Law Commons^™

Scaling Daos Through Fiduciary Duties, Alex Dolphin

BYU Law Review

DAOs (Decentralized Autonomous Organizations) are a unique type of business organization due in large part to their directly democratic governance structure. Owners of DAOs, “tokenholders,” do not delegate control to a board or a general partner. Rather, tokenholders directly control a DAO and must approve every action that a DAO takes. Because tokenholders do not delegate control to an agent, the principal-agent problem is tempered in DAOs. The principal-agent problem is the basis for the fiduciary duties that govern traditional business organizations. These fiduciary duties are meant to prevent agents entrusted with power by their principals from self-dealing. Some have …

Tiffany Bingham, Appellant V. George C. Gourley, D.O.. Mckay L. Platt, M.D., And Does I-X. Appellees. : Brief Of Appellee, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Appeal from the Fourth Judicial District Court, Utah County Case No. 200401253. Judges Darold McDade and Sean Petersen

Christiansen Law, PLLC, Stephen K. Christiansen, Kathleen M. Liuzzi, M. Kelton Gardner, Counsel for Appellant Tiffany Bingham

Benjamin K. Lusty, Cami R. Schiel, Brian P. Miller, Andrew L. Roth, Counsel for Appellee George C. Gourley, Kirk G. Gibbs, Devin H. Geier, Counsel for Appellee McKay L. Platt, M.D.

Gender, Credentials, And M&A, Tracey E. George, Mitu Gulati, Albert Yoon

BYU Law Review

For the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20% to 25% of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10% of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials—both …

Saying What The Law Should Be, F. Andrew Hessick

BYU Law Review

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …

Rights Without A Remedy: Detained Immigrants And Unlawful Conditions Of Confinement, Brandon Galli-Graves

BYU Law Review

No abstract provided.

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 …

The Failure Of Market Efficiency, William Magnuson

BYU Law Review

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

State Of Utah, Appellee/Plaintiff V. Troy P. Fraughton, Appellant/Defendant. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

APPEAL FROM CONVICTION AND JUDGMENT FOR DRIVING UNDER THE INFLUENCE, THIRD DEGREE FELONY, AND FAILURE TO STAY IN ONE LANE, AN INFRACTION, THE HONORABLE CHRISTIN JOHNSON PRESIDING FOURTH DISTRICT, UTAH COUNTY, STATE OF UTAH, DISTRICT COURT CASE 191402497

SEAN D. REYES, Attorney for Appellee

STACI VISSER, ANN MARIE TALIAFERRO, Attorneys for Appellant Fraughton

State Of Utah, Plaintiff/Respondent V. Michael Jerry Felts, Defendant/Petitioner : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Certiorari review of this case arises from a court of appeals' decision affirming the district court's ruling that it could not review a restitution award from the Board of Pardons and Parole following Felts's guilty plea for aggravated assault on a police officer, a third-degree felony, and failure to stop at the command of a police officer, a third-degree felony, in the Third Judicial District Court, in and for Salt Lake County, State of Utah, the Honorable L. Douglas Hogan, presiding.

EMILY SOPP (17599) Assistant Solicitor General SEAN D. REYES (7969) Utah Attorney General Attorneys for Respondent

NATHALIE S. SKIBINE …

Roger Rigby Durrant, Appellant, V. R&M Durrant Family, Llc, Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

No abstract provided.

R & M Durrant Family, Llc, Appellee, Vs. Roger Rigby Durrant, Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a final judgment and underlying rulings entered by the Third Judicial District Court of Utah, in and for Tooele County, the Honorable Teresa Welch, Presiding

R & M Durrant Family, Llc, Appellee, Vs. Roger Rigby Durrant, Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a final judgment and underlying rulings entered by the Third Judicial District Court of Utah, in and for Tooele County, the Honorable Teresa Welch, Presiding

Manuel Lopez, Appellant, V. Owell Precast And/Or Worker's Compensation Fund Appellees, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

BRIEF OF APPELLEES OWELL PRECAST AND WCF MUTUAL INSURANCE COMPANY

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

Utah Court of Appeals Briefs (2020 –)

BRIEF OF APPELLANT Appeal From Labor Commission - Appeals Board

Calling The Shots: Multistate Challenges To Federal Vaccine Mandates, Elysa M. Dishman

Faculty Scholarship

Litigation brought by state attorneys general (AGs) successfully frustrated the Biden administration’s efforts to combat COVID-19 by vaccinating American workers. State challenges to vaccine mandates are consistent with trends in multistate litigation that have occurred in recent presidential administrations. At the same time, these cases reveal emerging new trends that shed light on the future of multistate public law litigation and nationwide injunctions. Challenges to vaccine mandates have raised ongoing criticisms of nationwide injunctions and offer a pathway forward for reform.

Directions For U.S. International Tax Policy, A Response To Hanna And Wilson, Stephen E. Shay, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Christopher Hanna and Cody Wilson argue in U.S. International Tax Policy and Corporate America that an international tax reform proposal focusing on maintaining low financial accounting effective tax rates could win over proponents of full current rate taxation of foreign income as well as U.S. publicly traded corporate America. They propose combining full current rate taxation of foreign income with a reduced overall corporate tax rate of approximately 15%. This, they assert, could be roughly revenue neutral or raise revenue. As long-time proponents of full current taxation of foreign income subject to a credit for foreign taxes, we explain why …

Gender And The Social Structure Of Exclusion In U.S. Corporate Law, Matthew C. Jennejohn, Afra Afsharipour

Faculty Scholarship

Law develops through collective effort. A single judge may write a judicial opinion, but only after an (often large) group of lawyers choose litigation strategies, craft arguments, and present their positions. Despite their important role in the legal process, these networks of lawyers are almost uniformly overlooked in legal scholarship—a black box in a discipline otherwise obsessed with institutional detail.

