Law School

Articles 1 - 4 of 4

Full-Text Articles in Legal History

Trans-Substantivity And The Processes Of American Law, David Marcus Feb 2014

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …


What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters Feb 2014

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.


The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless Mar 2013

The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless

Brigham Young University Journal of Public Law

On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.


Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush Dec 2008

Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush

BYU Law Review

No abstract provided.