Law Commons^™

Citizenship Of The Union, Governance, And Equality, Robin C.A. White

Fordham International Law Journal

This Article focuses on the effects of introduction of citizenship of the European Union (or “Union”) into the Treaty establishing the European Community (the “EC Treaty”) by the Maastricht Treaty. It has been accompanied by an explosion of writing on its significance for the development of the European Union. Some of this writing is critical; some questions whether Union citizenship can be a “genuine” citizenship or is rather an ill-judged attempt to create a European identity where none exists. It is not the writers alone who have examined citizenship; lawyers and the courts have also done so. The Court of …

Standards Of Proof And Standards Of Judicial Review In European Commission Merger Law , Tony Reeves, Ninette Dodoo

Fordham International Law Journal

This Article considers, in light of the judgment in Tetra Laval ECJ, what standard the Commission's decisions in the field of merger control must satisfy if they are to withstand judicial scrutiny, and whether the Commission's concerns that the standard has been raised are justified. We also consider how the Courts' review of Commission decisions has evolved, what the standard of such judicial review now is, and what margin of appreciation is left to the Commission. Along the way, some observations are made as to how the position could be clarified further so as to ensure a satisfactory competition law …

International Law At Fordham Law School, Joseph C. Sweeney

Fordham International Law Journal

As we celebrate Fordham Law School's Centennial and pause to examine its history from a number of vantage points, this piece will describe the evolution of the international law program at the Law School, its current place in the course of study, and plans for its future development.

The Children Left Behind: Roma Access To Education In Contemporary Romania, Aram A. Schvey, Martin S. Flaherty, Tracy E. Higgins

Fordham International Law Journal

This Report concludes a full-year project conducted by the Joseph R. Crowley Program in International Human Rights at the Fordham University School of Law. The 2004-2005 Crowley Fellow, Aram Schvey, taught a human-rights seminar on Roma Access to Education in Contemporary Romania. The course culminated in a two-week-long human-rights fact-finding mission to Romania that he organized. During the course of the mission, the students and faculty members traveled hundreds of miles across Romania and spoke to dozens of Roma and non-Roma students and parents, as well as teachers, principals, human rights advocates, government officials, and members of international organizations, such …

Review Of Human Rights: Between Idealism And Realism, Steven R. Ratner

Reviews

For centuries, moral philosophers have regarded ethics and justice in the international plane as part of their domain. The move from the personal to the societal or national to the global seems effortless. In recent years, philosophers in ethics have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits better treatment of an individual’s co-nationals; while those in politics have revisited issues of international justice through, for instance, works on human rights and just war theory. These two bodies of work both address what constitutes a just world and what role the …

Commentary: Grades- Achievement, Attendance, Or Attitude, Anne Dupre, John Dayton

Scholarly Works

This article addresses the impact that grades can have on the lives of students and discusses what grades actually represent in terms of student achievement. It also addresses disputes involving grading policies that allowed non-academic factors in decisions on grades or academic credit. The article includes a brief summary of the history and legal theories related to grading challenges and then provides a review of the relevant case law including Board of Curators of the University of Missouri v. Horowitz, Barnard v. Inhabitants of Shelburne, Tinker v. Des Moines, Goss v. Lopez, Knight v. Board of education, Gutierrez v. School …

Lending A Helping Hand?: A Guide To Kentucky’S New Predatory Lending Law, Kent H. Barnett

Scholarly Works

The purpose of this note is to furnish the consumer advocate with an in-depth analysis of Kentucky's new predatory lending law by examining the basic structure of the statute, and its ambiguities, faults, and remedies. Practitioners will understand the impact the law may have on high-cost home loans, the potential traps that await their clients, and the provisions that require amending.

Part I discusses the applicability of the statute. Part II focuses on Kentucky's limitations that dovetail HOEPA requirements for high-cost home loans. Part III discusses provisions of the Kentucky law that require much more than, or in some cases …

Apprendi, Blakely And Federalism, Peter B. Rutledge

Scholarly Works

The Clark Y. Gunderson Lecture is a memorial to a man who devoted his life to legal education and spent thirty years teaching at the Law School. It is supported by a trust fund in the University of South Dakota Law School Foundation established principally by Colonel Gunderson's family. Professor Rutledge delivered the 2004 Gunderson Lecture at the Law Review's Symposium on Sentencing and Punishment, which took place at the Law School on November 5, 2004. What follows is an adapted version of Professor Rutledge's lecture.

