Digital Commons Network^™

The Knowledge Guild: The Legal Profession In An Age Of Technological Change, Paul F. Kirgis

Nevada Law Journal

No abstract provided.

Table Of Contents, Board Of Editors, Law School Faculty And Administration

Nevada Law Journal

No abstract provided.

Masculinities, Post-Racialism And The Gates Controversy: The False Equivalence Between Officer And Civilian, Frank Rudy Cooper

Nevada Law Journal

No abstract provided.

Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter

Nevada Law Journal

No abstract provided.

Abraham Lincoln As A Legal Writer, Judith D. Fischer

Nevada Law Journal

No abstract provided.

Ending Surprise Liens On Real Property, Chad J. Pomeroy

Nevada Law Journal

No abstract provided.

A Guy Walks Into A Bar: Gender Discriminatory Pricing And Admission Policies In Las Vegas Establishments, Shana S. Brouwers

Nevada Law Journal

No abstract provided.

Free Speech And The Military Recruiter: Reaffirming The Marketplace Of Ideas, Charles G. Kels

Nevada Law Journal

No abstract provided.

Broadening Access To Justice In Nevada By Defining The Practice Of Law, Karlee M. Phelps

Nevada Law Journal

No abstract provided.

Animal Law In Nevada: All Bark And No Bite, Kathleen Wilde

Nevada Law Journal

No abstract provided.

Court-Annexed Arbitration And Nevada's Unique Penalty Provisions: Introducing An Arbitrator's Findings At A Trial De Novo, Paul C. Williams

Nevada Law Journal

No abstract provided.

Table Of Contents, Editorial Board, Law School Faculty And Administration

Nevada Law Journal

No abstract provided.

Feeding The Right Wolf: A Niebuhrian Perspective On The Opportunities And Limits Of Mindful Core Concerns Dispute Resolution, Jeffrey W. Stempel

Nevada Law Journal

This Article offers a few observations regarding both the promise and the difficulties faced in using mindful core concerns dispute resolution. Part II focuses on the difficulties faced by mindful negotiators and mediators when confronted with disputants who are too adversarial, selfish, unrealistic, or unresponsive to overtures for interest-based bargaining--even after skilled attempts to neutralize whatever negative emotions may be fueling their counterproductive behavior. In making these assessments and suggestions, the Article relies significantly on the work of Reinhold Niebuhr. Appreciation of Niebuhr's insights can assist mindful negotiation by helping the negotiator to distinguish those situations amenable to the cooperative …

The National Conference Of State Legislatures’ Attempt To Reform The Initiative Process: What Nevada Needs To Do To Heed The Ncsl’S Advice, Miranda Mahe

Nevada Law Journal

This article examines the initiative process. Currently, twenty-four states utilize the initiative process in one form or another as a popular way for their citizens to directly voice their opinion on what laws they want passed. Unfortunately, the process is somewhat prone to fraud. A petition’s proponents usually pay circulators for each signature they obtain, whether or not the Secretary of State ultimately validates it.

In Part II, this Note looks at the history of the initiative process, the initiative process in Nevada, in particular, and the National Conference of State Legislature’s recommendations. Part III analyzes which recommendations Nevada has …

Desperate Doctors And Antitrust Laws: The Best Ways For Lawmakers To Simulate Physician Collective Bargaining, Cristina Olson

Nevada Law Journal

This Note will examine the legality of bills that open up physician collective bargaining—and what kind of provisions lawmakers should include to ensure legality and good policy. Given the current economic downturn, states must look for ways to make health insurance more affordable; a low-cost adjustment of collective bargaining rules may be a good solution. Such an adjustment would not be the only, or necessarily the best, solution to the healthcare cost crisis that exists in America, but it would be worthwhile for legislators to consider. Furthermore, if lawmakers craft legislation that puts state governments in charge of actively supervising …

Using Mindfulness Practice To Work With Emotions, Deborah Calloway

Nevada Law Journal

The most important point to understand is that working with and understanding our own emotional reactions is an essential prerequisite to working skillfully with emotionally charged individuals in disputes. Training in “mediation techniques” designed to help us recognize and work with emotions in the mediation and negotiation context will not work unless we have practiced working with our own emotions consistently in our ordinary lives. Otherwise, in the heat of the moment during a negotiation or mediation, we are likely to forget every technique we have learned. Habitual patterns of behavior simply take hold.

This article seeks to provide some …

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

The Politics Of Supplementing Failure Under No Child Left Behind: How Both Left And Right Are Forcing Low-Income Children To Choose Between A Deficient Education And Working Overtime, Monica Teixeira De Sousa

Nevada Law Journal

This Article analyzes NCLB's Supplemental Educational Services provision and exposes its shortcomings. Part I introduces the voluntary overtime work approach of SES and highlights its flaws and limitations. Research reveals that the voluntary overtime work model is designed for the exceptional student and does not provide meaningful opportunities to the majority of students in under-performing schools. Part II presents the legal and political context in which policymakers created SES and shows how they failed to assess realistically the many challenges facing students today. In particular, the legislative history reveals that ideology--a blend of free-market and “pull yourself up by your …

You Drank My Milkshake! Accusations Of Water Rights Takings In Estate Of Hage V. United States, Holly E. Cheong

Nevada Law Journal

This Note examines both the physical and regulatory takings of water rights found in Estate of Hage and provides an analysis of how takings law should apply to water rights. Part II of this Note provides a brief background of takings law under the Fifth Amendment of the Constitution with a focus on case law involving water rights. Parts III and IV review the history of the Estate of Hage case and focus on the recent Estate of Hage decision, including Judge Smith's logic for finding that there was a taking of water rights. In Part V, this Note analyzes …

When The Governor Legislates: Post-Enactment Budget Changes And The Separation Of Powers In Nevada, Joanna M. Myers

Nevada Law Journal

This Note addresses two key questions. First, it addresses whether Governor Gibbons's attempt to unilaterally cut the budget violates Nevada law and the Nevada Constitution. Second, it addresses whether the Governor's continued spending of federal stimulus money pursuant to allegedly delegated authority also violates Nevada law and the presentment requirements of the Nevada Constitution. Alternatively, would a Nevada statute granting the Governor power to unilaterally increase, reduce, or withhold the budget of state agencies constitute an excessive and unconstitutional delegation of legislative power to the Governor?

