Law Commons^™

Reconciling Originalism With The Father Of Conservatism: How Edmund Burke Answers The Disruption Dilemma In N.L.R.B. V. Noel Canning, Brad Masters

BYU Law Review

No abstract provided.

The Chapter 11 Efficiency Fallacy, Diane Lourdes Dick

BYU Law Review

This Article challenges the persistent claim that Chapter 11’s increasing utilization of market mechanisms will help facilitate economically efficient resolutions of corporate financial distress. Using two recent case studies, I show that, in fact, these mechanisms are used by stakeholders with existing market power to take control of the restructuring process and extract rents at the expense of other constituents: creditors, equity holders, and—in the case of companies that receive governmental bailouts—taxpayers. These distortionary effects are obscured by a dominant, neoclassical legal paradigm that ignores institutional and political dynamics. I advance a new explanatory model that draws upon modern social …

Jury Nullification As A Tool To Balance The Demands Of Law And Justice, Aaron Mcknight

BYU Law Review

No abstract provided.

Modding: Amateur Authorship And How The Video Game Industry Is Actually Getting It Right, Ryan Wallace

BYU Law Review

No abstract provided.

Wealth Transfer Tax Planning For 2013 And Beyond, John A. Miller, Jeffrey A. Maine

BYU Law Review

On January 1, 2013, Congress avoided the tax part of the so-called “fiscal cliff” when it passed the American Taxpayer Relief Act of 2012 (ATRA). Among its many impacts, ATRA prevented the application of a number of sunset provisions that would have dramatically altered the operation of the federal wealth transfer taxes. Instead, Congress made permanent two significant transfer tax provisions introduced as temporary measures in 2010: the $5,000,000 indexed basic exclusion amount and the deceased spousal unused exclusion amount. The latter provisions are sometimes referred to as the portability rules because, in effect, they allow one spouse’s estate tax …

Reliance In Land Use Law, Kenneth A. Stahl

BYU Law Review

For generations, Americans have tapped their life savings and assumed huge amounts of debt in order to achieve the American dream of owning their own home. Though investing so heavily in a single asset is a rather risky move on its face, buyers have been induced to purchase homes by a slew of public policies, most notably zoning ordinances that buffer single-family neighborhoods against an invasion of unwanted uses. As a result, homeowners have a fairly convincing argument that they possess some sort of vested reliance interest in the existing zoning of their neighborhoods that should prevent municipal authorities from …

The Price Of Justice: An Analysis Of The Costs That Are Appropriately Considered In A Cost-Based Vindication Of Statutory Rights Defense To An Arbitration Agreement, Ramona L. Lampley

BYU Law Review

In the wake of AT&T Mobility LLC v. Concepcion, parties opposing enforcement of an arbitration agreement with a class waiver increasingly relied on the prohibitive-costs-based vindication of statutory rights defense. The Supreme Court recently held in American Express Co. v. Italian Colors Restaurant that the effective vindication doctrine cannot be used to invalidate an otherwise enforceable arbitration agreement with class-action waiver simply because the opponents have no “economic incentive” to pursue individual arbitration. However, the Court’s bases for this holding are unclear and unnecessarily call into question the very existence of the “effective vindication doctrine.” This Article examines the historical …

Rethinking The Dormant Commerce Clause: The Supreme Court As Catalyst For Spurring Legislative Gridlock In State Income Tax Reform, Brian L. Hazen

BYU Law Review

No abstract provided.

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

Utah Court of Appeals Briefs (2007– )

Appeal from the District Court's of Mr. Todd's rule G5 B petition under UTAH's Rules of petition for Extraordinary Relief, under both rules of G5B (b) and (d) claims, which are based on wrongful restraints on personal libery, including conditions of confinement, under rule G5B b and under rule G5B d is based on a wrongful use or failure to comply with duty within a disciplinary hearing, while incarcerated.

