Law Commons^™

The New Yellow Dog Contract: Mandatory Arbitration Agreements And Collective Action Waivers In The Aftermath Of Epic Systems, Eric Lundy

Nevada Law Journal Forum

Since the 1980s, the Supreme Court has consistently found arbitration agreements in employment contracts to be enforceable, citing a strong national policy favoring arbitration. This line of cases came to its apogee in 2018 with Epic Systems Corp. v. Lewis. The Court held that the statutory right to engage in concerted activities for the purpose of mutual aid or protection did not confer upon employees the right to bring class actions against their employer when they had signed an arbitration agreement with a collective action waiver. While the Court’s decision was widely criticized in the academic community, it sent a …

A Continued Sign Of The Court's Unwillingness To Overrule Smith, Gader Wren

Nevada Law Journal Forum

Since its inception, the Supreme Court’s holding in Employment Division v. Smith has been attacked for diluting Free Exercise rights. In recent years, petitioners have asked the Court to reconsider Smith’s soundness. However, de-spite these challenges to Smith’s legitimacy, it has remained the law of the land.

On February 22, 2022, the Court granted certiorari on 303 Creative LLC v. Elenis. Although Petitioner asked the Court to overrule Smith, the Court granted certiorari to answer only a single question: “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the …

Ready To Do The Difficult Work Ahead: The Legal Legacy Of Senator Harry Reid, Robert Lemus, Sarah Voehl

Nevada Law Journal Forum

This White Paper examines the legal legacy of Harry Reid, who served Nevada in the Senate for thirty years and rose to the position of Majority Leader from 2007 to 2015. Senator Reid's work on land and water policy, climate change, immigration, gaming, and labor deeply affected Nevada and the United States as a whole. Through his positions of leadership, he secured funding for critical infrastructure projects, protected public lands, championed renewable energy, passed the Affordable Care Act, fought for immigration reform, and advocated for labor and gaming issues. This paper concludes that Senator Reid's legal legacy is a powerful …

Laid To Rust: Proposing Strict Liability In Tort For Prop Firearm Injuries Following The Alec Baldwin Shooting, Mark Edward Blankenship Jr., Joseph A. Ott

Nevada Law Journal Forum

Prop gun safety standards are often a mixed bag. “Despite some industry reforms following previous tragedies, the federal workplace safety agency in the U.S. is silent on the issue of on-set gun safety.” Some states follow film labor union and movie studio guidelines. Other states have regulations on pyrotechnic devices, but not on prop guns. Thus, states should consider what successful legal course of action a wrongfully deceased heir can bring in the event that no criminal charges can be filed. This article proposes that the best regulatory approach and tort liability course of action is through (1) treating prop …

Technologically Improving Textualism, Jeffrey W. Stempel, Erik S. Knutsen

Nevada Law Journal Forum

The textualist approach to construing statutes, regulations, contracts, and other documents remains dominant but has drawbacks, most significantly its tendency to disregard probative evidence of textual meaning in favor of isolated judicial impressions and dictionary definitions. Although a broader, contextual, “integrative” approach to interpretation is preferable, the hegemony of textualism, even extreme textualism, is unlikely to recede soon. Textualism can be substantially improved, however, through effective use of a form of big data—the corpus linguistics approach to discerning word meaning. By enlarging the universe of sources about how words are actually used, corpus linguistics represents a significant improvement over imperial …

The Incomprehensibility Of Nevada's Capable-Of-Repetition-Yet-Evading-Review Doctrine, Tom Stewart

Nevada Law Journal Forum

Nevada appellate courts recognize and apply an exception to the mootness doctrine that exists in federal court but does not currently have any basis in any state court rule or statute and, thus, should not be applied by Nevada’s appellate courts. Indeed, because no statute or court rule authorizes the Nevada appellate courts to hear cases that have been rendered moot but may be capable of repetition, yet evade review, Nevada’s appellate courts have no authority to do so. Thus, the appellate courts’ decisions entered on that basis are void. However, the solution to this problem is simple: the Nevada …

Coming Full Circle: The Boring Company's Not So Boring Transportation Gamble With The Las Vegas Loop, Tanner Castro, Jorge Padilla

