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Walls or Bridges: Law’s Role in Conflicts over Religion and Equal Treatment
Get PDFPresented as the Bruce C. Hafen Lecture, Brigham Young University Law School January 18, 2023
“[D]o you see religion as a club or do you see religion as a path? Do you see it as a wall that separates you or do you see it as a bridge that connects you to God and other people?
— Keith Ellison
Clark Memorandum: Fall 2023
No full textFive Ways Law School Contributes to Life’s True Purpose Faith in Law: A Q&A with President Dallin H. Oaks Personal Religious Conviction and the Practice of Lawhttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1070/thumbnail.jp
R & M DURRANT FAMILY, LLC, Appellee, Vs. ROGER RIGBY DURRANT, Appellant
Get PDFAppeal from a final judgment and underlying rulings entered by the Third Judicial District Court of Utah, in and for Tooele County, the Honorable Teresa Welch, Presidin
Scaling DAOs Through Fiduciary Duties
Get PDFDAOs (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
Get PDF[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
Contracting as a Class
Get PDFContract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them – indeed, are effectively forced to agree to them – if they wish to participate in the modern world.
Modern digital contracting is not a collaborative process. Today, most “contracting” involves merely browsing a website or clicking “yes” to agree to endless streams of unread boilerplate. Contracting now largely consists of a party in a superior bargaining position dictating terms to a weaker party.
To the extent the law has evolved to deal with the scale and complexity of the digital era, its focus has been on putting parties on notice of contract terms. However, we already know, at least in a vague sense, the terms of our “bargain.” The real issue is power – we knowingly accept onerous terms because we lack the power to do anything else.
This Article seeks to revitalize the digital contracting process. It outlines the infrastructure necessary to facilitate class contracting between corporate entities, particularly Big Tech companies, and their users. Granting individuals the ability to engage in class contracting will improve the wellbeing of billions of individuals. It will facilitate meaningful communication, enable the collaborative development of shared priorities, and restore a vital balance to the modern contracting process
A Juror’s Religious Freedom Bill of Rights
Get PDFThe prosecution of Democrat Congresswoman Corrine Brown for campaign corruption was perhaps the most significant and dramatic political trial ever to hit Northeast Florida—and that was before the Holy Spirit showed up and spoke to Juror 13 during deliberations. The Brown case is the springboard for the article’s focus on a juror’s right to religious liberty, one of the nation’s most precious constitutional rights. The Article addresses first principles behind the process of jury selection in the United States, as well as the importance and safeguarding of religious liberty in the U.S. Constitution. It then proposes six tenets to be contained within a proposed bill of rights for jurors: (1) the right to a religious identity (or not); (2) the right to be free from religious discrimination; (3) the right to religious accommodations during jury service; (4) the right to commune with a higher power; (5) the right to religious privacy; and (6) the right and duty to follow the law and not do wrong against others, even for religious reasons. The Article provides historical context and case examples that demonstrate the need for and exercise of the proposed rights, and it recommends adopting the bill of rights at all phases of jury selection and service
Interested Voting
Get PDFCorporate law is attentive to transactions with a controlling shareholder, but such transactions hardly cover all instances in which an interested shareholder may harm the corporation by casting a pivotal vote to pass a resolution. Interested votes cast by directors, managers, acquirers, cross-holders, arbitrageurs, institutional investors, hedge funds, and several other actors can be as detrimental as votes by a controlling shareholder. Yet, despite the ever growing influence of shareholders in corporate governance, interested voting has received scant attention.
This Article is the first to offer a systematic mapping of interested voting based on type of shareholder and type of resolution. It categorizes existing policy approaches on interested voting as bright line rules (which discount votes presumed interested ex ante) or as open ended standards (which provide remedies for votes found ex post to be interested), and characterizes as “anything goes” the approach that leaves shareholders free to vote whichever way they please. Aside from policing controlling shareholders and, to a lesser extent, acquirers in M&A transactions, the law does not offer any remedies in several areas in which interested voting might occur, thus setting “anything goes” as the default regime for voting by non controlling shareholders.
This Article evaluates whether and to what extent this “anything goes” regime is worrisome. While in some fields, like director elections and shareholder proposals, such an approach has the merit of limiting litigation rents, it is problematic in many others. In particular, M&A and other high profile financial transactions subject to shareholder approval run the risk of being determined by an interested voter not aligned with the genuine preferences of disinterested shareholders. Deal data show that half of (the few) close merger votes pass because of votes by insiders. In these cases, deal outcomes might systematically be swayed by votes at odds with the common interests of shareholders and market failures would ensue. This is troublesome given the current phase of reconcentration of ownership of public corporations, which makes it easier than ever to assemble coalitions of repeat players such as insiders, institutional investors, and hedge funds. If left unchecked, “anything goes” might result in a reduction of wealth in the long run