Brigham Young University

Brigham Young University Law School
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    Free Exercise of Abortion

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    For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades. In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments. These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite and expect the courts to reject pro-abortion religious claims even as they urge courts to treat anti-abortion convictions as sacrosanct. The consequence would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor

    Scaling DAOs Through Fiduciary Duties

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    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 argued that the directly democratic structure of DAOs eliminates the need for fiduciary duties on the basis that there are no agents. The few jurisdictions that have created paths for direct incorporation as a DAO have found this argument persuasive. These jurisdictions allow DAOs to waive all fiduciary duties in their operating agreements. But this approach to fiduciary duties in DAO governance is fundamentally flawed. Fiduciary duties are still needed in DAOs because DAO democracy is not pure democracy. Rather than following the rule of one tokenholder, one vote, DAOs generally follow the rule of one token, one vote. So, when a tokenholder has enough tokens to control a DAO, the principal-agent problem rears its ugly head. Here, the controlling tokenholder is the agent and the minority tokenholders are the principals. Due to low participation rates in DAOs, a tokenholder can more easily become a controller. The principal-agent problem can also exist in DAO governance when a tokenholder assigns its voting power to a delegate or when a DAO structurally centralizes power in a governance board. Because these principal-agent problems exist in DAOs, tokenholders need fiduciary duties as an ex post protection from self-dealing. That said, the answer to these agency problems is not a skeuomorphic application of all corporate fiduciary duties to DAOs. Rather, a tailored approach to fiduciary duties is needed. This Note provides that approach in the form of a mandatory, yet limited, fiduciary duty governance system for DAOs. This proposed system would allow DAOs to waive the duty of care and the corporate opportunity doctrine in their operating agreements but would not allow DAOs to waive the duty of loyalty and a portion of the associated duty to act in good faith. It would also balance investor protections with innovation and provide the predictability necessary to attract more investors to DAOs. In turn, this tailored system would help DAOs in their quest to scale as a type of business organization and aid in the creation of a new, decentralized economy

    The BYU Advocate

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    [B]y any reasonable measure, BYU Law has become a great law school. Whether you examine faculty influence, student credentials, bar passage, graduate placement, low graduate indebtedness, library resources, or myriad other factors, BYU Law School is one of the finest law schools in the United States. – D. Gordon Smithhttps://digitalcommons.law.byu.edu/annual_reports/1012/thumbnail.jp

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    Don’t Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students

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    Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious student speech. Unfortunately, federal law fails to provide clear guidance to help schools find this balance. Instead, federal law requires schools to limit speech that may cause “psychological trauma.” This vague requirement causes schools to adopt overly broad speech codes restricting controversial religious speech. These undefined speech codes also fail to target the specific speech that causes harm to LGBTQ students. To help schools find the necessary student speech balance, this Article proposes a new conception of harmful student speech based on social science’s insight into the specific features of speech that threaten LGBTQ students. This “Harmful Anti-LGBTQ Student Speech” concept will allow schools to eliminate speech that causes psychological trauma while protecting controversial speech necessary for religious identity development. By utilizing social science, this Harmful Anti-LGBTQ Student Speech conception will enable schools to create an educational environment that supports the intellectual development of all students

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    BYU Law School Faculty Listing

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    BYU Law School Faculty Listing

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    Publius’s Protectors of Liberty: A Still Important Role for States

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    Updating the Berne Convention for the Internet Age: Un-Blurring the Line Between United States and Foreign Copyrighted Works

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    John Naughton, notable journalist and academic, has asserted that “[common sense] should also revolt at the idea that doctrines about copyright that were shaped in a pre-Internet age should apply to a post-Internet one.” And yet, in crucial aspects of international law, this is the situation in which the world finds itself today. The Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention” or the “Convention”) is one of the most important multinational agreements concerned with copyright law, but it has not been amended since September 28, 1979. Although the internet technically existed in an early and limited form at that time, its use did not become popular and widely available to the public until it was privatized in the 1990s. Because of this timing, the Berne Convention does not reflect any of the practical possibilities for the creation and dissemination of copyrighted works that the internet has made possible, let alone the explosion of creative content and the changing attitudes toward authorship, sharing, and copyright that those realized possibilities have brought about

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