Looking Ahead: October Term 2006, Peter B. Rutledge

Scholarly Works

October Term 2006 will be the first full opportunity for Court-watchers to assess the impact of recent changes in the Court's membership. It will be Chief Justice Roberts' second full term and Justice Alito's first. It also will provide the first full term in which to assess whether Justice Kennedy will reclaim his role as "swing justice." Accompanying these changes in the Court's personnel will be a docket full of interesting cases on topics such as the constitutionality of racial diversity programs, abortion, environmental law, punitive damages, and criminal procedure. Consistent with prior contributions to this series, this essay offers …

To Judge Leviathan: Sovereign Credit Ratings, National Law, And The World Economy, Christopher Bruner, Rawi Abdelal

Scholarly Works

Recent decades have witnessed the remarkable rise of a kind of market authority almost as centralized as the state itself – two credit rating agencies, Moody’s and Standard & Poor’s. These agencies derive their influence from two sources. The first is the information content of their ratings. The second is both more profound and vastly more problematic: Ratings are incorporated into financial regulations in the United States and around the world. In this article we clarify the role of credit rating agencies in global capital markets, describe the host of problems that arise when their ratings are given the force …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2004 courts in the Eleventh Circuit addressed several Clean Water Act issues. The Eleventh Circuit Court of Appeals arguably expanded the scope of the injuries a plaintiff may allege to have standing to sue under the Clean Water Act. The court held that the federal court had jurisdiction over a Clean Water Act citizen suit alleging violations of a permit issued by the State of Georgia under its permitting program authorized under the Act. The Eleventh Circuit also addressed whether a Florida state regulation effectively revised or added to the state's Clean Water Act, which mandated water quality standards, …

Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for one count of attempted sexual assault.

Summary Of Cheung V. Dist. Ct., 121 Nev. Adv. Op. 83, 124 P.3d 550, Richard D. Chatwin

Nevada Supreme Court Summaries

Plaintiff Amy Cheung was involved in a two-car accident with defendant Amber Schlauder. Cheung retained an attorney and sued Schlauder in the Las Vegas Township Justice Court, seeking $5,000 for medical expenses. Schlauder also retained an attorney and filed a motion to move the case from “small claims court to justice’s court” in order for Schlauder to receive a jury trial.2 The motion was denied by the small claims referee on the grounds that small claims court and justice court are one in the same. The referee also found Schlauder liable in the amount of $5,000. Schlauder then filed a …

Summary Of Flores V. State Of Nevada, 121 Nev. Adv. Op. 72, Patti Ross

Nevada Supreme Court Summaries

Defendant Martha Flores was found guilty of first-degree murder by child abuse of her five-year-old stepdaughter, Zoraida Flores. Postmortem examinations concluded that the child had been physically abused and her death was caused by a blunt-force trauma to the head. Flores resided with her husband, Jose Flores, his five-year-old daughter Zoraida, Flores’ daughters and mother and an infant. Flores was the primary caregiver of the family while Jose worked to support them. On January 28, 2001, emergency medical personnel responded to the Flores’ apartment and provided assistance to Zoraida. They were unable to resuscitate the child. The postmortem examination of …

Summary Of Foster V. State, 121 Nev. Adv. Op. 20, Debra L. Pieruschka

Nevada Supreme Court Summaries

Troy Anthony Foster, appellant, was charged with four counts of sexual assault and one count of kidnapping. A jury found Foster guilty of three counts of sexual assault and acquitted him on one count of sexual assault and of kidnapping. Foster appealed his conviction asserting five assignments of error. The Nevada Supreme Court rejected Foster’s contentions concluding in part the evidence presented at trial was more than sufficient to sustain the jury’s verdict. Foster then filed a post-conviction petition for a writ of habeas corpus in district court, claiming ineffective assistance of both trial and appellate counsel. The district court …

