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Articles 1 - 19 of 19
Full-Text Articles in Law
Gonzalez V. State, 131 Nev. Adv. Op. 99 (Dec. 31, 2015), Chelsea Stacey
Gonzalez V. State, 131 Nev. Adv. Op. 99 (Dec. 31, 2015), Chelsea Stacey
Nevada Supreme Court Summaries
The Court, sitting en banc, determined that by failing to answer questions from the jury that suggested confusion on a significant element of the law, failing to give an accomplice-distrust instruction, and by not bifurcating the guilt phase from the gang enhancement phase the district court violated the defendant’s right to a fair trial.
Scott V. First Jud. Dist. Ct., 131 Nev. Adv. Op. 101 (Dec. 31, 2015), Adrian Viesca
Scott V. First Jud. Dist. Ct., 131 Nev. Adv. Op. 101 (Dec. 31, 2015), Adrian Viesca
Nevada Supreme Court Summaries
The Court determined that Carson City Municipal Code (“CCMC”) 8.04.050(1) is (1) unconstitutionally overbroad because it “is not narrowly tailored to prohibit only disorderly conduct or fighting words” and (2) vague because it lacked sufficient guidelines and gave the police too much discretion in its enforcement.
Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp
Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp
Nevada Supreme Court Summaries
The issue before the Court was an appeal from a district court order dismissing a post-conviction petition for writ of habeas corpus. The Court reversed and remanded holding that the district court improperly discounted the declarations in support of the appellant’s petition, which included a confession of another suspect, whom the petitioner implicated as the real perpetrator at trial. The Court held that these declarations were sufficient to merit discovery, and an evidentiary hearing on Petitioner Berry’s gateway actual innocence claim.
Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan
Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan
Nevada Supreme Court Summaries
For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.
Summary Of Nevada Department Of Transportation V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 41 (June 25, 2015), Jessica Gandy
Summary Of Nevada Department Of Transportation V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 41 (June 25, 2015), Jessica Gandy
Nevada Supreme Court Summaries
The Court determined, pursuant to the U.S. Constitution, as well as the Nevada Constitution, there was no taking of Ad America’s property because the Nevada Department of Transportation publicly disclosed its plan to comply with federal law, the City independently acquired property that was part of Project Neon, and the City rendered land use application decisions conditioned on coordination with the Nevada Department of Transportation for purposes of Project Neon.
Summary Of Manning V. State, 131 Nev. Adv. Op. 26 (May 7, 2015), Scott Lundy
Summary Of Manning V. State, 131 Nev. Adv. Op. 26 (May 7, 2015), Scott Lundy
Nevada Supreme Court Summaries
The Court held that it is a constitutional error when the district court fails to notify and confer with the parties when the court receives and responds to a note from the jury indicating that they are deadlocked. The Court further held such error will be reviewed for harmlessness beyond a reasonable doubt.
Summary Of Pitmon V. State, 131 Nev. Adv. Op. 16 (Mar. 26, 2015), Aleem Dhalla
Summary Of Pitmon V. State, 131 Nev. Adv. Op. 16 (Mar. 26, 2015), Aleem Dhalla
Nevada Supreme Court Summaries
The Court determined that (1) NRS 176.035(1) was not unconstitutionally vague, (2) is its grant of discretion to district court judges was not unconstitutionally arbitrary, and (3) Nevada’s sentencing scheme does provide meaning appellate review of district court sentencing.
Summary Of Torres V. The State Of Nevada, 131 Nev. Adv. Op. 2, Jenn Odell
Summary Of Torres V. The State Of Nevada, 131 Nev. Adv. Op. 2, Jenn Odell
Nevada Supreme Court Summaries
The Court determined (1) an investigative stop under NRS 171.123 is transformed into an illegal seizure in violation of the Fourth Amendment when an officer retains a pedestrian’s identification after the suspicion for the original encounter is cured and there is no longer reasonable suspicion to detain the pedestrian; (2) without reasonable suspicion, the discovery of an arrest warrant cannot purge the taint from an illegal seizure.
Summary Of Buzz Stew, Llc V. City Of North Las Vegas, Nevada, 131 Nev. Adv. Op. 1, Stacy Newman
Summary Of Buzz Stew, Llc V. City Of North Las Vegas, Nevada, 131 Nev. Adv. Op. 1, Stacy Newman
Nevada Supreme Court Summaries
The Court determined that (1) in Buzz Stew I, the Court found no taking occurred under Art. 1 Sec. 8(6) of the Nevada Constitution, and Buzz Stew did not properly amend their complaint to pursue a new taking claim, and (2) a new trial is unwarranted because Buzz Stew cannot prove a taking and the district court did not clearly err by refusing to find a taking and awarding costs to the City.
Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf
Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf
Scholarly Works
This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue …
Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin
Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin
Scholarly Works
Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Scholarly Works
Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
Scholarly Works
Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
Scholarly Works
In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional …
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Scholarly Works
The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
Scholarly Works
For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have re-affirmed plenary power. Instead, the Court produced a splintered decision that did neither. This essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.
Confrontation After Ohio V. Clark, Anne R. Traum
Confrontation After Ohio V. Clark, Anne R. Traum
Scholarly Works
The Supreme Court’s decision in Ohio v. Clark, provides an occasion to take stock of the Sixth Amendment Right to Confrontation since the court’s landmark 2004 decision in Crawford v. Washington. Crawford strengthened a defendant’s right to confront his accusers face-to-face, underscoring that cross-examination is the constitutionally preferred method for testing the reliability of accusatory statements. Clark could eliminate that right in a wide range of cases where, although the reliability of a declarant’s out-of-court statements is critically important, a defendant has no right to confrontation.
Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger
Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger
Scholarly Works
Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the …
Two Dogmas Of Originalism, Ian C. Bartrum
Two Dogmas Of Originalism, Ian C. Bartrum
Scholarly Works
In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at …