Digital Commons Network^™

Clark Memorandum: Spring 2014, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Guardians of the Law (Sheila McCleve)
• Revisiting Humility (Brett G. Scharffs)
• Defending Innocence (Gregory W. Moeller)
• Martin Luther King and the Good Samaritan (Goodwin Liu)
• Oliver Cowdery (Jeffrey N. Walker)

Jared William Fullmer V. Kelli Ann Fullmer : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from a Decree of Divorce of the Second Judicial District Court in and for Davis Count, Farmington Department The Honorable Michael G. Allphin Presiding

Drilling Down: New York, Hydraulic Fracturing, And The Dormant Commerce Clause, Meredith A. Wegener

Brigham Young University Journal of Public Law

The debate surrounding hydraulic fracturing and natural gas development from shale rock needs no embellishment. This highly sought resource and highly fought drilling technique trigger significant concerns: human health, energy independence, national security, water safety, air quality, agricultural well-being, outdoor aesthetic impairment, government involvement at all levels and by all branches, and economic development and sustainability. Whether actively participating in this conversation or not, everyone has a stake in the resolution of whether to allow this technique to be utilized and these resources to be produced.

The Best Interest Is The Child: A Historical Philosophy For Modern Issues, Lahny R. Silva

Brigham Young University Journal of Public Law

A little over a century after the creation of the first juvenile court in America, the states and the federal government continue to try to find an effective and practical solution to juvenile delinquency. Beginning with the “Best Interest of the Child Standard” in 1899, juvenile justice policy has evolved into a mixed bag of philosophies. State statutes littered with “Best Interest” rhetoric, have interestingly resulted in state policies that are retributive in nature and disproportionately affect minority communities. The disconnect between theory and practice is the product of decades of socio-political influence on juvenile justice policy as well as …

Title Ix And The Dear Colleague Letter: An Ounce Of Prevention Is Worth A Pound Of Cure, Nick Rammell

Brigham Young University Education and Law Journal

No abstract provided.

Safeguarding The Commander's Authority To Review The Findings Of A Court-Martial, Andrew S. Williams

Brigham Young University Journal of Public Law

There are many good reasons why the military justice system is different than the civilian system. Much deserves to be said about why commanders must retain oversight and control over the court-martial process. The purpose of this paper is more limited in scope. It is to demonstrate that a court-martial panel is not a true jury and that the commander should retain the authority to review its findings for this reason alone.

School Discipline And The Fundamental Right To Education: The Constitutional Inadequacies Of Wisconsin's Expulsion Laws, Maria M. Lewis

Brigham Young University Education and Law Journal

No abstract provided.

Reducing Truancy In Indiana: A Balanced Approach, Andrew E. Skinner

Brigham Young University Education and Law Journal

No abstract provided.

Off-Campus Cyberbullying: First Amendment Problems, Parameters, And Proposal, David R. Hostetler

Brigham Young University Education and Law Journal

No abstract provided.

Planting Seeds Of Order: How The State Can Create, Shape, And Use Customary Law, Bryan H. Druzin

Brigham Young University Journal of Public Law

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide …

Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman

Brigham Young University Journal of Public Law

The goal of originalism has always been purity. Originalists claim that their methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method—the approach that reveals the purest constitutional meaning—is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is …

What The Supreme Court Thinks Of The Press And Why It Matters, Ronnell Andersen Jones

Faculty Scholarship

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging.

This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the …

Members Only: Undocumented Students & In-State Tuition, Angela M. Banks

BYU Law Review

No abstract provided.

Multiculturalism And Feminism For Hispanic Immigrant Women Accused Of Drug Crimes, Kathryn Duque Lenhart

BYU Law Review

No abstract provided.

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

BYU Law Review

No abstract provided.

Is The Clean Water Act's Diligent Prosecution Bar Jurisdictional? A Journey Into Discovering Congressional Intent, Szonja Ludvig

BYU Law Review

No abstract provided.

An Unreasonable Expectation? Warrantless Searches Of Cell Phones, Michael V. Hinckley

BYU Law Review

No abstract provided.

Creating Crimmigration, César Cuahtémoc García Hernández

BYU Law Review

No abstract provided.

Rethinking The Dormant Commerce Clause: The Supreme Court As Catalyst For Spurring Legislative Gridlock In State Income Tax Reform, Brian L. Hazen

BYU Law Review

No abstract provided.

Reliance In Land Use Law, Kenneth A. Stahl

BYU Law Review

For generations, Americans have tapped their life savings and assumed huge amounts of debt in order to achieve the American dream of owning their own home. Though investing so heavily in a single asset is a rather risky move on its face, buyers have been induced to purchase homes by a slew of public policies, most notably zoning ordinances that buffer single-family neighborhoods against an invasion of unwanted uses. As a result, homeowners have a fairly convincing argument that they possess some sort of vested reliance interest in the existing zoning of their neighborhoods that should prevent municipal authorities from …

Reconciling Originalism With The Father Of Conservatism: How Edmund Burke Answers The Disruption Dilemma In N.L.R.B. V. Noel Canning, Brad Masters

BYU Law Review

No abstract provided.

Jury Nullification As A Tool To Balance The Demands Of Law And Justice, Aaron Mcknight

BYU Law Review

No abstract provided.

The Unconstitutionality Of Religious Vilification Laws In Australia: Why Religious Vilification Laws Are Contrary To The Implied Freedom Of Political Communication Affirmed In The Australian Constitution, Augusto Zimmerman Dr.

BYU Law Review

This article explains the weakness of the argument that religious vilification laws promote harmony and tolerance among religious groups. Rather, they are based on a form of postmodern theory that denies the existence of truth and could be used as a weapon by certain individuals to silence any criticism of their beliefs. These laws have become an invitation to people with extreme views to avoid debate by claiming that they, rather than their beliefs, have been attacked. The author then explains the philosophical underpinnings of religious vilification laws and argues that there is no a priori reason why religious speech …

“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow

BYU Law Review

No abstract provided.

The Shinto Cases: Religion, Culture, Or Both—The Japanese Supreme Court And Establishment Of Religion Jurisprudence, Frank S. Ravitch

BYU Law Review

No abstract provided.

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …

Religion, Meaning, Truth, Life, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …

Ruth B. Hardy Revocable Trust, Et Al., Plaintiffs And Appellants, Vs. Mark Lee Rindlesback, Individually And As Trustee Of The Rindlesback Construction, Inc. Profit Sharing Plan, Defendants And Appellees : Brief Of Appellees, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Third Judicial District Court of Salt Lake County The Honorable Deno Himonas

State Of Utah, Plaintiff/Appellee, Vs. John E. Hummel, Defendant/Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from convictions of two counts of theft by extortion, alternatively charged as theft by deception, each a second degree felony, in violation of Utah Code Ann. § 76-6-406 or, alternatively, in violation of Utah Code Ann. § 76-6-405; a conviction of one count of theft by deception, a second degree felony, in violation of Utah Code Ann. § 76-6-405; a conviction of one count of theft by extortion, alternatively charged as theft by deception, a third degree felony, in violation of Utah Code Ann. § 76-6-406 or, alternatively, in violation of Utah Code Ann. § 76-6-405; and a conviction …