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Articles 31 - 60 of 259
Full-Text Articles in Courts
Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan
Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan
BYU Law Review
State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law …
The Federal Circuit's Summary Affirmance Habit, Andrew Hoffman
The Federal Circuit's Summary Affirmance Habit, Andrew Hoffman
BYU Law Review
The Federal Circuit is certainly unique among the circuit courts of appeals. Its exclusive jurisdiction over patents places it in a powerful position. But with that power comes a responsibility to oversee the development of the law. And in the last decade, the court has fallen short of fulfilling this obligation—particularly with regard to clarifying provisions of the America Invents Act. The court has repeatedly disregarded important questions of law by use of Rule 36 summary affirmance. Though other courts of appeals regularly use summary disposition as a means of dealing with burgeoning dockets, the Federal Circuit uses summary affirmance …
The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary, Justice Tassaduq Hussain Jillani
The Interplay Of Majority And Minority Religious Rights And The Role Of The Judiciary, Justice Tassaduq Hussain Jillani
BYU Law Review
No abstract provided.
Chevron’S Pure Questions: Searching For Meaning In Ambiguity, Neal A. Hoopes
Chevron’S Pure Questions: Searching For Meaning In Ambiguity, Neal A. Hoopes
BYU Law Review
Since implied congressional intent is the basis for the Chevron doctrine, courts cannot simply presume that Congress intends all unclear statutes to signal deference to agencies. Instead, courts must make some inquiry into whether that rationale remains true under the particular circumstances. This Note contends, then, that the Chevron framework, from the outset, asks the wrong question. Instead of inquiring whether the statute is clear, courts should determine whether Congress intended courts to defer to an agency on the question of statutory interpretation. Instinctively deferring to an agency in the face of every ambiguity undermines congressional intent. While implied congressional …
An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky
An Originalist Defense Of Plyler V. Doe, Steven G. Calabresi, Lena M. Barsky
BYU Law Review
This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and …
Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell
Boundary Dispute: The Presumption Against Extraterritoriality As Judicial Nondelegation, Luke Bell
BYU Law Review
No abstract provided.
The Courts And Foreign Affairs At The Founding, Kevin Arlyck
The Courts And Foreign Affairs At The Founding, Kevin Arlyck
BYU Law Review
No abstract provided.
Wonky Walden: The Dizzying New Personal Jurisdiction Rule, Adam Balinski
Wonky Walden: The Dizzying New Personal Jurisdiction Rule, Adam Balinski
BYU Law Review
No abstract provided.
Constraining Charming Betsy: Textual Ambiguity As A Predicate To Applying The Charming Betsy Doctrine, Andrew H. Bean
Constraining Charming Betsy: Textual Ambiguity As A Predicate To Applying The Charming Betsy Doctrine, Andrew H. Bean
BYU Law Review
No abstract provided.
Forced Marriage At The Cambodian Crossroads: Eccc Can Develop A New Crime Against Humanity, Cameron Christensen
Forced Marriage At The Cambodian Crossroads: Eccc Can Develop A New Crime Against Humanity, Cameron Christensen
BYU Law Review
No abstract provided.
Scout’S Honor: The Boy Scouts, Judicial Ethics, And The Appearance Of Partiality, Daniel Ortner
Scout’S Honor: The Boy Scouts, Judicial Ethics, And The Appearance Of Partiality, Daniel Ortner
BYU Law Review
No abstract provided.
The European Court Of Human Rights Proclaims That It Will Neither Forgive Nor Forget Those Who Wage War, Shantel Talbot
The European Court Of Human Rights Proclaims That It Will Neither Forgive Nor Forget Those Who Wage War, Shantel Talbot
Brigham Young University International Law & Management Review
No abstract provided.
An Incurable Malaise: Commonwealth V. Australian Capital Territory And Baskin V. Bogan As Symptoms Of Early-Onset Dystopia, Neville Rochow
An Incurable Malaise: Commonwealth V. Australian Capital Territory And Baskin V. Bogan As Symptoms Of Early-Onset Dystopia, Neville Rochow
BYU Law Review
No abstract provided.
