Law Commons^™

Deep Irony - The Law Of The Gift, Iris Goodwin

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No abstract provided.

Harming Business Clients With Zealous Advocacy: Rethinking The Attorney Advisor's Touchstone, Paula Schaefer

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Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and …

Rethinking The Giant Mess That Is Employment Discrimination Law, Alex B. Long

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No abstract provided.

How Idea Fails Families Without Means: Causes And Corrections From The Frontlines Of Special Education Lawyering, Dean Rivkin

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The struggle for equal educational opportunity for students with disabilities whose families have few resources is waged daily within the framework of the Individuals with Disabilities Education Act (IDEA), a complex entitlement statute. Unlike the progress made under the IDEA for their wealthier peers, low-income children are not reaping the educational benefits that effective advocacy has achieved for students with disabilities who can afford determined, skilled and knowledgeable experts to navigate the highly technical mandates of the law. But in the current landscape of retrenchment, the more "smart" corrections that advocates and lawyers can formulate, the greater the likelihood that …

Truancy Prosecutions Of Students And The Right [To] Education, Dean Rivkin

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Nationally, the high volume of prosecutions of students for truancy has constituted a perennial low visibility corner of the juvenile system. Rarely represented by counsel, students who are convicted often suffer serious sanctions, including incarceration, fines, unachievable conditions of probation, loss of driving privileges, and other burdensome restrictions. Although the process of truancy prosecutions differs state-by-state, and often court-by-court, the transparency and legality of these systems is subject to several on-going legal challenges asserting that, as a constitutional matter, the rule of law - embodying fairness, consistency, and the right to be heard - is systematically abused in truancy courts. …

Quieting Cognitive Bias With Standards For Witness Communications, Melanie Wilson

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Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated round-table discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored standards may lessen the detrimental …

A Tribute To Bob Lloyd, Douglas A. Blaze

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No abstract provided.

Teaching Contract Drafting Using Real Contracts, Brian Krumm, Sharon Pocock, Shelley Dunck

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No abstract provided.

Innovative Transactional Pedagogies, Joan Macleod Heminway

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Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5, …

Sustaining Reform Efforts At The Sec: A Progress Report, Joan Macleod Heminway

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Many recent articles written by U.S. legal practitioners and law scholars in the wake of the financial crisis address regulatory reforms included in or omitted from the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and related agency initiatives. In contrast, this article focuses on institutional reforms - specifically those instituted at the U.S. Securities and Exchange Commission (SEC) since President Barack Obama took office in January 2009.

In an article published in the Villanova Law Review last year, I assessed the early reform efforts at the SEC in the Obama era from the vantage point of change …

The Last Male Bastion: In Search Of A Trojan Horse, Joan Macleod Heminway

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Numerous legal scholars and commentators have written about the paucity of women in the boardroom at influence-wielding U.S. public companies. Fewer have written about the scarcity of female Chief Executive Officers, and fewer yet have written about the relatively low numbers of female executive officers, at U.S. public companies.

This brief essay (an edited version of my remarks offered at the University of Dayton School of Law’s symposium on "Perspectives on Gender and Business Ethics: Women in Corporate Governance") does not endeavor to add to the collective understanding of observed gender disparities in boardrooms and the C-suite — the senior …

Economists On Deregulation Of The American Legal Profession: Praise And Critique, Benjamin H. Barton

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Both law professors and economists are discussing deregulation of the American legal profession, often without consulting each other. This symposium essay reviews the book length deregulation argument entitled First Thing We Do, Let’s Deregulate All the Lawyers. The essay argues that Let’s Deregulate is a tremendous addition to the literature: it disregards laws various professional shibboleths and offers a crisp and persuasive argument that the current barriers to entry are very, very costly to law students, clients, and society at large. Let’s Deregulate estimates the 2004 lawyers’ earning premium at $64 billion. The estimation is high, but well supported. Even …

Defamation Of Religion: Rumors Of Its Death Are Greatly Exaggerated, Robert C. Blitt

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This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — and motivated in part by the desire to end years …

Whither Secular Bear: The Russian Orthodox Church’S Strengthening Influence On Russia's Domestic And Foreign Policy, Robert C. Blitt

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As 2012 presidential elections in Russia draw near, evidence points to a collapse in that country’s constitutional obligation of secularism and state-church separation. Although early signs of this phenomenon can be traced back to the Yeltsin era, the Putin and Medvedev presidencies have dealt a fatal blow to secular state policy manifested both at home and abroad, as well as to Russia’s constitutional human rights principles including nondiscrimination and equality of religious beliefs.

The first part of this article argues that leadership changes in the Russian government and the Russian Orthodox Church (ROC) have triggered an unprecedented deepening of state-ROC …

Employment Retaliation And The Accident Of Text, Alex B. Long

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This Article explores the current and future landscape of employment retaliation law following the Supreme Court’s decisions in Thompson v. North American Stainless, LP and Kasten v. Saint-Gobain Performance Plastics Corp. As the law currently exists, statutory retaliation plaintiffs win or lose largely due to the accident of statutory text rather than the fact that the law is operating as Congress envisioned or as part of a coherent scheme of regulation. In short, the federal approach to workplace retaliation is inefficient, unnecessarily complex, and in need of major reform. Contrary to popular thinking, the article concludes that the text of …

I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, Lucille A. Jewel

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The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show …

Shady Grove And The Potential Democracy-Enhancing Benefits Of Erie Formalism, 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 …

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, …

Just A Matter Of Fairness: Tax Consequences Of The Service’S Revised Community Property Treatment Of California Registered Domestic Partners (Rdps), 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.

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

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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.

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.

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 …

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 …

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 …