Nevada Law Journal Forum

Las Vegas tourists and residents can soon travel in Tesla cars underneath the city in neon-lit tunnels in a project known as the Las Vegas Loop. The Boring Company—an American infrastructure and tunnel construction company founded by Elon Musk—is undertaking this “Teslas in Tunnels” project. The Loop plans to connect Downtown Las Vegas, the Las Vegas Strip, Harry Reid International Airport, and various other properties in the Vegas area. Boring seeks to offer a new form of public transit through the Loop to transport passengers across the Vegas area. This White Paper discusses the Loop’s development, compares the Loop to …

Guns In The Sky: Nevada's Firearm Laws, 1 October, And Next Steps, Dylan Lawter, Anya Sanko

Nevada Law Journal Forum

With incidences of high-profile mass shootings as well as daily gun violence continuing to rise throughout the United States, Nevada residents cannot help but wonder what the state is doing to stop and to prevent future incidents. Nevada has historically had permissive gun laws, being part of the “Wild West,” but in modern days, particularly since the 1 October shooting, Nevada legislators have enacted more gun laws. Additionally, judges and justices in Nevada courts have had to interpret new and old gun laws in novel ways, due to living in the modern era where gun violence seems to be the …

Taylor V. Riojas: Anatomy Of A Supreme Court Intervention That Should Not Have Been Necessary, Zamir Ben-Dan

Nevada Law Journal Forum

In September 2013, an inmate in a Texas prison allegedly spent six days in two uninhabitable cells. One cell was covered in “massive amounts of feces;” the other cell was freezing cold and lacked a sink, a bunk and a toilet, containing only a clogged floor drain for him to relieve himself. Confinement under these abominable conditions were plainly illegal under the Eighth Amendment of the United States Constitution. Yet, two lower federal courts found, for slightly different reasons, that the inmate had no actionable constitutional claim and that the defendants were entitled to qualified immunity. Both decisions displayed a …

Preserving Issues For Appeal In Nevada's Federal Courts, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Attorneys in federal courts across the country, including in the District of Nevada, are aware of the age-old rule that, generally, new issues cannot be raised for the first time on appeal. The question then becomes, how are these issues properly raised, and preserved, in the district court so that they are preserved for an appeal before the United States Court of Appeals for the Ninth Circuit or, ultimately, the Supreme Court of the United States? This article provides guiding principles based upon federal case law and the Federal Rules of Civil Procedure to answer these questions on preserving error …

Preserving Issues For Appeal In The Nevada State District Courts Under Nevada's New 2019 Rules Of Civil Procedure, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Practicing attorneys are aware of the age-old rule of appellate practice that new issues cannot be raised for the first time on appeal. But, how are these issues properly raised, and preserved, in the district courts so that they are preserved for an appeal before the Nevada Court of Appeals or the Nevada Supreme Court? This article provides guiding principles based upon Nevada case law and the newly-revised 2019 Nevada Rules of Civil Procedure to answer these questions on preserving error for an appeal in Nevada’s state courts.

The Clergy-Penitent Privilege: The Role Of Clergy In Perpetuating And Preventing Domestic Violence, Kami Orton

Nevada Law Journal Forum

Domestic violence occurs at alarming rates in all socioeconomic levels, races, locations, sexual orientations, and professions. Domestic violence occurs at similar frequencies among religious and non-religious individuals. Clergy play an important role in religious communities. The clergy-penitent privilege was created to protect the relationship between clergy and communicant and prevents clergy from testifying about spiritual communications. However, the privilege is currently an absolute privilege which is unnecessary and hurts victims and survivors of domestic violence. Additionally, the statutorily written privilege is not aligned with the application and practice of the privilege. Practice indicates clergy tend to desire to testify and …

The Incredible Edible: Protecting Businesses And Consumers In A Society Of Legalized Cannabis, Brandon M. Thompson

Nevada Law Journal Forum

This Article briefly discusses the history and origin of marijuana, or more precisely the cannabis plant, before branching into an examination of its chemical properties, forms, and uses. Including a concise survey of the various effects—including adverse side effects—of cannabis use. Additionally, it provides an introduction to products liability as it relates to drugs, in general, and then more specifically to the production and distribution of edibles. It will discuss some of the dangers that edibles pose to children. The focus will be primarily on issues with the marketing and presentation of edibles that have led to unintended cannabis consumption …

Breaking The Cycle: How Nevada Can Effectuate Meaningful Criminal Justice Reform, Scott Cooper, Scott Whitworth

Nevada Law Journal Forum

Why does society punish criminals? This paper examines what Nevada is attempting to accomplish through enacting and enforcing its criminal laws. We examine the current state of, as well as the challenges facing, Nevada’s criminal justice system. Additionally, we identify and propose certain solutions to reduce both recidivism and the financial burden that incarceration imposes on the state by looking to best practices in other states, as well as certain mechanisms and provisions that were, for one reason or another, removed from Nevada Assembly Bill 236.

