Legal Ethics and Professional Responsibility Commons^™

Disinterestedness In Bankruptcy Cases: Does It Really Matter?, Michelle M. Harner

BYU Law Review

The title of this Essay asks whether disinterestedness (of professionals) in bankruptcy cases really matters. Spoiler alert: Yes, it really does.

Finding Debtor’S Counsel, Anthony Casey, Emma Lotts

BYU Law Review

In this Essay, we explore the question of how to assess the independence of debtor’s counsel in Chapter 11. The question has arisen in recent high-profile bankruptcy cases, attracting renewed attention from commentators. We examine these cases and revisit the unique role that debtor’s counsel serves.

From this analysis, a few guiding principles emerge for determining independence and managing conflicts that may arise. First, consistent with the rules outside of bankruptcy, sophisticated parties are capable of waiving conflicts and should be free to do so when their interests alone are affected by the conflict. Second, the possibility of conflicts—both real …

Agreeing To Disagree: Abortion Jurisprudence In Jewish And Islamic Law, Rabea Benhalim

BYU Law Review

This Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in …

A Theory Of Corporate Fiduciary Duties, Benjamin Johnson

BYU Law Review

Corporate law lacks a general theory of a board’s power as fiduciary, and consequently, the law governing corporate fiduciary duties is notably unstable. This Article offers a novel theory that grounds corporate fiduciary duties in stronger microeconomic and legal foundations. The theory, coined the Judicial Monitoring Model (JMM), shows that even imperfect judicial monitoring makes shareholders and boards better off, even when there is no claim of a breach of the duties of loyalty or care as currently understood. The JMM synthesizes the law governing corporate fiduciary duties and other doctrines that protect principals, beneficiaries, and creditors from the risk …

The Harm In The Fiduciary Myth, Kelli Alces Williams

BYU Law Review

Fiduciary law has become the doctrine of choice in scholarship aiming to protect vulnerable parties from powerful decisionmakers. But fiduciary law cannot fill all the gaps in those impersonal, public relationships because the beneficiary class is large, disparate, and widely dispersed. Public leaders and decision makers cannot zealously pursue the interests of all parties vulnerable to their decision making and they are often driven by various personal interests in choosing which set of beneficiary interests to prioritize. The persistent myth that leaders of large groups are fiduciaries and that fiduciary obligation is the answer to all power imbalance problems harms …

Expectation V. Reality: Practical Problems With The Right Of First Refusal As A Defense Against Eminent Domain, Aerin Christensen

BYU Law Review

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners.

The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory …

Private Sanctions, Public Harm?, Jon J. Lee

BYU Law Review

The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.

This Article takes a comprehensive look at private sanctions …

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 …

Guilt-Free Markets? Unconscionability, Conscience, And Emotions, Hila Keren

BYU Law Review

Despite record-level economic inequalities and a vast growth in market exploitation, courts remain surprisingly reluctant to exercise their power to invalidate the resulting predatory contracts. There is no doubt that courts are authorized to invalidate predatory contracts based on their unconscionability. There is, however, an ongoing debate regarding the desirability of utilizing this judicial power in a capitalist society. This Article enters the discussion from a unique angle: it focuses less on the bottom line of jurisprudence and more on the law’s expressive power—the fact that the law’s impact extends beyond its ability to sanction or reward behaviors. Specifically, the …

Scout’S Honor: The Boy Scouts, Judicial Ethics, And The Appearance Of Partiality, Daniel Ortner

BYU Law Review

No abstract provided.

Raising The Bar: Establishing An Effective Remedy Against Ineffective Counsel, Joseph H. Ricks

BYU Law Review

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.

"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.

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

BYU Law Review

No abstract provided.

Clark Memorandum: Spring 2014, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Guardians of the Law (Sheila McCleve)
• Revisiting Humility (Brett G. Scharffs)
• Defending Innocence (Gregory W. Moeller)
• Martin Luther King and the Good Samaritan (Goodwin Liu)
• Oliver Cowdery (Jeffrey N. Walker)

Civic Virtue, Seth P. Waxman

Vol. 3: Religious Conviction

This J. Reuben Clark Law School convocation address was given at the Provo Tabernacle on April 27, 2001.

The 21st Century As The Century Of Duties?, John W. Welch

Vol. 3: Religious Conviction

This address was given at the J. Reuben Clark Law Society Conference at Stanford University on February 16, 2012.

Unto Whom Much Is Given, James R. Rasband

Vol. 3: Religious Conviction

This address was given to entering law students at BYU Law School on August 19, 2009.

Liberty, Civility, And Professionalism, Ming W. Chin

Vol. 3: Religious Conviction

This address was given at the Orrin G. Hatch Distinguished Trial Lawyer Lecture Series at BYU Law School on November 7, 2008.

Latter-Day Saint Lawyers And The Public Square, Quentin L. Cook

Vol. 3: Religious Conviction

This satellite fireside address was given to the J. Reuben Clark Law Society at the Conference Center Little Theater in Salt Lake City on March 13, 2009.

Heroes For Our Time: Going Beyond Ethical Codes, Thomas D. Morgan

Vol. 3: Religious Conviction

This J. Reuben Clark Law School convocation address was given at the Provo Tabernacle on April 24, 1992.

Clark Memorandum: Fall 2012, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• Education Multipliers (Mehrsa Baradaran)
• Integrity and the Practice of Law (William A. Tilleman)
• He Answered Discreetly (Elder L. Whitney Clayton)
• On Becoming a Good Apple (Thomas B. Griffith)

Unfounded Allegations That John Yoo Violated His Ethical Obligations As A Lawyer: A Critical Analysis Of The Torture Memo, Carrie L. Flores

Brigham Young University Journal of Public Law

No abstract provided.

In Search Of Atticus Finch, Lance B. Wickman

Vol. 2: Service & Integrity

This satellite fireside address was given to the J. Reuben Clark Law Society at the Conference Center in Salt Lake City on February 10, 2006.

A Personal Philosophy Of Professionalism, Cecil O. Samuelson

Vol. 2: Service & Integrity

This address was President Samuelson’s first public speech since the announcement on March 18, 2003, that he would become the 12th president of Brigham Young University on May 1, 2003. It was given to the Salt Lake Chapter of the J. Reuben Clark Law Society at the Joseph Smith Memorial Building in Salt Lake City on April 7, 2003.

Acquired By Character, Not By Money, Kenneth W. Starr

Vol. 2: Service & Integrity

This J. Reuben Clark Law School convocation address was given at the Provo Tabernacle on April 27, 1990.

Be Healers, James E. Faust

Vol. 2: Service & Integrity

This satellite fireside address was given to the J. Reuben Clark Law Society at the Conference Center in Salt Lake City on February 28, 2003.

Three Assumptions Lawyers Must Never Make, Brett G. Scharffs

Vol. 2: Service & Integrity

This Spirit of the Law address was given at BYU Law School on March 9, 2005.

Words Of Hate, Words Of Love, Constance K. Lundberg

Vol. 2: Service & Integrity

This devotional address was given to the BYU student body on March 11, 2003.

On Being Ethical Lawyers, Sandra Day O'Connor

Vol. 2: Service & Integrity

This satellite fireside address was given to the J. Reuben Clark Law Society at Sandra Day O’Connor College of Law at Arizona State University, in Tempe, Arizona, on February 15, 2008.