BYU Law Review最新文献

{"title":"Gay Rights, Religious Liberty, and the Misleading Racism Analogy","authors":"A. Koppelman","doi":"10.2139/ssrn.3653340","DOIUrl":"https://doi.org/10.2139/ssrn.3653340","url":null,"abstract":"Should religious people who conscientiously object to facilitating same-sex weddings, and who therefore decline to provide cakes, photography, or other services, be exempted from antidiscrimination laws? A common response is that conservative condemnation of gay sex and marriage is as evil as racism, and those who hold that view should likewise be disqualified from religious accommodations. This article disambiguates the racism analogy, which is actually several different analogies. One might be comparing (1) their effects, (2) their moral errors, (3) the evil intentions of those who hold them, or (4) their status as views that are appropriately stigmatized. There are important differences. Religious heterosexism is (5) generally nonviolent. And (6) unlike in 1964, when the Civil Rights Act was passed, religious claims can be accommodated without defeating the point of the law.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131049972","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":"Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.3019494","DOIUrl":"https://doi.org/10.2139/SSRN.3019494","url":null,"abstract":"This Essay contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: \u0000(1) The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. \u0000(2) The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied. \u0000(3) The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision. \u0000These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called \"triangulation.\"","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121625708","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":"Working Without a Net: Supreme Court Decision Making as Performance","authors":"F. M. Gedicks","doi":"10.2139/SSRN.2919682","DOIUrl":"https://doi.org/10.2139/SSRN.2919682","url":null,"abstract":"A Depression-era Justice once suggested that in constitutional challenges the Supreme Court simply compares government action to the Constitution and decides “whether the latter squares with the former.” Chief Justice Roberts more prosaically compared the Justices to baseball umpires. Both expressed the conventional view that judges are and properly should be helpless to alter the outcomes dictated by law writ large. \u0000This is mostly false humility. Judges are nothing so much as illusionists, and their opinions sleights of hand which obscure that judges are not bound by the law in the powerful sense they suggest, but participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform constitutional law, and their opinions are the records of these performances. \u0000Performance theory supplies a better means of analyzing and criticizing Supreme Court decisions than ubiquitous attacks on judicial integrity. The idea that judges can uncover the law untainted by justice, social need, personal preference, or other judicial taboos rests on a largely rejected metaphysics that nonetheless retains a powerful cultural hold. The Court has its precedents, but they have no connection to a pre-existing natural order, and often not even to a determinate text. The Court’s readings of its precedents form a tradition that is rarely so fixed as to yield only one possible result in a new case. This makes the Court's constitutional decision making the purest of performances — holdings and citations are “iterated,” shorn from their original contexts and dropped into new ones, creating new and surprising principles that masquerade as old and established. \u0000It is banal and unhelpful to call this dishonest. The Justices cannot admit their performative role because it cannot be reconciled with still-powerful higher-law and rule-of-law myths. If law does not exist outside the case in which the judge applies it, if it is not a stable premise of judicial decision making but a function of the judge and the situation, how are we governed by “law rather than men”? \u0000The necessity of performing constitutional law stems from the general absence of an underlying text that can constrain that performance; there are, instead, multiple indeterminate texts, which makes performance inevitable. The Justices are always working without a net, performing constitutional law in opinions with nothing underneath. Sometimes they pull off a convincing performance, but sometimes they don't. It's important to know the difference.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116640035","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":"Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent and Those Hostile to Religion Should Care","authors":"Brett G. Scharffs","doi":"10.2139/SSRN.2911086","DOIUrl":"https://doi.org/10.2139/SSRN.2911086","url":null,"abstract":"Religious freedom: Is it the grandparent of human rights, or the neglected stepchild? As with most false dichotomies, the answer is both. But it is also the underappreciated core, or tap root, of human rights. Why should we care about religious freedom? For the seeker of religious truth, the answer may be obvious: Religious freedom creates the conditions, the “constitutional space,” for investigation and the pursuit of truth. But what about those who fall into other groups? What about the religiously committed – who are confident they are in possession of religious truth. Or the religiously indifferent – who are not much interested in religion or spirituality. Or those who are affirmatively hostile to religion – those who believe religion does more harm than good. Should they – should we – care about religious freedom? There are three reasons why we should all care deeply about freedom of religion (and belief). First, is the role of religious freedom as a historical foundation for constitutional, political, civil and human rights. Without freedom of religion and belief (FORB), the entire human rights project may collapse from its own weight. Second, FORB is necessary if we are to resist statism and other monistic views of state power. And third, we may not have the intellectual, political or rhetorical resources to defend conscience if we do not respect and protect FORB.