Brigham Young University

Brigham Young University Law School
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    2023 BYU Law Review Masthead

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

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    BYU Journal of Public Law Volume 37 Number 1

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    Instigator and Proxy Liability in the Context of Information Operations

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    Political Fragmentation in the Democracies of the West

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    The decline of effective government throughout most Western democracies poses one of the greatest challenges democracy currently confronts. The importance of effective government receives too little attention in democratic and legal theory, yet the inability to deliver effective government can lead citizens to alienation, distrust, and withdrawal from participation, and worse, to endorse authoritarian leaders who promise to cut through the dysfunctions of democratic governments. A major reason for this decline in effective government is that democracies have become more politically fragmented. Political power has been dispersed among many more political parties, organized groups, and even more spontaneous, instantly mobilized non-formal groups. In the proportional-representation systems of Western Europe, power is now divided across many more political parties, including recent, insurgent ones. In the first-past-the-post system of the United States, the main parties are much more internally fragmented. Outside groups, and even individual actors, have far greater power to disrupt and undermine government efforts to forge policy than in the past. This article expands and extends earlier work I have done on political fragmentation in the United States. It identifies the various forms political fragmentation has taken across Western democracies in general. The article then explores some of the major economic and cultural forces that are fueling fragmentation across most Western democracies. This piece then turns to a substantial analysis of the communications revolution, as another major cause of the political fragmentation in democracies today. The challenge this revolution poses to democratic government is more profound than more familiar concerns with disinformation, misinformation, offensive speech, and the like. The communications revolution might inherently undermine the capacity for legitimate, broadly accepted political authority – the authority necessary to be able to govern effectively in democratic systems. Political fragmentation is the result of dissatisfaction with the way democracies have been governing, yet it also makes effective governance all the more difficult. Though there is insufficient appreciation of this new era of political fragmentation, overcoming this fragmentation and delivering effective governance is among the most urgent challenges facing democracies across the West

    Rulemaking by Ambush: How Prohibitions Against It Became Dead Letters

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    A Basic Needs Baseline for Distributional Analysis

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    Studies of income inequality and the distributive effects of taxes and government spending drive debates over progressive fiscal reform and economic justice. These distributional studies provide vital information on inequality in market outcomes and how government policies mitigate these disparities. Despite its critical importance, however, distributional analysis encounters inevitable and familiar limitations. These studies face practical challenges in measuring income and the distributional impacts of government policies. Distributional analysis also faces inherent complications in seeking to distinguish between the effects of the market and the government. Even if distributional analysis could precisely measure income and the effects of government policies, these studies would still embed assumptions as to which measures of inequality matter. For example, the measure of market income used in distributional studies offers one possible measure of inequality. This measure, however, does not compare taxpayers’ disposable income available for discretionary consumption or savings, and therefore does not reflect accurately differences in household spending ability. No methodology can offer an objectively correct way to perform distributive analysis. Because of their limitations, however, current distributional studies can understate inequality of household budgets. They can also overstate the distributive effects of government benefits to lower income individuals and understate benefits at the top of the distribution. This Article introduces a new approach which yields a different assessment of income inequality and the effects of government policies. This method first deducts costs individuals incur for basic needs from the baseline of market income to construct what this Article terms a “basic needs baseline”. The method then assesses the distributive effects of explicit taxes and government spending from this new baseline. In effect, this methodology treats expenses for basic needs as implicit taxes or burdens from government inaction, when the government does not provide for them, rather than as affirmative benefits when the government does provide for them. A basic needs baseline does not offer a “solution” to the measurement challenges and inherent limitations in distributional analysis. It does , however, offers a different — and valuable — measure of economic inequality and the effects of government policies. This method mo re accurately reflects the reality of differences in household budgets and redresses the imbalances in distributional analysis resulting from its unavoidable limitations

    BYU Law School Faculty Listing

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    Information Leaking and the United States Supreme Court

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    Brigham Young University Law School is based in United States
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