Law Commons^™

Work, Caregiving, And Masculinities, Ann C. Mcginley

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In her book Reshaping the Work-Family Debate, Joan Williams demonstrates the vulnerability of parent workers in working class America. In Chapter 2, "One Sick Child Away from Being Fired," she examines the records of ninety-nine union arbitrations to analyze the problems of working class parents who struggle to juggle their working and parenting responsibilities. Because this chapter is a tour de force in an overall excellent book, and because it suggests an area that Professor McGinley's research has focused on over the past number of years, in this Essay, Professor McGinley limits her discussion almost exclusively to this chapter. …

Dean's Column: Kay Kindred, A Nevada "First", Rachel J. Anderson

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This article documents selected aspects of the life of Professor Kay Kindred, the first female African-American law professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Document Design For Lawyers: The End Of The Typewriter Era, Linda L. Berger

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This article discusses simple design rules that you can follow in documents that need not comply with court rules and some that you may use even in documents that must comply.

We Live In A Country Of Unhcr: The Un Surrogate State And Refugee Policy In The Middle East, Michael Kagan

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Many gaps in the protection of refugees can be connected to a de facto transfer of responsibility for managing refugee policy from sovereign states to United Nations agencies. This phenomenon can be seen in dozens of countries in the Middle East, Africa and Asia, where the UN High Commissioner for Refugees (UNHCR) or the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) manage refugee camps, register newly arrived asylum-seekers, carry out refugee status determination, and administer education, health, livelihood and other social welfare programs.

In carrying out these functions, the UN acts to a great …

The Ip Law Book Review, Leah Chan Grinvald

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No abstract provided.

Constitutional Challenges To The Health Care Mandate: Based In Politics, Not Law, David Orentlicher

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No abstract provided.

Providing Effective Feedback, Jennifer Carr

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This article discusses the process of giving effective feedback in an academic context. Effective feedback gives students a clear explanation of what they should do, concrete steps for doing it, and the ability to ascertain whether those steps have adequately addressed the problem. The author discusses five steps that go into providing effective feedback to students.

Passing Off And Unfair Competition: Conflict And Convergence In Competition Law, Mary Lafrance

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No abstract provided.

State Of The Law School: Achieving Academic Success In Nevada, John Valery White

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In the coming years, the William S. Boyd School of Law will continue to pursue its standing goal of becoming a great law school for Nevada. That project is considerably more complex today, due to significant changes taking place in the legal profession. Though our first decade's successes have created a solid foundation from which the law school can take on these challenges, the changes to the profession are rapid and many are likely long-lasting. The school's graduates face a world with a considerably tighter job market. Law schools are being asked to provide greater skills training even as the …

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

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In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. …

When Foreigners Infringe Patents: An Empirical Look At The Involvement Of Foreign Defendants In Patent Litigation In The U.S., Marketa Trimble

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This paper presents results from a multiple-year project concerned with the involvement of foreign (non-U.S.) entities in U.S. patent litigation. A comparison of data from 2004 and 2009 that cover 5,407 patent cases filed in U.S. federal district courts in those two years evidences an increase in the number of cases involving foreign defendants, and thus an increasing potential for cross-border enforcement problems. With this basic finding the research supports the proposition advanced by a number of intellectual property scholars in the U.S. and abroad that rules need to be established to facilitate a smooth process for recognition and enforcement …

The "Illegal" Tax, Francine J. Lipman

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No abstract provided.

Law School Gifts Keep Giving - Clinical Programs Train Students While Serving The Legal Needs Of Ordinary Nevadans, Mary Berkheiser

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No abstract provided.

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Katherine R. Kruse

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The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws.

The Jurisprudential Turn In Legal Ethics, Katherine R. Kruse

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When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Katherine R. Kruse

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The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going …

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

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Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

When Courts Collide: Integrated Domestic Violence Courts And Court Pluralism, Elizabeth L. Macdowell

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This Article proposes court pluralism as a new theory for analyzing the role of the justice system in addressing domestic violence. It argues that a systemic view of the justice system is essential to developing coherent reform strategies, and lays out the foundation for taking into account the unique functions of civil and criminal justice in domestic violence cases. In doing so, the Article challenges the one-dimensional characterization of a fragmented court system as bad for victims of domestic violence that dominates legal scholarship, and shows that court fragmentation can be an opportunity and potential source of protection from systemic …

