Brigham Young University Journal of Public Law最新文献

{"title":"Has Nihilism Politicized the Supreme Court Nomination Process","authors":"Bruce S. Ledewitz","doi":"10.2139/SSRN.3150379","DOIUrl":"https://doi.org/10.2139/SSRN.3150379","url":null,"abstract":"Everyone can see that the Supreme Court nomination process has become destructively politicized. What has brought us to this state is the loss by the American legal profession of a commitment to truth and the acceptance of the view that no binding moral judgments can be made. This turn in law reflects the thinking of the wider culture. Only the recovery of some form of realism will rescue the nomination process from our current morass.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126484444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Development of the Issue of Same-Sex Couples Under Israeli Law","authors":"Yitshak Cohen","doi":"10.2139/SSRN.2809186","DOIUrl":"https://doi.org/10.2139/SSRN.2809186","url":null,"abstract":"The State of Israel determined by legislation that matters of personal status including marriage and divorce are subject to personal law, namely religious law. Since the applicable law is personal and not territorial, it varies from person to person and is not uniform as under civil law. This simply means that Israel has no separation of religion and state in matters of divorce and marriage. Religion is the only determining factor in these matters. Thus, marriages prohibited by religious law do not take place in Israel. This is true for all four major religions in Israel: Christianity, Islam, the Druze religion, and Judaism. The discussion of same-sex couples under Israeli law should have ended here: marriage and even sexual relations between same-sex partners are prohibited by the four religions in Israel. Therefore, they have no place in a state in which religious law prevails in matters of status.However, the Israeli courts have more of a civil orientation than a religious one and look for ways to bridge the gap between religious law and reality as they understand it. In some cases, they have recognized the status of same-sex couples. The change started by providing material economic rights such as the right to a benefit given to an employee’s spouse by an employer, mutual inheritance rights, and more. The courts did not stop there, but continued granting rights both on the public level and in matters of legal status. For example, same-sex couples can now be registered as a married couple in the Registry Office if they were married overseas, and they can adopt children just as heterosexual couples can. Some argue that today there is no longer any meaning to the law which states that marriage shall be determined only by the personal religious law of each individual. The decisions made in these matters are sharply disputed and reflect the constant prevailing tensions regarding Israel not only as a Jewish state but also as a democratic state. Although the Basic Laws stipulate that Israel is both, in practice these values conflict and often collide. This tension is clearly reflected in and may be analyzed through the issue of same-sex couples.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133005779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders","authors":"L. Backer","doi":"10.2139/SSRN.2755324","DOIUrl":"https://doi.org/10.2139/SSRN.2755324","url":null,"abstract":"Globalization has produced a wealth of writing that seeks to theorize the emerging relationships between states, non-state actors (especially multinational corporations), and international organizations. For lawyers, the relationship among these actors through law is especially meaningful. What has been emerging in recent years with greater clarify is that while the formal structures of organization of law and its relationship to the state system remains substantially unchanged, the realities on the ground have moved substantially away from these formal structures. The traditional premises that have been used to justify and explain the relationships among states, non-state actors, international organizations, law and governance no longer adequately either explain or justify the actual behaviors and outlooks of these actors. This essay considers the tension between the traditional premises of organizing governance (within and through states) and the emerging transnational legal order. The focus of examination is the corporation, which is where this tension is most in evidence. The analysis starts with the ideology of the state order, which disguises alternative governance orders and the governments through which they are operationalized. It is with the effects of the ideology of the state order that the analytical limitations of analysis become clearer, the object of Section II. Sections III and IV explore the power of ideology in framing analysis in the conception of the reality of self-constitutionalizing organization outside the state and in theorizing of transnational law as method. Both suggest the ways in which the ideologies of framing analysis can color both the way in which relationships are understood and the objectives of analysis are formed. Section V then posits an alternative analysis, normatively autonomous (though not entirely free) of the orbit of the state, a vision possible only when the ideological presumptions of the state are suspended.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130211412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"We Believe in Being Honest: Dependency Exemptions for LDS Missionaries","authors":"A. Moser","doi":"10.2139/ssrn.2734899","DOIUrl":"https://doi.org/10.2139/ssrn.2734899","url":null,"abstract":"This paper answers the following question: under what circumstances, if any, can American parents take the dependency exemption for their children on missions for The Church of Jesus Christ of Latter-day Saints (“the LDS Church”)? A recent survey indicates that 91% of American parents of LDS missionaries take the dependency exemption for their missionary child for at least one taxable year during which their child is a missionary. These parents are most likely automatically taking the exemption without thinking about it. This current norm calls into question whether these types of missionaries actually meet the legal definition of a dependent. Although many, if not most, missionaries may be eligible as dependents for their parents to take the exemption one or more of the two or three years that they are missionaries, it is not automatic and ought to be analyzed for each missionary’s situation for each of the years. This paper gives a roadmap for analysis.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123919781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Before There Were Mouseholes: Resurrecting the Non-Delegation Doctrine","authors":"J. Hood","doi":"10.2139/SSRN.2578009","DOIUrl":"https://doi.org/10.2139/SSRN.2578009","url":null,"abstract":"There are now over five-hundred federal agencies and departments. Some are executive, others independent, but most are a far cry from the strict separation of powers originally conceived in the United States Constitution and envisioned in other founding-era documents. The purpose of this paper is to examine those documents and other fundamental writings that influenced the delegates to the Federal Convention of 1787 in order to demonstrate that the non-delegation doctrine was — and still is — an integral and inherent part of separation of powers. In fact, it is the doctrine upon which the bedrock principle of separation of powers was laid. This assertion invites the reader to critique in new light the Court’s decisions regarding the administrative state since J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928). This night light is magnified through the following evidence: Non-delegation doctrine debate during Federal Convention; Non-delegation amendment included in James Madison's original 17 amendments for the Bill of Rights; State constitutions at the time of the ratification of the Constitution; Philosophical background of the Framers (Locke and Montesquieu); 18th-century dictionaries.