Digital Commons Network^™

The Million-Dollar Diversity Docket, Steven Gensler, Roger Michalski

BYU Law Review

Congress has always imposed an amount in controversy requirement for general diversity jurisdiction. Congress initially set the jurisdictional amount at $500 in 1789 and has raised it six times, most recently in 1996 to its current $75,000 threshold. That requirement has been described as ensuring that the federal courts not become bogged down by “petty” or “insubstantial” state-law cases. Given that it has been twenty-five years since the last increase, we are probably overdue for another one. But to what amount? For what purpose? And with what effects on the size and composition of the diversity docket? What would happen …

The Legitimacy Of International Human Rights Law—Addressing The Justification Gap, Brock M. Mason

BYU Law Review

No abstract provided.

Public Trauma: Why Utah Should Waive Immunity For Mental Anguish Injuries, Adam Reed Moore

BYU Law Review

No abstract provided.

The Parishioner & The Probationer: Make Probation Non-Profit Again, James Rex Lee

BYU Law Review

No abstract provided.

The Copyright Wasteland, Shani Shisha

BYU Law Review

The Copyright Act grants certain exclusive rights to authors of creative works. But many of these exclusive rights are notoriously underspecified. And while a rich body of case law grapples with one copyright entitlement—the right to reproduce the copyrighted work— courts rarely engage in earnest with other exclusive rights. As a result, courts appear to have only a rudimentary understanding of the precise scope of copyright law. Because courts focus almost singularly on questions of reproduction, other exclusive rights fall by the wayside. This Article contends, counterintuitively, that the problem is traceable to a much-maligned feature of our copyright system: …

Table Of Contents

BYU Law Review

No abstract provided.

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.

The Internet Immunity Escape Hatch, Gregory M. Dickinson

BYU Law Review

Internet immunity doctrine is broken, and Congress is helpless. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And all have come together to criticize Section 230’s protection of bad-actor websites. The law’s defects have put it at the center of public debate, with more than …

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

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.

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.

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 …

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.

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 …

The Prudential Standing Quandary When Discriminatory, Facially Neutral Laws Allegedly Cause Collateral Damage, Richard Luedeman

Brigham Young University Journal of Public Law

No abstract provided.

The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones

Brigham Young University Journal of Public Law

This article will propose and explain a draft amendment to the United States Constitution that would secure an intermediate degree of political representation for Americans living in U.S. territories. While concerned principally with U.S. territories, the amendment would also address Congressional representation for the District of Columbia.

Informal Governance Of The United States, Edward Lee

Brigham Young University Journal of Public Law

No abstract provided.

Giving Hardison The Hook: Restoring Title Vii’S Undue Hardship Standard, Kade Allred

Brigham Young University Journal of Public Law

No abstract provided.

A Call For State Legislators To Reconsider Their Stance On School Choice And School Funding, Leah Blake

Brigham Young University Journal of Public Law

No abstract provided.

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 …

Corporate Purpose And The Separation Of Powers, Benjamin T. Seymour

Brigham Young University Journal of Public Law

Despite its intense focus on inter-jurisdictional competition, corporate law scholarship has thus far overlooked the influence of inter-branch competition on business organizations. This Article shows how interbranch struggles for control over corporations catalyzed the advent of modern corporate law and helped propel Delaware to its dominant position in the market for corporate charters. For centuries, the legislature, judiciary, and executive vied for the decisive role in dictating the means and ends of corporations. Through the nineteenth century, competition among the branches produced a dysfunctional and volatile relationship between government and private enterprise, with each branch successively assuming a leading role …