Digital Commons Network^™

On Criminalizing Violent Speech, Amitai Etzioni

Brigham Young University Journal of Public Law

There is an increasingly high number of threats to kill, made by citizens against each other, and against public officials. These threats terrorize people, force them to take protective measures, make them reluctant to assume public office, and, when they do, make them feel as though they have to act cautiously. State and federal laws currently exist that prohibit such threats. This article examines the ways the courts have affected how these laws function. It concludes by suggesting ways these laws can be rendered more effective. Drawing on liberal communitarianism, this article seeks to offer practical recommendations for how the …

Implications Of Azar V. Allina Health Services On Rulemaking: How To Know When Notice And Comment Is Required Under The Medicare Act, John Geilman

Brigham Young University Journal of Public Law

No abstract provided.

The Case Of The Smart City, Bruce Peabody, Kyle Morgan

Brigham Young University Journal of Public Law

January 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our …

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 …

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 …

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.

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 …

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 …

Book Review: The Restatement And Beyond: The Past, Present, And Future Of U.S. Foreign Relations Law. Edited By Paul B. Stephan And Sarah H. Cleveland. New York: Oxford University Press, 2020. Pp. Xi, 587., David H. Moore, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This paper reviews The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Paul B. Stephan and Sarah H. Cleveland eds., OUP 2020).

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 …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

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 …

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.

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

The Byu Advocate, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

"BYU Law recognizes the inherent dignity and equality of each individual and welcomes people from the full range of human experience. We are committed to the teachings of Jesus Christ and honor His many roles, including healer, peacemaker, mediator, counselor, advocate, lawgiver, and judge. In striving to emulate His example, we seek to be and develop people of integrity who combine faith and intellect in lifelong service to God and neighbor." – new Mission Statement

State Of Utah, Plaintiff, V. Kevin Ashley Morris, Defendant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

D. Jacob Summers, Prosecutor for Orem City

D. Jacob Summers, Prosecutor for Orem City

K. ANDREW FITZGERALD, #8944, Attorney for Kevin Ashley Morris, Appellant

State Of Utah, Plaintiff V. Kevin Ashley Morris, Defendant. : Reply Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT, ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH

D. Jacob Summers Prosecutor for Orem City

K. ANDREW FITZGERALD, #8944 Attorney for Kevin Ashley Morris, Appellant

State Of Utah, Plaintiff, V. Kevin Ashley Morris, Defendant : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH.

K. ANDREW FITZGERALD, #8944, Attorney for Kevin Ashley Morris,

D. JACOB SUMMERS, #12253, Attorney for City of Orem, Appellee

State Of Utah, Plaintiff V. Kevin Ashley Morris, Defendant. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A MINUTES SENTENCE, JUDGEMENT AND COMMITMENT ENTERED BY THE FOURTH JUDICIAL DISTRICT COURT, UTAH COUNTY, STATE OF UTAH.

K. ANDREW FITZGERALD, #8944 Attorney for Kevin Ashley Morris, Appellant

D. JACOB SUMMERS, #12253 Attorney for City of Orem, Appellee

Now And Again: Reappraising Disability Leave As An Accommodation, Ryan H. Nelson

BYU Law Review

No abstract provided.

Strict Liability For The Information Age, Kevin Alden

BYU Law Review

No abstract provided.

Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith

BYU Law Review

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …

Wealth Transfer Tax Planning After The Tax Cuts And Jobs Act, John A. Miller, Jeffrey A. Maine

BYU Law Review

On December 17, 2017, Congress passed the Tax Cuts and Jobs Act (TCJA). Among its many impacts, the TCJA increased the inflation-adjusted estate tax basic exclusion amount to $10,000,000 on a temporary basis. This has dramatic implications for many existing and future estate plans, including a major crossover impact on income tax planning. In this Article, we explain the operation of the federal wealth transfer taxes (the estate tax, the gift tax, and the generation skipping transfer tax) in the wake of the TCJA and dissect the basic tax planning techniques for wealth transmission. The overall design of this Article …

Opt-In Arbitration: A Functional Alternative To The Fair Act, Garrett Meisman

BYU Law Review

No abstract provided.

Wavetronix Llc, Petitioner V. Auditing Dmsion Of The Utah State Tax Commission, Respondent : Brief Of Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On petition for review from the Utah State Tax Commission, Agency No. 13-2579

Troy L. Booher J. Frederic Voros, Jr. Dick J. Baldwin ZIMMERMAN BOOHER Attorneys for Petitioner

Erin T. Middleton Assistant Solicitor General Mark E. Wainwright John C. McCarrey Assistant Attorneys General Sean D. Reyes UTAH ATTORNEY GENERAL Attorneys for Respondent

Pasquarello, Plaintiffs/ Appellants V. Tcc Veterinary Services, Inc., Dr. Tyler S. Stiens, Artz Vetmed : Appellees' Opening Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Certiorari to the Utah Court of Appeals, Case No. 20180971-CA Third District Court, Summit County Case No. 160500473, Judges Kara Pettit and Kent Holmberg

WRONA DUBOIS, PLLC, Joseph E. Wrona, Attorneys for Appellees

CHRISTIANSEN LAW, PLLC, Stephen K. Christiansen ( 6512), Heidi K. Gordon, Attorneys for Appellants

Pasquarello, Plaintiffs/ Appellants V. Tcc Veterinary Services, Inc., Dr. Tyler S. Stiens, Artz Vetmed : Appellees' Opening Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Certiorari to the Utah Court of Appeals, Case No. 20180971-CA Third District Court, Summit County Case No. 160500473, Judges Kara Pettit and Kent Holmberg

WRONA DUBOIS, PLLC, Joseph E. Wrona, Attorneys for Appellees

CHRISTIANSEN LAW, PLLC, Stephen K. Christiansen ( 6512), Heidi K. Gordon, Attorneys for Appellants

State Of Utah, Plaintiff/ Appellee V. Anthony Jeffrey Christensen, Defendant/ Appellant. : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a conviction of assault by prisoner, a first degree felony, in violation of Utah Code § 76-5-102.5, in the Sixth District Court, Sanpete County, Utah, Judge Marvin D. Bagley presiding

SEAN D. REYES Utah Attorney General Attorney for Appellee

PETER DAINES Attorney for Appellant