Digital Commons Network^™

Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly

BYU Law Review

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …

Thank You For Not Publishing (Unexamined Patent Applications), Lidiya Mishchenko

BYU Law Review

Since 2000, the U.S. Patent & Trademark Office (“PTO”) has published nearly all patent applications as they are submitted by applicants. Scholars and practitioners have praised this practice for providing timely notice of the potential legal rights the application may eventually cover. But maximizing timeliness and transparency in this way can also create significant costs, which may chill innovation and deter the development and funding of new research areas. This Article explores these often-unrecognized costs of publishing unexamined patent applications and proposes solutions that balance the benefits of early notice with the costs of patent system uncertainty. Published patent applications …

Intellectual Property In E-Commerce Retail Arbitrage: An Analysis Of The Legality Of Using Intellectual Property In Drop-Shipping, Kara J. Bloomer

BYU Law Review

No abstract provided.

Clark Memorandum: Spring 2022, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• General Joseph Smith and His Candidacy for the Presidency of the United States
• Leadership Lessons from the Life of Dallin H. Oaks
• Flunking the Founding
• Seven Lessons from the Life of Rex Lee

Michael Robert Tilleman, Appellant V. Michal Christine Tilleman, Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Honorable James Brady, District Court No. 164402522

Douglas Thayer, Andy Wright, Attorneys for Appellee

Julie J. Nelson, Attorney for Appellant Michael Robert Tilleman

Durbano Properties, L.C., Petitioner, V. Utah State Tax Commission And Washington County Board Of Equalization, Respondents : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Petition for Review of August 4, 2021, Final Decision of the Utah State Tax Commission for Appeal No. 19-2384

Sarah Goldberg, Sean D. Reyes, Attorneys for Respondent

Douglas M. Durbano, Richard A. Bednar, Attorneys for Petitioner

Liberalism, Catholic Integralism, And The Question Of Religious Freedom, Xavier Foccroulle Ménard, Anna Su

BYU Law Review

This Article investigates new Catholic integralism and its critique of liberalism and aims to answer whether a liberal idea of religious freedom is possible under an integralist regime. To do so, we first sketch the respective views of liberalism and Catholic integralism on each other, with an emphasis on integralism. For integralism, liberalism is not merely a political phenomenon, but a comprehensive worldview with hidden metaphysical and theological implications. Integralism views the function of political rule as ordering human beings to their final cause. We specifically delve in foundational Catholic principles to guide rulers when governing—prudence and subsidiarity—to establish how …

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith

BYU Law Review

No abstract provided.

Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider

BYU Law Review

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …

Political Partisanship And Sincere Religious Conviction, Mark Satta

BYU Law Review

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political …

Political Trust, Kevin Vallier

BYU Law Review

No abstract provided.

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

BYU Law Review

No abstract provided.

State Of Utah Plaintiff/Appellee V. Douglas A. Lovell Defendant/Appellant: Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Appeal from a conviction for aggravated murder, a capital felony in the Second District Court, State of Utah, the Honorable Michael Direda, Judge, presiding.

Sean D. Reyes, Attorney for Appellee

Colleen K. Coebergh, Attorney for Appellant

State Of Utah Respondent /Appellee, V. Reynaldo Martinez, Petitioner /Appellant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from grant of summary judgment and denial of amended petition for postconviction relief, in the Third Judicial District, Salt Lake County, the Honorable Paul B. Parker presiding

RANDALL W. RICHARDS, Counsel for Appellant

DANIEL L. DAY, SEAN D. REYES, Counsel for Appelleе

Shane Keisel And Jennifer Huff, Appellants, V. Russell Westbrook Iii And Jazz Basketball Investors, D/B/A The Utah Jazz Appellees. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Fourth Judicial District, In and For Utah County, State of Utah Before the Honorable Derek P. Pullan

Matthew L. Lalli, Cameron J. Cutler, Attorneys for Appellee

Scott R. Hoyt, Joseph G. Pia, John P. Mertens, Adam L. Hoyt, Attorneys for Appellants

Shane Keisel And Jennifer Huff, Appellants, V. Russell Westbrook Iii And Jazz Basketball Investors, D/B/A The Utah Jazz Appellees. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Fourth Judicial District, In and For Utah County, State of Utah Before the Honorable Derek P. Pullan