Mormonism, Originalism, And Utah’S Open Courts Clause, Jarom R. Jones
Mormonism, Originalism, And Utah’S Open Courts Clause, Jarom R. Jones
BYU Law Review
No abstract provided.
Commandments, Crosses, & Prayers: The Roberts Court’S Approach To Public Religion, Zachary D. Smith
Commandments, Crosses, & Prayers: The Roberts Court’S Approach To Public Religion, Zachary D. Smith
BYU Law Review
No abstract provided.
Standing In For The State: Defending Ballot Initiatives In Federal Court Challenges, Joshua J. Bishop
Standing In For The State: Defending Ballot Initiatives In Federal Court Challenges, Joshua J. Bishop
BYU Law Review
No abstract provided.
Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia
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 Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
BYU Law Review
No abstract provided.
Safeguarding The Commander's Authority To Review The Findings Of A Court-Martial, Andrew S. Williams
Safeguarding The Commander's Authority To Review The Findings Of A Court-Martial, Andrew S. Williams
Brigham Young University Journal of Public Law
There are many good reasons why the military justice system is different than the civilian system. Much deserves to be said about why commanders must retain oversight and control over the court-martial process. The purpose of this paper is more limited in scope. It is to demonstrate that a court-martial panel is not a true jury and that the commander should retain the authority to review its findings for this reason alone.
Jury Nullification As A Tool To Balance The Demands Of Law And Justice, Aaron Mcknight
Jury Nullification As A Tool To Balance The Demands Of Law And Justice, Aaron Mcknight
BYU Law Review
No abstract provided.
For The Times They Are A-Changin': Explaining Voting Patters Of U.S. Supreme Court Justices Through Identification Of Micro-Publics, Jeff Yates, Justin Moeller, Brian Levey
For The Times They Are A-Changin': Explaining Voting Patters Of U.S. Supreme Court Justices Through Identification Of Micro-Publics, Jeff Yates, Justin Moeller, Brian Levey
Brigham Young University Journal of Public Law
In assessing how social forces may shape U.S. Supreme Court Justices’ decision-making it has been presumed that there is a singular public opinion and that this opinion affects each individual Justice in largely the same fashion. We suggest that it is more likely the case that Justices’ world views are informed and shaped by a myriad of social concerns and group identities upon which the Justices structure and process their experiences and develop and refine their personal schemas. While some have already begun to question the proposition of a monolithic public opinion influence on judicial behavior and have begun to …
Congressional Silence And The Statutory Interpretation Game, Paul Stancil
Congressional Silence And The Statutory Interpretation Game, Paul Stancil
Faculty Scholarship
This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.
Supreme Court Oral Argument Video: A Review Of Media Effects Research And Suggestions For Study, Edward L. Carter
Supreme Court Oral Argument Video: A Review Of Media Effects Research And Suggestions For Study, Edward L. Carter
BYU Law Review
No abstract provided.
A Failure To Communicate, Erwin Chemerinsky
The Justices And News Judgment: The Supreme Court As News Editor, Amy Gajda
The Justices And News Judgment: The Supreme Court As News Editor, Amy Gajda
BYU Law Review
No abstract provided.
U.S. Supreme Court Justices And Press Access, Ronnell Andersen Jones
U.S. Supreme Court Justices And Press Access, Ronnell Andersen Jones
BYU Law Review
No abstract provided.
Not A Free Press Court?, Lyrissa Barnett Lidsky
Cameras At The Supreme Court: A Rhetorical Analysis, Lisa T. Mcelroy
Cameras At The Supreme Court: A Rhetorical Analysis, Lisa T. Mcelroy
BYU Law Review
No abstract provided.
The Monster In The Courtroom, Sonja R. West
Moving Beyond Cameras In The Courtroom: Technology, The Media, And The Supreme Court, Mary-Rose Papandrea
Moving Beyond Cameras In The Courtroom: Technology, The Media, And The Supreme Court, Mary-Rose Papandrea
BYU Law Review
No abstract provided.