Brigham Young University Law Review

Brigham Young University Law Review is a magazine focusing on Law

Articles from Vol. 2012, No. 2, 2012

American Atheists, Inc. V. Davenport: Endorsing a Presumption of Unconstitutionality against Potentially Religious Symbols
I. INTRODUCTIONThe Tenth Circuit's decision in American Atheists, Inc. v. Davenport evinces the "hopeless disarray" of the Supreme Court's Establishment Clause jurisprudence.2 In recent years, the analysis for determining the constitutionality of arguably...
Defining Fraud as an Unprotected Category of Speech: Why the Ninth Circuit Should Have Upheld the Stolen Valor Act in United States V. Alvarez
I. INTRODUCTIONIn United States v. Alvarez, Xavier Alvarez, having pled guilty to charges of violating the Stolen Valor Act (SVA) by falsely claiming to have received the Congressional Medal of Honor, appealed the issue of the SVA's constitutionality...
Did Bad Debtors Influence the Tenth Circuit to Make an Unfortunate Decision? Making Reorganization More Difficult for Farmers in United States V. Dawes
I. INTRODUCTIONAs part of the Bankruptcy Abuse Prevention and Consumer Protection Act1 of 2005 ("BAPCPA"),2 Congress added 11 U.S.C. § 1222(a)(2)(A) to the Bankruptcy Code. At first blush, this provision appears to grant favorable treatment to Chapter...
Digitally Unknown: Why the Ninth Circuit Should Wish to Remain Anonymous in in Re Anonymous Online Speakers
I. INTRODUCTIONAnonymous speech has a long and rich history in the United States. For example, the Federalist Papers, drafted by James Madison, John Jay, and Alexander Hamilton, were published under the pseudonym "Publius."1 The value of the Federalist...
Discouraging Voluntary Disclosure: EEOC V. C.R. England and Confidentiality under the ADA
I. INTRODUCTIONUnder the Americans with Disabilities Act (ADA), employers who ask for disability information must keep it confidential.1 However, the statute is silent as to whether employers must also keep voluntary disclosures confidential.2James Kingston...
Eliminating the Subjective Intent Requirement for True Threats in United States V. Bagdasarian
I. INTRODUCTIONFrom the founding of our nation, freedom of speech has been considered a sacrosanct right of citizens, but has never been absolute. The Supreme Court has "long recognized that the government may regulate certain categories of expression...
Excessive or Warranted? the Unshackling of Discovery Sanctions in Lee V. Max International, LLC
I. INTRODUCTIONA core principle of the American legal philosophy is that disputes should be decided on their merits. However, attorneys often wrangle over legal procedure and deprive meritorious disputes of their day in court. At times, the discovery...
Honest Services Fraud and the Fiduciary Relationship Requirement: How the Ninth Circuit Got It Wrong in United States V. Milovanovic
I. INTRODUCTIONHonest services mail fraud1 is one of the more difficult white collar crimes to understand, mostly because, as Justice Scalia phrased it, prosecutors are "all over the place" in how they interpret it.2 Most attempts to clarify the statute's...
Judicial Takings in Vandevere V. Lloyd
I. INTRODUCTIONIn Vandevere v. Lloyd,1 the Ninth Circuit created a circuit split by changing its test for determining which property interests are protected under the Fifth Amendment's Takings Clause. With the First Circuit applying federal constitutional...
Keep Your Program out of My Game: The Ninth Circuit's Convoluted Copyright Analysis in MDY Industries, Inc. V. Blizzard Entertainment, Inc
I. INTRODUCTIONWorld of Warcraft ("WoW"), a popular online game, boasts over twelve million users1 and generates more than $1.5 billion annually.2 Blizzard Entertainment, the company that runs WoW, claims in its end user license agreement ("EULA") to...
Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends the Totten Bar Flying Away on the Jeppesen Airplane
I. INTRODUCTIONIn the en bane decision of Mohamed v. Jeppesen Dataplan, Inc. ("Jeppesen"), the United States Court of Appeals for the Ninth Circuit ruled that the Reynolds privilege iteration of the state secrets doctrine precluded the suits of several...
Nondiscrimination and Religious Affiliation: The Ninth Circuit Upholds the Denial of Registered Status to a Christian Student Club in Alpha Delta Chi-Delta Chapter V. Reed
I. INTRODUCTION"[E]galitarianism has become one of the most commanding drives in U.S. higher education, a nearly ubiquitous pressure on every segment of and activity in academe."1 As egalitarian programs in higher education have become more prevalent,...
Privacy Rights Left Behind at the Border: The Exhaustive, Exploratory Searches Effectuated in United States V. Cotterman
I. INTRODUCTIONAdvances in computer technology have allowed more information to be stored digitally and have permitted a greater number of people to own a personal computer. Additionally, legal professionals increasingly use digital information as sources...
Searching for a Trademarks Test: The Ninth Circuit's Query in Network Automation
I. INTRODUCTIONIn Network Automation, Inc. v. Advanced Systems Concepts, Inc.,1 the Ninth Circuit changed the direction of its internet trademark law when it declined to apply the "troika" factors2 to determine whether one's use of another's trademark...
Simmonds V. Credit Suisse Securities: Applying Delaware's Demand Requirement to Section 16(b)
I. INTRODUCTIONWhen the share price of Linkedln's initial public ofFering (IPO) jumped 109% in the first day of trading,1 some wondered whether the event was the start of another tech bubble2 or "hot issue" market where a series of IPOs witness dramatic...
Uneven "Neutrality": Dual Standards and the Establishment Clause in Johnson V. Poway
I. INTRODUCTION"May a school district censor a high school teacher's expression because it refers to Judéo-Christian views while allowing other teachers to express views on a number of controversial subjects, including religion and anti-religion?"1 In...
United States V. Reese and Post-Heller Second Amendment Interpretation
I. INTRODUCTIONIn United States v. Reese, the Tenth Circuit ruled that 18 U.S.C. § 922(g)(8) (2006), a statute prohibiting an individual subject to a domestic protection order from possessing any type of firearm, was constitutional.1 In coming to this...
United States V. Renzi: Reigning in the Speech or Debate Clause to Fight Corruption in Congress Post-Rayburn
I. INTRODUCTIONIn United States v. Renzi,1 the United States Court of Appeals for the Ninth Circuit was asked to decide whether a nondisclosure privilege exists under the Speech or Debate Clause ("Clause") for members of Congress.2 The Ninth Circuit...
United States V. Ruiz-Gaxiola: When Criminal Defendants Say No to Drugs
I. INTRODUCTIONIn light of the "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs,"1 the Ninth Circuit joined several other circuits2 in requiring the government to meet the higher standard of clear and convincing...