Digital Commons Network^™

Valuing Esg, Aneil Kovvali, Yair Listokin

BYU Law Review

Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for …

War And Ip, Peter K. Yu

BYU Law Review

This Article examines wartime and postwar protection of intellectual property rights, with a focus on the Russo-Ukrainian War that broke out in February 2022. It begins by showing that armed conflicts are not new to the international intellectual property regime and that this regime already contains robust structural features and carefully drafted safeguards, limitations, and flexibilities to protect intellectual property rights holders during wartime. The Article then explores the international intellectual property obligations of countries that are parties to an armed conflict as well as those that are not directly involved but have imposed sanctions on belligerent states. This Article …

Exploring Flexibility In 83(B) Elections: A Tax Policy Proposal, Brayden Call

BYU Law Review

Property awards, such as equity, are taxable to the recipient and have tax implications for employers, too. Without a recipient making an 83(b) election, property awards are taxable when they are granted. For awards that have vesting requirements or are considered “restricted,” they are generally taxable upon vesting. However, making an 83(b) election allows recipients of restricted property awards to be taxed as if the property were vested, meaning more income will shift from ordinary tax rate treatment to preferential tax rate treatment.

The preferential tax system is foundational to the 83(b) election. Advocates believe that preferential tax rates in …

Ukraine, Urban Warfare, And Obstacles To Humanitarian Access: A Predicament Of Public International Law, Harriet Norcross Eppel

BYU Law Review

Humanitarian assistance is not carried out in a vacuum. As urban warfare historically complicates humanitarian aid’s access to civilians in war zones, Ukraine, having suffered and still facing highly publicized violence in civilian-dense areas, has encountered dire obstacles in acquiring necessary resources for civilians’ survival, including both direct and incidental attacks on humanitarian access. Thus, it is vital the international legal community take measures to mitigate current and future dangers of urban warfare, as well as design new solutions, such as strengthening current international law under which obstructing humanitarian access constitutes a violation of jus cogens principles, attempting to induce …

Garrity Immunity And The U.S. Armed Forces, Bretton H. Laudeman, Gabriel J. Chin

BYU Law Review

The U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by …

State Of Utah, Plaintiff/Appellee, V. Thomas Jacob Walker, Defendant/Appellant : Ann Marie Mclff Allen Defendant/Appellant. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a conviction for stalking, in the Fifth Judicial District, Cedar City, the Honorable Ann Marie Mclff Allen presiding.

J. BRYAN JACKSON: SAM E. WOODALL, Counsel for Appellant

SAM E. WOODALL, Counsel for Appellee

State Of Utah, Plaintiff /Appellee, V. Phillip Mason King, Defendant /Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Weber County, Honorable Michael DiReda, District Court No. 191900996

David A. Simpson, Sean Reyes, Counsel for Appellee

Freyja Johnson, Hannah Leavitt-Howell, Counsel for Appellant

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

Utah Court of Appeals Briefs (2020 –)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Patrick Corum, District Court No. 214905299

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

Jonathan Good, Attorney for Appellee Vicki Jo Nelson

State Of Utah, Plaintiff / Appellee, V. Neal Krasnick, Defendant / Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On Appeal from the Third Judicial District Court, Summit County, Utah, Case No. 211500102 FS the Honorable Richard Mrazik

Jonathan S. Bauer, Attorneys for Appellee State of Utah

Gregory W. Stevens, Attorney for Appellant Neal Krasnick

State Of Utah, Plaintiff / Appellee, V. Neal Krasnick, Defendant / Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Gregory W. Stevens, Attorney for Defendant / Appellant Neal Krasnick

Jacques Behar And Larry Wentland, Plaintiff V. Brad Johnson, Sam Clark, And Sara Vigh, Defendants : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from decisions of the Utah Second District Court Honorable Joseph Bean Trial Court Number 210902938

Taylor Jones (#14690) Attorneys for Appellee

Zane S. Froerer (#10807) Attorney for Appellant

Regal Realsource, Llc, Appellant V. Enlaw, Llc, Appellee : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Fifth Judicial District Court, Washington County, Honorable Eric A. Ludlow