The Unnecessary And Restrictive Constitutional Amendments Concerning Religious Freedom In Mexico, Javier Saldaña Serrano

BYU Law Review

No abstract provided.

“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow

BYU Law Review

No abstract provided.

Liberal Democracy And The Right To Religious Freedom, Aldir Guedes Soriano

BYU Law Review

Foremost, this paper examines the current situation of the rights to religious freedom and democracy around the world, which deserve attention and concern. Civil liberties are currently in crossfire. This article examines the foundations of the right to religious freedom. Depending on the philosophical foundations, there are two different rationales for the right to religious freedom: liberal and anti-liberal. According to the liberal tradition, the best reason to protect religious freedom rests upon the autonomy of the individual conscience. It is clear that a constitutional democracy does not allow the establishment of any religion by the government, using either executive …

Freedom Of Religion In China Under The Current Legal Framework And Foreign Religious Bodies, Ping Xiong

BYU Law Review

No abstract provided.

The Unconstitutionality Of Religious Vilification Laws In Australia: Why Religious Vilification Laws Are Contrary To The Implied Freedom Of Political Communication Affirmed In The Australian Constitution, Augusto Zimmerman Dr.

BYU Law Review

This article explains the weakness of the argument that religious vilification laws promote harmony and tolerance among religious groups. Rather, they are based on a form of postmodern theory that denies the existence of truth and could be used as a weapon by certain individuals to silence any criticism of their beliefs. These laws have become an invitation to people with extreme views to avoid debate by claiming that they, rather than their beliefs, have been attacked. The author then explains the philosophical underpinnings of religious vilification laws and argues that there is no a priori reason why religious speech …

Religious Associational Rights And Sexual Conduct In South Africa: Towards The Furtherance Of The Accommodation Of A Diversity Of Beliefs, Shaun De Freitas

BYU Law Review

No abstract provided.

The Shinto Cases: Religion, Culture, Or Both—The Japanese Supreme Court And Establishment Of Religion Jurisprudence, Frank S. Ravitch

BYU Law Review

No abstract provided.

Wheelchair Ramps In Cyberspace: Bringing The Americans With Disabilities Act Into The 21st Century, Trevor Crowley

BYU Law Review

No abstract provided.

Nepa And Indirect Effects Of Foreign Activity: Limiting Principles From The Presumption Against Extraterritoriality And Transnational Lawmaking, David Heywood

BYU Law Review

No abstract provided.

The Tribes Must Regulate: Jurisdictional, Environmental, And Religious Considerations Of Hydraulic Fracturing On Tribal Lands, Szonja Ludvig

BYU Law Review

No abstract provided.

Municipal Manifest Destiny: Constitutionality Of Unilateral Municipal Annexations, Dustin Cammack

BYU Law Review

No abstract provided.

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Faculty Scholarship

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.

The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …

Religion, Meaning, Truth, Life, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …

Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion, Frederick Mark Gedicks, Rebecca G. Van Tassell

Faculty Scholarship

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

Ex-Post Incentives And Ip In Garcia V. Google And Beyond, Clark D. Asay

Faculty Scholarship

In this Essay, I articulate a theory for why the outcome in the Ninth Circuit's recent Garcia v. Google copyright decision is wrong. I apply the same theory to explain the problem with patent assertion entities, more colloquially known as patent trolls.

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …

Beyond One Voice, David H. Moore

Faculty Scholarship

The one-voice doctrine, a mainstay of U.S. foreign relations jurisprudence, maintains that in its external relations the United States must be able to speak with one voice. The doctrine has been used to answer critical questions about the foreign affairs powers of the President, Congress, the courts, and U.S. states. Notwithstanding its prominence, the one-voice doctrine has received relatively little sustained attention. This Article offers the first comprehensive assessment of the doctrine. The assessment proves fatal.

Despite broad use and value in certain contexts, the one-voice doctrine is fundamentally flawed. The doctrine not only is used to address divergent questions …