Summary Of Garcia V. State , Justin L. Carley

Nevada Supreme Court Summaries

Ramon Garcia appealed his convictions for: (1) burglary while in possession of a firearm, (2) robbery with the use of a deadly weapon, (3) first-degree kidnapping, 4. conspiracy to commit burglary, (5) another burglary while in the possession of a firearm, 6. conspiracy to commit robbery, (7) attempted robbery with the use of a deadly weapon, and 8. false imprisonment. Garcia argued that: (1) the jury instruction on false imprisonment was improper, (2). the state presented insufficient evidence to support a verdict on kidnapping and false imprisonment, (3) the district court erroneously failed to hold a hearing on his motion …

Summary Of Gumm V. Nevada Department Of Education, Justin L. Carley

Nevada Supreme Court Summaries

The Gumms filed a petition for a writ of mandamus asserting that they had no other means to challenge the Douglas County School District’s (DCSD) refusal to pay Mrs. Gumm’s forfeited salary and benefits for the time she spent transporting her son to an autism program.

Summary Of Hymon V. State, 121 Nev. Adv. Op. 23, Bryson D. Perkins

Nevada Supreme Court Summaries

In April 2001, Hymon stole a purse from a woman in the lobby of an auto repair shop. He ran, and two of the shop’s mechanics pursued him. They caught up to him when he fell on the curb, but he stood and swung a four- to six-inch long pocketknife. They backed away, allowing him to escape, but the police apprehended him shortly thereafter. After Hymon requested to represent himself, the district court conducted a Faretta canvass,2 and concluded that Hymon was competent to waive his right to counsel. Hymon was uncooperative and unwilling to communicate with the prosecutor, so …

Summary Of In The Matter Of The Parental Rights Of N.D.O., 121 Nev. Adv. Op. 36, Timothy J. Geswein

Nevada Supreme Court Summaries

The Nevada Supreme Court upheld Eighth Judicial District Court, Family Court Division’s termination of parental rights despite a claim of ineffective counsel. The Nevada Supreme Court concluded that the right to counsel must be determined on a caseby- case basis and be consistent with the United States Supreme Court’s decision in Lassiter v. Dept. of Social Services.

Summary Of Jacobson V. Estate Of Clayton, 121 Nev. Adv. Op. 53, 119 P.3d 132, Scott Mcdonald

Nevada Supreme Court Summaries

Nevada Revised Statute 140.040 specifically allows suits against a special administrator, in place of probate proceedings, when the estate’s sole asset is a liability insurance policy.

Summary Of Jezdik V. State, 121 Nev. Adv. Op. 15, Brian Reeve

Nevada Supreme Court Summaries

This case involves allegations regarding fraudulent use of a credit card and identity theft. Appellant Michael Jezdik (“Jezdik”) and the victim in this case, Anna Behran (“Behran”), met in Las Vegas in early 1997. They enjoyed a brief romantic relationship but soon parted ways. Approximately three years later, however, Jezdik and Behran rekindled their friendship. Behran told Jezdik that she wanted to purchase a home but did not know how to do so. Jezdik offered to help Behran complete an online mortgage application at his residence. Behran agreed. Throughout the mortgage applicatiosn process, Jezdik acquired access to Behran’s social security …

Summary Of Jordan V. State, Dep’T Of Motor Vehicles, 121 Nev. Adv. Op. 7, Daria Snadowsky

Nevada Supreme Court Summaries

Jordan v. State rules on two separate appeals that address the same issue of first impression regarding guidelines Nevada state courts must follow in order to restrict court access to in proper person litigants with in forma pauperis status. This case also reconfirms the process by which in forma applications are reviewed. In the first case, respondent Officer Jimmie W. Jones arrested proper person appellant James Jacob Jordan for trespassing on state property2 after Jordan did not heed Officer Jones’s warning to leave the premises. After the trespass charge was dropped the following day, Jordan sued Officer Jones along with …

Summary Of Langon V. Matamoros, 121 Nev. Adv. Op. 16, Scott Mcdonald

Nevada Supreme Court Summaries

NRS 41.133, which mandates that a conviction of a crime resulting in injury to the victim is conclusive evidence of civil liability for the injury, does not apply to misdemeanor traffic offenses.2