Troy L. Booher LaShel Shaw ZIMMERMAN BOOHER Reid W. Lambert Ellen H. Welch STRONG & HANNI, P.С. Attorneys for Appellant Regal RealSource, LLC

Jeremy C. Reutzel (10692) Ryan M. Merriman (14720) BENNETT TUELLER JOHNSON & DEERE Attorneys for Appellee Enlaw, LLC

Carlos Guerrero, Appellant V. Dolraj Thapaliya, Appellee : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Todd M. Shaughnessy, District Court No. 210905598

Daniel F. Bertch BERTCH ASSOCIATES 7070 South 2300 East, Suite 100 Salt Lake City, Utah 84121 Attorneys for Appellant Carlos Guerrero

Trov L.. Booher, Caroline A. Olsen, Todd A. Turnblom, Amanda R. Higgins, Attorneys for Appellee Dolraj Thapaliya

Manuel Lopez, Petitioner/Appellant, V. Orwell Precast; Workers Compensation Fund,Respondents/Appellees, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

REPLY BRIEF OF APPELLANT Appeal From Labor Commission - Appeals Board

Extra-Legal Uses Of Tm, Clark Asay, Stephanie Plamondon

Faculty Scholarship

Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals. But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called “extra-legal” uses of the TM symbol can offer insights …

An Empirical Study Of The Dmca's Anti-Circumvention Provisions, Clark Asay

Faculty Scholarship

The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. …

Davie Montes, Plaintiff/Respondent, V. National Buick Gmc, Inc., Defendant/Petitioner. : Brief Of Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Appeal of the Utah Court of Appeals affirmation of an order from the Fourth District Court Judge Thomas L. Low

Trevor C. Lang (14232) Connor B. Arrington (17560) MARSHAL OLSON & HULL, PC Attorneys for Petitioner National Buick GMC, Inc.

Eric Stephenson (9779) STEPHENSON LAW FIRM Attorney for Respondent Davie Montes

Deron Brunson Appellant V. Anthony B. Anderson Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

This appeal taken from a final Judgment and Order in the Third Judicial District Court, Salt Lake County, State of Utah, from the Honorable James Gardner.

Anthony B. Anderson, Appellee, pro se

Deron Brunson, Appellant, pro se

Molly J. Mulligan And John P. Mulligan, Appellants V. Alum Rock Riverside, Llc, Appellee. : Brief Of Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Appeal from the Third District Court Salt Lake County, State of Utah, Case No. 206927043 before the Honorable Adam T. Mow

Bradley L. Tilt, Felicia B. Canfield, Attorneys for Molly J Mulligan and John P. Mulligan

Benjamin D. Johnson, KC Hooker, Attorneys for Alum Rock Riverside LLC

2024 Byu Law Review Masthead

BYU Law Review

No abstract provided.

Bill Of Rights Nondelegation, Eli Nachmany

BYU Law Review

Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In …

Hs Cornerstone Inc., Appellee, V. Matthew Oscarson And Jennifer Oscarson, Appellants : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Robert Faust, District Court No. 210900350

Robert F. Babcock, Andrew L. Berne, Attorneys for Appellee HS Cornerstone, Inc.

Troy L. Booher, Taylor P. Webb, Attorneys for Appellants Matthew Oscarson and Jennifer Oscarson

Byu Law School Faculty Listing

BYU Law Review

No abstract provided.

Byu Law Review Subscription Information

BYU Law Review

No abstract provided.

Table Of Contents

BYU Law Review

No abstract provided.

Full Issue

BYU Law Review

No abstract provided.

Hidden Contracts, Shmuel I. Becher, Uri Benoliel

BYU Law Review

Transparency is a promising means for enhancing democratic values, countering corruption, and reducing power abuse. Nonetheless, the potential of transparency in the domain of consumer contracts is untapped. This Article suggests utilizing the power of transparency to increase consumer access to justice, better distribute technological gains between businesses and consumers, and deter sellers from breaching their consumer contracts while exploiting consumers’ inferior position.

In doing so, this Article focuses on what we dub “Hidden Contracts.” Part I conceptualizes the idea of hidden contracts. It first defines hidden contracts as consumer form contracts that firms unilaterally modify and subsequently remove from …

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

BYU Law Review

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

“Any”, James J. Brudney, Ethan J. Leib

BYU Law Review

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.