Law Commons^™

Preserving The Past In The Present For The Future: Las Vegas Chapter Of The National Bar Association Archive At The Wiener-Rogers Law Library, Jeanne Price, Rachel J. Anderson

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This co-authored article documents the establishment of the Las Vegas Chapter of the National Bar Association (LVNBA) Archive in 2011 at the Wiener-Rogers Law Library at the University of Nevada, Las Vegas, William S. Boyd School of Law, which may be the first of its kind in the nation. The LVNBA archive was established in cooperation with the LVNBA, the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. Materials donated by the LVNBA and its members document the role …

Timeline Of African-American Legal History In Nevada (1861-2011), Rachel J. Anderson

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For the first time in Nevada history, this timeline depicts selected events in the history of African-American lawyers, civil rights, and diversity in Nevada's bar and bench. It includes many historically significant pictures and is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American lawyers in Nevada in honor of the 51st anniversary of the first African American (Charles L. Kellar) passing the Nevada state bar examination, the 48th anniversary of the first two African Americans admitted to the …

Reconsidering The Separation Of Banking And Commerce, Mehrsa Baradaran

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This Article examines the long-held belief that banking and commerce need to be kept separate to ensure a stable banking system. Specifically, the Article criticizes the Bank Holding Company Act (“BHCA”), which prohibits nonbanking entities from owning banks. The recent banking collapse has caused and exacerbated several problematic trends in U.S. banking, especially the conglomeration of banking entities and the homogenization of assets. The inflexible and outdated provisions of the BHCA are a major cause of these trends. Since the enactment of the BHCA, the landscape of U.S. banking has changed dramatically, but the strict separation of banking and commerce …

Dean’S Column: Collaborations With Professional Associations, Rachel J. Anderson

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This co-authored article documents the cooperation and synergies between the William S. Boyd School of Law at the University of Nevada, Las Vegas, and the Las Vegas Chapter of the National Bar Association (LVNBA). The LVNBA is the local affiliate of the National Bar Association, which is the nation’s oldest minority bar and largest national association of over 44,000 predominately African-American lawyers, judges, professors, and law students. The article is part of a special Black History Month issue of the Nevada Lawyer, the official publication of the State Bar of Nevada. That issue highlights the achievements and contributions of African-American …

Lawyers Intentionally Inflicting Emotional Distress, Alex B. Long

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This article examines the tort of intentional infliction of emotional distress (IIED) as applied to lawyers engaged in the practice of law. IIED claims against lawyers have arisen in a variety of contexts, ranging from a lawyer’s act of disclosing client confidences to a prosecutor to demanding sex from a client in exchange for legal services. Courts have always had difficulty defining the concept of “extreme and outrageous conduct” for purposes of an IIED claim, but IIED claims against lawyers pose even greater definitional problems for courts. In an effort to provide greater clarity, the article advocates that courts should …

Constitutional Limits On The Right Of Government Investigators To Interview And Examine Alleged Victims Of Child Abuse Or Neglect, Teri Dobbins Baxter

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Investigating allegations of child abuse or neglect presents unique challenges, particularly if parents or guardians are the alleged perpetrators. Those accused of harming the children are in a position to prevent the victims from getting access to the help they need to escape their abuser(s). The courts have not clearly defined the federal constitutional boundaries of searches and seizures in this context. The Supreme Court, in particular, has not weighed in on the constitutionality of warrantless searches and seizures in connection with abuse and neglect investigations. This lack of Supreme Court guidance has led to unpredictable and sometimes conflicting opinions …

Fatherhood By Conscription: Nonconsensual Insemination And The Duty Of Child Support, Michael J. Higdon

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Nathaniel was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, …

At The Intersection Of Sovereignty And Contract: Traffic Cameras And The Privatization Of Law Enforcement Power, William Davenport Mercer

