Law Commons^™

What Did Those Sixteen Justices Say?, Leslie C. Griffin

Scholarly Works

Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

Redefining The Badges And Incidents Of Slavery, Nicholas Serafin

Badges & Incidents

No abstract provided.

Nomos And Nation: On Nation In An Age Of "Populism", John Valery White

Scholarly Works

Robert Cover's Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals' ability to participate in the development of an idea of nation, is necessary to avoid "a total crushing of the jurisgenerative character" of nomoi by the state, or by …

Supreme Risk, Benjamin P. Edwards

Scholarly Works

While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.

SROs are …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Scholarly Works

No abstract provided.

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Scholarly Works

This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

Scholarly Works

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …

Brief For New Ways Ministry Et Al. As Amici Curiae Supporting Plaintiff, Koenke V. Saint Joseph University, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Our Lady Of Guadalupe School V. Morrissey-Berru, Leslie C. Griffin

Court Briefs

No abstract provided.

Brief For Miguel H. Diaz Et A. As Amici Curiae Supporting Respondents, Fulton V. City Of Philadelphia, Leslie C. Griffin, Marci A. Hamilton

Supreme Court Briefs

No abstract provided.

Brief For Child Usa Et Al. As Amici Curiae Supporting Respondents, Little Sisters Of The Poor Saints Peter And Paul Home V. Pennsylvania, Leslie C. Griffin

Court Briefs

No abstract provided.

Cruzan And Surrogate Decision-Making, David Orentlicher

Scholarly Works

When the U.S. Supreme Court issued its landmark “right to die” decision in Cruzan v. Director, Missouri Department of Health thirty years ago, the dissenting Justices and many observers criticized the Court for rejecting a right of Nancy Cruzan’s parents to refuse medical care on her behalf. Ms. Cruzan had not written a living will or a durable power of attorney, nor did it appear that she had left clear oral instructions about her wishes. But she did have loving parents who were dedicated to doing what was best for her. Nevertheless, according to the Cruzan Court, “If the State …

Diploma Privilege And The Constitution, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol M. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

Scholarly Works

The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.

State Supreme Courts are …

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

Scholarly Works

No abstract provided.

Nevada V. Inzunza, 135 Nev. Adv. Op. 69 (Dec. 26, 2019), Christopher Gonzalez

Nevada Supreme Court Summaries

The Court affirmed a pretrial motion to dismiss of an indictment after it determined that the State failed to rebut the presumption of prejudice after an analysis under the Barker-Doggett factors. The Court afforded “the only possible remedy” after it was found that a 26 month delay resulted from the State’s gross negligence and the delay was prejudicial to Inzunza.

Anderson V. State, 135 Nev. Adv. Op. 56 (Nov. 27, 2019), Tayler Bingham

Nevada Supreme Court Summaries

The Court determined that (1) when the government relies on the forfeiture exception of the Confrontation Clause to introduce a witness’s out-of-court statements, the burden of proof the litigant must meet is that of preponderance of the evidence; and (2) that a trial court does not abuse its discretion in denying a motion to substitute counsel and thereby violate the Sixth Amendment right to counsel when the trial court holds a Young hearing for each motion and enough evidence indicates there is not a complete breakdown in the attorney-client relationship.

(In Re Guardianship Of Carmen Wittler) Wittler V. Wittler, 135 Nev. Adv. Op. 31 (Aug. 01, 2019), Mckay Holley

Nevada Supreme Court Summaries

No abstract provided.

U.S. Bank Nat’L Ass’N Nd Vs. Resources Grp., Llc, 135 Nev. Adv. Op. 26 (July 3, 2019), Christopher Gonzalez

Nevada Supreme Court Summaries

The Court determined that (1) previous case law and the NRS require an HOA that is seeking to foreclose a superpriority lien to send the holder of a recorded first deed of trust a notice of default and notice of sale, even when they have not been formally requested. Additionally, they held that (2) the district court would have to decide questions of fact to determine whether Resources Group was a bona fide purchaser.

