Digital Commons Network^™

Utah, Odr, And The New “Millennial”Um, Devin Cooper

Brigham Young University Journal of Public Law

No abstract provided.

Death Star Drones: How Missile Defense Drone Technology Marks The Advent Of Contingent Sovereignty, Ben Forsgren

BYU Law Review

Are advances in national security worth pursuing at the expense of sovereign equality? A new U.S. drone program may soon force the world to decide. Thanks to recent technological advances in unmanned aerial vehicles (UAV) and directed energy weapons, the United States will soon have a fleet of missile defense UAVs outfitted with advanced laser weapons designed to destroy intercontinental ballistic missiles before the missiles complete their launch phase. While these drones would significantly decrease the threat of a nuclear attack against the United States, they can only function if they are preemptively stationed in the sovereign airspace of other …

Courts Beyond Judging, Michael C. Pollack

BYU Law Review

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

Country Club Sports: The Disparate Impact Of Athlete Admissions At Elite Universities, William B. Morrison

BYU Law Review

While conservative advocacy groups criticize affirmative action as anti-meritocratic, many universities give similar admissions preferences based on ostensibly race-neutral characteristics that highly correlate with wealth and whiteness. Using data made public through the recent legal challenge to Harvard’s affirmative action policies, statisticians have shown that the greatest boost to an applicant’s admission chances at elite universities is not minority status or high test scores, but rather appearing on a coach’s list of potential recruits. At Harvard, where 70% of athletes are white, these athletic recruitment lists are often for “country club sports” that require expensive tutoring and are rarely played …

Obstruction Of Justice: Redesigning The Shortcut, Ellen S. Podgor

BYU Law Review

When one looks to accomplish consistency and predictability in the criminal justice system — important goals tied to achieving deterrence — the architecture of obstruction of justice remains important. It is insufficient to suggest that we have consistency in sentencing by using federal sentencing guidelines, when the charging process is undermined by its failure to provide uniformity. Achieving a consistent charging framework for federal obstruction of justice needs to be individualized, remain true to the contextual setting, and provide consideration for the specific processes of a trial, sentencing, or impeachment. But it also needs to have a structure that is …

Time’S Up: Schools Need To Teach Students About Sexual Harassment, Alyssa Nielsen

BYU Law Review

No abstract provided.

Kourtni Haskell, Plaintiff/ Appellant V. Wakefield & Assocait Es, Inc., And Matthew Frawley, An Individual, Defendants/ Appellees : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Third Judicial District Court, Salt Lake County, State of Utah The Honorable Judge Andrew Stone

Attorneys for Appellees, Mark A. Nickel

Attorneys for Appellant, Daniel Baczynski

Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk

BYU Law Review

No abstract provided.

Sandbagging: Eagle Force Holdings & The Market’S Reaction, Griffith Kimball

BYU Law Review

No abstract provided.

Pregnancy During Incarceration: A “Serious” Medical Need, Rahgan Jensen

BYU Law Review

No abstract provided.

False Positivism: The Failure Of The Newest Originalism, Guha Krishnamurthi

BYU Law Review

Originalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to "original meaning."The newest effort in this struggle is the so called "positive" turn …

The Role Of Courts In The Evolution Of Standard Form Contracts: An Insurance Case Study, Daniel Schwarcz

BYU Law Review

Standard form contracts are a pervasive feature of modern commercial life for ordinary consumers and big businesses alike. Yet remarkably little is currently known about how and when these contracts evolve in response to judicial decisions that interpret and apply them in individual disputes. Homeowners insurance policies offer a particularly fertile ground for studying this issue due to both the prominence of the insurance law doctrine that ambiguities are interpreted against the drafter and the historic standardization of insurance policies across different insurers. Utilizing a unique hand collected dataset, this Article empirically investigates the links between innovation in the dominant …

State Of Utah, Plaintiff/Appellee Vs. Alex Christopher Mendoza, Sr. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM A JUDGMENT SENTENCE AND CONVICTION OF, OBSTRUCTING JUSTICE, UTAH CODE ANN. § 76-8-306(1), A CLASS A MISDEMEANOR IN THE THIRD JUDICIAL DISTRICT COURT