Summary Of Mcdonald V. D.P. Alexander & Las Vegas Boulevard Llc, 121 Nev. Adv. Op. 79, Anna Arroyo

Nevada Supreme Court Summaries

The Nevada Supreme Court affirmed the district court’s holding that the purposes behind the exceptions to the one-action rule found in NRS 40.430 are to allow a sold-out junior lienholder recovery in certain situations. In particular, where the property has been automatically stayed pursuant to the bankruptcy code, the creditor is exempted from the one-action rule. Additionally, NRS 40.430(4)(j) allows a junior lienholder that is sold-out to proceed personally against the debtor instead of making futile attempts against the property. The exceptions are limited by the fact that the junior lienholder cannot have purchased the property.

Summary Of Mgm Mirage V. Cotton, 121 Nev. Adv. Op. 39 , Ryan Hall

Nevada Supreme Court Summaries

When MGM Mirage employee Brenda Cotton walked through her employer’s parking lot ten minutes before her shift, she tripped over a parking lot curb and injured herself. Cotton sustained an ankle fracture and ligament tear. Deciding that Cotton had failed to prove that her injury arose out of her course of employment, MGM denied her workers’ compensation claim. MGM’s decision was upheld by a hearing officer, because the injury did not occur during working hours. The hearing officer’s decision was reversed on appeal. MGM’s petition for review was denied by the district court.

Summary Of Potter V. Potter, 119 P.3d 1246, Chris Orme

Nevada Supreme Court Summaries

Nevada’s relocation statute does not apply to parties that share joint custody of minor children. If a parent with joint custody rights wants to move outside of Nevada with a minor child, then that parent must file a motion with a district court judge to determine whether moving is in the best interests of the child or whether staying with the nonmoving parent is in the best interests of the child.!

Summary Of Seino V. Employers Insurance Co. Of Nevada, 121 Nev. Adv. Op. 17, Danielle Oakley

Nevada Supreme Court Summaries

This case was an appeal from a district court order denying Plaintiff/Appellant’s petition for judicial review in a workers’ compensation case.

Summary Of Shuette V. Beazer Homes Holding Corp., 121 Nev. Adv. Op. 82, Joshua Benson

Nevada Supreme Court Summaries

Beazer Homes constructed and sold 206 single-family residences between 1994 and 1999 on a 40-acre residential subdivision. In April 2000, three homeowners, individually, and as proposed class representatives, filed a complaint against Beazer Homes alleging constructional defects to their homes. The complaint alleged that their houses’ foundations and concrete slabs were damaged by expansive soils, a condition in which the soils beneath a house expand when exposed to water and contract when the soil dries. This condition can cause a house’s foundation and concreted slab to crack and separate. The plaintiffs also alleged over 30 additional constructional defects unrelated to …

Summary Of Village Builders 96, Patty Roberts

Nevada Supreme Court Summaries

In September 1995, Ray Brannen formed Buena Nevada. In December 1996, Brannen sold 100% of Buena Nevada’s shares to Geofon, Inc, which formed a new company named Buena Engineers, Inc., a Division of Geofon, Inc. (Buena Geofon). In the sales agreement, Brannen reserved the right to repurchase the shares of Buena Geofon. In 1997, Buena Geofon submitted a proposal to Village Builders, LP (Village) to perform an environmental site assessment, which Village accepted. Acting on Buena Geofon’s assessment, Village purchased the property only to discover in December 1998 that Buena Geofon’s assessment failed to identify contaminated soil and ground water …

Summary Of Warren V. State, 121 Nev. Adv. Op. 84, Charles R. Cordova, Jr.

Nevada Supreme Court Summaries

In November 2003 the Las Vegas Metropolitan Police Department executed a decoy operation targeting the crime of robbery. An officer was posed on a public street dressed as an intoxicated, off-duty casino dealer with a stack of twenty one-dollar bills visible in his left dress shirt pocket. The defendant approached the officer, made conversation and casually removed the dollar bills while placing his arm around the officer. When the officer acted as though he was turning his head to catch the defendant in the act, the defendant pushed the officer’s head away with his forearm twice. The defendant was arrested …