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Boyd Briefs - Oct. 30, 2014, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Boyd Briefs / Road Scholars

Boyd Briefs provides weekly information regarding the activities and accomplishments of the faculty, students, and alumni of the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Deal Leaves Court Issues Unresolved, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Coercing Justice? Exploring The "Aspirations And Practice" Of Law As A Tool In Struggles Against Social Inequalities, Karen Schucher

PhD Dissertations

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On …

Summary Of Fdic V. Rhodes, 130 Nev. Adv. Op. 8, Aleem A. Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) 12 U.S.C. § 1821(d)(14)(A) (the “FDIC extender statute”)[1] preempts any similarly applicable state law, in this case NRS 40.4055(1)[2]; and (2) the Court refused to adopt a rule that a state statute of repose cannot be preempted by federal law.

[1] “Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA),…the [FDIC] acts as a "conservator or receiver" for failed financial institutions. 12 U.S.C. § 1821(d)(2)(A) (2012). FIRREA extends

the time period for the FDIC, in its capacity as the failed institution's conservator or receiver, to bring a contract claim …

State Of Utah, Plaintiff/Appellee, V. Levi Gene King, Defendant/Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

Appeal from the Minutes- Change of Plea-Sentence, Judgement, Commitment entered on January 18, 2013, in the Second District Court, Davis County, the Honorable Thomas L. Kay, presiding

China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

The South China Sea (SCS) is becoming an increasingly contentious source of geopolitical tension due to its significance as an international trade route, possessor of potentially significant oil and natural gas resources, China’s increasing diplomatic and military assertiveness, and the U.S.’ recent and ongoing Pacific Pivot strategy. Countries as varied as China, Taiwan, the Philippines, Indonesia and other adjacent countries have claims on this region’s islands and natural resources. China has been particularly assertive in asserting its SCS claims by creating a nine-dash line map claiming to give it de facto maritime control over this entire region without regard to …

An Ex Ante Approach To Excessive State Debt, Vincent S. J. Buccola

Duke Law Journal

The recent recession has shone a very public spotlight on the perilous financial conditions of many American states. At the same time, it has renewed academic interest in the question of excessive state debt—its causes and possible cures. Scholars who see risk externalization as a primary driver of systematic overborrowing have proposed bankruptcy legislation for the states as one solution. Such advocates argue that a formal debt-adjustment mechanism could reduce the appeal of federal bailouts and thereby curtail the moral hazard leading to excessive debt. But given the states' unilateral power to set the terms of default, it is hard …

The Permit Power Revisited: The Theory And Practice Of Regulatory Permits In The Administrative State, Eric Biber, J.B. Ruhl

Duke Law Journal

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the "permit power," under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an "enormous power in the state," Epstein bemoaned that it had "received scant attention in the academic literature." He sought to fill that gap. Centered on the premise that the permit power represents "a complete inversion of …

12 Confused Men: Using Flowchart Verdict Sheets To Mitigate Inconsistent Civil Verdicts, Jerry J. Fang

Duke Law Journal

The finality of jury verdicts reflects an implicit societal acceptance of the soundness of the jury's decision. Regardless, jurors are not infallible, and the questions they are often tasked with deciding are unfortunately neither obvious nor clear. The length of trial, complexity of subject matter, volume of factual background, and opaqueness of law can converge in a perfect storm that may confound even the most capable juror. Although the Federal Rules of Civil Procedure provide decision rules to resolve inconsistent verdicts, the current remedies authorized by Rule 49—notably, the resubmission of the verdict to the jury and the ordering of …

The Interinter-University Consortium For Political And Social Research And The Data Seal Of Approval: Accreditation Experiences , And Opportunities, M Vardigan, J Lyle

Copyright, Fair Use, Scholarly Communication, etc.

The Inter Inter-university Consortium for Political and Social Research (ICPSR), a domain repository with a 50 50-year track record of archiving social and behavioural science data, applied for for—and acquired acquired—the Data Seal of Approval (DSA) in 2010. DSA is a non non-intrusive, straightforward approach to assessing organizational, technical, and operational infrastructure infrastructure, and signifies a basic level of accreditation . DSA assessment helped ICPSR become more transparent , monitor and improve archival processes and procedures , and raise awareness within the organization and beyond about best practice practices for repositories repositories. We relate our experience experiences with the DSA …

Building On The International Polar Year : D Iscovering Interdisciplinary Data Through Federated Search, L. Yarmey, S.J. Khalsa

Copyright, Fair Use, Scholarly Communication, etc.