Cameron V. Eighth Judicial Dist. Court In & For Cty. Of Clark, 135 Nev. Adv. Op. 28, 445 P.3d 843, Manuel Gurule

Nevada Supreme Court Summaries

Timmie Cameron filed a writ of mandamus challenging the district court’s ruling to increase both his bail from $25,000 to $100,000 and his level of monitoring from mid-level electronic monitoring to house arrest.The Court ruled the district court did not establish a good cause to warrant the bail increase and writ relief was granted.

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.

Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette

Nevada Supreme Court Summaries

The Court determined that the trial judge’s actions during jury selection rose to the level of judicial misconduct in response to a prospective juror indicating she could not be unbiased. These actions could have impeded Azucena’s right to a fair trial with an impartial jury as the court feared that the potential jurors would not have been able to answer candidly about any biases they may have had.

Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar

Nevada Supreme Court Summaries

In light of recent statutes limiting the right to bear arms for people convicted of misdemeanor battery constituting domestic violence, the Court determined that because the Legislature reclassified misdemeanor battery in that context to constitute a serious offense, those convicted of it are entitled to a jury trial.

Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), James Puccinelli

Nevada Supreme Court Summaries

The Court held that NRS § 1.428 is constitutional. Thus, hearing masters are subject to the Nevada Commission on Judicial Discipline’s jurisdiction.

Petition For Writ Of Certiorari, Gallagher V. Diocese Of Palm Beach, Inc., Leslie C. Griffin, Marci A. Hamilton

Supreme Court Briefs

No abstract provided.

Political Dysfunction And Constitutional Structure, David Orentlicher

Scholarly Works

In this essay, Professor Orentlicher reviews three books that analyze different features of the U.S. political system:

1. Michelle Belco & Brandon Rottinghaus, The Dual Executive: Unilateral Orders in a Separated and Shared Power System (Stanford Univ. Press 2017).

2. Richard A. Posner, The Federal Judiciary: Strengths and Weaknesses (Harvard Univ. Press 2017).

3. Martin H. Redish, Judicial Independence and the American Constitution: A Democratic Paradox (Stanford Univ. Press 2017).

Made In Taiwan: Alternative Global Models For Marriage Equality, Stewart Chang

Scholarly Works

This Article comparatively analyzes the judicial decisions that led to same-sex marriage equality in Taiwan, South Africa, and the United States. After first evaluating the structural mechanisms that led Taiwan to become the first Asian nation to legalize same-sex marriage through Interpretation No. 748 of the Taiwan Constitutional Court, this Article then draws comparisons to how marriage equality was similarly affected through a delayed imposition of the court order in South Africa to allow the legislature an opportunity to rectify the law in Minister of Home Affairs v. Fourie, and finally considers how these approaches provide equally viable and more …

Cooper V. State, 134 Nev. Adv. Op. 104 (Dec. 27, 2018), Christi Dupont

Nevada Supreme Court Summaries

The Court determined that removing a potential juror on the basis of race is a violation of the Equal Protection Clause and held that the district court erred when it did not find a prima facie showing of race-based discrimination during the jury selection process.

State V. Second Judicial Dist. Court. (Hearn (Matthew)), 134 Nev. Adv. Op. 96 (Dec. 6, 2018) (En Banc), Taylor Buono

Nevada Supreme Court Summaries

The Court affirmed the district court’s decision and held that the prosecutorial consent provision in NRS 176A.290 violated the Nevada Constitution’s separation of powers doctrine. Furthermore, the Court struck the offending language, finding that the provision could be severed from the statute without impacting the legislature’s intent.

Granada-Ruiz V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 57 (Aug. 2, 2018) (En Banc), Sara Schreiber

Nevada Supreme Court Summaries

The Court concluded that double jeopardy did not prohibit the appellant’s retrial because he had implied consent to the district court’s declaration of a mistrial. Further, it held that the district court did not abuse its discretion in finding manifest necessity to declare a mistrial. Thus, the Court denied the appellant’s petition for a writ of mandamus that would direct the district court to grant his motion to dismiss and bar his re-prosecution.

Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick

Nevada Supreme Court Summaries

The Court determined that the First Amendment does not allow a court to prevent the press from reporting on a redacted autopsy report already released to the public.