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Many municipalities are making critical errors in their attempts to alleviate current financial burdens by contracting with private entities to perform many of their essential functions, most notably those agreements with companies to install traffic cameras and, in many cases, to monitor and cite offenders. By subcontracting part of their exclusive power to enforce law, these municipalities essentially bargain away sovereignty by parting with portions of their inherent police power. As these cameras fill a role played by the state’s law enforcement personnel, municipalities impermissibly infringe on the actual sovereignty of the state as well as the conceptual sovereignty of …

Second Amendment Penumbras: Some Preliminary Observations, Glenn Harlan Reynolds

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With the Second Amendment now a working part of the Bill Of Rights in the wake of the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago, this brief Essay examines the likely extent of penumbral rights under the Second Amendment, as well as the possible effect on unenumerated rights in general of an enforceable right to arms.

Why Civil Law Countries Might Forego The Individual Trustee: Provocative Insights From The New-To-The-Fold, Iris Goodwin

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At the center of this article lies a decision in several civil law countries that have adopted the common law trust to restrict the office of trustee to banks and similar financial service institutions. Having had an opportunity to consider the trust anew, these countries represent a challenge to the common law where the individual – indeed the untutored individual – can still qualify as trustee (and serve in this capacity alone). This permissive common law regime obtains notwithstanding the size of the trust endowment or the number of beneficiaries whose interests might be at stake. Indeed, in some common …

Professionalism And Matthew Shardlake, Alex B. Long

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This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Juror Privacy In The Sixth Amendment Balance, Melanie Wilson

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Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat putative jurors with care and tact. The opposite is true. During voir dire, potential jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton

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For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower and …

Federal Income Tax Issues Of Financially Troubled Corporations, Don Leatherman

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No abstract provided.

Occupy Wall Street And Antitrust, Maurice Stucke

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Capitalism, some declare, is in crisis. One concern, which the Occupy Wall Street protesters and many Americans share, is how a relatively small group of corporate and wealthy individuals now wields too much economic influence and control in the United States and the world. The prevailing belief is that financial institutions’ power and influence represent a major threat to America.

So what does antitrust have to say about this public unease? Few would likely believe the Supreme Court’s Standard Oil opinion handed down a century ago would relate to their present concerns. That is unfortunate. The concerns Standard Oil raises …

Derrick Bell’S Community-Based Classroom, Joy Radice

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In Derrick Bell’s Community-based Classroom, I argue that Derrick Bell enhanced his participatory pedagogical approach to teaching constitutional law by intentionally creating community within the law school classroom — a community that humanized the students’ educational experience. This essay explores three ways in which he created community: through his participatory, student-centered course structure; his social classroom environment; and his interactive self-assessments. Over the past few years, legal education has come under indictment in the media for not adequately training lawyers for practice. Bell’s community-based classroom responds to this indictment, fusing both theory and practice in teaching doctrinal constitutional law courses …

Desire, Conservatism, Underfunding, Congressional Meddling, And Study Fatigue: Ingredients For Ongoing Reform At The Securities And Exchange Commission?, Joan Macleod Heminway

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This article suggests the use of program evaluation -- a branch of social science research designed to assess organizations and their activities -- to analyze continued reform efforts at the Securities and Exchange Commission ("SEC") under Section 967 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 967 compelled the SEC to retain an independent consultant to evaluate and issue a report on its structure and operations and mandated that the SEC engage in post-study reporting to Congress over a two-year period on its implementation of resulting reforms. The article concludes that program evaluation techniques are useful in …

Using The Nlra To Nip Anticipatory Retaliation In The Bud, Alex B. Long

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No abstract provided.

