Digital Commons Network^™

Innovation In Adversity, Clark Asay, Stephanie Plamondon

Faculty Scholarship

Adverse experiences, like long-term poverty, can inhibit innovation. But as much research and many real-world examples show, adversity can also stimulate innovation. Indeed, the COVID-19 pandemic provides a number of recent examples where adverse conditions have led individuals, firms, and governments to innovate in the hope of benefiting society.

Despite the fact that some forms of adversity undermine innovation while others stimulate it, legal scholars have largely failed to distinguish between the two forms or even account for adversity's relationship to innovation when assessing innovation law and policy, including intellectual property (IP) laws. Yet given adversity's significant role in affecting …

Innovation's Hidden Externalities, Stephanie Plamondon Bair

Faculty Scholarship

When commentators discuss innovation’s externalities, they often classify them into one of two categories. On the positive externalities, or “spillovers” side, legal and economics scholars often speak of the benefits innovation confers on other innovators. Future innovators profit from past innovation as they “stand on the shoulders of giants” to develop progressively new and better innovation. Discussion of innovation’s negative externalities, on the other hand, has mainly focused on social harms not directly related to future innovation that particular advances impose on third parties—the classic example being pollution. Thus, the common understanding is that innovation’s spillovers positively impact innovation (among …

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 …

Contractual Depth, Matthew C. Jennejohn, Cathy Hwang

Faculty Scholarship

Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This article shows how modern contracts have more intended audiences than courts and communities—instead, they are drafted with many third parties in mind, including regulators. When contracts speak to many audiences, they gain multiple layers of meaning, giving them “contractual depth.” This article draws upon a series of novel interviews with dealmakers—law firm partners, general counsel, and executives—in a wide range …

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 …

Contractual Evolution, Matthew C. Jennejohn, Eric Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

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.

The Transactional Dynamics Of Market Fragility, Matthew C. Jennejohn

Faculty Scholarship

This Article takes a step toward more clearly diagnosing market fragility for the purpose of developing better policy choices that anticipate and address future crises. It does so by connecting two erstwhile and distinct literatures: the legal scholarship on relational contracting and the social science on the diffusion of shocks in economic networks. This Article attempts to connect the strategies parties pursue in designing their agreements—a familiar topic to contract scholars—to the diffusion patterns observed in disrupted markets—an increasingly important area of study in macroeconomics. By investigating that intersection, this Article introduces a new potential policy domain for remediating market …

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 …

Revitalizing Tribal Sovereignty In Treatymaking, David H. Moore, Michalyn Steele

Faculty Scholarship

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of …

The Work Is Not Done: Frederick Douglass And Black Suffrage, Bradley Rebeiro

Faculty Scholarship

Since antiquity, political theorists have tried to identify the proper balance between ideals and pragmatism in political and public life. Machiavelli and Aristotle both offered prudence as an approach, but with different ends in mind: stability and the good, respectively. Among the many contributions Kurt Lash’s two-volume set on the Reconstruction Amendments provides to present-day discourse, it supplies the careful reader an answer to this timeless question by highlighting the role of Frederick Douglass in public deliberation over the Fifteenth Amendment. In this essay I argue that American abolitionist, social reformer and statesman Frederick Douglass illustrates and enacts the Aristotelian …

Innovation In A Time Of Crisis: The Utah Supreme Court's Order On Emergency Diploma Privilege, Catherine Bramble

Faculty Scholarship

This article discusses the Utah Supreme Court's order on emergency diploma privilege during the COVID-19 pandemic.

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 …

2022 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

Corruption In University Admissions And The Administrative Allocation Of Scarce Goods, L. Burke Files, Roger E. Meiners, Andrew P. Morriss

BYU Law Review

The Varsity Blues investigation uncovered a seamy side of university admissions. Multiple wealthy parents were indicted for securing their children s admission to selective institutions through bribery. Despite the publicity the indictments and guilty pleas received, and the public schadenfreude over the sight of celebrities being arrested, the investigation is most notable for what it did not do: it did not deploy the federal government's arsenal of anti-money laundering and anti-corruption tools against the universities involved. This represents a significant missed opportunity to address the serious problems that arise from rationing access to selective institutions via opaque, easily manipulated admissions …

