Digital Commons Network^™

Dissent And The Rule Of Law, Russell D. Covey

Brigham Young University Journal of Public Law

Both the right to dissent and the “rule of law” are celebrated and frequently invoked values. Yet widespread popular dissent, such as that seen in the recent Black Lives Matter protests sparked by the police killing of George Floyd and others and a strong backlash against protestors by some political leaders, has deeply challenged the compatibility of those values. This tension raises deep theoretical questions about the essential concept of the rule of law, questions that have not yet been addressed by legal theorists. Consensus is greatest with respect to some of the formal characteristics of the rule of law, …

Covid’S Counterpunch: State Legislative Assaults On Publichealth Emergency Powers, James G. Hodge Jr., Jennifer L. Piatt

Brigham Young University Journal of Public Law

Amid the most impactful health crisis in over a century, COVID’s “counterpunch” entails aggressive efforts by numerous state legislatures to diminish state and local public health emergency powers. It is an incredulous movement facially supported by a need to appropriately balance economic interests and rights with communal health objectives. At its political core, however, is a “power grab” by legislatures to free their constituents from extensive emergency powers (e.g., social distancing, assembly limits, and business closures). Never mind the fact that these interventions, when used effectively and constitutionally, save lives and reduce morbidity. Public health agents and activists are understandably …

Implications Of Azar V. Allina Health Services On Rulemaking: How To Know When Notice And Comment Is Required Under The Medicare Act, John Geilman

Brigham Young University Journal of Public Law

No abstract provided.

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

Reforming State Bail Reform, Shima Baradaran Baughman

Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

The Sociology And Psychology Of Innovation: A Synthesis And Research Agenda For Intellectual Property Scholars, Stephanie Plamondon Bair, Laura Pedraza-Fariña

Faculty Scholarship

Intellectual Property (IP) and innovation law scholarship is generally concerned with the question of how to promote socially beneficial innovation. Until recently, the analysis brought to bear on that question in the literature has been dominated by an individual, rational-actor-centered model grounded in the neoclassical economics tradition. Under this model, individual innovators are assumed to respond to innovation incentives in rational ways, unswayed by their social environments or their own psychology.

Of course, as innovation scholars are beginning to recognize, the road to innovation is much more winding and complex than the straight path from incentive to innovation that the …

Generals Of The Resistance: Multistate Actions And Nationwide Injunctions, Elysa M. Dishman

Faculty Scholarship

State attorneys general (AGs) have become leaders of the political resistance against recent presidential administrations. They are suing the federal government with increasing frequency, seeking nationwide injunctions that thwart presidential priorities and shape national policies.

Nationwide injunctions have sparked considerable debate among jurists, scholars, and policymakers. However, the largely court-centric debate has overwhelmingly overlooked the role that state litigants and litigators play in shaping criticisms of the nationwide injunction. States and AGs have unique
attributes, advantages, and incentives that allow them to frequently seek and successfully secure nationwide injunctions. And these advantages are enhanced when states litigate together. Because states …

Delaware's Frontier, Matthew C. Jennejohn, D. Gordon Smith

Faculty Scholarship

This essay, prepared for a symposium honoring Chief Justice Leo Strine, explores how institutional capacity limits the Delaware courts’ role in the U.S. economy. A decision theoretic approach is employed to delineate the boundaries of that role, with particular attention paid to recent arguments that Delaware's Caremark doctrine should be extended to ESG concerns. The essay views muscular expansion of Caremark to encompass stakeholder interests as misguided without significant investments in institutional capacity.

International Law: Corpus Linguistics And Ordinary Meaning, Eric Talbot Jensen, James Lee Rex

Faculty Scholarship

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in …

Actively Achieving Greater Racial Equity In The Law School Classroom, Catherine Bramble

Faculty Scholarship

2020 and 2021 continue to illustrate the pervasiveness of implicit and explicit racism in our society. Less well-acknowledged and recognized is the extent to which Socratic pedagogy also reflects those pervasive racist realities while simultaneously resulting in inferior learning based on a teaching method invented 150+ years ago. Despite this racist and outdated reality, the legal academy has been reluctant to alter the traditional method of teaching. Tangible, empirical evidence obtained from data-driven cognitive learning science research demonstrates that active learning not only improves learning outcomes for all students, but also mitigates the structural effects of racism in the classroom …

Creating Oases Throughout America’S Food Deserts, Hannah M. Dahle

BYU Law Review

No abstract provided.

Admitting A Wrong: Apology For The Historical Injustice Of The Dred Scott Case, Laura Kyte

BYU Law Review

No abstract provided.