Finding Light In Arbitration's Dark Shadow, Nicole G. Iannarone

Nevada Law Journal Forum

This short essay in response to “Arbitration’s Dark Shadow” examines the light visible at the borders of mandatory arbitration’s shadow in one industry Professor Edwards highlights – securities disputes between an investor customer and a broker-dealer. Though Edwards is correct that mandatory arbitration is often a black box emmeshed in shadow, the few instances where light exists in the form of public data should be highlighted, examined, and studied. We should not close our eyes in the dark. Instead, we should adjust to lessened light and determine what we can learn from the information we can see.

To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, Ebeth Palafox, Brendan Mcleod

Nevada Law Journal Forum

This white paper aims to discuss the issues associated with bail reform in Nevada, provide an analysis of bail reform efforts across the country, and purpose possible solutions for obstacles to bail reform in Nevada. The white paper’s proposed recommendations for practical bail reform is a three-phase plan to eliminate the injustices that arise from Nevada’s current cash bail model.

Is The Cure Worse Than The Disease?: Censorship Of Hate Speech May Well Increase Violence, Gordon Danning

Nevada Law Journal Forum

From Charlottesville to college campuses, people with odious hate groups have risen in notoriety recently. Responses to those people and the groups to which they belong have ranged from efforts to keep them from speaking in person, to deleting their presence on the internet, to efforts to have them terminated from their jobs or evicted from their apartments, and even to physical assault by members of such groups as Antifa. Such efforts at censoring, ostracizing, and stigmatizing hate group members are generally justified by claims that such individuals are dangerous. It is true that some scholars have found an association …

The Elephant In Nevada's Hotel Rooms: Social Consumption Of Recreational Marijuana, A Survey Of Law, Issues, And Solutions, Brent Resh, Alysa Grimes, Beatriz Aguirre

Nevada Law Journal Forum

Well known for its longstanding tradition of sanctioning and regulating the indulgence of activities almost universally considered “vices” (such as gambling, and even prostitution), Nevada now stands in a unique position on the frontlines of the state-level social experiment in marijuana decriminalization. Las Vegas—a mecca for tourists from around the world—has over forty-million annual visitorswho can now legally (at least under Nevada law) purchase up to one ounce of marijuana for recreational use. However, any consumption of that marijuana in a “public place,” retail marijuana store, or in a moving vehicle is a misdemeanor punishable by a fine of up …

U.S. Tax Treatment Of Australian Superannuation, John A. Castro

Nevada Law Journal Forum

The Organization for Economic Cooperation and Development (OECD) estimates than more than 100,000 Australian citizens are living and working in the U.S. Those Australian nationals almost certainly have some sort of Superannuation Fund, which is a state-mandated occupational pension scheme in Australia. The problem is that nearly every accounting firm in the U.S. is treating Australian Superannuation as a taxable foreign grantor trust. This presents a serious issue since the funds within Superannuation Funds are completely inaccessible until retirement, disability, or death. For an Australian national living in the U.S., this would result in immediate U.S. taxation on all gains …

Searching For Cliven Bundy: The Constitution And Public Lands, Ian Bartrum

Nevada Law Journal Forum

On April 5th, 2014, BLM temporarily closed over 500,000 acres of public land in Clark and Lincoln Counties in order to impound cattle grazing there in violation of a federal district court order. These cattle belonged, principally, to Cliven Bundy and his family—ranchers from Bunkerville, Nevada—who had stopped paying BLM permitting fees in the early 1990s. In anticipation of the roundup, the Bundys put out a distress call to militia-like groups around the country, and seven days later, an armed crowd confronted federal and state officers in the desert near Gold Butte. Another week later, federal authorities backed down, citing …

