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Romano v. Romano, 138 Nev. Adv. Op. 1 (Jan. 13, 2022)
Get PDFCaselaw surrounding the circumstances under which a district court may modify the joint physical custody of minor children and a parent’s child-support obligations has been inconsistent in Nevada. In Rivero, for example, the Court relied on two tests to evaluate motions to modify a physical custody arrangement. Initially, Traux held that the test to modify joint physical custody arrangements was different from the test to modify primary physical custody. The initial test was based on NRS 125.510(2), which provided that a court may modify a joint physical custody arrangement when the movant can show that it is in the child’s best interest to do so. Thus, the Court initially concluded that a party does not need to show a change in the parent’s circumstances to modify a joint physical custody arrangement. Even when Traux was decided, the child’s best interest was the sole factor in determining physical custody, regardless of whether a party sought joint or primary custody.
However, the Court later observed that when a judge makes a decision on child custody, it should not be modified if the circumstances that were present when the decision was made remains in effect. As such, the Court modified the physical custody arrangement test. The Court held that requiring the movant to show a substantial change in circumstances affecting a child’s welfare “serves the important purpose of guaranteeing stability unless circumstances have changed to such an extent that a modification is appropriate.” Accordingly, a court may modify a joint or primary physical custody arrangement only when “(1) there has been a substantial change in circumstances affecting the welfare of the child, and (2) the child’s best interest is served by the modification.
A Deeper Dive into Nautilus: Differentiating Insurer Efforts to Recover Defense Costs and Assessing Recoupment in the Wake of the ALI Restatement
Get PDFInsurers and Policyholder have for decades contested whether the typical general liability policy requires policyholders to reimburse insurers for defense costs where a claim is ultimately held not to be one for which a defense is required. Although a slight majority of decisions favors insurers, the recent trend has favored policyholders, as reflected in §21 of the American Law Institute Restatement of the Law, Liability Insurance (“RLLI”), one of several contested portions of the RLLI. In Nautilus Insurance v. Access Medical, the Nevada Supreme Court provided the most extensive post-RLLI analysis of the dispute, ruling in favor of the insurer and seemingly rejecting the ALI approach. As the most sophisticated post-RLLI examination of the issue, Nautilus deserves particular attention. The majority opinion, although sophisticated and reasonable, makes analytical errors that caution against unquestioning adoption of its rhetoric while the dissenting opinion, which invoked RLLI §21 favorably, remains the better analysis of the matter.
Unduly overlooked to date is the degree of apparent support for the RLLI position in “mixed” actions combining covered and uncovered claims in which a single potentially covered claim. In these cases, the ALI RLLI position is logically unassailable. Insurers should not be able to recoup defense costs pursuant to policies that promise to defend “suits” and not merely “claims” and to pay “defense costs” without any limiting language that would give fair notice to a purchasing policyholder.
A lawsuit where a court ultimately finds no duty to defend any aspect of the matter presents a much closer case but, as per RLLI §21 and the Nautilus Dissent, remains a situation where recoupment should be refused absent specific agreement by insurer and policyholder (rather than the vulnerable policyholder’s mere acceptance of a defense subject to reservation of rights).
Nautilus is also worth attention in that its answer to a federal court’s certified question stems from a questionable underlying decision of no potential for coverage. Nautilus also illustrates the institutional advantages held by insurers and the practical problems faced by policyholders when the insurance industry deploys its disproportionate resources
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Regulatory Constitutional Law: Protecting Immigrant Free Speech without Relying on the First Amendment
Get PDFJohnston v. Eighth Jud. Dist. Ct., 138 Nev. Adv. Op. 67 (Oct. 6, 2022)
Get PDFA defendant is constitutionally entitled to a prompt hearing after being taken into custody from pretrial release, and at that hearing, the State bears the burden of demonstrating probable cause. A violation of a condition of a pretrial release may lead to statutory sanctions, and the court does not recognize a distinction between so-called “technical” and “substantive” violations. NRS 178.4851 and Valdez-Jimenez require the district court to make findings of fact on the record that each condition of pretrial release is the least restrictive means of ensuring public safety and the defendant’s return to court
Judicial Consensus: Why the Supreme Court Should Decide Its Cases Unanimously
Get PDFLike Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five of the nine Justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.
Nor it is obvious that the Court should decide by a majority vote. When the public votes on a ballot measure, it typically makes sense to follow the majority. The general will of the electorate ought to govern. But judicial decisions are not supposed to reflect popular sentiment. Rather, they must respect the rule of law. Thus, on many matters, courts override the preferences of the majority to protect the rights of the minority.
Moreover, juries in the United States decide their cases unanimously. As the Supreme Court has recognized, it is important for jury decisions to emerge from a deliberative process that represents the views of the entire community.
For the same reasons why it is important for juries to decide cases unanimously, so is it important for the Supreme Court, as well as other appellate courts, to decide cases unanimously. In particular, unanimous decisions would be better decisions, and they would be fairer decisions. They would be better because they would take into account a broader range of relevant perspectives, and they would be fairer because they would reflect the views of both sides of the ideological spectrum.
Deciding cases by consensus would not be new for the Supreme Court. For most of its history, it operated under a norm of consensus, with dissenting opinions written infrequently.
This Article will make several points, which have gone almost entirely unrecognized to date: (1) Majority voting does not make sense on an appellate court, (2) majority voting on an appellate court violates principles of due process, and (3) unanimous decisions promote the quality and fairness of judicial decision-making by ensuring that decisions reflect a broad range of perspectives. In addition, (4) unanimous decision-making is more faithful than majority voting to the original intent of the Framers, (5) it is consistent with Supreme Court precedent, and (6) the experience of the Supreme Court, juries, and other decision-making bodies indicates that a rule of unanimity would work well