Brigham Young University Law Review

Passive Acknowledgement or Active Promotion of Religion? Neutrality and the Ten Commandments in Green V. Haskell

In Green v. Haskell, the Tenth Circuit considered whether the Haskell County Board of Commissioners' decision to approve a private citizen's request to erect a monument inscribed with the Ten Commandments on the lawn of the county courthouse violated the Establishment Clause. This note argues that the Tenth Circuit erred in finding that the monument in Haskell County violated the Establishment Clause. The Tenth Circuit failed to apply the controlling precedent of Van Orden v. Perry to find th...

Introduction to the First Annual Survey of the Ninth and Tenth Circuits

Lopez-Rodriguez V. Mukasey: The Ninth Circuit's Expansion of the Exclusionary Rule in Immigration Hearings Contradicts the Supreme Court's Lopez-Mendoza Decision

In Lopez-Rodriguez v. Mukasey, the Ninth Circuit faced the issue of whether statements by Lopez-Rodriguez, given to immigration officials after they entered Lopez-Rodriguez's residence without an invitation or warrant, should be suppressed in a civil immigration hearing. The court applied a reasonableness standard to the officers' actions and held that the evidence should be suppressed because the entry was an unreasonable violation of Lopez-Rodriguez's Fourth Amendment rights. The Ninth Circ...

Battling Gray Markets Through Copyright Law: Omega, S.A. V. Costco Wholesale Corporation

Brand owners around the world had reason to celebrate on Sep 3, 2008. On that day, the US Court of Appeals for the Ninth Circuit decided Omega SA v. Costco Wholesale Corp, concluding that at least some of these owners could use copyright law to prevent unauthorized importation of their products into the US. In Quality King Distributors Inc v. L'anza Research International Inc, the Supreme Court held that Section 602(a) of the Copyright Act, which provides that unauthorized importation of copi...

Victory for Clergy Sexual Abuse Victims: The Ninth Circuit Strips the Holy See of Foreign Sovereign Immunity in Doe V. Holy See

In Doe v. Holy See, the Ninth Circuit narrowly upheld the district court's refusal to grant a motion to dismiss by the Holy See, which claimed sovereign immunity under the Foreign Sovereign Immunities Act. At issue was whether an exception to sovereign immunity permitted an alleged victim of sexual abuse by a Roman Catholic priest to bring suit against the Holy See, otherwise known as the Vatican. This note argues that, although the Ninth Circuit's decision in Doe v. Holy See was correct, the...

Protecting Public Lands From the Public: Kane County and Revised Statute 2477

In 1866, Congress passed Revised Statute 2477 (RS 2477). This Reconstruction-era statute granted a right of way for the construction of highways over public lands, not reserved for public uses, to encourage the development and construction of highways on public lands. Recently, in Wilderness Society v. Kane County, the validity and scope of RS 2477 rights-of-way came into question after Kane County passed an ordinance allowing off-highway vehicle use on certain county roads located within Gra...

Chevron's Ambiguity Hurdle: Delgado V. Holder and the Proper Interpretation of the Particularly Serious Crime Exception to Deportation Relief

Immigration policy involves interplay between the interests of society and those of the individual immigrant. Public rhetoric during the 2006 US immigration reform debates illustrates this interplay: Proponents of liberal reform seem to focus on the impact of deportation on individuals and families, while proponents of restrictive reform emphasize the necessity of securing society against immigrants involved in criminal activity, or even terrorism. In Delgado v. Holder, the Ninth Circuit addr...

Catholic League for Religious and Civil Rights V. City of San Francisco: How the Ninth Circuit Abandoned Judicial Neutrality to Strike a Blow at Religion

Over the last several decades, America has seen an ongoing conflict between advocates of gay rights and supporters of traditional religion. This conflict, one of many fronts in the "culture war," as it has sometimes been called, has raged in many different contexts through the years. On Jun 3, 2009, in Catholic League for Religious and Civil Rights v. City of San Francisco, the US Court of Appeals for the Ninth Circuit addressed the question of whether a San Francisco city resolution denounci...

Torture and Public Policy: Mohamed V. Jeppesen Dataplan, Inc. Allows 'Extraordinary Rendition' Victims to Litigate Around State Secrets Doctrine

In Mohamed v. Jeppesen Dataplan Inc, the Ninth Circuit examined the state secrets doctrine as it relates to the War on Terror. The plaintiffs, alleged victims of the Central Intelligence Agency's (CIA) "extraordinary rendition" program, sued the private corporation providing logistical support for plaintiffs' so-called "torture flights" -- shuttling prisoners from their home countries to CIA "black site" prisons and other locations. All five plaintiffs allege torture, forced disappearances, a...

Analyzing Refusal-to-Deal Cases Under Brooke Group's Predatory Pricing Test: The Tenth Circuit Misses the Mark in Christy Sports, Llc V. Deer Valley Resort Co.

In Christy Sports LLC v. Deer Valley Resort Co, the Tenth Circuit held that Deer Valley Resort Co (Deer Valley) did not have a duty to deal with Christy Sports LLC (Christy Sports), a snow ski rental company, and that it did not violate Section 2 of the Sherman Act (Section 2) when it began to exercise a restrictive covenant after many years of non-enforcement. Relying on earlier Tenth Circuit and US Supreme Court decisions, the Tenth Circuit held that Deer Valley and Christy Sports did not e...