Matthew L. Lalli, Cameron J. Cutler, Attorneys for Appellee Russell Westbrook III

Scott R. Hoyt, Joseph G. Pia, John P. Mertens, Adam L. Hoyt, Attorneys for Appellants Shane Keisel and Jennifer Huff

Dennis C. Ellis And Maria Ellis,. Appellants, V. La Val Enterprises, Ltd., Mikle Val Ellis, Kelly D. Ellis, Shelly Rowlan, And Stacey Rowlan Appellees : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Interlocutory appeal from the order of partial summary judgment entered by the Honorable Jennifer A. Brown, Fourth Judicial District Court of Wasatch County, Civil No. 200500032

Troy L. Booher, Beth E. Kennedy, Caroline A. Olsen, Counsel for Appellants

David R. Nielson, Nathan D. Anderson, Counsel for Appellees

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

Moderating From Nowhere, Gilad Abiri

BYU Law Review

We are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.

Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to …

Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge

BYU Law Review

The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court …

Addressing The Next State Fiscal Crisis: Toward An Ex Ante Scheme Of Federal Assistance To States In Fiscal Distress, Omer Kimhi

BYU Law Review

Every several years, usually after a national recession, and also as a result of the C OVID 19 pandemic, states enter financial difficulties. These difficulties spur a debate, both in the political arena and in the academic literature, concerning the appropriate federal response. Some advocate for federal bailouts to rescue the distressed states, while others argue that the states need to deal with their troubles independently or with the help of state bankruptcy legislation. The Article explores the proper federal response to states’ fiscal fiscal crises.

The Article argues that the current (suggested) responses – state bankruptcy and ex-post discretionary …

Cybersecurity Spillovers, Mark Verstraete, Tal Zarsky

BYU Law Review

This Article identifies and analyzes a previously unrecognized source of positive externalities within cybersecurity, which we term "cybersecurity spillovers". Most commentators have focused on negative externalities and market failures, leading to a pervasive pessimism about the possibility of adequate cybersecurity protections. In response, this Article demonstrates that unique dynamics from the world of cloud computing – most notably, indivisibility – may force cloud service firms to generate spillovers. These spillovers are additional security protections provided to common cloud users: clients who may not have been willing or able to acquire these security services otherwise. Furthermore, this additional source of security …

A Memorial And Remonstrance Against Taxation Of Churches, Reece Barker

BYU Law Review

No abstract provided.

Balancing Precautions In Attacks Versus Precautions Againstnthe Effects Of Attacks In Urban Armed Conflict, Andrew Navarro

BYU Law Review

No abstract provided.

Shane Keisel And Jennifer Huff, Appellants, V. Russell Westbrook Iii And Jazz Basketball Investors, D/B/A The Utah Jazz Appellees. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On Appeal from the Fourth Judicial District Court, Utah County, Honorable Derek P. Pullan

Scott R. Hoyt, Joseph G. Pia, John P. Mertens, Adam L. Hoyt, Ciera C. Archuleta, Attorneys for Appellants Shane Keisel and Jennifer Huff

Matthew L. Lalli, Cameron J. Cutler, Victor D. Vital, Attorneys for Appelleе Russell Westbrook III

Shane Keisel And Jennifer Huff, Appellants, V. Russell Westbrook Iii And Jazz Basketball Investors, D/B/A The Utah Jazz Appellees. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On Appeal from the Fourth District Court, Utah County, State of Utah, the Honorable Derek P. Pullan, Dist. Ct. No. 190401976

Scott R. Hoyt, Joseph G. Pia, John P. Mertens, Adam L. Hoyt, Ciera C. Archuletta, Attorneys for Appellants Shane Keisel and Jennifer Huff

Jeffrey J. Hunt, David C. Reymann, Michael S. Anderson, Victoria R. Luman, Attorneys for Appellee Jazz Basketball Investors, Inc. d/b/a The Utah Jazz

Durbano Properties, L.C., Petitioner, V. Utah State Tax Commission And Washington County Board Of Equalization, Respondents : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Petition for Review from the Utah State Tax Commission, No. 19-2384

Douglas M. Durbano, Richard A. Bednar, Counsel for Petitioner

Sarah Goldberg, Sean D. Reyes, Counsel for Respondent