Digital Commons Network^™

Reclaiming Humphrey’S Executor: Expertise And Impartiality In The Ftc, Thomas Smith

Brigham Young University Journal of Public Law

The commissioners of the Federal Trade Commission (FTC) sit just beyond the president’s removal power, for now. The U.S. Supreme Court has all but overruled Humphrey’s Executor, which declared the constitutionality of the FTC’s statutory protections from at-will presidential removal. Recent rulings in Seila Law, Free Enterprise Fund, and Collins held that restrictions on the president’s removal of various government agency officials are unconstitutional. Despite these cases, the Court has not directly overruled Humphrey’s Executor, and in theory, its precedent still provides the FTC commissioners with protection from the president’s removal power. However, the modern FTC is easily distinguishable from …

Race, Ethnicity, And Fair Housing Enforcement: A Regional Analysis, Charles S. Bullock Iii, Charles M. Lamb, Eric M. Wilk

Brigham Young University Journal of Public Law

This article systematically compares how federal, state, and local civil rights agencies in the ten standard regions of the United States enforce fair housing law complaints filed by Blacks and Latinos. Specifically, it explores the extent to which regional outcomes at all three levels of government are decided favorably where, between 1989 and 2010, a racial or ethnic violation of the Fair Housing Act of 1968 or the Fair Housing Amendments Act of 1988 is alleged. The results reveal significant variations in outcomes between these groups across the country. Most importantly, the probability of an outcome favorable to the complainant …

On The Place Of Self-Defense In Public Life: A Hobbesian Critique Of The Supreme Court’S Second Amendment, Rafi Reznik

Brigham Young University Journal of Public Law

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of …

Updating The Berne Convention For The Internet Age: Un-Blurring The Line Between United States And Foreign Copyrighted Works, Ethan Schow

Brigham Young University Journal of Public Law

John Naughton, notable journalist and academic, has asserted that “[common sense] should also revolt at the idea that doctrines about copyright that were shaped in a pre-Internet age should apply to a post-Internet one.” And yet, in crucial aspects of international law, this is the situation in which the world finds itself today. The Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention” or the “Convention”) is one of the most important multinational agreements concerned with copyright law, but it has not been amended since September 28, 1979. Although the internet technically existed in an early …

Vicki Jo Nelson Appellee/ Petitioner V. James Q. Nelson Appellant/ Respondent : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from a decree of divorce in the Third Judicial District Court, Case No. 214905299, the Honorable Patrick Corum presiding

Vicky Jo Nelson, Pro Se

Douglas B. Thayer, David B. Nielson, Jessica Griffin Anderson, Attorneys for James Q. Nelson

State Of Utah, Plaintiff/Appellee V. Debra Kay Youren, Defendant/Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a Judgment and Conviction for one count of Exploitation of a Vulnerable Adult, a Second Degree Felony, and one count of Theft, a Second Degree Felony, The Honorable Anthony Howell presiding in the Fourth Judicial Court, Juab County, State of Utah, Case No.191600058

SEAN REYES Utah Attorney General c/o Criminal Appeals Division Assistant Solicitor General Attorney for Appellee

ANN M. TALIAFERRO (#8776) BROWN BRADSHAW & MOFFAT Attorney for Appellant

State Of Utah V. Bridgewaters : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

An appeal from a judgment of conviction of manslaughter, a second-degree felony; and tampering with a witness, a third-degree felony in the Third Judicial District Court, Salt Lake County, State of Utah, the Honorable Hogan, presiding. Appellant is incarcerated

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

ROBERT T. DENNY (13687) Salt Lake Legal Defender Assoc. Attorney for Appellant

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"[B]y any reasonable measure, BYU Law has become a great law school. Whether you examine faculty influence, student credentials, bar passage, graduate placement, low graduate indebtedness, library resources, or myriad other factors, BYU Law School is one of the finest law schools in the United States."
– D. Gordon Smith

Byu Journal Of Public Law Volume 37 Number 1

Brigham Young University Journal of Public Law

No abstract provided.

Instigator And Proxy Liability In The Context Of Information Operations, Carolyn Sharp

Brigham Young University Journal of Public Law

No abstract provided.

Recapturing The Orphan Drug Act: An Analysis Of Proposals, Rajdeep Trilokekar

Brigham Young University Journal of Public Law

No abstract provided.

Schrödinger’S Cat: A Constitutional Alien In Australia?, Benjamen Franklen Gussen

Brigham Young University Journal of Public Law

No abstract provided.

Frontmatter

Brigham Young University Journal of Public Law

No abstract provided.

Information Leaking And The United States Supreme Court, Chad Marzen, Michael Conklin

Brigham Young University Journal of Public Law

No abstract provided.

Sitla And How To Make It Pay: Two Proposals For Increasing The Profitability Of Utah’S School And Institutional Trust Lands, Katrina Cole

Brigham Young University Journal of Public Law

No abstract provided.

