Creighton Law Review

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The Creighton Law Review is a legal journal published by the students of the Creighton University School of Law.

Founded in 1967, the Creighton Law Review published its first edition in the spring of 1968. As then Chief Justice Earl Warren wrote in that first issue, the purpose of a Law Review is to provide a "forum in which able minds subject existing legal principles to critical analysis within the context of changing conditions and in which imaginative alternatives to today's solutions are aired and tested through vigorous informal debate." Most significantly, the journal serves both practical and academic functions. The journal publishes pieces that provide practitioners with informative, well-drafted research. It also creates a forum for scholarly debate and presents an opportunity for students to participate in that debate. As such, this forum is highly structured and demands disciplined, self-critical writing in order to perform these two functions. The mission of the Creighton Law Review is to inform, educate, and serve the legal community, emphasizing the legal issues impacting Nebraska and the Eighth Circuit, and to provide a forum dedicated to the development of academic, research, analytical, and scholarly writing skills among law students.

The Creighton Law Review is published in four annual editions. Each edition is dedicated to specific themes.

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    State v. Williams: The Court of Criminal Appeals of Tennessee Incorrectly Allowed Rap Lyrics as Evidence to Prove the Character of the Accused
    (Creighton University School of Law, 2024-04) Kasamoto, Bryce
    To begin the determination of whether the Court of Criminal Appeals of Tennessee correctly allowed the rap video in State v. Williams as character evidence, this Note will first review the facts and holding of Williams. This Note will then generally review the development of the rap genre and the stigmas that followed it. This Note will then review cases that display the modern trend of courts limiting the admission of rap lyrics as character evidence to prove intent. Lastly, this Note will argue the Court of Criminal Appeals of Tennessee incorrectly allowed the rap video in State v. Williams as character evidence, and that courts should follow the “direct connection between lyrics and the crime in question” standard outline in Skinner.
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    Smoke and Mirrors: The Ambiguous Nature of the Major Questions Doctrine as a Reflection of the Intelligible Principle Test
    (Creighton University School of Law, 2024-04) McGuire, David
    This Note begins by tracing the intelligible principle test’s history. Then, this Note then discusses the Supreme Court’s dissatisfaction for the intelligible principal test as a protection of the separation of powers. Finally, this Note analyzes the major questions cases to provide insight on the doctrine’s utility and the Supreme Court’s concerns with administrative overreach. This Note argues that the major questions doctrine is an unworkable judicial doctrine that reflects the nature of the intelligible principal test. It also argues that coupling the intelligible principal test with a statement of available powers for self-fulfilling delegations can remedy the Supreme Courts concerns with test without casting vast areas of administrative law into doubt. Finally, this Note concludes that the Supreme Court should retire the major questions doctrine and instead compare novel interpretations of a self-fulfilling delegation to the examples enumerated and do a similarity analysis on the rights impacted.
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    Probable Cause and the Presumption of Innocence: How a Criminal Defendant's Right to Fair Trial Relies on Your Kid's Education in Fine Arts
    (Creighton University School of Law, 2024-04) Nunn, Henry
    “[W]hen those charges are brought, these people are guilty.” One would be forgiven for thinking that was a line delivered by a rusty sheriff in an old Western movie. He is easy to imagine: cowboy boots kicked up on a desk, polishing his six-shooter with an oil-stained handkerchief, spitting tobacco juice at a jailcell full of highwaymen and horse thieves. But sadly, that was a quote from Lori Lightfoot, the former mayor of Chicago, Illinois—a city with the third highest population in the United States, a city with a history of wrongful convictions caused by police misconduct. Mayor Lightfoot immediately backtracked by saying, “[o]f course they’re entitled to a presumption of innocence. Of course they’re entitled to their day in court. But residents in our community are also entitled to safety from dangerous people.” Taken in context, Mayor Lightfoot’s comments represented her views on pretrial release for individuals charged with violent crimes. She believed anyone charged with a violent crime should be held in state custody without opportunity for pretrial release because such a person posed an intolerable hazard to the community. Her position might have sounded preposterous to anyone with an elementary knowledge of our criminal justice system. And perhaps it was enough to erode her credibility as a government official who swore to serve the same citizens she was so ready to condemn as criminals before trial. But was her visceral reaction to violent crime incomprehensible? Of course not. It is only natural to seek immediate justice in response to violent crime. Furthermore, the U.S. criminal justice system is inherently prejudicial to the accused. Simply observing a criminal defendant in custody predisposes the public to inferences of guilt. Although pretrial release is hotly debated at the moment, it is not the subject of this Note. Rather, this Note focuses on two seemingly irreconcilable principles of our criminal justice system that Mayor Lightfoot’s comments heavy-handedly bring to the attention of the public: the standard of probable cause and the presumption of innocence.
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    On Law and Morality: A New Look at the Hart-Fuller Debate from a Classical Perspective
    (Creighton University School of Law, 2024-04) Kraynak, Robert P.
    While the famous debate between legal scholars H.L.A. Hart and Lon Fuller took place more than a generation ago, the issues involved have not lost their salience. The central question remains—What is the relation of law and morality?—which both Hart and Fuller understood as the relation of “positive law” to an idea of justice known as “natural law.” This article offers a fresh perspective on the debate by explaining the implicit political assumptions and philosophical commitments of the two legal scholars, which most critics have ignored. It also attempts to uncover the missing ingredients in the debate by turning to Aristotle’s insights about the relation of law to political regimes and Aquinas’s analysis of the inherent connections between human law and higher law. These insights are crucial for understanding law’s relation to morality, politics, and ultimate reality, and they reveal the limitations of Hart’s analytical jurisprudence and Fuller’s procedural jurisprudence. II conclude with some contemporary reflections on the relation of positive law to higher law in such areas as human rights advocacy and international law which re-open perennial questions about law and morality. My aim overall is to bring classical ideas into dialogue with modern problems in order to broaden the horizons of legal studies beyond analytical and procedural jurisprudence.
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    Unraveling the Conundrum that is Shelley v. Kraemer: Enforcement of Racially Restrictive Covenants is State Action
    (Creighton University School of Law, 2024-04) Johnson, Alex M., Jr.
    During the last ten years I have taught four law school courses: Property, Modern Real Estate, Contracts, and Trusts and Estates—an eclectic mix. In an earlier article, I characterized these four areas of law as historically developing in “Silos” with their own individualized rules and formalities to validate conveyances. My primary thesis is that these functional formalities or requirements that developed in each Silo to validate conveyances are designed to ensure that a court may later adjudicate a dispute over the validity of that conveyance with low error and adjudicative costs. As I was finalizing the article and thinking about the rules that developed in each Silo, I was struck by the fact that there is only one case that is addressed in all four courses. That case is the infamous Supreme Court opinion, Shelley v. Kraemer.