HEATHER LINDSAY, Esq. DEPUTY DISTRICT ATTORNEY Counsel for Appellee

HERSCHEL BULLEN Attorney at Law Counsel for Appellant

Emily Hunsaker, Plaintiff/ Appellant V. American Healthcare Capital, Defendant/ Appellee. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

AN APPEAL FROM A FINAL JUDGMENT ENTERED I THE FOURTH DISTRICT COURT IN AND FOR UTAH COUNTY, STATE OF UTAH

Justin D. Heideman, Justin R. Elswick,

JERE RENEER (7967), Attorney for Appellee

Mark Christopher Tracy Dba, Emigration Canyon Home Owners Association, Petitioner / Appellant, V. Simplifi Company, Jennifer Hawkes And Eric Hawkes, Respondents/Appellees : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Third Judicial District, Salt Lake County, From Order Granting Motion to Dismiss Petition for De Novo Judicial Review of the Denied Request for Disclosure of Government Records Related to Lead Contamination of a Public Drinking Water System Operated by and in the Sole Custody of a For­ Profit Utah Corporation and Controlling Shareholders by the Honorable Robert P. Faust

JEREMY R. COOK TIMOTHY J. BYWATER TIME. NIELSON Counsel for Appellees

MARK CHRISTOPHER TRACY Pro Se Appellant

State Of Utah, Plaintiff/ Appellee V. Jason Ronald Hulse, Defendant / Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM THE FIRST DISTRICT COURT, BOX ELDER COUNTY, STATE OF UTAH, FROM THE JUDGMENT, SENTENCE, AND COMMITMENT ON ONE COUNT OF POSSESSION OF A FIREARM BY A RESTRICTED PERSON, A SECOND-DEGREE FELONY, AND ONE COUNT OF INJURIOUS LITTERING ON PUBLIC OR PRIVATE LANDS, A CLASS C MISDEMEANOR, ENTERED ON JANUARY 7, 2020, BEFORE THE HONORABLE JUDGE BRANDON J. MAYNARD

SEAN REYES, Utah Attorney General, Appeals Division, Counsel for Appellee

LEAH J. ASTON (15989), Counsel for Appellant

State Of Utah, Plaintiff/ Appellee V. Jason Ronald Hulse, Defendant / Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM THE FIRST DISTRICT COURT, BOX ELDER COUNTY, STATE OF UTAH, FROM THE JUDGMENT, SENTENCE, AND COMMITMENT ON ONE COUNT OF POSSESSION OF A FIREARM BY A RESTRICTED PERSON, A SECOND-DEGREE FELONY, ANDONE COUNT OF INJURIOUS LITTERING ON PUBLIC OR PRIVATE LANDS, A CLASS C MISDEMEANOR, ENTERED ON JANUARY 7, 2020, BEFORE THE HONORABLE JUDGE BRANDON J. MAYNARD

SEAN REYES, Counsel for Appellee

LEAH J. ASTON, Counsel for Appellant

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

Utah Supreme Court Briefs (2021– )

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 : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

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

Kourtni Haskell, Plaintiff/ Appellant V. Wakefield & Assocait Es, Inc., And Matthew Frawley, An Individual, Defendants/ Appellees : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Third Judicial District Court, Salt Lake County, State of Utah The Honorable Judge Andrew Stone

Attorneys for Appellees Mark A. Nickel, David Gamer

Attorneys for Appellant, Daniel Baczynski

Sysco Corp., American Zurich Insurance Company, And New Hampshire Insurance Company, Respondents/Appellants V. Utah Labor Commission, And Paul Roberts : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

BRIEF OF AFLELLER PETITIONER BELOW) PAUL ROBERTS

Brad Miller Attorney for Appellants

Brian Kelm Attorney for Appellee Roberts Christopher Hill General counsel for Appellee ULC

Netflix And (Tax) Bill: Retail Sales Taxation Of Services, Grace Stephenson Nielsen

BYU Law Review

No abstract provided.

Engineering The Modern Administrative State: Political Accommodation And Legal Strategy In The New Deal Era, Daniel B. Rodriguez, Barry R. Weingast

BYU Law Review

Administrative constitutionalism in the United States has been characterized by tension and accommodation. The tension reflects the unsettled nature of our constitutional scheme, especially with regard to separation of powers, and also the concern with agency discretion and performance. Still and all, we have accommodated administrative constitutionalism in fundamental ways, through a constitutional jurisprudence that, in the main, accepts broad delegations of regulatory power to the bureaucracy and an administrative law that oversees agency actions under procedural and substantive guidelines. This was not always the case. In this Article , part one of a larger project, we revisit the critical …

Disparate Impact Claims And Punitive Damages: Justified Abrogation Of State Sovereign Immunity, Brad Stewart

BYU Law Review

No abstract provided.

State Of Utah, Plaintiff/Appellee V. Darren C. Bluemel, Defendant/Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Thomas brunker, Asst. Att. Gen , Attorney for Plaintiff- Appellee

Darren C. Bluemel, Pro Se Defendant - Appellant

Mark Christopher Tracy Dba, Emigration Canyon Home Owners Association, Petitioner / Appellant, V. Simplifi Company, Jennifer Hawkes And Eric Hawkes, Respondents/Appellees : Brief Of Appellees, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Third District Court, Salt Lake County, Judge Robert P. Faust, Case No. 200905123

JEREMY R. COOK TIMOTHY J. BYWATER TIMOTHY E. NIELSON Cohne Kinghorn P.C. Counsel for Appellees

MARK CHRISTOPHER TRACY Pro Se Appellant

A1 Pioneer Moving And Wcf Mutual Insurance Company Appellants/Respondents V. Utah Labor Commission And Viliami Pulu Appellees : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Labor Commission of Utah

Joshua M. Woodbury, Esq. WCF MUTUAL INSURANCE COMPANY Attorney for Appellants Christopher T. Hill, Esq. UTAH LABOR COMMISSION Attorney for Appellee Utah Labor Commission

Tracy Olson, Esq. SMART SCHOFIELD SHORTER, P.C. Attorney for Appellee Viliami Pulu

Mark Christopher Tracy Dba, Emigration Canyon Home Owners Association, Petitioner / Appellant, V. Simplifi Company, Jennifer Hawkes And Eric Hawkes, Respondents/Appellees : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Order Granting Motion to Dismiss Petition for de novo Judicial Review of the Denied Request for Access to Governmental Records Regarding Lead Contamination of a Public Drinking Water System entered in the Third Judicial District, Salt Lake County Division, the Honorable Robert P. Faust presiding No. 200905123 JEREMY R. COOKTIM E. NIELSON Cohne Kinghorn P.C. MARK CHRISTOPHER TRACY

JEREMY R. COOK TIM E. NIELSON Cohne Kinghorn P.C. Counsel for Appellees

MARK CHRISTOPHER TRACY Pro Se Appellant

Hidden Bias In Empirical Textualism, Matthew C. Jennejohn, D. Carolina Nunez, Samuel Nelson

Faculty Scholarship

A new interpretive technique called “corpus linguistics” has exploded in use over the past five years from state supreme courts and federal courts of appeals to the U.S. Supreme Court. Corpus linguistics involves searching a large database, or corpus, of text to identify patterns in the way in which a certain term is used in context. Proponents of the method argue that it is a more “empirical” approach than referencing dictionaries to determine a word’s public meaning, which is a touchstone in originalist approaches to legal interpretation.

This Article identifies an important concern about the use of corpus linguistics in …

Cyber Due Diligence, Eric Talbot Jensen, Sean Watts

Faculty Scholarship

Due diligence—the notion that international law includes a duty to cease and remedy damage that emanates from a State’s territory—has been proposed as an international legal measure to temper destabilizing effects of harm from cyber infrastructure. Yet the extent to which States, particularly the United States, accept due diligence as either a principle of general international law or as a rule of conduct applicable to the context of cyberspace is not clear. This Article examines past and present U.S. experience with due diligence, both as a principle and rule of conduct in general international law. In light of U.S. foreign …