Law Commons^™

Introduction, John Shuford

Journal of Hate Studies

T

he Institute for Hate Studies at Gonzaga University is pleased to offer Volume 8 of the Journal of Hate Studies, the theme of which is “The Other Among Us.” It is a timely topic, no doubt, as nativism, racism, and extrem- ism boil over in America’s immigration debate. This volume considers those issues as well as a wider range of perspectives on engagement and disengagement with “the other” in our society, culture, and lives.

Imbedded in this volume’s theme are myriad questions. Who is the “other” among us, and what does it mean to be an “other” or to …

The Internet's Promise To Improve Bias-Crime Reporting: The Case For Including Bias Crimes On Official Crime-Reporting Websites, Jordan Blair Woods

Journal of Hate Studies

This article argues that online crime reporting has the potential to improve bias-crime reporting and proposes that U.S. law enforcement departments include bias crimes on their official crime-reporting websites. In this article, I use the term bias crime to refer to criminal offenses committed against persons or property intentionally selected on the basis of identity characteristics, such as race, ethnicity, national origin, religion, disability, gender, sexual orientation, and gender identity.

A Post-Carcieri Vocabulary Exercise: What If "Now" Really Means "Then"?, Heidi M. Staudenmaier, Ruth K. Khalsa

UNLV Gaming Law Journal

When the Indian Reorganization Act1 (“IRA”) was passed in 1934, it officially defined an “Indian” as a member of a recognized tribe “now under federal jurisdiction.” For nearly three-quarters of a century, this definition of an Indian and an Indian tribe — hallmarked by the four-word phrase “now under federal jurisdiction” — guided federal policy and agency action on a host of matters, including management of federal lands, land-into-trust acquisitions made on behalf of tribes, and — after 1988 — application of the Indian Gaming Regulatory Act (“IGRA”).

In February 2009, however, the United States Supreme Court upended seventy-five years …

Luck Of The Irish: Will The Casinos Tranform From Gaelic Grey To Gaelic Green $$, William N. Thompson

UNLV Gaming Law Journal

As the first decade of the twenty-first century evolved, Ireland was one of only two countries in the European Union that did not have legal, regulated casinos. The Irish Gaming and Lotteries Act of 1956 does not prohibit games with equal chances. Moreover, games can be conducted lawfully, according to the Act, if promoters assess minor seat charges to players, and “the promoter derives no personal profit from the promotion of the game.” Additionally, Part III of the 1956 law indicates that amusement centers can have slot machines that award small prizes. The Act also includes provisions for private lotteries, …

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 …

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Nevada Law Journal

Today, breastfeeding, human breast milk, and its substitute, infant formula, are commodities. "Mothers' milk" is marketed both literally and figuratively, as a good for sale, a normative behavior, and a cure for much of what ails twenty-first century America. Like previous exploitations of women's bodies, including their eggs and uteruses, the idea that human milk is a valuable good that can be given away, traded in a market, or subjected to scientific experimentation raises fundamental moral and legal questions. This Article examines the marketing of breastfeeding, the emerging markets in human milk, and the growing market in infant formula through …

Essay: Inside Guantanamo, Peter Jan Honigsberg

Nevada Law Journal

In May 2007 I visited Guantanamo Bay, Cuba. What I saw and experienced then are fading away and will soon disappear, now that two-thirds of the nearly 800 detainees have been released and President Obama will close the detention centers within the year. Consequently, this essay provides a historical account of one person's media visit to Guantanamo, when it was a fully-operational prison violating human rights, due process and international law.

The essay describes not only the visit but also the application process - a bizarre experience. The military's application concluded with two quotes from the New Testament and included …

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 …

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 …

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.

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. …

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 …

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.

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 …

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 …

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 …

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 …

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 …

From Signal To Semantic: Uncovering The Emotional Dimension Of Negotiation, Daniel L. Shapiro

Nevada Law Journal

The author co-created the Core Concerns Framework as a pragmatic model to help people address the emotional dimension of negotiation. Dealing directly with the variety of emotions that arise in a negotiation can overwhelm our cognitive capacity, especially in a high-stakes context, where there are multiple layers of communication, processes, and substantive issues. The framework suggests that negotiators turn their attention to a subset of motives--what the authors call core concerns--to illuminate and navigate the emotional dimension of negotiation.

In the Nevada Law Journal symposium on mindfulness and the core concerns, Professor Clark Freshman calls into question how “core” the …

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 …

Mindfulness, Emotions, And Ethics: The Right Stuff?, Ellen Waldman

Nevada Law Journal

This essay celebrates Leonard Riskin's call to arms while suggesting some limits to what mindfulness can achieve in the ethical realm. I discuss recent developments in neuroethics that imply a prominent role for emotions in establishing ethical restraint. The Article also surveys a growing body of evidence that suggests the directive power of our emotions remains largely hidden from and impervious to the control of our “reasoning” selves. Lastly, the author examines what Riskin has, in an earlier work, described as the ethical hard case in light of recent explorations into the emotional wellsprings of deontological versus consequentialist thinking. Although …

Privatopia In Distress: The Impact Of The Foreclosure Crisis On Homeowners’ Associations, Casey Perkins

Nevada Law Journal

Part I of this Note provides an introduction to HOAs, the foreclosure crisis, and the resulting recession that currently threaten many associations' financial stability. Part I begins with a discussion of the rise of common interest communities in the United States, as well as basic association functions. Following this historical introduction is a discussion of the foreclosure crisis and an overview of the severity of this crisis in Nevada.