2017 Legislative Recap: Important Bills From Nevada's 79th Legislative Session, Leonardo R. Benavides

Nevada Law Journal Forum

After the “red wave” of voters swept across the nation’s midterm elections in 2014, Nevada Republicans held a bicameral majority in the 78th (2015) Legislative Session. The subsequent 2016 presidential election tipped the balance of power as Nevada Democrats took back the majority in both houses for the 79th (2017) Legislative Session. The Senate went from an 11-10 Republican advantage to an 11-9-1 advantage for Democrats, and the Assembly flipped from a 25-17 Republican advantage to a 27-15 Democrat advantage. The issues that had previously dominated the 2015 Session, such as tort reform, collective bargaining overhauls, and funding for Education …

Congressional Control Of Presidential Pardons, Glenn H. Reynolds

Nevada Law Journal Forum

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act …

Does Government Contracting Have A Remedies Problem? A Response To Eric M. Singer, Competitive Public Contracts, Steven W. Feldman

Nevada Law Journal Forum

In his provocative article, Competitive Public Contracts, Eric M. Singer claims that deficient contractor performance is inherent in government contracting. Singer asserts that, “fundamentally,” public purchasing has a “contract-remedies problem”—the absence of both any “credible threat” and any “effective contract remedy to deter or correct [contractor] misbehavior.” Unlike private buyers, who have plausible threats to motivate contractors to perform properly, governments are said to “often” labor under intrinsic and extrinsic limitations that undermine remedial alternatives. Consequently, Singer argues that governments (especially state and local agencies) have no “effective contract remedy” to induce improved contractor performance. Among these “ineffective” remedies, according …

Rock, Paper, Scissors... Loot!, Michael Mogill

Nevada Law Journal Forum

As teachers, we always try to inspire our students. That inspiration can be kindled in many forums, whether in the classroom, our offices, our communities—or, more rarely, in front of an entire graduating class. This article reflects the remarks I delivered to my students, our graduating class, on such a rare occasion, now several years past. The genesis of my speech, a simple child’s game (one we all know), led me through the reflections I offered to the class of 2014 and now offer to a much larger audience. I began writing these remarks with a question in mind: What …

Cooperative Federalism: Nevada’S Indigent Defense Crisis And The Role Of Federal Courts In Protecting The Right To Counsel In Non-Capital Cases, Randolph Fiedler, Megan Hoffman, Jonathan Kirshbaum

Nevada Law Journal Forum

In Martinez v. Ryan, the United States Supreme Court held the ineffective assistance of post-conviction counsel, or the lack of representation in a state post-conviction proceeding, provides cause to allow a federal habeas petitioner to overcome a procedural default on an ineffective assistance of trial counsel claim. This represented a radical shift in the criminal justice system. Prior to Martinez, state post-conviction proceedings—the typical mechanism for a criminal defendant to challenge the performance of his trial attorney—were not heavily scrutinized. It was understood and accepted that defendants did not have the right to counsel in these post-conviction proceedings. Whether a …

Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal procedure …

Is The Chinese Exclusion Case Still Good Law? (The President Is Trying To Find Out), Michael Kagan

Nevada Law Journal Forum

In this Essay, I want to make the argument that the validity of the Chinese Exclusion Case is the central question in the challenges to President Trump’s travel bans. The facts are closely analogous. Moreover, the Chinese Exclusion Case is the seminal, canonical decision establishing vast federal power over immigration control. Resolving the present challenges to the Trump Executive Orders requires us to determine, once and for all, if that 1889 decision was rightly decided. But if that case cannot survive given what we know of constitutional law in the twenty first century, we must be precise about what exactly …

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Nevada Law Journal Forum

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

A Left Of Liberal Interpretation Of Trump's "Big" Win, Part One: Neoliberalism, Duncan Kennedy

Nevada Law Journal Forum

Trump’s narrow victories in swing states could have been caused by any number of factors, but it is still significant that there was a nation-wide shift of the non-college white electorate, male and female. Many non-college Democrats who had voted for Obama did not turn out for Hillary and some voted for Trump; many Republicans who had not voted for Romney turned out for Trump. This article proposes, as part of the explanation, a rebellion of non-college whites against the consequences for poor communities, in red states or in red pockets in blue states, of four decades of neoliberal selective …