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Articles 1 - 11 of 11
Full-Text Articles in Legal Theory
Unsettled: How Climate Change Challenges A Foundation Of Our Legal System, And Adapting The Legal State, Victor B. Flatt
Unsettled: How Climate Change Challenges A Foundation Of Our Legal System, And Adapting The Legal State, Victor B. Flatt
BYU Law Review
One of the fundamental goals of law is to end disputes. This push to “settlement” is foundational and has historically worked to increase societal efficiency and justice by engendering legitimate expectations among the citizenry. However, the efficient nature of much legal finality, settlement and repose only exists against a background of evolution of the physical environment that is predictable and slowpaced. That background no longer exists. The alteration of the physical world, and thus, the background for our societal structure and decisions, is accelerating rapidly due to human-caused climate change. This creates a mismatch between the law’s tendency to finality …
What Color Is The Number Seven? Category Mistakes Analysis And The "Legislative/Non-Legislative" Distinction, John Martinez
What Color Is The Number Seven? Category Mistakes Analysis And The "Legislative/Non-Legislative" Distinction, John Martinez
Brigham Young University Journal of Public Law
No abstract provided.
Essay: Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority, Paul J. Larkin Jr.
Essay: Philemon, Marbury, And The Passive-Aggressive Assertion Of Legal Authority, Paul J. Larkin Jr.
Brigham Young University Journal of Public Law
No abstract provided.
Can Retributivism Be Saved?, Chad Flanders
Can Retributivism Be Saved?, Chad Flanders
BYU Law Review
Retributive theory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much …
Trans-Substantivity And The Processes Of American Law, David Marcus
Trans-Substantivity And The Processes Of American Law, David Marcus
BYU Law Review
The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
BYU Law Review
No abstract provided.
Taking Mistakes Seriously, Paul J. Larkin Jr.
Taking Mistakes Seriously, Paul J. Larkin Jr.
Brigham Young University Journal of Public Law
Part I of this article discusses the principle that mistake or ignorance of the law is no excuse. It is settled law that no one can defend against a criminal charge on the grounds that he did not intend to flout the law and, at worst, made only a reasonable, honest mistake as to what he was free to do. Part II examines several areas in which the law does precisely the opposite by repeatedly manifesting a willingness to forgive reasonable mistakes by one or more actors in the criminal justice system. Part III then asks whether the developments discussed …
Clark Memorandum: Spring 2013, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School
Clark Memorandum: Spring 2013, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School
The Clark Memorandum
- Becoming a Fruitful Tree (Elizabeth A. Clark)
- Unfolding in Time (Elder Dallin H. Oaks)
- Faith to Forgive Grievous Harms (James R. Rasband)
- The 21st Century as the Century of Duties? (John W. Welch)
The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless
The Forgotten Founding Document: Considering The Ends Of The Law, A. Scott Loveless
Brigham Young University Journal of Public Law
On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.
Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush
Situating Emotion: A Critical Realist View Of Emotion And Nonconscious Cognitive Processes For Law And Legal Theory, David J. Arkush
BYU Law Review
No abstract provided.
The Struggle Between Legal Theory And Practice: One Law Student's Effort To Maintain The "Proper" Balance, Fernando M. Pinguelo
The Struggle Between Legal Theory And Practice: One Law Student's Effort To Maintain The "Proper" Balance, Fernando M. Pinguelo
Brigham Young University Education and Law Journal
No abstract provided.