From Whether To How: The Challenge Of Implementing A Full Public Performance Right In Sound Recordings, Mary Lafrance

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The policy debate surrounding a public performance right in sound recordings has been well rehearsed for over 40 years. Despite increasingly strong arguments favoring the right, the political will has materialized slowly. The proposed Performance Rights Act (PRA) is the next incremental step. However, because it is limited to broadcast performances, it does not address performances in dispersed public venues (clubs, stores, bars, restaurants, noncommercial settings, and other venues where recorded music is played) as well as unique situations such as ringtones (which may or may not be public performances, pending further legislation or litigation).

Because it falls short of …

Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble

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This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.

The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of …

"Flexible Citizenship" In Wena Poon's Short Stories: Writing At The Interstices Of Asia And America, Stewart Chang

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Professor Stewart Chang discusses the themes and interpretations of United States-based Singaporean author Wena Poon's short stories through the lens of "flexible citizenship."

Hyper-Incarceration As A Multidimensional Attack: Replying To Angela Harris Through The Wire, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper responds to a symposium article by Angela Harris, arguing "mass incarceration" should be understood as "hyper-incarceration" because it is targeted based on multiple dimensions of identities. He extends Harris's analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.

Shaming Trademark Bullies, Leah Chan Grinvald

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In September 2009, Hansen Beverage Company sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer. Hansen is a multi-million dollar beverage corporation and Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Hansen’s gravamen was that Rock Art’s “VERMONSTER” beer allegedly infringed on Hansen’s “MONSTER ENGERY” trademarks. Instead of capitulating, Rock Art Brewery fought back, taking to the virtual streets of the internet and galvanized public sentiment against Hansen’s. The end result was an amicable settlement agreement that allowed Rock …

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

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John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that "the principles and policies they advocate and vote for can be supported by the political values of public reason." This so-called "duty of civility" obligates us to cast our votes on "constitutional questions and matters of basic justice" for reasons that we can explain in terms of the public good and the "ideals and principles expressed by society's conception of political justice." Rawls contrasts these public reasons with "nonpublic reasons" - such as "comprehensive religious and philosophical doctrines" - which he claims cannot …

Experiential Learning In The First Year Curriculum: The Public Interest Partnership, Nantiya Ruan

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The newest learning initiatives in legal education focus much attention on the necessity for teachers to support students' development of professional identity, including "civic professionalism,"which" link[s] the interests of educators with the needs of practitioners and with the public the profession is pledged to serve." See William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007). With that movement in mind, for the past five years in my legal research and writing (LRW) class, my students have partnered with non-profit organizations to provide them with legal research and advocacy documents to further the organization's public interest …

Shady Grove And The Potential Democracy-Enhancing Benefits Of Erie Formalism, Jeffrey W. Stempel

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No abstract provided.

In Praise Of Procedurally Centered Judicial Disqualification - And A Stronger Conception Of The Appearance Standard: Better Acknowledging And Adjusting To Cognitive Bias, Spoliation And Perceptual Realities, Jeffrey W. Stempel

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No abstract provided.

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

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Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Mapping The Human Right To Water On The Colorado River, Bret C. Birdsong

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Colorado River systems-both ecological and legal-are facing a coming crisis. The river snakes its way from the Rocky Mountain crest to the Gulf of California, draining 245,000 square miles encompassing parts of seven of the United States ("U.S.") and two Mexican states. The river and its tributaries provide drinking water for growing population of thirty million in an even larger area because some of its water is diverted to serve out-of-basin demands in both the U.S. and Mexico. Aside from bringing life-sustaining water to people for personal use, it provides irrigation water for some of the most valuable agricultural lands …

Implicit Bias And Immigration Courts, Fatma Marouf

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This Article highlights the importance of implicit bias in immigration adjudication. After tracing the evolution of prejudice in our immigration laws from explicit "old-fashioned" prejudice to more subtle forms of "modem" and "aversive" prejudice, the Article argues that the specific conditions under which immigration judges decide cases render them especially prone to the influence of implicit bias. Specifically, it examines how factors such as immigration judges' lack of independence, limited opportunity for deliberate thinking, low motivation, and the low risk of judicial review all allow implicit bias to drive decisionmaking. The Article then recommends certain reforms, both simple and complex, …