The legacy of the International Polar Year 2007 2007–2008 (IPY) includes advances in open data and meaningful progress toward towards interoperability of data, systems, and standards. Enabled by metadata brokering technologies and by the growing adoption of international metadata standards, federated data search welcomes diversity in Arctic data and recognizes the value of expertise in community data repositories repositories. Federated search enables specialized data holdings to be discovered by broader audiences and complements the role of metadata registries such as the Global Change Master Directory, providing interoperability across the Arctic web-of -repositories.

Summary Of Terry V. Sapphire Gentlemen’S Club, 130 Nev. Adv. Op. 87, Walter Fick

Nevada Supreme Court Summaries

The Court adopted the “economic realities” test of the Fair Labor Standards Act, and held as a matter of law that performers at the Sapphire Gentlemen’s Club were “employees within the meaning of NRS 608.010, and thus entitled to the minimum wages guaranteed by NRS Chapter 608.”

Causation’S Nuclear Future: Applying Proportional Liability To The Price-Anderson Act, William D. O’Connell

Duke Law Journal

For more than a quarter century, public discourse has pushed the nuclear-power industry in the direction of heavier regulation and greater scrutiny, effectively halting construction of new reactors. By focusing on contemporary fear of significant accidents, such discourse begs the question of what the nation's court system would actually do should a major nuclear incident cause radiation-induced cancers.

Congress's attempt to answer that question is the Price-Anderson Act, a broad statute addressing claims by the victims of a major nuclear accident. Lower courts interpreting the Act have repeatedly encountered a major stumbling block: it declares that judges must apply the …

Ryan V. Gonzalez And The Potential Elimination Of The Ineffective Assistance Of Counsel Post Conviction Failsafe, Kathleen Carlson

Florida Law Review

Recently, the United States Supreme Court addressed in Ryan v. Gonzales “whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings.” In a unanimous decision, the Court held that “the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.” The decision leaves unanswered questions with regard to a petitioner’s ability to protect himself from ineffective or incompetent counsel both before and during the habeas proceeding.

To Enforce A Privacy Right: The Sovereign Immunity Canon And The Privacy Act’S Civil Remedies Provision After Cooper, Daniel J. Dimatteo

Florida Law Review

In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without his consent. Alleging that the unlawful disclosure of his condition caused him severe emotional distress, Cooper sought monetary relief under the Privacy Act’s civil remedies provision, which establishes a cause of action against the government for “actual damages.” The dispositive …

Small Claims, Big Recovery: Proposals For Settlement In Florida’S Small Claims Courts Post-Nichols, Laura M. Beard

Florida Law Review

After a debilitating car accident left Shannon Nichols injured and saddled with nearly $10,000 in medical bills, she sought only one thing—a road to recovery. Instead, Nichols faced a harrowing reality—after turning down a proposal for settlement from her insurer and losing at trial, not only did Nichols fail to receive reimbursement for her medical expenses, but she also was forced to pay her insurer’s attorneys’ fees and costs, an amount totaling over $23,000.

Hunger, Food Prices, And The Food Safety Modernization Act: Balancing Physical Safety And Food Security, Kelly M. Gay

Florida Law Review

The Food and Drug Administration (FDA) Food Safety Modernization Act (Modernization Act) was signed into law by President Barack Obama on January 4, 2011. The goal of the Act is to reform the United States’ food safety regulations that attempt to safeguard the American public from foodborne illness. However, America is also in the middle of a hunger crisis—millions of Americans are unable to provide enough food for themselves and their families due to a lack of financial resources. The Modernization Act has the potential to increase the cost of food production and pass this cost along to the public …

Goodyear Dunlop’S Failed Attempt To Refine The Scope Of General Personal Jurisdiction, Camilla Cohen

Florida Law Review

In first-year civil procedure, students spend a great deal of time parsing an “answer” to a deceptively simple question: When may a state exercise its adjudicatory authority over an out-of-state defendant? Since Pennoyer v. Neff, the United States Supreme Court has addressed the issue of personal jurisdiction in at least thirty-five cases spanning three centuries. Following the Court’s decision in International Shoe Co. v. Washington, a state’s exercise of personal jurisdiction over a foreign defendant must satisfy two requirements. First, the state must have a statutory basis for asserting adjudicatory authority over a foreign defendant. Second, if the …

Can A Professional Limit Liability Contractually Under Florida Law?, John Terwilleger

