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 …

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 …

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 …

Thoughts On The Divergence Of Promise And Contract, Ian C. Bartrum

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This essay offers some brief thoughts on Seana Shiffrin‘s recent work regarding the divergence of contractual and promissory norms. The author conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. The author suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

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This Colloquy piece comments on some doctrinal and theoretical implications of the Supreme Court's recent decision in Salazar v. Buono.

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 …

The Lady, Or The Tiger? A Field Guide To Metaphor & Narrative, Linda L. Berger

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Metaphor and narrative reassure us that things hang together, providing a sense of coherence to the patterns and paths we employ for perception and expression. In this field guide, I hope to illustrate - with images and stories when possible - how better understanding of metaphor and narrative can guide those engaged in legal rhetoric and persuasion.

The article briefly summarizes cognitive theory relating to metaphor and narrative, provides snapshots of their use in the field, in real-life legal persuasion, and suggests ways to adapt metaphor and narrative to a specific example of legal persuasion. In the field guide section, …

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 …

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

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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 …

Reforming State Mental Health Parity Law, Stacey A. Tovino

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This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive …

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

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In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

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 …

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

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No abstract provided.

The "Illegal" Tax, Francine J. Lipman

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No abstract provided.

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, …

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.

Legal Education Comes To Nevada: The Creation Of The William S. Boyd School Of Law, Mary Berkheiser

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No abstract provided.

Social Security Spouse And Survivor Benefits 101: Practical Primer Part Ii (Or Another Reason To Put A Ring On It), Francine J. Lipman

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No abstract provided.

Boyd Law's Thomas & Mack Clinic Scores Important Ninth Circuit Victory, Anne R. Traum

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No abstract provided.

"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.

Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between The Morally Right And The Socially Feasible, David Orentlicher

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No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

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No abstract provided.

The Commerical Speech Doctrine In Health Regulation: The Clash Between The Public Interest In A Robust First Amendment And The Public Interest In Effective Protection From Harm, David Orentlicher

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No abstract provided.