Digital Commons Network^™

Future War, Future Law, Eric Talbot Jensen

Faculty Scholarship

Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the …

Guantanamo And The End Of Hostilities, Eric Talbot Jensen

Faculty Scholarship

Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of [2014] our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to …

Cal Wadsworth Construction, A Utah Corporation, Plaintiff/Appellant, V. The City Of St. George, A Municipality, Defendant/Appellee : Petition For Rehearing Of Appellant

Utah Appeals Court Briefs

Appeal from a Final Judgment of the Fifth Judicial District Court of Washington County, The Honorable J. Philip Eves Presiding

Weiman Ha, Et Al., Plaintiffs, Vs. Cuong Si Trang,Et Al., Defendants, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Findings of Fact, Conclusions of Law, Order and Judgment case no. 110913027

Contractually Adopted Fiduciary Duty, D. Gordon Smith

Faculty Scholarship

The Delaware Supreme Court recently referred to “contractually adopted fiduciary duties.” Although some commentators, including Larry Ribstein, view fiduciary duties as a type of contract term, the notion of contractually adopted fiduciary duties is incoherent. The need to opt in to fiduciary duties would arise in only two circumstances: (1) fiduciary relationships that do not invoke fiduciary duties without contractual authorization, and (2) nonfiduciary relationships in which the parties wish to invoke fiduciary duties that would otherwise be absent. The first category of relationships does not exist, as courts impose fiduciary duties when the structure of a relationship indicates that …

Clark Memorandum: Fall 2013, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Looking Beyond the Stacks (David L. Armond and Shawn G. Nevers)
• A Lesson in Flying (RonNell Anderson Jones)
• Faith, Family, and Religious Freedom (Elder Jeffrey R. Holland)
• Instruments in His Hand (Elder Larry Echo Hawk)

Significant But Unheralded Growth Of Large Externship Programs, James H. Backman, Cory S. Clements

Brigham Young University Journal of Public Law

Law schools have offered student externships for several decades. The number of participating students has fluctuated over time. At first, more law students participated in externships than in in-house clinics, but that changed in the 1980s and remained consistent for many years. Starting in the early- to mid-1990s, externship enrollment surpassed in-house-clinic participation again and has continued to increase in the past decade, each year widening the gap between these two primary forms of practice-based experiential learning. Today, externships have never been more important as a means of providing practical legal education to the current generation of law students.

Punishing Pimps And Johns: Sex-Trafficking And Utah's Laws, Michelle Jeffs

Brigham Young University Journal of Public Law

This article will focus on the problem of women being forced into prostitution and then coerced into staying, also known as sex trafficking. This Article will focus specifically on what Utah can do to improve its approach to sex trafficking, in light of actions taken by other states and nations. Part II of this article provides background and definitions of sex trafficking and the players involved. Part III discusses the legal history of the criminalization of sex trafficking. Part IV talks about incidents of sex trafficking in Utah. Part V discusses the current laws against sex trafficking in Utah. Part …

Taking Mistakes Seriously, Paul J. Larkin Jr.

Brigham Young University Journal of Public Law

Part I of this article discusses the principle that mistake or ignorance of the law is no excuse. It is settled law that no one can defend against a criminal charge on the grounds that he did not intend to flout the law and, at worst, made only a reasonable, honest mistake as to what he was free to do. Part II examines several areas in which the law does precisely the opposite by repeatedly manifesting a willingness to forgive reasonable mistakes by one or more actors in the criminal justice system. Part III then asks whether the developments discussed …

Mistaking U.S. Citizenship, Jorge Gavilanes

Brigham Young University Journal of Public Law

United States (“U.S.”) citizenship has been closely protected from those who cannot claim it. In fact, the value of citizenship is so strong that the law penalizes any who falsely claim citizenship or the benefits derived from being a citizen. Such penalties are imposed even upon those who have not intentionally claimed citizenship, but merely have mistakenly done so. Ironically, despite these efforts to safeguard U.S. citizenship’s privileges and protections, those who rightfully claim citizenship have been deported as aliens because of mistakes made by those enforcing immigration laws. Such juxtaposition leaves us wondering what the real value of citizenship …

Ralph Mingolello, Plaintiff/Appellant, V. Megaplex Theaters, Defendant/Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from an order granting summary judgement in the fifth judicial district court of Utah. Washington County, Honorable Jeffrey C. Wilcox

