Law Commons^™

Table Of Contents

BYU Law Review

No abstract provided.

Byu Law School Faculty Listing

BYU Law Review

No abstract provided.

Working Without A Net: Supreme Court Decision-Making As Performance, Frederick Mark Gedicks

BYU Law Review

Though judges often portray themselves as helpless to alter case outcomes dictated by law, this is mostly false humility. Judges are illusionists, and their opinions sleights of hand which obscure that they participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform the law, and their opinions are the records of these performances.Performance theory supplies a better means of analyzing Supreme Court decisions than ubiquitous and wearisome attacks on judicial integrity. The Court has its precedents, but they have no connection to a …

Patent Nationalism And The Case For A New U.S. Patent Working Requirement, Timothy T. Lau

BYU Law Review

A working requirement is a provision of intellectual property law that uses the threat of punishment to encourage holders to “work” their intellectual property. This Article examines the case for adding a working requirement to U.S. patent law. It explains that, given the current global trends in economic and technological development, a working requirement that increases the exposure of Americans to new technologies through the manufacture of inventions is necessary for the U.S. patent system to fulfill its constitutional purpose, specifically, “[t]o promote the Progress of Science and Useful Arts.” To that end, this Article analyzes elements of working requirements …

Per Se Economic Substance, Jesse P. Houchens

BYU Law Review

The economic substance doctrine is used by the IRS and courts to distinguish legal tax avoidance from tax evasion. More specifically, executive and judicial bodies use this doctrine to revoke statutorily compliant tax benefits that arise from transactions that lack, beyond such tax benefits, both a subjective business purpose and an objective economic effect. The most common tool for measuring the objective economic effect of a transaction is the pre-tax profit test. However, disagreement among courts and scholars applying this test has led to taxpayer uncertainty and accusations of reverse-engineered opinions. In this Comment, I reevaluate and propose an alternative, …

Leveraging Pharma To Lower Premiums: Medical Loss Ratio Regulation In The Pharmaceutical Industry, Cami R. Schiel

BYU Law Review

Many recognize escalating drug prices as a significant dilemma related to America’s rising healthcare costs. Yet few can agree on what to do about them. Unaffordable drug prices are a result of many complex forces. One theory to address this problem is to reduce all government intervention and let normal market forces act as they usually do to bring the goods’ prices down to consumer-friendly ranges. However, the prescription drug market is not, and perhaps never can be, a normal market. Reasons for this include (1) a lack of price transparency, (2) information and control asymmetries between patients and physicians, …

Defending Place-Based Philanthropy By Defining The Community Foundation, Roger Colinvaux

BYU Law Review

No abstract provided.

Utah Department Of Transportation, Appellant, V. Target Corporation, And Weingarten/Miller/American Fork, L.L.C., Appellees : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On writ of certiorari to the Utah Court of Appeals

Kevin E. Anderson, Attorneys for Respondent Target, Troy L. Booher, J. Frederic Voros, Jr., Dick J. Baldwin Attorneys for Respondent Target, Jeffrey W. Appel, Matthew N. Evans, Robert P. Harrington, Attorneys for Respondent Miller

Barbara H. Ochoa, William H. Christensen, Sean D. Reyes, Attorneys for Petitioner Utah Department of Transportation

Northern Monticello Alliance, Llc, A Utah Limited Liability Company, Plaintiff/ Appellant V. San Juan County Commission, A Political Subdivision Of The State Of Utah, Defendants/ Appellees : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Seventh Judicial District Court, San Juan County, Utah The Honorable Lyle Anderson, District Court Judge

The History Of Misdemeanor Bail, Shima Baradaran Baughman

Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

Clark Memorandum: Spring 2018, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• The Path of Present Intention (D. Gordon Smith)
• Scholarship as Dialogue and a Constructive Exercise: A Look at the Investitures of Three BYU Law Professors (D. Carolina Núñez)
• Kif Augustine-Adams
• Christine Hurt
• Brett Scharffs
• A Pattern of Timeless Moments: The J. Reuben Clark Law Society at 30 (Scott W. Cameron)
• "To Me He Doth Not Stink": Advocacy and Love (Gayla Moss Sorenson)

Patent Schisms, Clark D. Asay

Faculty Scholarship

Parties frequently obtain patents for one purpose, only to use those patents for another. This article calls such divergences between parties' initial motivations to obtain patents and those patents' predominant uses late on "patent schisms."

Because traditional patent law theories typically treat the purposes of patents as static, scholars have neglected to explicitly examine patent schisms and the reasons behind them. This is so despite the pervasiveness of patent schisms in a variety of important contexts. Those contexts include the patenting behaviors of early-stage companies, later-stage companies, so-called "patent trolls," and universities. In fact, patent schisms lie at the heart …

Frontmatter

Brigham Young University Education and Law Journal

No abstract provided.

Thinking Outside Of The Race Boxes: A Two-Pronged Approach To Further Diversity And Decrease Bias, Samia E. Mccall

Brigham Young University Education and Law Journal

No abstract provided.

Addressing The Bullying And Harassment Of Students With Disabilities Through School Compliance To Avoid Litigation, Bryson King

Brigham Young University Education and Law Journal

No abstract provided.

