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Full-Text Articles in Law
Bill Of Rights Nondelegation, Eli Nachmany
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 …
Free Exercise Of Abortion, Elizabeth Sepper
Free Exercise Of Abortion, Elizabeth Sepper
BYU Law Review
For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …
Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman
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, …
The Trouble With Time Served, Kimberly Kessler Ferzan
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 …
Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore
Publius’S Protectors Of Liberty: A Still Important Role For States, Adam Reed Moore
BYU Law Review
No abstract provided.
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
Searches Without Suspicion: Avoiding A Four Million Person Underclass, Tonja Jacobi, Addie Maguire
BYU Law Review
In Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in …
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
The Federalist And The Fourteenth Amendment — Publius In Antebellum Public Debate 1788–1860, Kurt T. Lash
BYU Law Review
No abstract provided.
The Constitutional Model Of Mootness, Tyler B. Lindley
The Constitutional Model Of Mootness, Tyler B. Lindley
BYU Law Review
Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various "exceptions" to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court s claims about Article III and that …
Frederick Douglass And The Original Originalists, Bradley Rebeiro
Frederick Douglass And The Original Originalists, Bradley Rebeiro
BYU Law Review
Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves
BYU Law Review
No abstract provided.