Utah Department Of Transportation Vs. Tbt Property Management, Inc, A Utah Corporation; And The Utah Country Treasurer : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from a final judgmeent of the fourth district court for Utah County, Honorable Judge Steven L. Hansen, presiding

Hughes General Contractors Inc., A Utah Corporation Petitioner/ Appellant V. The Utah Labor Commssion, Occupational Safety And Health Division, Respondent/Appellee : Replacement Brief Of Respondent

Utah Supreme Court Briefs (1965 –)

Petition for Judicial Review of Decision of the Utah Labor Commission Appeals Board

As Greece Goes, So Goes The E.U.: Defending Europe With A Sovereign Debt Restructuring Framework, Elizabeth H. Dahill

Brigham Young University International Law & Management Review

No abstract provided.

Substantive Due Process: The Power To Grant Monopolies In The Federalist Marketplace Of State Experimentation, Curtis Thomas

BYU Law Review

Substantive due process is a controversial doctrine due to its lack of a limiting principle that prevents courts from creating or extending rights beyond the text of the Constitution. This Comment suggests that the effects of substantive due process should be evaluated from a perspective of their likely effect on the federalist marketplace of state experimentation. From this perspective, the application of substantive due process should be limited to natural rights, which are the equivalent of natural monopolies in economic marketplaces. The remaining rights should be allowed to develop through state experimentation.

Deconstructing Disaster, Justin Pidot

BYU Law Review

Over time, we have grown increasingly vulnerable to natural disasters. Each decade, economic losses from such disasters more than double as people continue to build homes, businesses, and other physical infrastructure in hazardous places. Yet public policy has thus far failed to address the unique problems posed by natural disasters. This Article takes a first step toward improving public policy by offering a paradigm for understanding its failures, suggesting that three categories of obstacles obstruct sensible government regulation. Drawing from philosophy, cognitive psychology, history, anthropology, and political science, this Article identifies and analyzes three categories of obstacles to disaster policy-symbolic …

Perception And Persuasion In Legal Argumentation: Using Informal Fallacies And Cognitive Biases To Win The War Of Words, Cory S. Clements

BYU Law Review

No abstract provided.

Clark Memorandum: Spring 2013, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• Becoming a Fruitful Tree (Elizabeth A. Clark)
• Unfolding in Time (Elder Dallin H. Oaks)
• Faith to Forgive Grievous Harms (James R. Rasband)
• The 21st Century as the Century of Duties? (John W. Welch)

Judicial Clarity: Giving Teeth To The Application Of Federal Disability Laws In Charter Schools, Sarah Wieselthier Esq.

Brigham Young University Education and Law Journal

No abstract provided.

Let Me Count The Ways: The Unconstitutionality Of Same-Sex-Marriage Bans, Mark Strasser

Brigham Young University Journal of Public Law

No abstract provided.

“You Have The Right To Remain Silent”: Does The U.S. Constitution Require Public Affirmation Of Same-Sex Marriage?, Robert A. Destro

Brigham Young University Journal of Public Law

No abstract provided.

How The Battle To Redefine Marriage Affected Family Law In Argentina, Ursula C. Basset

Brigham Young University Journal of Public Law

No abstract provided.

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Brigham Young University Journal of Public Law

No abstract provided.

The Meaning And Good Of Equality: Toward Enhanced Constitutional Principles, Scott Fitzgibbon

Brigham Young University Journal of Public Law

No abstract provided.

The Constitutionality Of Same-Sex Marriage In Australia (And Other Related Issues), Augusto Zimmermann

Brigham Young University Journal of Public Law

No abstract provided.

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.

Monopoly—University Edition: The Case For Student Housing Independence, Jeremy Rovinsky J.D.

Brigham Young University Education and Law Journal

No abstract provided.

Defending The Preponderance Of The Evidence Standard In College Adjudications Of Sexual Assault, Amy Chmielewski

Brigham Young University Education and Law Journal

No abstract provided.

Making Enemies Out Of Educators: The Legal And Social Consequences Of Disclosing New York City Teacher Data Reports, Frank G. Barile

Brigham Young University Education and Law Journal

No abstract provided.

The "Race To The Top" And The Inevitable Fall To The Bottom: How The Principles Of The "Campaign For Fiscal Equity" And Economic Integration Can Help Close The Achievement Gap, Cassandra Abbott

Brigham Young University Education and Law Journal

No abstract provided.