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123125029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Law's Duty to Promote the Kinship System: Implications for Assisted Reproductive Techniques and for Proposed Redefinitions of Familial Relations","authors":"S. FitzGibbon","doi":"10.2139/SSRN.2482416","DOIUrl":"https://doi.org/10.2139/SSRN.2482416","url":null,"abstract":"Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each kinship relationship entails are roughly the same as the beliefs and expectations of the other participants. Something similar can be said about brothers and parents not of one’s own family: the same sorts of relationship exist among them and, though they are not one’s relatives, one understands – without having to investigate – the commitment each of them has to the others, and especially to their own young and to their elderly. The rearing of the next generation of the family, and the care for its elderly, are to some extent the concern of all. (Contrast motorists or pedestrians, who, though they are all conducting more or less the same activity, have no commonality of purpose). This Article develops the concept of the kinship system, proposing a definition. It contrasts a nonsystematic arrangement – one which may indeed be emerging at present – which is based on contract. It maintains that the systematic arrangement better serves fundamental goods. It proposes that the law should promote and protect the kinship system. It applies this thesis to propose a legal response to certain assisted reproductive techniques, and to certain proposals for the redefinition and reconstruction of the family.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"243 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122292330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Color is the Number Seven? Category Mistake Analysis and the 'Legislative/Non-Legislative' Distinction","authors":"J. Martinez","doi":"10.2139/SSRN.2399546","DOIUrl":"https://doi.org/10.2139/SSRN.2399546","url":null,"abstract":"What color is the number seven? What is the street address of the “average American family,” which consists of exactly 2.75 people? Each of these is an example of “category mistakes,” whereby concepts are sought to be applied in categories to which they do not belong. Category mistakes are logically wrong because when two concepts are in different categories, we cannot measure the second, “target domain,” by methods that are appropriate only to the first, “source domain,” or vice-versa. The risk of category mistakes is ever-present in law because the same terms often carry dramatically different meanings in different contexts. The “legislative/non-legislative” distinction, used to differentiate legislative governmental conduct from non-legislative governmental conduct, has been particularly prone to category mistakes. Thus, standards used in one setting for distinguishing legislative from non-legislative governmental conduct are uncritically applied in settings in which they do not belong. This results in category mistakes, akin to using colors to measure numbers. This article proposes “category mistake analysis” as a methodology for uncovering category mistakes in law. Category mistake analysis reveals the underlying interests and policies in the source domains, from which the legislative/non-legislative distinctions are derived, in contrast to the underlying interests and policies in the target domains, to which the distinctions have been uncritically applied. Part I describes category mistake analysis by distinguishing it from the more conventional use of metaphors and analogies in legal reasoning. Part II examines the category mistake in the use of the legislative/non-legislative distinction to import the separation of powers concept into the popular democracy referendum setting. Part III considers the category mistake of using the legislative/non-legislative distinction to import the rule-making versus rule-enforcement concept into the exactions setting involving takings of property by the government. Part IV analyzes the category mistake of applying law-enactment concepts to determine whether administrative agency action should be subject to deferential judicial review.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130704164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Safeguarding the Commander's Authority to Review the Findings of a Court-Martial","authors":"A. S. Williams","doi":"10.2139/SSRN.2275078","DOIUrl":"https://doi.org/10.2139/SSRN.2275078","url":null,"abstract":"“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military. The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries. Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence. Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law. Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions. If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed For","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127411112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Significant but Unheralded Growth of Large Externship Programs","authors":"James H. Backman, C. S. Clements","doi":"10.2139/SSRN.2235215","DOIUrl":"https://doi.org/10.2139/SSRN.2235215","url":null,"abstract":"Over the past twenty years, the growth of externship programs has been one of the least understood features of curriculum development in law schools. We explore the development of externship programs at the ninety-five law schools that have achieved high levels of externship availability since 2006. By focusing on the externship models of the thirty law schools that achieved the highest levels of externship participation, we conclude that a law school's chosen approach for delivering externships is the most important factor influencing externship growth — more than a law school’s ranking, its geographical location, or its size.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125187135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Is Greed Good? A Catholic Perspective on Modern Usury","authors":"W. Woodyard, Chad G. Marzen","doi":"10.2139/ssrn.2132945","DOIUrl":"https://doi.org/10.2139/ssrn.2132945","url":null,"abstract":"In an era of increasing financial complexity, the Catholic legal and intellectual tradition offers not only a symbolic moral witness to the policy debates concerning lending, but a voice that offers real solutions to the problem of modern usury. The duty of those in the economic world to safeguard the weaker, more vulnerable parties in society as articulated by Pope Benedict XVI in Caritas in Veritate can best find its expression in vigorous adherence to the unconscionability doctrine of contract law. In addition, the Catholic legal and intellectual tradition promotes microcredit lending programs and community credit unions as strong economic alternatives to modern usury.","PeriodicalId":122941,"journal":{"name":"Brigham Young University Journal of Public Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128743200","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}