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University of Nevada, Las Vegas -- William S. Boyd School of Law

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Full-Text Articles in Law

The Public Policy Exception And International Intellectual Property Law, Marketa Trimble Sep 2021

The Public Policy Exception And International Intellectual Property Law, Marketa Trimble

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No abstract provided.


Review: Nevada Real Property Practice And Procedure Manual, Ngai Pindell Sep 2021

Review: Nevada Real Property Practice And Procedure Manual, Ngai Pindell

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Professor Pindell's review of Nevada Real Property Practice and Procedure Manual (2021).


Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel Jan 2021

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

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ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute's work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition ...


Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan Jan 2021

Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan

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Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a ...


Talking Back In Court, M. Eve Hanan Jan 2021

Talking Back In Court, M. Eve Hanan

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No abstract provided.


Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel Jan 2021

Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel

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The COVID-19 pandemic created not only a public health crisis but also an insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives "presponded" to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring-as a matter of law-that policy terms such as "direct physical loss or damage" do not even arguably encompass the business shutdowns resulting from COVID-19. Our closer examination of ...


The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure Jan 2021

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable ...


The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum Jan 2021

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

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This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way ...


The Legal Industry's Second Chance To Get It Right, Nancy B. Rapoport, Joseph R. Tiano Jr. Jan 2021

The Legal Industry's Second Chance To Get It Right, Nancy B. Rapoport, Joseph R. Tiano Jr.

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No abstract provided.


"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus Jan 2021

"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus

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This Article focuses on uncovering the multiple meanings of the word "our" in the published opinions of the U.S. Supreme Court from Chisholm to modern times. To do so, we use a digital legal history approach, combining robust court data, text mining techniques, and expert word classification, using a set of custom open-source tools and open data.


The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi Jan 2021

The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi

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This Article is the first study that categorizes and analyzes all the references to the terms "racist," "racism," and "white supremacy" throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court's rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme ...


Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport Jan 2021

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

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This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.


International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble Jan 2021

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision ...


High-Tech Dispute Resolution: Lessons From Psychology For A Post-Covid-19 Era, Jean R. Sternlight, Jennifer K. Robbennolt Jan 2021

High-Tech Dispute Resolution: Lessons From Psychology For A Post-Covid-19 Era, Jean R. Sternlight, Jennifer K. Robbennolt

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Covid-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences ...


Incarcerated Activism During Covid-19, M. Eve Hanan Jan 2021

Incarcerated Activism During Covid-19, M. Eve Hanan

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Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in incarcerated activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practices, it reveals both ...


Adversarial Failure, Benjamin P. Edwards Jan 2020

Adversarial Failure, Benjamin P. Edwards

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Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information's importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals ...


Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper Jan 2020

Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper

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This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and ...


Using General Counsel To Set The Tone For Work In Large Chapter 11 Cases, Nancy B. Rapoport Jan 2020

Using General Counsel To Set The Tone For Work In Large Chapter 11 Cases, Nancy B. Rapoport

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This Essay suggests that one way for the general counsel to help bankruptcy professionals make better staffing and budget decisions is to communicate her values more clearly to those professionals at the beginning of the engagement. In her role as the chief legal officer, the general counsel needs to let the bankruptcy professionals in on her thought processes. How does she watch over her own attorneys' decisions in other types of cases? What expenses does she consider reasonable? If she takes an active role in monitoring her bankruptcy professionals' work, her values (assuming that they're good values) will contribute ...


#Metoo Backlash Or Simply Common Sense?: It's Complicated, Ann C. Mcginley Jan 2020

#Metoo Backlash Or Simply Common Sense?: It's Complicated, Ann C. Mcginley

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This Essay focuses on the skittishness that men express about being accused of sexual harassment. Part II explains the prevalence of sexual harassment and the response to this problem, giving both empirical and anecdotal evidence of male professionals' refusals to spend time with female subordinates. Part III discusses the already-present inequalities in the legal profession, particularly in law firms and raises concerns about how lack of mentoring and sponsorship of women by male supervisors could create an even greater disparity. Part IV analyzes the disparate legal, business, and cultural definitions of sexual harassment, and given the disparities in understandings, raises ...


A Quarter Century Of International Copyright On Software, Marketa Trimble Jan 2020

A Quarter Century Of International Copyright On Software, Marketa Trimble

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No abstract provided.


Using Data Analytics To Predict An Individual Lawyer's Legal Malpractice Risk Profile: Becoming An Lpl "Precog", Nancy B. Rapoport, Joseph R. Tiano Jr. Jan 2020

Using Data Analytics To Predict An Individual Lawyer's Legal Malpractice Risk Profile: Becoming An Lpl "Precog", Nancy B. Rapoport, Joseph R. Tiano Jr.

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The power of data analytics is revolutionizing the way that business is conducted in nearly every industry. The medical industry, the consumer/retail space, and the banking and financial industries are taking their business operations to the next level by leveraging the power of big data. Despite radical transformations in nearly every other aspect of the legal industry, though, the approach to preventing, predicting, assessing, and resolving malpractice claims hasn't really changed. Malpractice insurers and their law firm clients continue to take an old-fashioned approach when it comes to legal professional liability. Unlike the insurers pricing automobile policies, the ...


Targeting Factors And Conflict Of Laws On The Internet, Marketa Trimble Jan 2020

Targeting Factors And Conflict Of Laws On The Internet, Marketa Trimble

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Courts have employed the concept of "targeting" to limit the reach of personal jurisdiction and applicable law on the Internet. To determine whether a defendant has targeted a particular country or state-and whether the defendant should be subject to the jurisdiction of and law in that country or state-courts consider various factors, such as the language, the top-level domain, and the currency used by the defendant on the Internet. However, developments in Internet technology and increasing Internet actor and user sophistication put the significance of the factors into question. In the absence of a defendant's express limitation on the ...


Foreword: The Labor Constitution In 2020, Ruben J. Garcia Jan 2020

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

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No abstract provided.


The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol M. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner Jan 2020

The Bar Exam And The Covid-19 Pandemic: The Need For Immediate Action, Claudia Angelos, Sara Berman, Mary Lu Bilek, Carol M. Chomsky, Andrea Anne Curcio, Marsha Griggs, Joan W. Howarth, Eileen R. Kaufman, Deborah Jones Merritt, Patricia Salkin, Judith W. Wegner

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The novel coronavirus COVID-19 has profoundly disrupted life in the United States. Among other challenges, jurisdictions are unlikely to be able to administer the July 2020 bar exam in the usual manner. It is essential, however, to continue licensing new lawyers. Those lawyers are necessary to meet current needs in the legal system. Equally important, the demand for legal services will skyrocket during and after this pandemic. We cannot close doors to the profession at a time when client demand will reach an all-time high.

In this brief policy paper, we outline six licensing options for jurisdictions to consider for ...


Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger Jan 2020

Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

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This conversational-style essay is an exchange among fourteen professors-representing thirteen universities across five countries-with experience teaching with feminist judgments.

Feminist judgments are 'shadow' court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases.

This essay begins to explore the vast pedagogical ...


Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure Jan 2020

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

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So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending claims in an ...


The Professional Responsibility Case For Valid And Nondiscriminatory Bar Exams, Joan W. Howarth Jan 2020

The Professional Responsibility Case For Valid And Nondiscriminatory Bar Exams, Joan W. Howarth

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Title VII protects against workplace discrimination in part through the scrutiny of employment tests whose results differ based on race, gender, or ethnicity. Such tests are said to have a disparate impact, and their use is illegal unless their validity can be established. Validity means that the test is job-related and measures what it purports to measure. Further, under Title VII, even a valid employment test with a disparate impact could be struck down if less discriminatory alternatives exist.

Licensing tests, including bar exams, have been found to be outside these Title VII protections. But the nondiscrimination values that animate ...


Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight Jan 2020

Pouring A Little Psychological Cold Water On Online Dispute Resolution, Jean R. Sternlight

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This Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points:

(1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to ...


Client-Focused Management Of Expectations For Legal Fees In Large Chapter 11 Cases, Nancy B. Rapoport Jan 2020

Client-Focused Management Of Expectations For Legal Fees In Large Chapter 11 Cases, Nancy B. Rapoport

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Large chapter 11 cases can have fees that run into the hundreds of millions of dollars. That's one of the reasons that, in 2013, the Executive Office of the United States Trustee promulgated additional guidelines that affect legal fees in large chapter 11 cases. Bankruptcy courts have been appointing fee examiners and fee committees in large cases to aid the courts in their duty to ensure that the fees and expenses of estate-paid professionals are reasonable. I've been one of those people charged with helping bankruptcy courts review fees. As such, I've seen first-hand what happens when ...


What Can We Expect Of Law And Religion In 2020, Leslie C. Griffin Jan 2020

What Can We Expect Of Law And Religion In 2020, Leslie C. Griffin

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The United States is in a religion-friendly mood-or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.