Law Commons^™

Our Global Commons, Brigham Daniels, James Salzman

BYU Law Review

No abstract provided.

The Tragicomedy Of The Commons, Brigham Daniels

BYU Law Review

Scholarship on the commons focuses on a diverse set of problems, ranging from crashing fisheries to crowded court dockets. Because we find commons resources throughout our natural and cultural environments, understanding old lessons and learning new ones about the commons gives us leverage to address a wide range of problems. Because the list of resources identified as commons resources continues to grow, the importance of gleaning lessons about the commons will also continue to grow.

That being said, while the resources that make up the commons are certainly diverse, so too are the ways scholars depict it and the challenges …

Isolated Wetland Commons And The Constitution, Blake Hudson, Mike Hardig

BYU Law Review

Isolated wetlands provide great ecological and economic value to the United States. While some states provide protection for isolated wetlands, a great many do not. These wetlands are also left outside the ambit of federal wetland regulatory protections under the Clean Water Act, with its murky jurisdictional reach. Notwithstanding jurisdictional questions under current federal statutes, the U.S. Supreme Court has gone so far as to call into question the constitutionality of federal isolated wetland regulation. This Article makes a normative argument that, in the absence of state or local programs providing holistic isolated wetland protection, federal action is needed. The …

Agglomerama, Lee Anne Fennell

BYU Law Review

No abstract provided.

Local Governments And Global Commons, Jonathan Rosenbloom

BYU Law Review

No abstract provided.

Coordinating The Oil And Gas Commons, Hannah J. Wiseman

BYU Law Review

No abstract provided.

Texas Groundwater And Tragically Stable “Crossovers”, Zachary Bray

BYU Law Review

One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes—systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some …

Naming The Tragedy, Eric T. Freyfogle

BYU Law Review

No abstract provided.

Surprising Commons, Carol M. Rose

BYU Law Review

No abstract provided.

Surveillant And Counselor: A Reorientation In Compliance For Broker-Dealers, James A. Fanto

BYU Law Review

This Article argues that the compliance officer should play a major role in the ongoing reform of broker-dealers and other financial firms. This role is facilitated by the fact that compliance is now well established and accepted and compliance officers are close to decision making at all levels of a firm. The contention is that the role of compliance must be rethought and reoriented if it is to contribute fully to the reform. Compliance officers now ensure that the firms and their employees comply with the numerous laws and regulations governing them and their activities, primarily by producing and then …

Table Of Contents

BYU Law Review

No abstract provided.

Shareholder Activism As A Corrective Mechanism In Corporate Governance, Paul Rose, Bernard S. Sharfman

BYU Law Review

Under an Arrowian framework, centralized authority and management provides for optimal decision making in large organizations. However, Kenneth Arrow also recognized that other elements within the organization, beyond the central authority, occasionally may have superior information or decision-making skills. In such cases, such elements may act as a corrective mechanism within the organization. In the context of public companies, this Article finds that such a corrective mechanism comes in the form of hedge fund activism, or, more accurately, offensive shareholder activism.

Offensive shareholder activism operates in the market for corporate influence, not control. Consistent with a theoretical framework that protects …

Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia

BYU Law Review

This Article examines the Federal Circuit’s review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the “correct” construction and ultimate result in the case.

The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is less likely to correct constructions that resulted in a patentee loss below, …

The Creation Of Hipaa Culture: Prioritizing Privacy Paranoia Over Patient Care, Jessica Jardine Wilkes

BYU Law Review

No abstract provided.

When Conditions Go Bad: An Examination Of The Problems Inherent In The Conditional Use Permitting System, Jacob Green

BYU Law Review

No abstract provided.

Teaching “Thinking Like A Lawyer”: Metacognition And Law Students, Cheryl B. Preston, Penée Wood Stewart, Louise R. Moulding

BYU Law Review

No abstract provided.

"Standing" On Formality: Hollingsworth V. Perry And The Efficacy Of Direct Democracy In The United States, Matthew Melone, George A. Nation Iii

Brigham Young University Journal of Public Law

No abstract provided.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Brigham Young University Journal of Public Law

No abstract provided.

Frontmatter

Brigham Young University Journal of Public Law

No abstract provided.

What Color Is The Number Seven? Category Mistakes Analysis And The "Legislative/Non-Legislative" Distinction, John Martinez

Brigham Young University Journal of Public Law

No abstract provided.

War Over Words: Reinterpreting "Hostilities" And The War Powers Resolution, Eileen Burgin

Brigham Young University Journal of Public Law

No abstract provided.

Justice As A Luxury? The Inefficacy Of Middle Class Pro Se Litigation And Exploring Unbundling As A Partial Solution, Deborah Beth Medows

Brigham Young University Journal of Public Law

No abstract provided.

Essay: Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority, Paul J. Larkin Jr.

Brigham Young University Journal of Public Law

No abstract provided.

Eric Holder's Recent Curtailment Of Mandatory Minimum Sentencing, Its Implications, And Prospects For Effective Reform, Alan Dahl

Brigham Young University Journal of Public Law

No abstract provided.

Think Of The Children: How The Role Of Students In The Classroom Informs Future Applications Of Garcetti V. Ceballos In Academic Contexts, Aaron Worthen

BYU Law Review

No abstract provided.

Table Of Contents

BYU Law Review

No abstract provided.

The Original Understanding Of Constitutional Legitimacy, Ilan Wurman

BYU Law Review

This Article argues that three influential schools of originalism, which we might label libertarian, progressive, and conservative, adhere to particular understandings of constitutional legitimacy, which then inform their particular constitutional hermeneutics. The Article demonstrates that as originally understood by the Founders, however, constitutional legitimacy depended on all three conceptions advocated by these schools of thought—that is, the Constitution had to protect natural rights, it had to enable self-government, and it had to be ratified by popular sovereignty. Further, the Article gives considerable treatment—remarkably for the first time in the law review literature— to James Madison’s letter in response to Thomas …

The Folly Of Expecting Evil: Reconsidering The Bar’S Character And Fitness Requirement, Leslie C. Levin

BYU Law Review

No abstract provided.

Swearing By New Technology: Strengthening The Fourth Amendment By Utilizing Modern Warrant Technology While Satisfying The Oath Or Affirmation Clause, Andrew H. Bean

BYU Law Review

No abstract provided.

Originalism Talk: A Legal History, Mary Ziegler

BYU Law Review

Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs …