Law School Hosts Visiting Scholar from South Korea

This past academic year the law school welcomed a visiting scholar, Professor Hyun-chul Kim, from the law faculty at Chonnam National University in Gwangju, South Korea. Chonnam National University is one of the leading public universities in South Korea. Professor Kim has been on the faculty at Chonnam since 2008, has served as Vice Dean, and has been awarded the distinguished teaching and mentoring award.

Professor Kim completed his research here this past month. He is a prolific author; his textbook, Constitutional Litigation, is in its third edition and his dissertation on equal protection under the U.S. Constitution was published in 2012. Law review articles authored by Professor Kim have appeared in a number of publications. While at UNLV, Professor Kim’s research focused on affirmative action programs in the United States. He used the facilities of the Wiener-Rogers Law Library and was assisted in his research by third-year law student Elizabeth Do, a research assistant in the law library. A law review article on affirmative action that reflects his research at the Boyd School of Law will be published in the coming year.

Shelby County v. Holder: Justice Roberts Tells Congress to Do a Better Job on Their Legislative Homework, and Greatly Expands the Doctrine of State Sovereignty

By Sylvia R. Lazos, Justice Myron Leavitt Professor of Law

This morning the United States Supreme Court struck down, in a 5-4 conservative vs. liberal vote lineup, Section 4 of the Voting Rights Act of 1965, the civil rights statue that President Johnson considered his single most important legislative achievement. By knocking down Section 4 coverage formula, section 5 pre-clearance mechanism has been vitiated, unless Congress acts to “correct” the deficiencies of Section 4 newly found by the Court. Section 4 identifies certain “covered jurisdictions,” namely 15 states that make up the “old South,” as well as parts of Arizona, Alaska, New Mexico and California, as being places that must shoulder an extra burden of showing that changes in voting practices that impact minorities are not motivated by discriminatory motive. Section 5 of the Voting Rights Act requires these “covered jurisdictions” to get pre-clearance from the Department of Justice before enacting any voting law changes, which have run the gamut from changing the hours that polling stations remain open to racially gerrymandered redistricting. This procedural mechanism has been a key provision used by voting rights lawyers in fighting changes that arguably would depress minority voter influence.

The main points of disagreement between the conservative majority and the liberal minority is whether Congress adequately did its homework when it voted to reauthorize the Voting Rights Act in 2006, and what is the appropriate level of review when the judiciary checks on Congress’s remedial work under its enforcement powers of the Fifteenth Amendment.

As the opinion points out, the Voting Rights Act has been reauthorized four times in the Nation’s history. Most recently, in 2006 Voting Rights reauthorization, Congress was aware that a conservative Court might apply more rigorous review to Congressional remedies enacted under Voting Rights Act, such as Sections 4 and 5. Accordingly, Congress worked hard to build what it thought would be a solid record, nearly a year full of hearings --52 in all -- 90 witnesses, and a 15,000 page record. During these hearings, civil rights groups conceded that the outrages of the past, for example, literacy tests administered to only African- and Mexican- American voters, and blatant racial gerrymandering by white controlled legislatures, were no longer common place and were a thing of the past. However, evidence presented before Congress made the case that the covered jurisdictions continued to be racially polarized, and that majorities were using new, more subtle, stratagems to suppress minority votes. Opponents argued, as the Court emphasized today, that Congress should loosen up its grip on covered jurisdiction because these blatant discriminatory practices had been overcome. However, Congress sided with civil rights groups, strengthened provisions of Sections 5, and reauthorized the Voting Rights Act, with a supermajority vote of 390-33 in the House and 98-0 in the Senate. President George W. Bush signed the Voting Rights Act reauthorization into law, even though preclearance provisions of Sections 4 and 5 of the Voting Rights Act apply mostly to red states.

Now seven years later, the Supreme Court’s conservatives are undoing Congress’s political compromise. The constitutional violation, Chief Justice Roberts explains, lies in the legal principle of “equal state sovereignty.” Citing to the 1789 Framers’ intent, “our Nation was and is a union of States, equal in power, dignity, and authority.” The Voting Rights Act, according to Roberts, is “extraordinary legislation” justified only by the “blight of racial discrimination in voting” that “infected” the country in 1960s. Fifty years later, although discrimination has become more subtle, the “extraordinary” Voting Rights Act’s section 4 and 5 remedies are no longer constitutionally justified. Justice Roberts writes that Congressional use of its remedial Fifteenth Amendment powers must identify “current burdens and current needs,” and remedies “must be sufficiently related to the problem that it targets.”

To the lay reader of this opinion, today’s Court opinion may be justified in that the Court is rebuking Congress for being anchored in the Nation’s discriminatory racial past. However, to students of constitutional law, this decision should be disturbing.

First, whenever the Court rebukes Congress for not adequately doing its homework we are in separation of powers territory, or stated otherwise, courts are overstepping their proper judicial role. Courts traditionally have deferred to Congress, even, as Justice Thomas states, when it chooses to pass “stupid laws.” What exactly justifies the Court’s rebuke of a 15,000 page record that led Republicans and Democrats to extend the provisions of the Voting Rights Act?

Second, the Court in this opinion leaves unanswered what level of review it is applying to the use of Congress’s remedial power under the Fifteenth Amendment. Many constitutional scholars have argued that the appropriate standard was Boerne v Flores “congruence and proportionality” standard that the Court has applied since the Rehnquist Court to Fourteenth Amendment remedies. The Fourteenth and Fifteenth Amendments are historically viewed as a package, since they were passed as part of Reconstruction. Today’s decision does not even mention the Boerne case. Instead Roberts’ phrasing that remedies “must be sufficiently related to the problem that it targets” implies that the Court is using intermediate level of review, but we don’t know why.

Third, it is historically inaccurate for Justice Roberts’ opinion to repeatedly make reference to 1789 Framers rather than the 1867 Reconstruction. According to Chief Justice Roberts, Congress has violated “fundamental principle of equal sovereignty” when it sets up a federal “review and veto state enactments before they go into effect.” To back up this statement, Roberts cites the Tenth Amendment, which has been called a mere syllogism by prior Courts. Roberts does not cite to the history of the enactment of the Fifteenth Amendment. The Reconstruction Congress, as the Ginsburg dissent points out, found a multitude of discriminatory and violent acts, such as lynchings and targeted terrorism, whenever freed black men exercised their right to vote. For this reason, the Framers of the Fifteenth Amendment found it necessary to re-set the federalism balance of power, and authorize the federal government to do exactly what Roberts professes the Fifteenth Amendment cannot do, to use federal power to check the ability of the states to discriminate against racial minorities when they exercise their right to vote. The Fifteenth Amendment was designed to allow Congress to use federal powers in order to hold in check state discrimination. This power was not meant to be applied uniformly to every state; rather this extraordinary use of federal power was justified only where the facts indicated that racial discrimination and polarization so burdened minorities’ right to vote that it was necessary for Congress to use this remedy and step in.

Conservatives have used state sovereignty doctrine to check federal power in commerce clause cases, such as Lopez v. US and Morrison v. US. To use this ample and malleable sovereignty doctrine to strike down the Voting Rights Act key provisions makes this opinion controversial. Shelby is something of a time bomb, because the opinion’s legal maneuverings leaves unclear whether the Court will constrain itself in reviewing future exercises of Congressional remedial powers under the Fifteenth Amendment.

Affirmative Action Stands, 7-1, in Fisher v. Texas: Justice Kennedy Says “When We Say ‘Strict Scrutiny’, We Mean It!”

By Sylvia Lazos, Justice Myron Leavitt Professor of Law

This morning the Supreme Court issued its opinion in Fisher vs. University of Texas, affirming on a vote of 7-1, that affirmative action policies in university admissions are constitutional. Many had speculated that this case would give the new conservatives on the Court (made up of Justices Roberts, Alito, Thomas and Scalia) the opportunity to overturn Grutter v. Bollinger, decided a decade ago, when Justice O’Connor sat on the bench rather than Justice Alito. However, after this morning’s opinion it is clear that as long as Justice Kennedy sits on the Supreme Court, Grutter’s precedent stands solid, albeit with some caveats. Although it was clear by the concurrences that conservatives Justices Scalia and Thomas had lobbied to overrule Grutter, the majority of the Court reaffirmed that selective public higher education institutions can use affirmative action in admissions, without violating the Equal Protection clause. Universities can consider scores from high-stakes tests like SATs and LSATs, high school GPAs, factors that indicate an individual’s qualities of leadership and perseverance which are highly related to graduation success, as well as personal cultural background factors, such as socio-economic status and race.

Ten years ago, Justice Kennedy was in the dissent in Grutter v. Bollinger, where he argued that while he agreed that attaining diversity is clearly a compelling interest for state universities, he strongly disputed whether the Court had properly applied “strict scrutiny.” In Grutter, Kennedy observed that the University of Michigan Law School almost always admitted African Americans with LSAT/GPAs combined scores at a certain level, while those same combined scores did not result in such high likelihood of admissions for white applicants. Kennedy thought that this pattern was sufficient to indicate that race had been used as a determinative factor in the Michigan admissions process. However, the majority then saw it otherwise. Justice O’Connor, who wrote the majority opinion in Grutter, argued that given the complexity of the University of Michigan Law School’s admissions process and their diligent individual review of each file, that the Court could assume the good faith of the admissions officers and defer to their decisions, and find as a matter of law that race was one of many factors and not the determinative factor in admissions. In Fisher v. Texas, Justice Kennedy rejects Grutter v. Bollinger’s interpretation of how strict scrutiny review is applied, and makes clear that “the particular admissions process used for this objective [of achieving diversity in the student body] is subject to judicial review… the universities must demonstrate with clarity… that use of the [racial] classification is necessary .. [and] narrowly tailored.” To be consistent with strict scrutiny, universities can “receiv[e] no deference.” The admissions process must “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Pursuant to the Legislature’s mandate, University of Texas has in place the Top Ten Percent program, which, as its name indicates, admits the top ten percent of every high school class. This is a race neutral admissions process that easily passes constitutional muster. The factual question in Fisher v. Texas was whether Texas’ supplemental undergraduate admissions plan, which awards points for a composite “personal” cultural background/socio-economic class factor, is an admissions criterion where race, “is a meaningful factor” per Justice Kennedy’s observation in Fisher, or a determinative race-conscious factor. The Supreme Court has dispatched this issue to the lower courts, with instructions by Justice Kennedy that “[s]trict scrutiny cannot be strict in theory but feeble in fact.”

Justice Ginsburg’s lone dissent anticipates a future case – perhaps Fisher itself after remand -- where the Supreme Court will entertain the issues posed in Texas v. Fisher “all over again.” The purpose of Texas’ supplemental admissions plan is to achieve a “critical mass” of minority students in small programs and small classes. During oral arguments, Justice Kennedy was troubled whenever the University of Texas seemed to factually concede that in order to achieve “critical class” its admissions program had to have a target range for the admission of a certain number of minorities, or percentages of the class. Justice Kennedy saw “an inconsistency” in Texas’ claim to race neutral admissions and Texas’ actions in pursuit of its goal of trying to achieve “critical mass.”

Justice Ginsburg observes in her dissent that race is interrelated with class and geographical segregation, particularly in the South. While Texas’ Top Ten program is nominally race neutral, it was mandated by the Texas Legislature as a political compromise because “everyone knows” that given Texas’ segregation history, the Top Ten program would yield a diverse class. The Top Ten percent of an inner city Houston high school would be almost all African American and Latino, while the Top Ten Percent of an affluent suburban high school class would be almost all white. Justice Ginsburg argues that it is better to be forthright about the use of race-consciousness in admissions rather than use “camouflage to maintain minority enrollment.” It is constitutionally preferable, Ginsburg argues, to “candidly disclose … consideration of race [rather than] conceal it.” Ginsburg seems to predict that the lower courts’ trial will be an exercise in whether University of Texas can pull off the legal artifice of proving that their admissions program is not race conscious. In a footnote, she quotes Professor Thomas Reed Powell’s famous statement, “If you think that you can think about a thing inextricably attached to something else without thinking of that thing which it is attached to, then you have a legal mind.”

There is a crisis in K-12 education. As the book, Whither Opportunity?, shows with devastating empirical proof, children who are segregated by poverty, which means that they are likely to be African American and Latino, have a much lower opportunity of succeeding in K-12. They will thus have lower scores in the high stakes college admissions tests, such as SAT. By contrast, children whose parents are affluent, who are likely to be predominantly White, are much better prepared for college. These children will have higher SAT and LSAT scores. Ginsburg, as the most elderly justice on the Court, seems to be warning us that courts and political leaders must come to terms with such “intextricabl[e] attach[ments]” between race and college readiness. Affirmative action is an “after the fact” fix to the weak pipeline K-12 system that produces racially segregated success outcomes.

Five years ago, in Seattle, Justice Thomas argued in his concurrence that political decision makers must find the political will to fix the racial and class inequities of K-12; affirmative action could not be the principal fix to the racial inequities of K-12 outcomes. Both Ginsburg and Thomas are right. Until taxpayers and political leaders resolve to fix K-12, courts will imperfectly deal with affirmative action. Decisions, such as Grutter v. Bollinger and now Fisher v. Texas, will appear unsatisfactory and some sort of “punt,” as the Court deals with this very difficult quandary.

Professor Bartrum Publishes Two New Articles; Has Two Additional Articles Forthcoming

The Boyd School of Law is pleased to announce that Professor Ian Bartrum has two articles that recently went to press and two additional articles that are forthcoming shortly.

The first new article, titled "Originalist Ideology and the Rule of Law," contends that one of the basic tenets of the "New Originalism," the so-called "contribution thesis," compromises our underlying commitment to the rule of law. A copy of this article, recently published in volume 15 of Heightened Scrutiny, the official online companion of the University of Pennsylvania's Journal of Constitutional Law, is available here.

The second new article, titled "The Ministerial Exception and the Problem of Religious Sovereignty," explores potential theoretical limits on the jurisdictional independence of religious sovereignty in the context of the ministerial exception. A copy of this article, recently published in Where Law & Religion Meet – Online Journal of the Emory Center for Law & Religion, is available for download here.

Professor Bartrum also has two forthcoming articles. The first of these, "Religion and the Restatements," forthcoming in volume 79 of the Brooklyn Law Review (2013), is an interstitial examination of religion and the Restatement project; that is, it outlines the places that issues of religious freedom come up in the existing Restatements, and then makes some recommendations for future editions.

The second article, "Constitutional Value Judgments and Interpretive Theory Choice," forthcoming in volume 40 of the Florida State University Law Review and downloadable here, applies lessons from Thomas Kuhn’s work on scientific paradigm changes to constitutional practice and derives a list of four overlapping and sometimes competing "constitutional values," including constraint, flexibility, representation, and identity, from texts in the constitutional canon.

Congratulations, Ian!

Professor Griffin Invited to Brief United States Commission on Civil Rights

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin was invited by the United States Commission on Civil Rights to serve as a panelist at the Commission's briefing titled "Peaceful Coexistence? Reconciling Non-Discrimination Principles with Civil Liberties." The briefing is scheduled for Friday, March 22, 2013, at 9:00 a.m. EST at the Commission’s Headquarters in Washington, D.C.

The briefing in which Professor Griffin will participate will examine recent legal developments concerning the intersection of non-discrimination principles with those of civil liberties. The tension between religious liberties and non-discrimination statutes and policies is perhaps one of the more prominent areas of disagreement and is part of a broader debate between the First Amendment and non-discrimination provisions.

Among other topics, panelists also will discuss the issues raised by Hosanna-Tabor v. EEOC, 132 S.Ct. 694 (2012) and Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010). Professor Griffin recently examined the Hosanna-Tabor case in her forthcoming article, "The Sins of Hosanna-Tabor," 88 Indiana Law Journal --- (2013).

Professor Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials, editor of Law and Religion: Cases in Context, and author of numerous articles and book chapters about law, religion, politics and ethics. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Congratulations, Leslie!

Professor Griffin to Give "Important 2012-2013 Supreme Court Cases" CLE

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin will give an "Important 2012-2013 Supreme Court Cases" continuing legal education presentation on February 15.

During the CLE, Professor Griffin will review important cases on the Supreme Court’s 2012-2013 docket, including Fisher v. University of Texas (affirmative action), Windsor v. United States and Hollingsworth v. Perry (same-sex marriage), Shelby County v. Holder (Voting Rights Act), and other notable First, Fourth and Fifth Amendment cases.

The program, which will be held in the Thomas and Mack Moot Court Facility and has been approved for one CLE credit, will begin at 3:00 p.m. on February 15. Additional registration information is available here.

Professor Griffin Guest Blogs on ACSblog

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin guest blogged on the ACSblog on February 8, 2013. Titled "Did Obama Ignore Religious Freedom of Millions of Americans? Yes and No," Professor Griffin's post explains that the Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization.

According to Professor Griffin, "The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers." To read more, click here.

Professor Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials; editor of Law and Religion: Cases in Context; and author of numerous articles and book chapters about law, religion, politics and ethics. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Professor Griffin Featured in Las Vegas City Life Article

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin was featured in a Las Vegas City Life article published on February 6, 2013. Titled "The Dangerous Illusion of Abortion Rights," the article lauded a panel convened on January 31, 2013, by Planned Parenthood of Southern Nevada that included Professor Griffin as well as Congresswoman Shelley Berkley, UNLV History Professor Joanne Goodwin, and Director of UNLV's Jean Nidetch Women's Center Christina Hernandez.

At the January 31 program, Professor Griffin and her co-panelists examined the past, present, and uncertain future of abortion access. "A passionate crowd of nearly 100 people — perhaps half of them born after the court ruling, most of them women and among them doctors and medical students — listened intently and shared their own stories."

Professor Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials; editor of Law and Religion: Cases in Context; and author of numerous articles and book chapters about law, religion, politics and ethics. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Professor Griffin to Participate in Panel Commemorating the Fortieth Anniversary of Roe v. Wade

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin will participate in a panel hosted by Planned Parenthood of Southern Nevada (PPSN) commemorating the fortieth anniversary of Roe v. Wade. The panel, which will be held on Thursday, January 31 from 6:30 to 8:00 p.m., will discuss reproductive choice, the importance of Roe v. Wade, and what the future holds for reproductive justice in our society.

In addition to Professor Griffin, the other panelists include Christina Hernandez, Director of the Jean Nidetch Women's Center; Dr. Joanne Goodwin, Director of the Women's Research Institute of Nevada; and Congresswoman Shelley Berkley.

The panel will be held at the Progressive Leadership Alliance of Nevada (PLAN) office, 708 South 6th Street in Las Vegas. Light refreshments will be provided. The event is free and open to the public, although an RSVP is required by email to tara.brosnan@pprm.org or by telephone at 702-878-3622 ext. 200

Professor Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials; editor of Law and Religion: Cases in Context; and author of numerous articles and book chapters about law, religion, politics and ethics. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Professor McAffee Publishes Op-Ed in Review-Journal

The Boyd School of Law is very pleased to announce that Professor Tom McAffee recently published an Op-Ed in the Las Vegas Review-Journal.

As background, on November 26, 2012, a federal district court ruled against a legal challenge brought on behalf of eight same-sex couples seeking the freedom to marry in Nevada. In the case, the plaintiffs argued that Nevada's current law, which excludes same-sex couples from marriage, while relegating them to the second-class status of domestic partnership, violates their right to equal treatment under the U.S. Constitution.

In a December 4, 2012, editorial, the Review-Journal defended the decision of Judge Robert Jones rejecting this challenge, adopting his assertion that the question "is not the wisdom of providing for or recognize same-sex marriage as a matter of policy." According to Professor McAffee in his December 16 editorial, the December 4 editorial "sets up a straw man argument that is easily rejected." Click here to read more of Professor McAffee's December 16 editorial.

Professor McAffee has published numerous articles in law journals including the Harvard Journal of Law and Public Policy, Columbia Law Review, Brigham Young University Law Review, and Temple Law Review and was awarded the Faculty Achievement Award for Scholarship in 1997. His book, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders’ Understanding, was published in 2000. At Boyd, Professor McAffee teaches American Legal History, First Amendment Rights, and Constitutional Law.

Congratulations, Tom!

Professor Bartrum's Latest Essay Published in the University of Pennsylvania Journal of Constitutional Law

Congratulations to Professor Ian Bartrum on the publication of his latest essay ("Originalist Ideology and the Rule of Law") in volume 15 of the University of Pennsylvania Journal of Constitutional Law.

Professor Bartrum's essay contends that "one of the basic tenets of the 'New Originalism' -- the so-called 'contribution thesis' -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, th[is] essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation."

The full text of Professor Bartrum's essay may be downloaded from SSRN.

Professor Bartrum joined the faculty in 2011, bringing expertise in constitutional law, constitutional theory, constitutional history, and law and religion. He taught previously at Drake Law School, Vermont Law School, and at Yale Law School as the Irving Ribicoff Fellow.

Las Vegas City Life Interviews Professor Griffin

The Boyd School of Law is very pleased to announce that Las Vegas City Life published a lengthy interview with Professor Leslie Griffin yesterday.

Entitled, "A Local Law School Prof Is at the Forefront of the Debate over Contraception Insurance and Religion," the interview begins with Professor Griffin's decision to write a letter that was signed by 170 law professors across the country and entered into the Congressional Record on August 1, 2012, at pages E1370 and E1371. In the letter, which defends free contraception coverage under the Affordable Care Act (ACA), Professor Griffin contends that ACA protects women's rights and does not infringe on religious freedom:

"The way I think of religious freedom is to say we have the free exercise clause, and although there are few cases that say the government has to keep complete hands off religious organizations, the dominant theme has been that religions need to follow the law, like everybody else. Otherwise every citizen would be a law unto himself. If the drastic end of my religion said 'sacrifice human beings,' that shouldn’t entitle me to do it. And so if you move down from the very extreme to 'well, if my religion says I can harm people, or if my religion says I can treat my employees any way I want,' we shouldn’t assume the Constitution protects that kind of freedom. What the Constitution protects is laws that aren’t based on religion and that let us all live together."

Professor Griffin concludes her interview by stating, "One of the reasons we have the establishment clause is to keep churches from having too much power in our government. The First Amendment is supposed to protect individuals. The individuals here are women of different faiths, or no faith, and of different conscience. They should be the ones who get to make decisions about their reproductive freedom, not their employers."

Professor Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials, editor of Law and Religion: Cases in Context, and author of numerous articles and book chapters about law, religion, politics and ethics. Her most recent law review article, "The Sins of Hosanna-Tabor," forthcoming in the Indiana Law Journal, addresses the Supreme Court’s recent First Amendment decision. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Professor Bayer Places His Latest Article in the Loyola University Chicago Law Journal

The Boyd School of Law is very pleased to announce that Professor Peter Bayer has placed his latest law review article, "The Due Process Legality of the Individual Mandate: A Kantian Analysis, and Why It Matters," in the Loyola University Chicago Law Journal.

In his article, Professor Bayer argues that while the Supreme Court has ruled that the individual mandate provision within the Affordable Care Act is constitutional under Congress's power to tax, the true challenge yet to be judicially addressed is the mandate's legality under the Constitution's due process clauses. Professor Bayer uses Immanuel Kant's "dignity principle," which tacitly has been adopted by the courts, to show that the mandate does not violate personal liberty even though it requires unwilling persons to purchase unwanted health insurance from private carriers.

Congratulations, Peter!

Interview with Professor Leslie Griffin.

Here.  Professor Griffin is one of our three newest colleagues.

Letter Authored by Professor Griffin Entered into Congressional Record

The Boyd School of Law is very pleased to announce that a letter authored by Professor Leslie Griffin addressing health insurance coverage of contraception under the Affordable Care Act was entered into the Congressional Record on Wednesday, August 1, 2012, by California Representative Laura Richardson.

A copy of the letter, which was signed by 170 law professors across the country, including several Boyd faculty members, is available at Congressional Record pages E1370 and E1371. As Representative Richardson stated on the House Floor on August 1, Professor Griffin's letter "explains why the contraceptive-coverage benefit protects the rights of individual employees and in no way violates religious freedom."

Professor Leslie Griffin currently serves as William S. Boyd Professor of Law. She is author of Law and Religion: Cases and Materials, editor of Law and Religion: Cases in Context, and author of numerous articles and book chapters about law, religion, politics and ethics. Her most recent law review article, "The Sins of Hosanna-Tabor," forthcoming in the Indiana Law Journal, addresses the Supreme Court’s recent First Amendment decision. Professor Griffin is a graduate of Yale University (M.A., M.Phil., and Ph.D., Religious Studies) and Stanford Law School.

Professor Tanenhaus in The New York Times

The Boyd School of Law is very pleased to announce that Professor David S. Tanenhaus (right) had his Op-Ed, "The Roberts Court's Liberal Turn on Juvenile Justice" published in today's The New York Times.

According to Professor Tanenhaus, "The Supreme Court’s decision this week [in Miller v. Alabama] to ban mandatory life sentences without the possibility of parole for offenders younger than 18 is an emphatic rejection of the 'get tough' juvenile justice policies of the 1980s and 1990s, which punished children as if they were adults. Writing for the majority, Justice Elena Kagan's clear statement not only recognized the political and biological principle that children are different from adults but at last also inscribed it into constitutional law."

Professor Tanenhaus currently serves as Professor of History and Chair of the History Department at UNLV, the James E. Rogers Professor of History and Law at Boyd School of Law, and Editor of Law and History Review, which Cambridge University Press publishes as a quarterly on behalf of the American Society for Legal History. Since coming to UNLV in 1997, Professor Tanenhaus has taught courses on American legal and constitutional history, the Gilded Age and Progressive Era, children and society, and introductory surveys of U.S. History.

Welcome, Professor Griffin!

The Boyd School of Law is very pleased to announce that Professor Leslie Griffin will join the full-time faculty effective July 1, 2012.

Professor Griffin is a leading scholar in the area of constitutional law, especially law and religion. She is the author of Law and Religion: Cases and Materials (Foundation Press, 2d ed. 2010) and Law and Religion: Cases in Context (Aspen 2010). Professor Griffin’s article-length scholarship has appeared in prominent law reviews such as Emory Law Journal, Cardozo Law Review, Fordham Law Review, Wisconsin Law Review, Georgetown Journal of Legal Ethics, Maine Law Review, and Houston Journal of Health Law & Policy. Professor Griffin’s most recent law review article, “The Sins of Hosanna-Tabor,” is forthcoming in Volume 88 of the Indiana Law Journal and is available for download from SSRN.

During the 2012-2013 academic year, Professor Griffin will teach Law and Religion, Constitutional Law I, and Bioethics.

Prior to joining the faculty at Boyd, Professor Griffin served as the inaugural holder of the Larry and Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center in Houston, Texas. Before moving to Houston, Professor Griffin clerked for the Honorable Mary M. Schroeder of the U.S. Ninth Circuit Court of Appeals and served as Assistant Counsel in the Department of Justice’s Office of Professional Responsibility.

Professor Griffin will office in Room 462. Welcome to Boyd, Professor Griffin!

Professor Bartrum's Latest Article to Be Published in the Florida State University Law Review

The Boyd School of Law is very pleased to announce that Professor Ian Bartrum's latest article will be published in Volume 40 of the Florida State University Law Review.

The abstract for Constitutional Value Judgments and Interpretive Theory Choice provides: "Philip Bobbitt's description of the six modalities of constitutional argument has had broad influence among constitutional theorists. Bobbitt, however, has struggled to account for the choice between modalities in close and difficult cases where that choice is likely to determine the outcome. This paper addresses that problem by drawing an analogy to the work of Thomas Kuhn, who provided some account of the similar choices that scientists must make between competing theoretical paradigms during moments of scientific revolution. I suggest that, as is true of scientific practice, constitutional lawyers share a broad set of constitutional values, in terms of which they can and should justify their choices between interpretive modalities in outcome-determinative cases."

The article's full citation is: Ian Bartrum, Constitutional Value Judgments and Interpretive Theory Choice, 40 Fla. St. U. L. Rev. ___ (forthcoming 2013). Congratulations, Ian!

Professor Traum Publishes in Cardozo Law Review

Congratulations to Professor Anne Traum on the publication of her recent article in Volume 33 of the Cardozo Law Review.

The abstract for "Constitutionalizing Immigration Law on its Own Path" provides: "Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional issues (including due process) and criminal statutory interpretation. The Court has accorded agency deference on matters of agency expertise, which does not include interpretation of criminal law and convictions. And the Court has created generally applicable procedural protections in order to minimize court interference with substantive immigration policy. Guided by these core concepts, courts are poised to develop procedural protections for immigrants in removal proceedings that are tailored to the institutional interests at stake and protective of immigrants. By constitutionalizing immigration on its own path, courts may also avoid some of the pitfalls of a Sixth Amendment–based criminal-rights model."

The article's full text (Anne Traum, Constitutionalizing Immigration Law on Its Own Path, 33 CARDOZO L. REV. 491 (2011)) is available for download at UNLV's Scholarly Commons as well as SSRN.

Nevada Supreme Court Holds that Transfer of Clean Water Coalition Monies to General Revenue Budget Violates Nevada Constitution

By Professor Sylvia Lazos

In Clean Water Coalition v. The M Resort, 255 P.3d 247 (Nev. 2011), the Clean Water Coalition (CWC), an intergovernmental group made up of four political subdivisions based in Clark County, as well as private parties, challenged a 2010 legislative bill that transferred to general revenues $62 million that the CWC had raised from assessments and sewer connection fees to home owners and businesses based in Clark County. The Nevada Supreme Court held that the 2010 transfer of CWC monies for general budgetary purposes violated Art. 4, Sections 20 and 21 of the Nevada Constitution.