Digital Commons Network^™

Reporting Certainty, James A. Macleod

BYU Law Review

Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.

Yet the rhetoric of certainty persists. …

Osha, The Opportunism Police, Jason R. Bent

BYU Law Review

No abstract provided.

2019-2020 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Enforcement Piggybacking And Multistate Actions, Elysa M. Dishman

BYU Law Review

Civil enforcement in the United States is uniquely “multienforcer.” Numerous public and private enforcers including federal agencies, state attorneys general (AGs), and private litigants have overlapping authority to enforce myriad federal and state laws. Ideally, enforcers would complement one another’s efforts and use their comparative enforcement advantages to broaden the scope of enforcement and act as a check on underenforcement. But in reality, enforcers are often attracted to the same targets—large, public, deep-pocketed corporations. This means that multiple enforcers may pursue essentially the same enforcement action, arising from the same series of events and against the same target. Redundant enforcement …

The Importance Of Inferior Voting Rights In Dual-Class Firms, Dov Solomon

BYU Law Review

Over the past several years, corporate law scholarship has carefully analyzed the effects of dual-class capital structures, which allocate superior voting rights to insiders and inferior voting rights to public shareholders. This Article adds to the literature by focusing on a unique and novel type of dual-class structure—one in which the public shares have no voting rights at all. It notes that this structure is fundamentally different because in the absence of even highly diluted voting rights in public hands, the firm does not have to abide by certain types of disclosure rules and corporate governance standards. Nonvoting shareholders are …

Spotify’S Direct Listing And Foreign Private Issuers: Protecting Investors When Foreign Private Issuers List On A U.S. Exchange But Not On Their Home Exchange, Tayler Tanner

BYU Law Review

No abstract provided.

Kill Me Through The Phone: The Legality Of Encouraging Suicide In An Increasingly Digital World, Sierra Taylor

BYU Law Review

No abstract provided.

Larry Boynton, Appellee/Corss-Appellant, V. Kennecott Utah Copper Llc, Appellant/Corss-Appellee, Phillips 66 Company, Conocophillips Company, Pacificorp, Cross-Appellees,, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Response Brief of Cross-Appellee

Larry Boynton, Individually And On Behalf Of The Heirs Of Barbara Boynton, Appellee/Cross-Appellant, Vs. Kennecott Utah Copper, Llc, Appellant/Cross-Appellee, Phillips 66 Company, Pacificorp, Cross-Appellees., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Cross-Appellee Pacificorp's Response Brief

Larry Boynton, Individual And On Behalf Of The Heirs Of Barbara Boynton, Plaintiff/Appellee, V. Kennecott Utah Copper, Llc, Defendant/Appellant., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Reply Brief of the Appellant and Cross-Appellee Kennecott Utah Cooper, LLC

State Of Utah, Plaintiff/Appellee V. Patricia Trosper, Defendant/Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from a judgment of conviction for attempted aggravated assault, a third degree felony, entered in the Third District Court, the Honorable Elizabeth Hruby-Mills presiding.

Thomas Brunker, UTAH ATTORNEY GENERAL'S OFFICE, Attorneys for the Appellee

John Robinson Jr., DEISSLAWPC, Attorneys for the Appellant

David Scott Ipsen, Plaintiff/ Appellant V. Diamond Tree Experts, Inc., A Utah, Defendant/ Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On Writ of Certiorari to the Utah Court of Appeals Appeal from the Third District Court, Salt Lake County, Utah District Court Case No. 162900039, The Honorable Robert Faust Presiding Utah Court of Appeals No. 20171038-CA

Julie J. Nelson (9943), Alexandra Mareschal ( 16097), ZIMMERMAN BOOHER Lisa B. Lokken (6600),LOKKEN & ASSOCIATES, P.C, Attorney for Appellant CS.

Jessica S. Couser, #13050, JUST LAW, LLC, Attorney for Appellees/Petitioners, Benjamin K. Lusty, #12159, RENCHER ANJEWIERDEN, PLLC, Co-Counsel for Appellees/Petitioners

Office Of Professional Conduct, Appellee, V. Travis L. Bowen, Appellant., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Royal I. Hansen, District Court No. 150907128

The State Of Utah, Plaintiff/ Appellee V. Ayayi Aziakanou, Defendant/ Appellant : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from a judgment of conviction for Distribute/ Offer/ Arrange Distribution of a Controlled Substance, a Third Degree Felony, in violation of Utah Code §58- 37-8 (1)(a)(ii) in the Third Judicial District, in and for Salt Lake County, State of Utah, the Honorable Paul Parker, presiding SEAN D.