State Securities Enforcement, Andrew K. Jennings

BYU Law Review

Each year, state securities regulators bring over twice the enforcement actions brought by the Securities and Exchange Commission, yet their work is largely missing from the literature. This Article provides an institutional account of state securities enforcement and identifies two key advantages — detection granularity and institutional decentralization — that states enjoy over their federal counterparts in policing localized frauds involving individual, often small-dollar, victims. Although states share enforcement jurisdiction with the SEC and DOJ, their enforcement activity reflects their institutional advantages and constraints and thus largely does not overlap with that of federal authorities. Instead, states serve as the …

Relational Enforcement Of Stock Exchange Rules, Geeyoung Min, Kwon-Yong Jin

BYU Law Review

Stock exchanges, as regulating entities supervised by the Securities and Exchange Commission (SEC), have wielded their rulemaking power on various corporate governance issues, ranging from the independent board committee requirement adopted in 2003 to the board diversity requirement approved in 2021. Simultaneously, as for-profit corporate entities, major stock exchanges have been competing against each other to attract and retain more companies. This dual status of stock exchanges — as regulators and as profit driven entities — brings into question the stock exchanges' incentive to enforce their own rules against listed companies. What happens if a listed company violates stock exchange …

Non-Consensual Disclosures, Nina Varsava

BYU Law Review

In the course of biomedical research on humans — for example, flu, imaging, and genomic studies — researchers often uncover information about participants that is important to their health and wellbeing. In many cases, the information is not anticipated in advance, and participants did not consent to receiving it. This Article examines the law and policy governing human subjects research, focusing on the set of regulations known as the "Common Rule." I argue that human subjects researchers will often have strong ethical reason s to disclose results even when participants did not consent to the disclosure in advance. I also …

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.

A Symbol Of Unity: Freeing The Aboriginal Flag, Dominic Shaw

BYU Law Review

No abstract provided.

Colleen Renae Wilson, Appellant, V. Jed Wilson, Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Utah County, Commissioner Marian Ito and Judge Derek P. Pullan, District Court No. 194402700

Angilee K. Dakic, Attorney for Appellant

Marilyn Brown, D. Grant Dickinson, Attorneys for Appellee

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

Rachel Bowers Petitioner /Appellant, V. Dustin Wade Burkhart, Respondent /Appellees. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court of Utah County, Honorable Robert Lund, District Court No. 194403198

Julie J. Nelson, Taylor P. Webb, Melissa A. Patten-Greene, Counsel for Appellee

Emily Adams, Sara Pfrommer, Counsel for Appellant

Steve Turley, An Individual, Plaintiff/Appellee V. Trudy J. Childs, Individually And As Trustee Of The Trudy J. Childs : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Ruling and Order entered by the Fourth Judicial District Court, Honorable Christine S. Johnson

Barry N. Johnson, Daniel K. Brough, Ryan M. Merriman, Counsel for. Appellants

Craig Carlile, Brent D. Wride, Counsel for Appellee

State Of Utah Plaintiff - Petitioner, V. Alfonso Valdez, Defendant - Respondent : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

EMILY ADAMS, CHERISE BACALSKI, Counsel for Respondent

EMILY ADAMS, CHERISE BACALSKI, Counsel for Respondent

JOHN J. NIELSEN, SEAN D. REYES, RACHEL M. SNOW, Counsel for Petitioner

Carolyn Casteel, Petitioner, V. Utah Labor Commission, Boxelder County, And Workers Compensation Fund, Respondents : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Brief of Respondents/Appellees Box Elder County and WCF Mutual Insurance Company

David J. Holdsworth, Attorney for Petitioner/Appellee

Michele L. Halstenrud, Attorney for Respondents/Appellees, Christopher T. Hill, Attorney for Respondent/Appellee

Rachel Bowers Petitioner /Appellant, V. Dustin Wade Burkhart, Respondent /Appellees. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District Court, Utah County,

Emily Adams Sara Pfrommer Attorneys for Appellant Rachel Bowers

Julie J. Nelson, Taylor P. Webb, Melissa A. Patten-Greene, Attorneys for Appellee Dustin Burkhart

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

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