Anti-Innovation Norms, Stephanie Plamondon, Laura G. Pedraza-Fariña

Faculty Scholarship

Intellectual property (IP) scholars have recently turned their attention to social norms—informal rules that emerge from and are enforced by nonhierarchically organized social forces—as a promising way to spur innovation in communities as diverse as the fashion industry and the open-source software movement. The narrative that has emerged celebrates social norms’ ability to solve IP’s free-rider problem without incurring IP’s costs.

But this account does not fully consider the dark side of social norms. In fact, certain social norms, when overenforced, can create substantial barriers to the most socially beneficial creative pursuits. Because IP scholars have left unexplored how social …

The State Of Utah, Plaintiff/Appellee V. Todd Mulliner, Defendant/Appellant., Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Fourth District Court, Utah county, State of Utah, From a Conviction of Sale of unregistered security, Third Degree Felony, and Securities Fraud, Third Degree Felony, Before the Honorable Judge Thomas Low

Gold's Gym International, Inc., Appellant, V. Clark Chamberlain And Brent Statham Vince Engle, Appellees : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

GOLD'S GYM INTERNATIONAL,
INC.'S APPEAL

On Appeal from the Third Judicial District Court for Salt Lake County, State of Utah
Civil No. 090919785, Honorable T. M. SHAUGHNESSY

Off-Campus Sexually Harassing Expression: What Legal Standard Applies?, Martha Mccarthy

Brigham Young University Education and Law Journal

No abstract provided.

The State Of Utah, Plaintiff/Appellee V. Todd Mulliner, Defendant/Appellant., Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from a sentence for sale of unregistered securities, a third-degree felony, and securities fraud, a third-degree felony, in the Fourth Judicial District, Utah County, the Honorable Thomas Low presiding

The State Of Utah, Plaintiff/Appellee V. Travis Scott Murray, Defendant/Appellant., Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

An appeal from an order revoking and reinstating probation for Driving Under the Influence of Alcohol/Drugs, a third degree felony, in violation of Utah Code 41-6a-503(2)(b), in the Third District Court, Salt Lake County, State of Utah, the Honorable Ann Boyden presiding

The State Of Utah, Appellee V. Eugene Christopher Wright, Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On appeal from a judgment of convictions for one count of first-degree murder in violation of Utah Code § 76-5-203, and one count of aggravated robbery, in violation of Utah Code § 76-6-302, in the Third District Court in and for Salt Lake County, the Honorable Royal I. Hansen presiding

MARK FIELD, SEAN D. REYES, Attorneys for Respondent

NATHALIE S. SKIBINE, Attorneys for Petitioner

Teamsters Local 222 And John And Jane Doe Nos. 1-23, Appellees, V. Utah Transit Authority, Appellant., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

On appeal from the Third Judicial District Court, Salt Lake County, Honorable Ryan M. Harris, District Court No. 140902884

Bradley Macfarlane, Petitioner, V. Utah Department Of Public Safety, Respondents: Rely Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

On petition for review from the Utah Career Service Review Office, Case No. 2010 CSRO/HO 141

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett Scharffs

Faculty Scholarship

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Piece Of Cake, Brett Scharffs, Frank S. Ravitch

Faculty Scholarship

A baker refuses to create a wedding cake for a same-sex couple because of his religious views on same-sex marriage. The couple claims the baker’s refusal violates state anti-discrimination laws. Their case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, now awaits a decision from the U.S. Supreme Court, which must wrestle with complicated questions about conflicting rights. We posed some of those questions to two religious liberty scholars: Frank S. Ravitch, Professor of Law and Walter H. Stowers Chair in Law and Religion at Michigan State University College of Law, and Brett G. Scharffs, Rex E. Lee Chair and …

Saving Software's Fair Use Future, Pamela Samuelson, Clark Asay

Faculty Scholarship

The freedom to reimplement application program interfaces (APIs) in independently written software is the key issue at stake in Oracle America, Inc. v. Google Inc. In May 2016, on remand a jury found Google’s use of the Java API elements was a fair use. After the District Court declined to vacate the jury verdict, Oracle appealed for the second time to the Federal Circuit, claiming that it is entitled to a judgment in its favor on the fair use issue as a matter of law. This Article, which is a derivative work of the amicus curiae brief of 42 Intellectual …

Malleable Rationality, Stephanie Plamondon

Faculty Scholarship

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics’ rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, …

Deal Structure, Cathy Hwang, Matthew Jennejohn

Faculty Scholarship

Modern commercial contracts—those governing mergers and acquisitions and financial derivatives, for instance—have become structurally complex and interconnected. Yet contract law largely ignores structural complexity. This Article develops a theory of “contractual structuralism” to explain the important role of structure in every aspect of contract law, from the design of a contract to courts’ interpretation and enforcement.

For generations, scholars have debated whether a court should consider only the text of a contract or also consider broader context to determine parties’ intent. More recently, scholars have shown that parties can choose between textual and contextual interpretation by drafting a contract provision …

The Architecture Of Contract Innovation, Matthew Jennejohn

Faculty Scholarship

Contract law and the formal models of contract economics assume that agreements are fully customized. On the other hand, recent legal research highlights the role standardized terms play in contract design. Those lines of research overlook an important class of contracts between those extremes. Many contracts, such as the merger agreements studied here, are complex combinations of customized and standardized terms, and thereby achieve economies of both scale and scope. Such contracts are “mass customized,” to borrow a term from engineering research. This Article introduces a theoretical framework for understanding how mass customization of such complex agreements is achieved. It …