SEAN D. REYES, Attorney for Appellee

DEBRA M. NELSON, MCCAYE CHRISTENSON, DAVID P.S. MACK, Attorneys for Appellant

Kim Hayes And Nancy Hayes, Appellants V. Intermountain Geoenvironmental Services, Inc. : Brief Of Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On appeal from the Utah Court of Appeals

Damian C. Smith TechLaw Ventures, PLLC Lehi, Utah 84043 Attorney for Petitioner

Anna Nelson Morgan, Minnock, Rice & Miner, Attorneys for Respondent Cameron B. Diehl UTAH LEAGUE OF CITIES AND TOWNS Attorney for Amicus Curiae Gary R. Crane (5054) Steven L. Garside ( 4323) J. Mason Kjar (14227) LAYTON CITY ATTORNEY Attorney for Amicus Curiae Paul D. Dodd WEST JORDAN CITY Attorney for Amicus Curiae

The State Of Utah, Plaintiff/ Appellee V. Alberto Herrera, Defendant/ Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

An appeal from a judgment of conviction of Driving with a Measurable Controlled Substance and Causing Death or Serious Bodily Injury, a second degree felony, in violation of Utah Code § 58-37-8(2)(g), (2)(h)(i); in violation of Utah Code § 76-8-507(2), in the Third District Court, Salt Lake County, Utah, the Honorable Elizabeth Hruby-Mills presiding.

SEAN D. REYES (7969), Utah Attorney General, Attorneys for Appellee

NATHALIE S. SKIBINE (14320), ELISE LOCKWOOD (12214), NICK FALCONE (10931), Salt Lake Legal Defender Assoc., Attorneys for Appellant

State Of Utah, Plaintiff/ Appellee V. Joseph Moore, Defendant/ Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Weber County, Honorable Jennifer Valencia, District Court No. 181900315

SEAN REYES (7969) Utah Attorney General Counsel for Appellee

CHERISE BACALSKI (15084) EMILY ADAMS (14937) The Appellate Group Counsel for Appellant

Stuart Wood And Laurie Wood, Petitioners And Appellants V. United Parcel Service, Inc., A Delaware Corporation : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

REPLY TO APPELLEE RESPONSE TO APPEAL ON GRANT OF PETITION FOR REVIEW OF APPELLATE COURT DECISION

Andrew M Morse #4498 , Nathan R. Skeen # 12662 , Attorneys for Appellee

Douglas B. Cannon #4287, Madelyn L. Blanchard # 16403, Craig T. Jacobsen, #5492, Attorneys for Appellants

Stuart Wood And Laurie Wood, Petitioners And Appellants V. United Parcel Service, Inc., A Delaware Corporation : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

APPEAL ON GRANT OF PETITION FOR REVIEW OF APPELLATE COURT DECISION

Andrew M Morse #4498, Nathan R. Skeen #12662, Attorneys for Appellee

Douglas B. Cannon #4287, Madelyn L. Blanchard #16403, Craig T. Jacobsen, #5492, Attorneys for Appellants

Blasting Reproach And All-Pervading Light: Frederick Douglass’S Aspirational American Exceptionalism, Lucy Williams

Faculty Scholarship

Some scholars critique American exceptionalism as a proud, uncritical orientation. In this article, however, I argue that Frederick Douglass, an outspoken social critic, qualifies as an American exceptionalist thinker. I first identify and theorize two modes of exceptionalist rhetoric: accomplished exceptionalism, which is self-celebratory and largely uncritical, and aspirational exceptionalism, which is self-critical and reflective. I then provide a close reading of “What to the Slave Is the Fourth of July” to show how Douglass employs aspirational rhetorical techniques. Finally, I discuss the benefits of reading Douglass as an exceptionalist thinker and suggest that his aspirational rhetoric activates reflective and …

