Digital Commons Network^™

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.

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.

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.

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.

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.

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 …

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 …

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