Florida Law Review

Florida law is currently unclear on the issue of whether a professional may rely upon a limitation of liability clause in a professional services contract. Limitation of liability clauses are common in business contracts, especially in construction, a field that includes many professionals such as engineers and architects. While Florida has historically enforced limitation of liability clauses in professional services contracts, recent cases have cast doubt on whether the clauses are enforceable. If the Florida Supreme Court establishes that professionals cannot rely upon these clauses, it will be taking a position contrary to the majority of states, including New York, …

No Small Feat: Who Won The Health Care Case (And Why Did So Many Law Professors Miss The Boat)?, Randy E. Barnett

Florida Law Review

In this Essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, I describe five aspects of the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius that are sometimes overlooked or misunderstood: (1) the Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Chief Justice John Roberts’s reasoning was the holding in the case, whether viewed from a formalist or a realist perspective; (3) the Court did not uphold the constitutionality of …

Criminal Corporate Character, Robert E. Wagner

Florida Law Review

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted …

When The Commerce Clause Goes International: A Proposed Legal Framework For The Foreign Commerce Clause, Naomi Harlin Goodno

Florida Law Review

The world is becoming a smaller place. Technology and the Internet have made global travel and communication easier, quicker, and more common. Novel legal issues arise every day to deal with this modern interconnected world. How does the law address these new problems?

Congress is allowed “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The scope of Congress’s power to regulate commerce “among the several States” (the “Interstate Commerce Clause”) has long been debated. In the modern world of global interaction, Congress’s power to regulate commerce “with foreign Nations” (the “Foreign Commerce …

Regulation By Amicus:The Department Of Labor’S Policy Making In The Courts, Deborah Thompson Eisenberg

Florida Law Review

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts.

Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the …

The New Professional Plaintiffs In Shareholder Litigation, Jessica Erickson

Florida Law Review

In 1995, Congress solved the problem of professional plaintiffs in shareholder litigation—or so it thought. The Private Securities Litigation Reform Act (PSLRA) was designed to end the influence of shareholder plaintiffs who had little or no connection to the underlying suit. Yet it may have failed to accomplish its goal. In the wake of the PSLRA, many professional plaintiffs simply moved into other types of corporate lawsuits. In shareholder derivative suits and acquisition class actions across the country, professional plaintiffs are back. They are repeat filers involved in dozens of lawsuits. They are the attorneys’ spouses, parents, and children. They …

Religion And The Equal Protection Clause: Why The Constitution Requires School Vouchers, Steven G. Calabresi, Abe Salander

Florida Law Review

In this Article, we argue that, as a matter of original meaning, the Fourteenth Amendment, standing alone, forbids all discrimination on the basis of religion just as it forbids all discrimination on the basis of race and gender. Our understanding of the Fourteenth Amendment is based on the research of Professor Melissa Saunders and Professor John Harrison, who have both argued that the Amendment outlawed class legislation, and on the research of Professor Steven Calabresi and Julia Rickert, who have argued that the Amendment also banned systems of caste. The historical evidence is overwhelming and persuasive. We argue that a …

European Commission - Concentrations - Nestle's Bid To Takeover Perrier: A Landmark Merger Restructuring On Duopoly Grounds, William M. Willis Iv

Georgia Journal of International & Comparative Law

No abstract provided.

European Economic Communities - Environmental Policy - Legal Basis And International Implications Of Council Regulation On The Supervision And Control Of Shipments Of Hazardous Waste, Kurt M. Rozelsky

Georgia Journal of International & Comparative Law

No abstract provided.

State Taxation - Unitary Business/Formula Apportionment Tax Accounting Method - Application Of A Three Factor Formula To Apportion Income Of Foreign-Parent Corporations For State Tax Reporting Purposes Does Not Violate The Commerce Clausse Or The Due Process Clause Of The U.S. Constitution - Barclay's Bank Int'l, Ltd. V. Franchise Tax Bd., 10 Cal. App. 4th 1742, 14 Cal. Rptr. 2d 537 (Cal. Ct. App. 1992), Modified Reh'g Denied, 11 Cal. App. 4th 1678a (Cal. Ct. App. 1992)., Sarah B. Pierce

Georgia Journal of International & Comparative Law

No abstract provided.

The Future Of Canadian Federalism, Susan Lavergne

Georgia Journal of International & Comparative Law

No abstract provided.

The Growth Triangle Of Singapore, Malaysia And Indonesia, Terence P. Stewart, Margaret L.H. Png

Georgia Journal of International & Comparative Law

No abstract provided.