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Clark Memorandum: Spring 2025
No full textPrimary and Professional Identity Never Only Two Sides In Defense of Zion and Her People The Pursuit of Happinesshttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1073/thumbnail.jp
Clark Memorandum: Fall 2025
No full textOur Constitutional Anchor Divine Law The Courage of Our Convictions Our Call to Actionhttps://digitalcommons.law.byu.edu/clarkmemorandum/1077/thumbnail.jp
Weaponization of Taxation: Sovereign Tax Immunity as a National Security Tool
No full textAmidst calls to reconceptualize taxation as a national security tool, legislators are reexamining how the United States taxes foreign governments. Federal income taxation of foreign governments—what this Article terms “the law of immunity from taxation” or “sovereign tax immunity”—strongly influences whether and how foreign governments pursue investment in the United States. This impact on international business transactions indicates sovereign tax immunity has the potential to be a powerful national security tool. Yet, despite its import, the law of immunity from taxation has been underexplored and undertheorized. This Article steps into this gap in discourse by challenging the way recent legislative proposals seek to wield sovereign tax immunity as a national security tool.
Employing a unique interdisciplinary analysis that bridges the fields of national security policy, tax law, and international law, this Article demonstrates that modifying sovereign tax immunity should not be taken lightly. The law of immunity from taxation is a medium through which the United States expresses its interpretation of the customary international law of sovereign immunity. Certain changes to this aspect of taxation—including those advanced in recent legislative proposals—push the United States into expressing an understanding of sovereign immunity at odds with its own long-held interpretations of international law. Where this occurs, changes to tax immunity risk damaging the legitimacy and development of international law, injuring the United States’ international reputation, harming relationships with allies and partners, and triggering hostile reciprocal action. To the extent legislators seek to leverage sovereign tax immunity to achieve national security goals, these outcomes can overshadow or even undermine their objectives.
But such an eventuality is not a foregone conclusion; through consideration and measured drafting, it can be avoided to great success. This Article concludes by offering a framework for further action that guides legislators in effectively wielding sovereign tax immunity to advance U.S. foreign policy and national security goals
Textualist Reasoning and the Open Fields Doctrine: A Survey of State-Constitutional Decisions
No full textState constitutions can, and often do, provide more extensive individual rights than the Federal Constitution affords. When this occurs, state courts frequently cite textual differences between the Federal Constitution and their own state constitutions to explain their departures from federal norms. But do textual differences between the Federal Constitution and state constitutions actually explain why some states offer more constitutional protection than the federal government does? When it comes to the Fourth Amendment’s open fields doctrine, the answer is no.
This Note provides a fifty-state survey of state-constitutional search and seizure provisions; it also identifies those states that have rejected or adopted the federal open fields doctrine on state-constitutional grounds. From a textualist perspective, one might expect meaningful differences between the Federal Fourth Amendment and the wording of a state’s search and seizure protections to correspond with a state’s decision to reject the open fields doctrine. However, a closer analysis reveals that textual differences in constitutional language fail to explain why some states reject the open fields doctrine under their own constitutions and others do not. Thus, at least for the open fields doctrine, the text of a state’s constitution has little bearing on whether that state will depart from federal constitutional precedent
Two Concepts of Judicial Deference to Religious Claims
Full text linkReligious exemptions from general laws are everywhere. The U.S. Supreme Court is expanding its exemption doctrine, systemically preferring religious needs over conflicting considerations. This ignites an ongoing debate between those celebrating religious liberties and those fearing their societal costs. Assessing this judicial trend, as this Article highlights, requires noticing how it is facilitated by a broad deferential approach to religious claims, refraining from evaluating their content.
This Article argues that this broad expression of judicial deference is analytically flawed and normatively implausible. The problem lies in the failure to distinguish between two types of religious claims when deferring to them: claims based on religious conscience and claims protecting communal autonomy. The normative implications of this distinction for judicial deference are currently unrecognized.
By examining two representative exemption cases, this Article argues that each type of religious claim triggers a distinct concept of deference. Conscience-based claims evoke a strong argument for secondary deference: a constraint from inquiring into religious content within the process of evaluating the primary conscientious claim. This is because conscience is a subjective, personal matter, whose evaluation in terms of content is constitutionally problematic. By contrast, community-based claims protect religious communal autonomy, not a direct conscientious conviction. Thus, they do not evoke this secondary, procedural deference. Rather, these claims call for deference as the manifestation of the religious right. That is, the Court protects the right to autonomy by expressing deference to religion.
After establishing this analytical distinction, this Article discusses its normative and doctrinal implications. It demonstrates the detrimental consequences of its conflation by the Court, especially in granting religious institutions foreclosing exemptions from anti-discrimination labor law. Finally, this Article proposes a doctrinal alternative: First, courts should recognize the main constitutional value underlying the claim and set the deference baseline. Second, courts should consider how other constitutional values, if any, influence the claim. Despite their analytical distinction, conscience and community considerations are commonly intertwined in practice. Accordingly, this Article’s doctrinal alternative consists of a two-phased approach, sensitive to these possible reciprocal influences