Part II introduces the problems faced by HOAs across the country because of the foreclosure crisis. These problems fall into two general categories, budget shortfalls and physical deterioration of abandoned properties. …

The Empty Tomb: Post-Critical Legal Hermeneutics, Peter Goodrich

Nevada Law Journal

There is nothing more refreshing than a successful failure. A momentary flaring of flamboyance. A near miss. Fifteen weeks as media monarchs; a good part—a small part—of a decade as a political threat to the order of the academy, if not the stability of the system. The affective bonds and the institutional disruption of youthful and latterly not-so-young dissidents and socialist sympathizers within the law schools definitely had their excitements, their impetus and novelties, and then they grew old, got rejected, disappeared into the shadows, backrooms, and faculty lounges. The various histories assign different figures to the failure of critical …

Hermeneutics- The Path Of The Hermeneutic-Ontological Shift And The Decolonial Shift, Celso Luiz Ludwig

Nevada Law Journal

The purpose of the reflections that follow is to highlight the meaning and importance of the hermeneutic shift produced by the work of Gadamer, to consider some of his themes and categories, and to extend the meaning of this hermeneutic rationality to the legal field in terms of a new conception of interpretation. A second objective is to catch sight of new theoretical perspectives, having as a starting point the unfolding of practical philosophy into hermeneutic philosophy carried out by Gadamer. This article aims at recuperating, among other things, the fundamental hermeneutic problem, so as to obtain a glimpse into …

The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho

Nevada Law Journal

The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity …

Constitution, Human Rights And Republic: A Necessary Dialogue Between Gadamer's Philosophical Hermeneutics And Boaventura De Sousa Santos's Diatopic Heremeneutics, Jania Maria Lopes Saldanha, Jose Luis Bolzan De Morais

Nevada Law Journal

When we think about the concept of human rights—including all the possible ways of its realization, and considering the complementarities and also the unity of different dimensions of the concept—we confront several difficult questions. In particular, in an age when constitutions and constitutional doctrine have already incorporated a substantive body of human rights law, we must address how some of the constitutional promises regarding individual rights have not been fulfilled. Additionally, we must consider how rights that foster solidarity in the economic, social, and cultural spheres have not been recognized.

This article operates on two levels. On one level, we …

Deconstructing The Models Of Judges: Legal Hermeneutics And Beyond The Subject-Object Paradigm, Lenio Luiz Streck

Nevada Law Journal

The linguistic-ontological turn has brought uncountable consequences to the interpretation of Law. However, dogmatic-legal knowledge remains hostage to a judicial protagonism, a philosophy of consciousness that, together with legal discretion, represent two sides of the same coin. The criticism of judicial discretion is a matter of democracy: decisions must be coherent, assuring the integrity of Law by reinforcing the normative power of the Constitution from which arises the need for correct answers in Law.

Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor

Nevada Law Journal

It is a common metaphor that the text is a window onto the world that it depicts. I want to explore this metaphor and the insights it may offer us for better understanding legal interpretation. As in the opening epigraph from James Boyd White, I shall develop the metaphor of the text as window in three ways: the text may be transparent, opaque, or translucent. My goal will be to argue that the best way to understand legal interpretation is to conceive of the legal text as translucent, but along the way I will compare the merits also of considering …

As Time Goes By: Hermeneutics And Originalism, John T. Valauri

Nevada Law Journal

What is the continuing relevance of hermeneutics to legal theory in general and to constitutional theory in particular if we are all originalists now? Both seem to be vital despite the decline of interest in hermeneutics recently. This article argues for the continuing relevance of hermeneutics to both fields because of the centrality of issues of application and practical reasoning in both. Law seeks for find the meaning of texts applied over time; legal texts are truly letters of transit. That we are all originalists, yet still have the same sort of interpretive debates we have always had, only indicates …

The Veil That Covered France's Eye: The Right To Freedom Of Religion And Equal Treatment In Immigration And Naturalization Proceedings, Kendal Davis

Nevada Law Journal

In June 2008, France’s highest administrative court upheld a decision to deny citizenship to a Muslim woman because, essentially, she was ‘not French enough.’ This decision incited both praise and outrage in the international human rights arena regarding considerations such as the right to freedom of religion, gender equality, and citizenship.

This Note examines relevant French domestic law and international human rights instruments, and argues that while immigration and naturalization decisions remain an exercise of broad sovereign powers, the emerging human rights norm to be free from discrimination should apply in naturalization proceedings. Furthermore, despite judicial deference and flexibility to …