State Of Utah, Plaintiff/Appellee V, Joshua Martin, Defendant/Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Fourth District Court, Utah County, from Judgement on post-conviction relief before the Honorable James Brady

SEAN REYES, Counsel for Appellee

OSHUA MARTIN, Pro se

Clark Memorandum: Fall 2021, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Truth, Civility, and Advocacy
• Cultivating a Deeper Faith in Jesus Christ
• Can Religion Be a Healing Force in Society?
• Navigating Life’s Uncertainties

Read on Issuu

Jessy Mckee And Shayne Mackee, Appellants V. Clayton Mckeachine, Carolyn Harns, G&C Servi Es Inc., And Irene Mckee, Appellees : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Trial Court No. 213800083 Deborah R. Chandler Anderson & Karrenberg, P.C. Attorneys for Burton and Christine

Deborah R. Chandler, Attorneys for Burton and Christine Delambert, Stephen K. Christiansen, Anthony W. Steirling, Ryan R. Bolarder, Attorneys for Carolyn Harns, Kenneth J. Melrose, Attorney for Irene McKee, Clayton Mckeachnie, Pro Se, Kurt D. Reber, Attorneys for G&C Service, Inc

Alan W. Dunaway, Attorneys for Appellants

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"BYU Law recognizes the inherent dignity and equality of each individual and welcomes people from the full range of human experience. We are committed to the teachings of Jesus Christ and honor His many roles, including healer, peacemaker, mediator, counselor, advocate, lawgiver, and judge. In striving to emulate His example, we seek to be and develop people of integrity who combine faith and intellect in lifelong service to God and neighbor." – new Mission Statement

State Of Utah, Plaintiff, V. Kevin Ashley Morris, Defendant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

D. Jacob Summers, Prosecutor for Orem City

D. Jacob Summers, Prosecutor for Orem City

K. ANDREW FITZGERALD, #8944, Attorney for Kevin Ashley Morris, Appellant

State Of Utah, Plaintiff V. Kevin Ashley Morris, Defendant. : Reply Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT, ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH

D. Jacob Summers Prosecutor for Orem City

K. ANDREW FITZGERALD, #8944 Attorney for Kevin Ashley Morris, Appellant

State Of Utah, Plaintiff, V. Kevin Ashley Morris, Defendant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH.

K. ANDREW FITZGERALD, #8944, Attorney for Kevin Ashley Morris,

D. JACOB SUMMERS, #12253, Attorney for City of Orem, Appellee

State Of Utah, Plaintiff V. Kevin Ashley Morris, Defendant. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH.

K. ANDREW FITZGERALD, #8944 Attorney for Kevin Ashley Morris, Appellant

D. JACOB SUMMERS, #12253 Attorney for City of Orem, Appellee

Opt-In Arbitration: A Functional Alternative To The Fair Act, Garrett Meisman

BYU Law Review

No abstract provided.

Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith

BYU Law Review

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …

Pasquarello, Plaintiffs/ Appellants V. Tcc Veterinary Services, Inc., Dr. Tyler S. Stiens, Artz Vetmed : Appellees' Opening Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Certiorari to the Utah Court of Appeals, Case No. 20180971-CA Third District Court, Summit County Case No. 160500473, Judges Kara Pettit and Kent Holmberg

WRONA DUBOIS, PLLC, Joseph E. Wrona, Attorneys for Appellees

CHRISTIANSEN LAW, PLLC, Stephen K. Christiansen ( 6512), Heidi K. Gordon, Attorneys for Appellants

Pasquarello, Plaintiffs/ Appellants V. Tcc Veterinary Services, Inc., Dr. Tyler S. Stiens, Artz Vetmed : Appellees' Opening Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Certiorari to the Utah Court of Appeals, Case No. 20180971-CA Third District Court, Summit County Case No. 160500473, Judges Kara Pettit and Kent Holmberg

WRONA DUBOIS, PLLC, Joseph E. Wrona, Attorneys for Appellees

CHRISTIANSEN LAW, PLLC, Stephen K. Christiansen ( 6512), Heidi K. Gordon, Attorneys for Appellants

Russian Symphonia Vs. Rule Of Law?, Mikhail Antonov

BYU Law Review

No abstract provided.

Christian Dignity And The Overlapping Consensus, Frederick Mark Gedicks

BYU Law Review

This Article rejects arguments by Christian leaders, scholars, and others who lament the secularization of the West and urge Christian dignity as the foundation of universal human rights. It argues instead that only a secular conception of dignity free of Christian metaphysics can create an overlapping consensus in support of human rights.

Part I describes the roots of Christian dignity in medieval theology and status. Part II briefly recounts how the Renaissance and Enlightenment re-centered the end of dignity from knowing God to knowing oneself, while the Reformation's extension of original sin to the intellect left Catholicism as the primary …

Catholicism, Liberalism, And Populism, Andrea Pin, Luca P. Vanoni

BYU Law Review

No abstract provided.

Christian Faith-Based Organizations As Third Party Interveners At The European Court Of Human Rights, Eugenia Relaño Pastor

BYU Law Review

No abstract provided.

Emily Hunsaker, Plaintiff/ Appellant V. American Healthcare Capital, Defendant/ Appellee. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Findings of Fact and Conclusions of Law and Rule 58Afinal Judgment of the Fourth Judicial District Court in and for Utah County, Spanish Fork Department, State of Utah. Trial Judge Jared Eldridge

ATTORNEYS FOR APPELLANTS, Justin D. Heideman (USB #8897), Justin R. Elswick (USB #9153)

ATTORNEYS FOR APPELLEE, Jere Reneer (USB #7967)

State Of Utah, Plaintiff V. Kevin Ashley Morris, Defendant. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

BRIEF OF APPELLANT ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT, ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH

D. Jacob Summers Prosecutor for Orem City

K. ANDREW FITZGERALD, #8944 Attorney for Kevin Ashley Morris, Appellant