This Article focuses upon a particularly crucial way that the structure of professional networks may shape the path of the law. Prior qualitative research suggests that networks are a crucial source of information, mentoring, and opportunity, and that those social …

Contract Production In M&A Markets, Matthew C. Jennejohn, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Contract law scholarship has devoted considerable attention to understanding how contract terms are designed to properly incentivize parties to fulfill their obligations. Little attention, however, has been paid to the tradeoffs parties make between using widely used boilerplate terms and designing bespoke provisions. In thick markets such as those for corporate or sovereign bonds everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses to their needs. This Article reports on a case study of …

Treaty Interpretation At The Human Rights Committee: Reconciling International Law And Normativity, David H. Moore

Faculty Scholarship

The Human Rights Committee, the expert body overseeing states’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), is a key institution in the international human rights architecture. The Committee’s work requires constant interpretation of the ICCPR’s human rights guarantees. While international law dictates how to interpret treaty provisions, including those of the ICCPR, the Committee does not consistently follow the international law of treaty interpretation. Rather, normativity plays an influential role in the Committee’s interpretations. This approach is not uniformly negative; it has both costs and benefits. To minimize the costs, however, this Article identifies a path …

Smart Patents, Stephanie Plamondon

Faculty Scholarship

Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in …

"Attacking" Big Data: Strategic Competition, The Race For Ai, And The International Law Of Cyber Sabotage, Gary P. Corn, Eric Talbot Jensen

Faculty Scholarship

This chapter begins with a discussion of the national security threat that China’s AI development efforts pose, and the importance of big data to those efforts. It then moves to a review of potential cyber-enabled operations, particularly as applied to data, that could impede or thwart China’s AI development. The chapter then proceeds to a review of the international law implications of cyber sabotage, beginning with a discussion of the jus ad bellum and followed by a review of other relevant aspects of the international law of state responsibility such as the rule of prohibited intervention, principles of state sovereignty, …

"Accompanying The Force" In Modern Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

Throughout history, non-military personnel have routinely accompanied fighting forces on the battlefield for purposes of providing their goods or services to the forces. The 1863 Lieber Code codified many rules concerning the interaction of the armed forces, but it also addressed civilians accompanying such professional forces, including both those “who are attached to the army for its efficiency and promote directly the object of the war” and those “citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors.”
Because of their proximity to the fight, it was inevitable that some of these …

Acknowledging (Celebrating? Regretting?) Sixty Years Of Subpart F, J. Clifton Clifton Fleming Jr.

Faculty Scholarship

Deferral of home-country tax on the income of foreign subsidiary corporations produces the twin evils of business and investment location distortion and profit shifting. In 1961, the Kennedy administration proposed the almost complete elimination of this type of deferral from the US income tax system. Because of strong opposition lobbying, the result was a political compromise commonly known as Subpart F. This article explains why Subpart F was largely a failure, in spite of its being copied to various degrees by the controlled foreign corporation (CFC) regimes of many developed
countries. The article also explores the extent to which the …

Frederick Douglass And The Original Originalists, Bradley Rebeiro

Faculty Scholarship

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 …

A Tale Of Two Declarations, Bradley Rebeiro

Faculty Scholarship

No abstract provided.

Taming Dangerousness, Shima Baradaran Baughman

Faculty Scholarship

In every courtroom across the country each day, judges determine whether thousands of individuals are either released or held before trial. These speedy and seemingly minor decisions have profound impacts on an accused’s fate and on national incarceration rates. Indeed, over the last fifty years, these individual decisions have led to a four-hundred percent increase in pretrial detention in the United States. This increase in pretrial detention accounts for 99% of the jail growth in the last fifteen years, despite record decreases in arrest and crime rates. At the same time, the United States has witnessed three meaningful periods of …

Finding A Better Way: An Alternative Path To Attorney Licensure In Utah, Catherine Bramble

Faculty Scholarship

The article describes an alternative path to attorney licensure in Utah.

State Of Utah, Plaintiff / Appellee V. Arlen J. Prettyman, Defendant / Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Seventh Judicial District Court, Price Carbon County, Honorable Jeremiah Humes, District Court No. 201700454 Mr. Prettyman is incarcerated.

Sean Reyes, Counsel for Appellee

Emily Adams, Cherise Bacalski, Counselfor Appellant

State Of Utah, Plaintiff/ Appellee, V. Jose Felipe Arce, Defendant/Appellant.: Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the First Judicial District Court, Cache County, Honorable Spencer D. Walsh, District Court No. 191100762

Sean Reyes, Counsel for Appellee

Freyja Johnson, Emily Adams, Counsel for Appellant

State Of Utah, Plaintiff /Respondent Vs. Elbert John Pule, Defendant /Petitioner : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Writ of Certiorari to the Utah Court of Appeals

DOUGLAS J. THOMPSON, JENNIFER FORESTA, Counsel for Petitioner

DAVID A. SIMPSON, SEAN D. REYES, TIMOTHY TAYLOR, BRIAN MILLER, Counsel for Respondent