This Note attempts to answer this question through a multi-faceted and detailed discussion examining …

Reduced Discretion In Corporate Governance As Applied To The Pharmaceutical Industry In Nevada, Timothy Koval

Nevada Law Journal

This Note focuses on an education-based alternative to promote effective interactions between pharmaceutical corporations and physicians that benefit patients while allowing these corporations to exercise business discretion. Specifically, educational programs that teach physicians how to interact with pharmaceutical corporations most effectively may maximize the benefits for all parties involved. Although many of the arguments presented may be extended to corporations that sell or market medical devices or appliances, their application in that context is beyond the scope of this Note. In Part II, this Note discusses the background of corporate decision-making and its application in the pharmaceutical industry in Nevada. …

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

Nevada Law Journal

The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater …

Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook

Nevada Law Journal

Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject …

Covenants Not To Compete In Nevada: A Proposal, Elham Roohani

Nevada Law Journal

This Note offers a balanced standard for Nevada's restrictive covenant laws in the employment context. First, Part I defines “covenants not to compete” and explains how they have developed. Second, Part II examines other states' treatment of restrictive covenants in the employment context. Third, part III proposes a solution for Nevada that balances tensions between employers and employees in light of Nevada's unique workforce and economic makeup. By discussing Nevada's specific considerations, this Note aims to guide Nevada's legislators when discussing and adopting new laws respecting covenants not to compete.

Book Review: Bob Rains, True Tales Of Trying Times: Legal Fables For Today (2008), Erik M. Jensen

Nevada Law Journal

In this jewel of a book, Rains presents a collection of fifty-two fabulous "legal fables," each describing real judicial decisions from the last four or five years- in that respect, not fables at all. Unlike the typical law review article, his book actually deals with the law. And Rains's poetic commentary accompanies all the fables. Like much of Rains's work, the book has both rhyme and reason.

Annual Saltman Lecture: Further Beyond Reason: Emotions, The Core Concerns, And Mindfulness In Negotiation, Leonard L. Riskin

Nevada Law Journal

This article focuses on one particularly common problem: Sometimes people who understand the Core Concerns System, know how to use it, and intend to employ it in a particular negotiation, either fail to do so or fail to do so skillfully; when they review the negotiation, they regret not having used the Core Concerns System, and believe that using it would have produced a better process and outcome. When this occurs, it often results from deficits or faults in the negotiator's awareness.

It follows that a negotiator can enhance his ability to employ the Core Concerns System through improving his …

Yes, And: Core Concerns, Internal Mindfulness, And External Mindfulness For Emotional Balance, Lie Detection, And Successful Negotiation, Clark Freshman

Nevada Law Journal

This article suggests that both parts of Leonard Riskin's latest article and parts of the argument on “core concerns” by Roger Fisher and Dan Shapiro may, with certain individuals in certain circumstances, not work. Indeed, focusing on core concerns may even produce less functional emotions and therefore decrease the chances of an optimal outcome. This article addresses the limitations inherent within the core concerns approach and suggests “external mindfulness” as a complementary skill to check when core concerns help and when other tools, including both internal and external mindfulness, may help as well as--or better than--the core concerns approach. We …

What Does It Mean To Do The Right Thing?, Ran Kuttner

Nevada Law Journal

This Article will explore how the practice of mindfulness and the cultivation of wisdom as understood in the Buddhist philosophy can help develop a mindset that will assist lawyers and conflict resolution specialists to make conscious ethical decisions and to do the “right thing” in different situations. It will draw a distinction between the two central terms, “mindfulness” and “wisdom,” clarify the philosophical underpinnings of “wisdom,” introduce foundational concepts in Buddhist philosophy, and suggest that in order to cultivate the aforementioned mindset, it is important to go beyond “mindfulness” and meet the challenges that the cultivation of “wisdom” pose. Part …

Mindfulness, Emotions, And Mental Models: Theory That Leads To More Effective Dispute Resolution, Peter Reilly

Nevada Law Journal

This Article suggests that law students and lawyers can be introduced to, and even begin to master, some of the same transformational principles, skill sets, and behaviors that poured forth from FDR as a result of his intense physical and personal challenges. At the core of nearly all great negotiators, mediators, lawyers, and leaders is a person who has learned to connect with other people, that is, to build relationships of trust, cooperation, and collaboration. Additionally, this Article argues that where people first learn a sense of self and others through both theoretical and practical knowledge and understanding of mindfulness …

Lawyers In Character And Lawyers In Role, Katherine R. Kruse

Nevada Law Journal

This essay explores the possibilities that Leonard Riskin's call for the development of the trait of mindfulness offers for the discussion of lawyers' roles and lawyers' characters in legal ethics. First, the article explains three ways that the problems associated with legal professionalism have been framed within legal ethics, and critique the underlying assumptions that animate the dominant framing of the problems of professionalism in legal ethics. Next, it expounds the work of the two most prominent legal ethicists who have proposed the development of distinctively lawyerly character traits: Anthony Kronman's call for the revival of a “lawyer-statesman” ideal in …