A Due Process Right To Record The Police, Glenn Harlan Reynolds

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There has been considerable discussion of citizens' First Amendment right to record the police. This essay, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and …

Administering Justice: Removing Statutory Barriers To Reentry, Joy Radice

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After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these post- conviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the …

Merit And Mobility: A Progressive View Of Class, Culture, And The Law, Lucille A. Jewel

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Rising income inequality and financial trauma in the middle class beg the question of whether social mobility, long a part of America’s narrative identity, is truly available to Americans residing in the lower rungs of society. This paper addresses the connection between culture and social mobility, looking particularly at how culture impacts social outcomes in America’s meritocratic educational system. Analyzing culture and cultural capital from a progressive perspective, this paper concludes that culture operates subtly, helping some retain or improve their existing position but interfering with the mobility of others. The rhetoric of individual merit, however, obscures the role that …

Contested Elections As Secret Weapon: Legislative Control Over Judicial Decision-Making, Judy Cornett

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The current interbranch tensions in the federal government have been just as potent, if not more so, at the state level. Legislative challenges to state judiciaries are accumulating nationwide. In one state, Tennessee, the newly-elected Republican majority in the General Assembly has flexed its legislative muscle in several ways, ranging from the outright hostile – threatening the imposition of contested elections for the state’s appellate judges and a takeover of the body that governs judicial conduct – to the more sublime. A less-publicized, but no less significant, step that the legislature took in 2011 was to overrule a recent decision …

Redefining Summary Judgment By Statute: The Legislative History Of Tennessee Code Annotated Section 20-16-101, Judy Cornett

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In 2011, the Tennessee General Assembly – the first majority Republican legislature in the state since Reconstruction – passed two bills purporting to legislatively overrule recent decisions of the Tennessee Supreme Court that the legislature deemed unfriendly to business interests. This article examines the legislative history of one of those bills. Public Chapter No. 498, codified as Tennessee Code Annotated section 20-16-101, attempts to change the summary judgment standard adopted by the Tennessee Supreme Court in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). In Hannan, the Supreme Court explicitly rejected the federal Celotex standard for burden-shifting on …

Talking Union In Two Languages Labor Rights And Immigrant Workers In East Tennessee, Fran Ansley

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No abstract provided.

What Is A Security In The Crowdfunding Era?, Joan Macleod Heminway

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With the advent of the crowdfunding era, financial interests in business enterprises may look less like investment instruments commonly known as common stock or debentures, and more like loans, gambling bets, rights to consumable products or services or charitable or other nonprofit donations. A closer look at innovations in interests, instruments and offerings in the crowdfunding era preceding the enactment of the Jumpstart Our Business Startups Act (JOBS Act) offers a basis for comparisons and contrasts that raises questions about the categorization of instruments regulated as securities. These and other questions are important to a rethinking of the structure of …

Is China's Housing Market Heading Toward A Us-Style Crash?, Gregory M. Stein

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This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, 'Who knows?' China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.

My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing …

A Better Balancing: Reconsidering Pre-Conviction Dna Extraction From Federal Arrestees, Joy Radice

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Federal law mandates the collection of a biological sample from anyone arrested by federal authorities or facing federal charges, regardless of the charge. The FBI then creates a DNA profile from the sample and enters that profile into the Combined DNA Index System (“CODIS”), a national database through which law enforcement matches individuals and crime scene DNA evidence.

Part I of the essay briefly reviews the federal statute that authorizes pre-conviction DNA extraction and the Fourth Amendment principles that underlie the current constitutional challenges to it. Part II identifies the various, and sometimes competing, rationales offered to justify the constitutionality …

Mandatory Binding Arbitration Clauses Prevent Consumers From Presenting Procedurally Difficult Claims, Jean R. Sternlight

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The longstanding debate over the benefits and detriments of mandatory arbitration in the consumer context has often focused on the wrong issue. Although we have now argued for almost twenty years over whether it is appropriate to require consumers to arbitrate rather than litigate claims against providers of products and services, too often commentators have asked whether consumers win or lose when they bring claims in arbitration, rather than whether consumers’ claims are suppressed or eliminated altogether as a result of companies’ use of mandatory arbitration clauses. The United States Supreme Court’s recent decision in AT&T Mobility v. Concepcion brings …

Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency, And Acceptable Justice, Jeffrey W. Stempel

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No abstract provided.

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

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No abstract provided.