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133833811","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":"A Lawyer's Introduction to Meaning in the Framework of Corpus Linguistics","authors":"Neal Goldfarb","doi":"10.2139/SSRN.2907485","DOIUrl":"https://doi.org/10.2139/SSRN.2907485","url":null,"abstract":"Corpus linguistics has been promoted as a new tool for legal interpretation that provides an alternative to dictionaries. But that is not its only significance. In addition to providing new methodologies, corpus linguistics (and in particular corpus-based lexicography) provides important insights about the nature of word meaning, and about the interpretation of words in context. These insights (by linguists and lexicographers such as John Sinclair, Patrick Hanks, Sue Atkins, and Adam Kilgarriff) challenge the assumptions that underlie the lawyers’ and judges’ analyses of word meaning. As one might expect given the centrality of dictionaries in disputes over word meaning, legal interpretation presupposes a view of word meaning that is essentially the same as the view that is fostered by dictionaries. Under this view, individual words are the basic units of meaning from which the meanings of sentences are built. Word meanings are seen as discrete entities with (in most cases) clear boundaries. But corpus linguistics and corpus-based lexicography have shown that the reality is different. Clear boundaries between the meanings of different words, or between the different senses of the same word, often do not exist. Drawing lines between different word senses often has an unavoidable element of arbitrariness, as is shown by the fact that the lines are often drawn differently by different dictionaries. These differences raise questions about the validity of legal interpreters’ relying on dictionaries at all, and at a minimum suggest the need for changes in how dictionaries are used. Corpus linguistics and corpus-based lexicography have also cast doubt on the view (which most people would regard as simple common sense) that words are the basic unit of meaning, and that the meaning of a sentence can be computed by applying the rules of grammar to the meaning of the individual words. It turns out that in many cases, it makes more sense to regard multiword expressions as the basic units of meaning. The meaning of the whole often differs from the sum of the meanings of the words, in part because a word’s meaning in context can be affected by the words it co-occurs with and the grammatical constructions it is part of. As a result of these insights, corpus linguistics opens up new ways of thinking about word meaning—which translates into new modes of argumentation and analysis. To illustrate the possibilities, I will take a fresh look at Muscarello v. United States, 524 U.S. 125 (1998), which presented the question whether driving a car or truck with a firearm in the trunk or glove compartment amounted to “carrying” the firearm. Although Muscarello has already been the subject of a corpus-based analysis by Steven Mouritsen, his analysis focused on which of two dictionary senses of the word carry was more common, and therefore assumed the conception of word meaning that is generally reflected in legal interpretation. My approach will differ from Mouritsen’s in ","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128384892","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":"Posner, Blackstone, and Prior Restraints on Speech","authors":"Ashutosh A. Bhagwat","doi":"10.2139/SSRN.2560473","DOIUrl":"https://doi.org/10.2139/SSRN.2560473","url":null,"abstract":"Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Justice Holmes, Joseph Story, James Wilson, and ultimately William Blackstone’s Commentaries on the Laws of England.The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom for prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, a close examination of the historical evidence strongly suggests – though this issue cannot be definitively resolved – that a substantial portion of the Framing generation probably read the Press Clause more broadly.What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into modern times, with our very different technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that sometimes, no consensus existed. Indeed, the Framers may have given no consideration at all to specific issues. This indicates limits on the usefulness of the entire Originalist enterprise.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127884825","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":"Religious Associational Rights and Sexual Conduct in South Africa: Towards the Furtherance of the Accommodation of a Diversity of Beliefs","authors":"De Freitas, Shaun Alberto","doi":"10.2139/SSRN.2735308","DOIUrl":"https://doi.org/10.2139/SSRN.2735308","url":null,"abstract":"This article argues for the protection of the rights of religious associations pertaining to appointments by, and membership to, such religious associations against the background of forms of sexual conduct that may be in opposition to the central tenets of such a religious association. More specifically, this article calls for a wider sense of autonomy by a religious association regarding its activities. This is especially important in the endeavour towards the development of true pluralism in a constitutional paradigm.