Is Transformative Use Eating The World?, Clark Asay, Arielle Sloan, Dean Sobczak

Faculty Scholarship

Fair use is copyright law’s most important defense to claims of copyright infringement. This defense allows courts to relax copyright law’s application when courts believe doing so will promote creativity more than harm it. As the U.S. Supreme Court has said, without the fair use defense, copyright law would often “stifle the very creativity [it] is designed to foster.” In today’s world, whether use of a copyrighted work is “transformative” has become a central question within the fair use test. The Supreme Court first endorsed the transformative use term in its 1994 Campbell v. Acuff-Rose Music, Inc. decision. Since then, …

Braided Agreements And The New Frontiers Of Relational Contract Theory, Matthew Jennejohn

Faculty Scholarship

This Article, written for a symposium at Wharton celebrating Ron Gilson's scholarship, assesses Gilson, Sabel & Scott's "braided contracting" thesis, presented in their 2010 article, Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine. Focusing particularly on the application of the braiding thesis to preliminary agreements, this Article presents new evidence of a preliminary negotiation process called "alpha contracting," used from time to time by the Department of Defense in sole-source situations, that exhibits many of the key characteristics of braided contracting's logic. The piece then turns to the limits of the braiding thesis, identifying a …

Transformation Cost Engineering, Matthew Jennejohn

Faculty Scholarship

Transactions in the market for corporate control are not fully standardized but rather exhibit a material amount of variation. This paper explores a possible structural explanation: That the complexity of merger and acquisition (M&A) agreements makes them susceptible to multiple sources of path dependency, which introduce tensions that unsettle incentives toward uniform standardization. Using natural language processing techniques and standard regression analysis, the article presents preliminary evidence indicating that the level of standardization of various M&A agreement provisions correlates differently with multiple sources of path dependency, lending support to the hypothesis that endogenous structural factors limit the standardization of M&A …

Impoverished Ip, Stephanie Plamondon

Faculty Scholarship

Intellectual Property (IP) scholarship is generally concerned with how innovation policy impacts social welfare by providing appropriate incentives for innovation. But lately, the question of who participates in IP creation — with an eye to distributive justice as well as social welfare more broadly — has been getting more attention. Most scholars writing in this vein acknowledge IP’s shortcomings in achieving proportionate participation and representation across socioeconomic, race, and gender lines. But many argue that in spite of these flaws, IP regimes can advance distributive justice by giving the poor and other members of disadvantaged groups opportunities to accumulate wealth …

Big Brother, Othello, And Dogs That Don't Bark: The Use Of Literary Allusion In Federal Appellate Opinions, Kristin B. Gerdy

Faculty Scholarship

Unlike a fish, in the words of Justice Elena Kagan, a literary5 allusion is not “a discrete thing that possesses physical form”6 distinguishable from other expressive devices. Instead, literary allusions can take many forms, be used for many purposes, and have various effects on the reading audience. If the most basic form of a fish is the common goldfish in a bowl, then the most basic judicial literary allusion is a reference to a well-known story in a judicial opinion that is used to make a comparison in a reader’s mind. But just as there are many types of fish …

World Peace And Gender Equality: Addressing Un Security Council Resolution 1325’S Weaknesses, Eric Talbot Jensen, Elizabeth Griffiths, Sara Jarman

Faculty Scholarship

The year 2020 marks the twentieth anniversary of the passage of United Nations Security Council Resolution (“UNSCR”) 1325, the most important moment in the United Nations’ efforts to achieve world peace through gender equality. Over the past several decades, the international community has strengthened its focus on gender, including the relationship between gender and international peace and security. National governments and the United Nations have taken historic steps to elevate the role of women in governance and peacebuilding. The passage of UNSCR 1325 in 2000 foreshadowed what many hoped would be a transformational shift in international law and politics.

However, …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa Dishman

Faculty Scholarship

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

Autonomy And Precautions In The Law Of Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC).

This article analyzes the specific LOAC rules …

The (Erroneous) Requirement For Human Judgment (And Error) In The Law Of Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

One of the most intriguing and important discussions in international law today is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and …

Cyber Pillage, Christopher Greulich, Eric Talbot Jensen

Faculty Scholarship

Despite its historically narrow application under International law, in today’s digital age, usage of the term “pillage” has expanded to include the theft of intellectual property carried out by cyber means. The modern usage notwithstanding, it appears the law of armed conflict still limits liability for pillage to the non-consensual takings of public or private property by members of armed forces and affiliated non-state actors during armed conflict for private or personal use. This article applies the historical perspective to modern cyber activities, including those on and off the battlefield, and clarifies that while many activities do not rise to …