Insider Trading and Soft Information: U.S. V. Nacchio

Joseph Nacchio, former CEO of Qwest, is currently serving a six-year sentence for insider trading. Nacchio was convicted of insider trading after he exercised his Qwest stock options at the same time he received information that Qwest's 2001 earnings were in danger of falling nearly one billion dollars short of projected revenue estimates. The Tenth Circuit's decision in Nacchio II is problematic for two reasons: first, the court conflated the requirements of Rule 16 disclosures and the Daube...

Golden Gate and the Ninth Circuit's Threat to Erisa's Uniformity and Jurisprudence

In March 2009, the Ninth Circuit Court of Appeals held that San Francisco's Health Access Program was not enacted in contravention to the Employee Retirement Income Security Act (ERISA). Since the Program's enabling ordinance passes all of the tests describing laws not preempted by ERISA, the court held that the ordinance creates a permissible means for San Francisco to tax employers and create employee health benefits for its residents. In Golden Gate, the Ninth Circuit's efforts to uphold a...

United States V. Mccane: Judge Tymkovich Questions Heller's Disarming Dicta

In Heller, the Court states that "nothing in their opinions should be taken to cast doubt on longstanding prohibitions on the possession by felons." The Tenth Circuit recently challenged this now famous dictum in US vs McCane, in which the criminal defendant, charged with being a felon in possession of a handgun, asserted that Heller's individual right to bear arms invalidated the constitutional basis of the felon dispossession law. Though McCane's conviction was upheld, the concurring opinio...

How the Tenth Circuit's Ruling in Martinez V. Beggs Affects the Deliberate Indifference Standard for Eighth Amendment Claims

In Martinez v Beggs, the Tenth Circuit held that prison officials were not liable under Section 1983 for a detainee's death. Because the prison officials were not "deliberately indifferent to the specific risk" of the harm, which in this case was a heart attack that led to the detainee's death, the court reasoned that the prison officials were not liable under Section 1983 for violating the detainee's Eighth Amendment rights. Understanding how the Tenth Circuit's decision in Martinez disregar...

In Re Williams Securities Litigation-Wcg Subclass: How Dura Met Daubert

The US Court of Appeals for the Tenth Circuit recently decided a large securities fraud case that will have a significant impact on evidentiary standards pertaining to loss causation theories. The court's Feb 18, 2009, opinion was its first to apply the Supreme Court's loss causation standard set forth in Dura Pharmaceuticals, Inc v Broudo. The case, In re Williams Securities Litigation -- WCG Subclass, addressed the question of whether the district court abused its discretion in granting sum...

Juror Testimony of Racial Bias in Jury Deliberations: United States V. Benally and the Obstacle of Federal Rule of Evidence 606(B)

In the Tenth Circuit's recent decision US v Benally, the court held that post-verdict juror testimony of racist comments made by fellow jurors during deliberations is inadmissible under Federal Rule of Evidence 606(b) ("Rule 606(b)"). This Note will explore the Tenth Circuit's decision US v Benally and argue that the court misapplied Rule 606(b) by relying on precedent that only tangentially addressed these issues. Further, this Note will investigate whether the Tenth Circuit, by holding that...

Ineffective Assistance of Counsel in Plea Bargain Negotiations

Criminal defendants have a constitutional right to counsel. The Supreme Court has interpreted the Sixth Amendment Right to Counsel Clause to mean that criminal defendants have the right to "effective assistance of counsel." In Strickland v Washington, the Court held that the assistance provided to a criminal defendant is ineffective if the counsel's performance was "deficient" and the deficient performance "prejudiced" the defense so as to deprive the defendant of a fair trial. In Williams v ...

Remedial and Coercive Administrative Proceedings Under Younger. The Tenth Circuit's Test in Brown V. Day

The Tenth Circuit's recent decision in Brown v Day highlights a circuit split regarding the applicability of Younger abstention to state administrative proceedings. This Note analyzes two key issues at the forefront of the Tenth Circuit's decision in Brown. First, the court offers a test for determining the remedial or coercive nature of an administrative proceeding that focuses solely on the "ongoing proceeding" prong of Younger. This Note explores whether such a test is reasonable and wheth...

Transforming the Public Employee Speech Standard in Posey V. Lake Pend Oreille: More Than Meets the Eye

Since the middle of last century, the US Supreme Court has evaluated speech restrictions imposed by the government on its employees with an evolving standard that balances the interests of government efficiency and free speech. This doctrine has been gradually refined by case law capped by the Court's 2006 decision in Garcetti v Ceballos, crystallizing a three-part inquiry into the protected status of public employee speech under the First Amendment. In its 2008 opinion, Posey v Lake Pend Ore...

Opening the Rule 10b-5 Floodgates: Ninth Circuit Split in Gilead Sciences Leaves the Loss Causation Pleading Standard in Limbo

In the case of In re Gilead Sciences Securities Litigation, the Ninth Circuit allowed a class action securities fraud complaint to proceed beyond Rule 12(b)(6) dismissal without any factual basis to demonstrate proximate causation, or more specifically, that plaintiffs' losses were caused by the alleged fraud rather than other confounding factors. The court also approved plaintiffs' causation theory alleging that an "efficient" securities market took three months to incorporate a public fraud...

A Fool for a Client: Competency Standards in Pro Se Cases

A lawyer who represents himself has a tool for a client. While the old adage may be true, it fails to address the situation where the person invoking the right to self-representation lacks competency. Unfortunately, courts have not elucidated standards to decide whether a pro se defendant is competent to represent himself. Instead, the Supreme Court recognized competency as a limitation on the right of self-representation without giving guidance to courts on how to implement the new limitatio...