State Of Utah, Plaintiff/ Appellee V. Eddie Michael Clegg, Defendant/ Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Carbon County, Honorable Joseph Bean, District Court No. 211903061

Christopher F. Allred, Steven Austin Lee, Counsel for Appellee

Emily Adams, Freyja Johnson, Counsel for Appellant

State Of Utah, Plaintiff/ Appellee V. Spencer Greenway, Defendant/ Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Kara Pettit, District Court No. 201901182

Sean Reyes, Counsel for Appellee

Emily Adams, Rachel Phillips Ainscough, Counsel for Appellant

Sports Medicine Research And Testing Laboratory, Petitioner V. Board Of Equalization Of Salt Lake County, State Of Utah, And Utah State Tax Commission, Respondents., Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Petition for Review of Final Decision of the Utah State Tax Commission: Brief of Appellant

Erin Middleton Assistant Solicitor General Michelle Lombardi Assistant Attorney General Attorneys for Respondent Utah State Tax Commission Bradley C. Johnson Timothy A. Bodily Deputy District Attorneys Attorneys for Respondent Board of Equalization of Salt Lake County

Samuel A. Lambert (11915) Bruce Olson (2468) RAY QUINNEY & NEBEKER P.C. Attorneys for Sports Medicine Research and Testing Laboratory

Table Of Contents

BYU Law Review

No abstract provided.

Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman

BYU Law Review

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …

A Juror’S Religious Freedom Bill Of Rights, Antony Barone Kolenc

BYU Law Review

The prosecution of Democrat Congresswoman Corrine Brown for campaign corruption was perhaps the most significant and dramatic political trial ever to hit Northeast Florida—and that was before the Holy Spirit showed up and spoke to Juror 13 during deliberations. The Brown case is the springboard for the article’s focus on a juror’s right to religious liberty, one of the nation’s most precious constitutional rights. The Article addresses first principles behind the process of jury selection in the United States, as well as the importance and safeguarding of religious liberty in the U.S. Constitution. It then proposes six tenets to be …

Walls Or Bridges: Law’S Role In Conflicts Over Religion And Equal Treatment, Martha Minow

BYU Law Review

Presented as the Bruce C. Hafen Lecture, Brigham Young University Law School January 18, 2023

“[D]o you see religion as a club or do you see religion as a path? Do you see it as a wall that separates you or do you see it as a bridge that connects you to God and other people?

— Keith Ellison1

Rebuilding Grid Governance, Joel B. Eisen, Heather E. Payne

BYU Law Review

As climate change sharpens the focus on our electricity systems, there is widespread agreement that the institutions that govern our electric grid must change to realize a clean energy future in the timescale necessary. Scholars are actively debating how grid governance needs to change, but in this Article we demonstrate that current proposals are insufficient because they do not contemplate “rebuilding.” This Article defines “rebuilding” as ending entities tasked with grid governance and creating new ones to take their place. We propose what no one else has: an overarching framework for rebuilding any grid governance institutions.

This Article discusses when …

Private Sanctions, Public Harm?, Jon J. Lee

BYU Law Review

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.

This Article takes a comprehensive look at private sanctions …

Regulating Strategic Sovereign Wealth, Paul Rose

BYU Law Review

In an era of ascendant globalization, sovereign wealth funds were used by governments around the world – and, in particular, by governments with massive natural resource wealth or balance-of-trade surpluses – to invest widely in foreign markets. Sovereign wealth funds were products of the international economic order then in existence, adapted to a political and economic environment in which borders could be easily crossed and foreign assets seemed abundant and easily acquired. After the Financial Crisis, and with the increasing nationalization seen in the 2010s, this environment began to change. Both domestic and international forces spurred the development of new, …

The Tesla Meets The Fourth Amendment, Adam M. Gershowitz

BYU Law Review

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly extract …

Contracting As A Class, Caleb N. Griffin

BYU Law Review

Contract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them – indeed, are effectively forced to agree to them – if they wish to participate in the modern world.

Modern digital contracting is not a collaborative process. Today, …

Undue Mental Hardship: A Case For Standardized Treatment Of Mental Health Issues In Student Loan Discharge Proceedings, Abigail Stone

BYU Law Review

No abstract provided.

Clark Memorandum: Spring 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Fidei Defensor: Defending Faith to Enable Communities of Reconciliation
• Conscience, Peacebuilding, and Faith-Based Law Schools
• Elvis Was Right: The Unavoidable Intersection Between Personal Values and a Fulfilling Practice of Law
• The Future of the Establishment Clause: Implications of Kennedy v. Bremerton School District

The Trouble With Time Served, Kimberly Kessler Ferzan

BYU Law Review

Every jurisdiction in the United States gives criminal defendants "credit" against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, how ever, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting …