Articles

• Our Fractured Attitude Towards Corporate Conscience, Wheatley Inst. Religious Liberty Lecture Series (forthcoming). [SSRN]
• Religious Majorities and Restrictions on Religion, Notre Dame Law Review (forthcoming 2016). [SSRN]
• The Way Forward: Underserved Clients, Underemployed Lawyers – What Can Law Schools Do?, UtahOnLaw (forthcoming 2014). [SSRN]
• Equality in Sheep’s Clothing: The Implications of Anti-discrimination Norms for Religious Autonomy, 10 Santa Clara Journal of International Law 107-138 (2013), symposium issue. [SSRN]
• Relational Humility, 30 Interdisc. Human. 30 (2013).
• Abstract, Eight Pressure Points in the Right to a Fair Trial: Judicial Independence and Moving Beyond Theory into Practice, Int’l Symp. Iraq: Just. & Hum. Rts. Iraq 40 (2013).
• International Law and the Defamation of Religion Conundrum, 11 Rev. Faith & Int’l Aff. 66 (2013).
• The Most Important Three Things in the World, Life in the Law: Religious Conviction (J. Reuben Clark Law Society, BYU Law School, 2013), at 215-230 (reprinted BYU devotional address). [SSRN]
• John Banzhaf’s Fatwa against Catholic University, Sightings (Jan. 10, 2013). [SSRN]
• Comparative Constitutional Law Approaches to the Relationship of Religion and the State: Issues for the New Turkish Constitution, Just. Ass’n J. 79 (2012) (Turk.) (with W. Cole Durham, Jr.).
• Four Views of the Citadel: The Consequential Distinction between Secularity and Secularism, 6 Religion and Human Rights: An International Journal 109-26 (Martinus Nijhoff Publishers, Issue 2, 2011). [SSRN]
• Echoes from the Past: What We Can Learn About Unity, Belonging and Respecting Differences from the Flag Salute Cases, Symposium Issue: Belonging, Families, and Family Law, Presented at BYU Law School, January 28, 2011, 25 Brigham Young University Journal of Public Law, No. 2, 361-403 (2011). [SSRN]
• Symposium Introduction: The Freedom of Religion and Belief Jurisprudence of the European Court of Human Right: Legal, Moral, Political and Religious Perspectives, 26 J.L. & Religion 249 (2010-2011).
• Creation and Preservation in the Constitution of Civil Religion, Symposium, “Civil Religion” in the United States and Europe: Four Comparative Perspectives, 41 The George Washington International Law Review, No. 4, 985-1,000(2011).
• The Most Important Three Things in the World, Clark Memorandum, Spring 2010, 2-9.
• May a Public Law School Deny Recognition to a Religious Student Group Based on the School’s Nondiscrimination Policy, 37 Preview U.S. Sup. Ct. Cas. 300 (2010).
• From Identification to Secularism: Comparative Constitutional Law Approaches to Law and Religion (co-written with W. Cole Durham, Jr.), Nepal L. Rev. 33 (2009) (with W. Cole Durham, Jr.).
• Volunteerism, Charitable Giving, and Religion: The U.S. Example, 7 Rev. Faith & Int’l Aff. 61 (2009).
• Security, Religious Autonomy, and the Good Society, 5 Rev. Faith & Int’l Aff. 3 (2007).
• Does the Government Have a Compelling State Interest in Prohibiting Sacramental Use of Hoasca Tea?, 2005 Preview U.S. Sup. Ct. Cas. 52.
• Three Assumptions Lawyers Must Never Make, The Clark Memorandum 10-19 (fall 2005) (9 pages, 32 footnotes). Received Gold Medal, 2006 Case Circle of Excellence Awards Program, Council for Advancement and Support of Education.
• Religious Monopolies and the Commodification of Religion (co-written with Shima Baradaran-Robison and Elizabeth A. Sewell), 32 Pepperdine Law Review 885-943 (2005) (58 pages, 338 footnotes).
• Do Displays of the Ten Commandments on Public Property Violate the Establishment Clause?, 2005 Preview U.S. Sup. Ct. Cas. 298.
• What Constitutes “Loss Causation” in a Section 10(b) Securities Fraud on the Market Case?, 2005 Preview U.S. Sup. Ct. Cas. 225.
• The Autonomy of Church and State, 2004 Brigham Young University Law Review 1217-1348 (2004) (132 pages, 452 footnotes), featured article in symposium with responses written by Ronald R. Garet and Mark Tushnet.
• Introduction: One Nation Under God? Unity, Diversity, and Neutrality Under the Religion Clauses, Proceedings of the Annual Meeting of the Association of American Law Schools Section on Law and Religion, 2004 Proc. A.A.LS. Sec. L. & Religion, 2004 BYU L. Rev. 985..
• The Character of Legal Reasoning, 61 Washington and Lee Law Review 733 (2004) (53 pages, 146 footnotes). [SSRN]
• The Lawyer as Composer: Composing Conflict (pt. 1), Clark Memorandum, Spring 2002, at 2. [SSRN]
• The Lawyer as Composer: Composing Law (pt. 2), Clark Memorandum, Fall 2002, at 30. [SSRN]
• The Judicial Craft, 54 Vand. L. Rev. 2244 (2001). [SSRN]

Books

• The Intersection of Religious Autonomy and Religious Symbols: Setting the Stage, Subeditor Introduction to Law and Religion section of book, Adjudicating Human Rights Diversely (Liora Lazarus and Christopher McCrudden eds., Hart publishers, Oxford, forthcoming 2014).
• Law and Religion: National, International and Comparative Law Perspectives, Vietnamese Translation, (forthcoming 2014, [publisher], (co-written with W. Cole Durham, Jr.), reprinted from Aspen Press / WoltersKluer, 2010).
• Law and Religion in the United States, Encyclopedia for Religion, part of global series of monographs, International Encyclopedia of Law, published by KluerLaw (forthcoming 2014).
• Law and Religion: National, International and Comparative Law Perspectives, (2nd edition, 2014) (co-written with W. Cole Durham, Jr.) Aspen Press / Wolters Kluer, forthcoming 2014).
• Preliminary Vietnamese translation published, Law and Religion: National, International and Comparative Law Perspectives, Vietnamese Translation (2013), (co-written with W. Cole Durham, Jr.), reprinted from Aspen Press / WoltersKluer, 2010).
• Regulating Religion: Formal and Informal Mechanisms of State and Social Oversight in an Easy-Entry Registration System – the U.S. Experience, chapter in book, 2012 Beijing Forum, Peking University (in English and Chinese, 2013).
• Constitutional, Legislative and Regulatory Change Regarding Religion in China, chapter in book, Law, Religion, Constitution: Freedom of religion, equal treatment, and the law (W. Cole Durham, Jr., Silvio Ferrari, Christiana Cianitto, Donlu D. Thayer, eds.), at 247-266 (co-written with Liu Peng and Carl Hollan), Ashgate (2013).
• Laiklik’ Bir Model Terchi: Fransiz yada Amerikan (in Turkish), France and the United States: Two Models and Mythologies of Separation of Religion and the State (Neither of Which Involves Separation), chapter in book compiling papers from an International Congress on Constitutional Law, Proceedings of the International Congress on Constitutional Law: Deliberative Pluralistic Constitutionism, Bosphorus Lawyers Association (2013).
• Secularity or Secularism: Two Competing Visions for the Relationship between Religion and the State in the New Turkish Constitution, book compiling papers from the International Congress on Constitutional Law held in Istanbul, Turkey in May 2011, International Congress on Constitutional Law, Book of Papers, Vol. 3. (Anayasa Hukukcular Derengi, Istanbul University, TC Istanbul Kultur Universitesi, 2013), at 362-382 (English version), at 384-403 (Turkish version). [SSRN]
• Law and Religion: National, International and Comparative Law Perspectives, Chinese Translation, (2012, Democracy and Law Press, Min Zhu Yufazhi Zhubanshe), (co-written with W. Cole Durham, Jr.), reprinted from Aspen Press / WoltersKluer, 2010).
• The Role of Judges in Determining the Meaning of Religious Symbols, at 35-58, chapter in book, The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (Jeroen Temperman, ed.), Martinus Nijhoff Publishers, 2012.
• Law and Religion: National, International and Comparative Law Perspectives, (co-written with W. Cole Durham, Jr.) (Aspen Press / WoltersKluer, 2010).
• Footings of Mormon Conceptions of Law: Vantage Points for Understanding Constitutional Law and the Law of Religious Freedom, (co-written with W. Cole Durham, Jr. and Michael K. Young, co-authored chapter in book, Faith and Law: How Religious Traditions From Calvinism to Islam View American Law (New York University Press, 2007).
• Governance, Duty, and Accountability: Oversight of Nonprofit Organizations in the United States, co-authored chapter in book, Proceedings of the First National Training Course for Senior Chinese Charity Officials 8-27 (English version) 28-42 (Chinese version) (2006).
• Foreword (co-written with W. Cole Durham, Jr.), co-authored foreword in book, Religious Freedom in China: Policy, Administration, and Regulation – A Research Handbook v-xiii, (by Kim-Kwong Chan and Eric R. Carlson) (2005).
• Is the Pledge of Allegiance an Unconstitutional Establishment of Religion?, American Bar Association Preview of United States Supreme Court Cases 304-311 (8 pages, 0 footnotes) (Issue No. 6, March 15, 2004).
• Is an Investment Contract that Promises a Fixed Rate of Return a “Security” Under Federal Law?, American Bar Association Preview of United States Supreme Court Cases 90-93 (4 pages, 0 footnotes) (Issue No. 2, October 31, 2003).
• The Autonomy of Church and State: The Case of Religion in Public Schools, 2003 Virginia Education Law Journal 33 (2003).
• Does California Unconstitutionally Pursue Its Own ‘Foreign Policy’ by Requiring Insurance Firms to Disclose the Status of Holocaust-Era Policies?, American Bar Association Preview of United States Supreme Court Cases 409-414 (6 pages, 0 footnotes) (Issue 7, April 18, 2003).
• Is a Corporation that is Indirectly Owned by a Foreign State Immune From Suit?, American Bar Association Preview of United States Supreme Court Cases 196-200 (5 pages, 0 footnotes) (Issue 4, January 6, 2003).
• Applicability of Human Rights Standards to Private Corporations: An American Perspective, 50 The American Journal of Comparative Law 531-566 (35 pages, 231 footnotes) (co-written with Stephen G. Wood) (2002).
• Review Essay: The Impertinent Student and Stealth Prosecutor. The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law, by Alan M. Dershowitz, XVII The Journal of Law and Religion (Nos. 1 & 2) 427-434 (8 pages, 3 footnotes) (2002).
• The Lawyer as Composer: Composing Law (Part II of II), The Clark Memorandum 30-41 (12 pages, 81 footnotes) (Fall 2002). [SSRN]
• The Lawyer as Composer: Composing Conflict (Part I of II), The Clark Memorandum 2-9 (7 pages, 47 footnotes) (Spring 2002). [SSRN]
• Hot-Deck Imputation in the Decennial Census: What Counts As a Count?, Case at a Glance: State of Utah v. Evans, American Bar Association Preview of United States Supreme Court Cases 322-26 (5 pages, 0 footnotes) (Issue 6, March 13, 2002).
• Starting a Law School Youth Mentoring Program, 2002 BYU Education and Law Journal 233-254 (22 pages, 2 footnotes) (2002).
• Law as Craft, 54 Vanderbilt Law Review 2244-2347 (103 pages, 550 footnotes) (2001). A preliminary version of this article was published as, Brett G. Scharffs, The Judicial Craft, online at Stanford/Yale Junior Faculty Forum, Paper No.01-16, Social Science Research Network Electronic Library (102 pages) . [SSRN]
• Adjudication and the Problems of Incommensurability, 42 William and Mary Law Review 1367-1435 (68 pages, 172 footnotes) (2001).
• Can Lawyers Follow Christ? , The BYU Collegiate Post 5, 8 (2 pages, 0 footnotes) (Vol. 1 Issue 7, 12 September 2001).
• Is it Possible to Be a Lawyer and a Christian, Book Review: Joseph G. Allegretti, The Lawyer’s Calling: Christian Faith and Legal Practice, The Clark Memorandum 26-32 (7 pages, 0 footnotes) (Spring 2000).
• The Role of Humility in Exercising Practical Wisdom, 32 University of California Davis Law Review 127-199 (73 pages, 184 footnotes) (1998). [SSRN]
• Centering on Humility, The Clark Memorandum 2-13 (12 pages, 28 footnotes) (Winter 1998).

Conference Proceedings

• Can Public Reason Accommodate Conscience?, Conference Handbook, Chinese Academy of Social Sciences (2013).
• Freedom and Security: Beyond the Balancing Metaphor, Conference Proceedings, International Symposium: “Fighting Against Terrorism: Balancing Freedom and Security,” Istanbul, Turkey (2013).
• Regulating Religion: Formal and Informal Mechanisms of State and Social Oversight in an Easy-Entry Registration System – the U.S. Experience (full article in English and Chinese published in 2013), Beijing Forum 2012: Faith and Society: Spiritual Reflections of Global Age – Collection of Papers and Abstracts (2012), at317-19, conference proceedings of Beijing Forum 2012, Peking University, Beijing, PRC (2012).
• Protecting Religious Freedom: Two Counterintuitive Dialectics in US Free Exercise Jurisprudence, chapter in book, Freedom of Religion under Bills of Rights (Paul Babie and Neville Rochow, eds., University of Adelaide Press, 2012), at 285-320 (collecting papers from Conference, “Cultural and Religious Freedom under a Bill of Rights,” held August 2009, at the Old Parliament House in Canberra, Australia).
• Conference on Laicite in Comparative Perspective, St. Johns University School of Law, Paris, France, June 2010, conference proceedings, 49 St. John’s University Law School Journal of Catholic Legal Studies No. 1, 1-142 (2011).
• Comparative Religion-State Systems, Collected Papers from International Conference on Religion, Law and Governance in South East Asia, International Institute of Advanced Islamic Studies (IAIS) Malaysia (forthcoming 2010); published on conference web site and in collected conference materials.
• Comparative Models for Transitioning from Religious to Civil Marriage Systems, (co-written with Suzanne Disparte), Conference Proceedings, Family Law in a Multicultural Environment: Civil and Religious Law in Family Matters, International Society of Family Law Regional Conference, Tel-Aviv, Israel, 2009; reprinted in 12 Journal of Law and Family Studies 409-430 (2010) (University of Utah Law School). [SSRN]
• Religious Monopolies and the Commodification of Religion, Conference Proceedings, Conference on Law and Religion, Peking University, Beijing, China, August 2010 (written with Shima Baradaran-Robison and Elizabeth A. Sewell), reprinted from 32 Pepperdine Law Review 885-943 (2005). [SSRN]
• The Prospect of an Australian Constitutional Moment: The Debate About a Bill (or Charter) of Rights, Conference on Cultural and Religious Freedoms under a Bill of Rights, Old Parliament House, Canberra, ACT, Australia, August 13-15, published electronically on CD of Collected Conference Papers.
• Protecting Religious Freedom: Two Counterintuitive Dialectics in U.S. Free Exercise Jurisprudence, Conference on Cultural Religious and Cultural Freedom under a Bill of Rights, Old Parliament House, Canberra, ACT, Australia, August 13-15, published electronically on CD of Collected Conference Papers, forthcoming in scheduled book of conference proceedings.
• A Proposal for Teaching Human Rights and Religious Freedom in High Schools (co-written with Isabelle Kinnard, Vice President for Education, Council for America’s First Freedom), Conference Proceedings, 16th Annual Education Law Conference, University of Southern Maine, University of Maine School of Law, published online by The West Education Network (TWEN), at. [SSRN]
• Religion in the Schools: An Update on Current Issues and Landmines (co-written with Frank S. Ravitch, Professor of Law, Michigan State University College of Law), Conference Proceedings, 16th Annual Education Law Conference, University of Southern Maine, University of Maine School of Law, published online by The West Education Network (TWEN), at . [SSRN]
• Cyberspace and the Schoolhouse Gate: A Framework for Evaluating the Regulation of Sexting, Cyberbullying, Hate Speech and other Online Student Speech (co-written with Kenneth R. Pike, J.D., BYU Law School, PhD Candidate Arizona State University), Conference Proceedings, 16th Annual Education Law Conference, University of Southern Maine, University of Maine School of Law, published online by The West Education Network (TWEN), at. [SSRN]
• Religion in the Schools: An Update on Current Issues and Trends (co-written with Frank S. Ravitch, Professor of Law, Michigan State University College of Law), Conference Proceedings, Seventh Commonwealth Education Law Conference, Critical Issues in Education Law and Policy 59-68 (LexisNexis, 2009).
• Cyberbullying and the Schoolhouse Gate: A Framework for Evaluating the Regulation of Online Student Speech (with Kenneth R. Pike, BYU Law School, J.D. 2009), Conference Proceedings, Seventh Commonwealth Education Law Conference, Critical Issues in Education Law and Policy 127-135 (LexisNexis, 2009).
• Response to Supana Malla Pradham, Member Constituent Assembly, Human Rights and Secularism Panel, published on conference web site for International Conference on the Constitution Making of Nepal, February 2009.
• Comparative Approaches to Legislation Concerning Law and Religion, Conference Proceedings, Religion and Rule of Law: The Legal System and Religion in a Harmonious Society, 12-46 (Institute of World Religions, Chinese Academy of Social Sciences, 2008) (published in English and Chinese).
• Responding to the Competing Claims of State Security and Religious Autonomy, Conference Proceedings, Religious Liberty as a Means of Increasing Religious Tolerance (Mongolian Council on Religious Affairs, 2008) (published in English and Mongolian).
• Navigating the Treacherous Waters of Religion in the Schools: An Update (co-written with Kristi L. Bowman, Assistant Professor of Law, Michigan State University College of Law), Sixth Commonwealth Education Law Conference, Critical Issues in Education Law and Policy (LexisNexis, 2008).
• A Proposal for Teaching Human Rights and Religious Freedom in High Schools (co-written with Isabelle Kinnard, Vice President for Education, Council for America’s First Freedom), Sixth Commonwealth Education Law Conference, Critical Issues in Education Law and Policy (LexisNexis, 2008).
• The Integration of Federal, State and Informal Mechanisms in the Regulation of Charities in the United States, Theses Collection of the International Symposium on Charity Legislation of China (pgs. 140-153, Chinese version) (2007).
• The Integration of Federal, State and Informal Mechanisms in the Regulation of Charities in the United States, Collected Papers of the International Symposium on Charity Legislation of China (English version) (2007).
• Charitable and Economic Activities of Religious Groups, Collected Papers of International Conference on Religion and the Rule of Law in Southeast Asia: Continuing the Discussion (English and Vietnamese versions) (2007).
• School Reform, Diversity in Education and in the Profession: What ELA Can Do To Help, (co-written with Sarah Redfield), Proceedings of the Education Law Association 53rd Annual Conference, Education and Society: Accountability, Safety & Climate (2007).
• Responding to the Competing Claims of State Security and Religious Autonomy, chapter in conference proceedings, Selected Papers from the International Conference on Law and Religion in Transitional Societies: Comparative Approaches to the Rule of Law, Oslo, Norway (published in English (pgs. 65-77) and Chinese (pgs. 216-222) (2006).
• The State and Religious Communities in the United States: The Tension Between Freedom and Equality, (co-written with W. Cole Durham, Jr.), co-authored chapter in book, Church and State: Towards Protection For Freedom of Religion, Proceedings of International Conference on Comparative Constitutional Law, 2005, Tokyo, Japan (published in Japanese (pgs. 317-361) and English (pgs. 362-406), The Japanese Association of Comparative Constitutional Law (2006)).
• Religion in Public Schools: An Update, (co-written with Frank S. Ravitch), co-authored chapter in book, Critical Issues in Education Law and Policy, Fourth Commonwealth Education Law Conference 9-14 (2006 LexisNexis).
• Student Aspiration and Achievement: Working in Partnership Along the Educational Pipeline From Preschool to Professional School, (co-written with Sarah E. Redfield), co-authored chapter in book, Critical Issues in Education Law and Policy, Fourth Commonwealth Education Law Conference 45-60 (2006 LexisNexis).
• The United States Law of Charities: A Summary, (co-written with W. Cole Durham, Jr. and Michael Durham), co-authored chapter in book, Proceedings of the First International Charity Law Comparative Seminar 239-268 (Chinese version) 269-308 (English version) 2005.
• An Analytic Framework for Understanding and Evaluating the Fiduciary Duties of Educators, (co-written with John W. Welch), 2005 BYU Education and Law Journal 159-230 (71 pages, 214 footnotes) (Vol. 2005, No. 2); reprinted in Conference Proceedings, 2005 Main Education Law Conference. [SSRN]
• How to Start and Manage a Collaborate Law School Youth Mentoring Program, (co-written with Betsy Fowler), co-authored chapter in book, Critical Issues in Education Law and Policy 217-225, Conference Proceedings, Third Virginia Education Law Conference, LexisNexis (2005).
• Reconceptualizing the Fiduciary Duties of Educators, co-authored chapter in book, Critical Issues in Education Law and Policy, Conference Proceedings, Second Virginia Education Law Conference, LexisNexis (2004) (co-written with John W. (Jack) Welch) (19 pages, 110 footnotes).
• Emerging International Efforts to Combat Corruption: Sea Change or Passing Squall, chapter in book, Conference Proceedings, BYU International Society 14th Annual Conference, The Gospel, Professional Ethics, and Cross-Cultural Experience (2004) (19 pages, 118 footnotes).

Speeches

• The Most Important Three Things in the World, 2009-2010 BYU Speeches 13-29 (2010). [SSRN]

Briefs

• Brief of Amici Curiae Michael J. Perry, Daniel O. Conkle and Brett G. Scharffs, Professors of Law in Support of Opposing a Ruling Based on Voter’ Motivations, 574 U.S. 874 (2014) (No. 14-124).
• Brief of Amici Curiae Stephen G. Calabresi, Daniel O. Conkle, Michael J. Perry, and Brett G. Scharffs, Professors of Law in Support of Neither Party and Neither Affirmance Nor Reversal, 755 F.3d 1193 (2014) (No. 13-4178). [SSRN]