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122442981","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":"Intellectual Property Law's Plagiarism Fallacy","authors":"Gregory N. Mandel, A. Fast, K. Olson","doi":"10.2139/SSRN.2588658","DOIUrl":"https://doi.org/10.2139/SSRN.2588658","url":null,"abstract":"Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism.The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual property law actually is.The studies reported here uncover several additional intellectual property law findings, including that: (1) the majority of the American public views intellectual property rights as too broad and too strong, (2) knowledge of intellectual property law does not affect opinions about what the law should be, and (3) there are significant demographic and cultural divides concerning intellectual property rights. The findings as a whole raise central questions concerning the public legitimacy of intellectual property law, and consequently its ability to function as intended.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116494939","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":"Scout's Honor: The Boy Scouts, Judicial Ethics, and the Appearance of Partiality","authors":"D. Ortner","doi":"10.2139/SSRN.2585606","DOIUrl":"https://doi.org/10.2139/SSRN.2585606","url":null,"abstract":"This article will consider the constitutionality of the California Judicial Boy Scout Ban. Because most states including California model their code of ethics after the Model Code of Judicial Conduct, these argument will also apply with equal force to other states that have bans on judicial membership in groups that engage in invidious discrimination. First, this article will look at the text and history of the California Judicial Canon of Ethics to show that the state has deliberately targeted the Scouts and other expressive associations. Next, this article will look at the wide range of constitutional rights that are substantially burdened by the canon, including freedom of association, free exercise, and parental autonomy. As a result, the proper standard of review is Strict Scrutiny, even though judges are public officials, and the State must justify the restriction by pointing to a compelling interest and employ the least restrictive means.To justify its restriction, the state argues that membership in a group such as the Boy Scouts which engages in invidious discrimination creates an appearance of partiality and bias. Gay and lesbians standing before a judge who is a member of the Scouts will have reason to believe that the judge cannot fairly administer justify. Moreover, the general public will lose confidence in the integrity and objectivity of the judiciary. However, as this article will show, avoiding a generalized appearance of impropriety cannot be a compelling governmental interest. Drawing on recent Supreme Court cases in the realm of campaign finance, this article will argue that avoiding a generalized appearance bias (as opposed to the appearance of specific bias against an actual party before the Court) cannot be a compelling governmental interest. Moreover, the California policy is also poorly tailored to achieve the state’s interest because it is both grossly over and underinclusive, and relies on a cynical view of the judiciary which undermines the state’s purported interest in public confidence in the system. Moreover, a wide variety of less restrictive alternatives exist.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125414365","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":"In Loco Juvenile Justice: Minors in Munis, Cash from Kids, and Adolescent Pro Se Advocacy—Ferguson and Beyond","authors":"Mae C. Quinn","doi":"10.2139/SSRN.2614552","DOIUrl":"https://doi.org/10.2139/SSRN.2614552","url":null,"abstract":"In recent years many have challenged the imposition of lengthy adult prison terms for kids convicted of serious crimes. Given their special vulnerabilities, advocates argue young felony offenders should have their cases handled in our country’s specialized juvenile courts where they might receive age-appropriate interventions intended to support redirection and development. However, these conversations have largely overlooked another set of legal venues and their juvenile justice implications - those adjudicating low-level offenses such as local traffic and ordinance violations. Thus, there has been little scholarly, judicial, or advocacy address of the phenomenon of prosecuting minors in municipal courts. This essay calls for greater attention to the issue. It does so in the wake of recent events in Ferguson, Missouri which have generated wide-spread agreement that local courts need to change the ways they process, prosecute, and punish low-level ordinance violations. Indeed, as the nation has now learned, aggressive pursuit of fines and court fees through traffic cases and related quality-of-life actions are one of the most troubling aspects of life for many poor residents in St. Louis and beyond. Yet, juveniles – youth under the age of eighteen – are a population whose experiences have received almost no attention in the course of these critiques and recent calls for reform. This article fills that gap by opposing prosecution of minors in municipal courts – venues largely focused on financial enrichment of the localities they serve. It explains that municipal courts frequently deploy localized punitive practices against children that work to displace state and federal standards intended to protect them from harm, including taking cash from kids. Thus it urges rejection of in loco juvenile justice practices and instead argues youth – as a matter of common sense and constitutional doctrine – should have a right to juvenile court as venue of first resort.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123836694","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}