Friday, October 2, 2009

Blakesley named UNLV Barrick Distinguished Scholar

Christopher L. Blakesley, the Cobeaga Professor of Law at the Boyd School of Law, was named one of only two 2009 UNLV Barrick Distinguished Scholars. He is the first professor from the law school to receive this award since it was instituted in 1981.

The author of nine books, dozens of book chapters, and nearly 100 scholarly articles, Professor Blakesley is a highly accomplished academic of national and international prominence. He was elected to the American Law Institute and has been invited to teach and present papers abroad at nearly a dozen countries in Europe and Africa.

Steve Johnson, E.L. Wiegand Professor of Law and Associate Dean for Faculty Development and Research, in his letter of nomination wrote, “Professor Blakesley has served on the boards of a number of prestigious international law societies and international legal publications. Chris’s publication record is truly extraordinary.”

According to Robin Toles, Vice President for Research and Graduate Studies, the Barrick awards are designed to recognize faculty members who have established a record of distinguished research, and only professors who have 10 or more years of service in an academic environment are eligible for the Barrick Distinguished Scholar award, which carries a $5,000 stipend.

The awards are funded by an endowment from the late Marjorie Barrick, and winners are selected from recommendations by a committee of former award recipients.

McGinley Employs Empirical Methodology in Law Research

Professor Ann C. McGinley’s pioneering empirical approach to the analysis of law is illustrated nicely in a paper she presented along with her co-author Mitu Gulati from Duke Law School in September 2009 at the Searle Center for Political Science and Law at Northwestern University School of Law.

The paper discusses an effort by McGinley and two colleagues seeking to discover how case law translates into the understandings and behaviors of actors on the ground. After conducting approximately sixty-five interviews during a twelve month period in 2008-09 in the Las Vegas area, they found scant evidence that either the language of case law or its outcomes mattered much for local actors. Instead, they learned from interviewing employees as potential litigants, potential plaintiff and defendant lawyers, state and federal judges, government officials, and human resources personnel that outcomes mattered a bit more.  This significant finding questions to a noteworthy degree the centrality of some court opinions to influence behavior on the ground.

They operationalized their investigation by focusing on a 2006 en banc decision of the Ninth Circuit Court of Appeals. Jespersen v. Harrah’s Operating Co. addressed a claim under Title VII, the federal antidiscrimination law. Darlene Jespersen, a bartender at Harrah’s Reno Hotel & Casino for almost 20 years, challenged her employer’s policy requiring female employees to wear makeup. Harrah’s fired her after she refused to comply.

Since the same requirement was not imposed on men, who were required only to shave and keep their hair cut relatively short, the case appeared to be a classic instance of gender discrimination, but Jespersen lost her appeal. Although the political science community that studies courts showed little interest in the case, legal academics viewed it as important, and it soon was entered into the major casebooks on employment discrimination and gender issues, and it generated hundreds of pages in law review articles.

What interested McGinley and her colleagues, however, was that, even though Jespersen lost, the court’s opinion suggested in contrast that a costume unduly stereotyping women as sexual beings likely would violate Title VII. Recognizing this assertion as a game changer, they reasoned that it could increase the risk of litigation losses for casinos because cocktail servers are required to wear uniforms explicitly designed to be sexualized.  If so, then it would follow that plaintiff lawyers would seek to take advantage of the court’s ambiguous language to create more work for themselves.

Although the result of the interviews cannot be used to assert that case opinion language or outcome does not influence local actors, it does suggest that other factors may be more important. These factors include, for example, employees fearful of being black balled and concerns by plaintiffs and attorneys that damages from a successful suit would be minimal.  They also worry that casinos were likely to invest significant resources in a case that appears to threaten their bottom line.  Nevertheless, their findings are more than a little surprising because they reveal the lack of importance assigned by local actors to factors scholars in the legal academy spend enormous energy arguing about: the relative importance of opinion language versus case outcomes in appellate cases.  In short, the language used by appellate judges and what they decided were not as important as more practical matters.

Next on the empirical research agenda for McGinley and her colleagues is extending this kind of inquiry to the casinos in Atlantic City and to those on the riverboats in Mississippi.

McGinley’s nascent interest in empirical research as a tool for analyzing the law can be seen in two recent law review articles.  In a 2009 law review article (Hillary Clinton, Sarah Palin, and Michelle Obama: Performing Gender, Race, and Class on the Campaign Trail, 86 Denver U.L.R.709), McGinley uses the work of social scientists, both empirical and theoretical, and applies their work to an analysis of law and culture when addressing the question of how white women and women of color can successfully perform their gender and racial identities in the public arena.

She concludes that, although the efforts of these three women have moved all women one step closer to equality in the national political scene, women's identities as aspiring political leaders continue to be problematic because they require women to negotiate a double bind: if they are too feminine, they are deemed incompetent. If they are too masculine, they are considered not likeable.

“The important question,” she writes, “is whether the country will accept women without requiring performances that volley back and forth between feminine warmth and masculine toughness. They still suffer from the double bind, and must negotiate the fine line of acceptable identity behaviors.”

One thing we do know: “second wave” feminism is dead, rejected not only by men but also by women in the electorate. To the extent that “second wave” feminism imposed rigid restrictions on women to behave like men, perhaps this is not a bad thing.

A year earlier, in another law review article (Creating Masculine Identities: Harassment and Bullying 'Because of Sex,’79 U. Colo. L. Rev. 1151), McGinley also employs the widely recognized theories of major social scientists by using traditional masculinities and new bullying research to understand the gendered nature of bullying when the behaviors are not overtly sexual or gendered.

She writes, “Permitting severe or pervasive harassing behavior that is intentionally gendered or that disparately affects women and/or men who are not sufficiently masculine contravenes the purpose of the statute and prevents Title VII from fulfilling its promise of equality at work.”

“Courts should recognize that severe or pervasive misogynist behavior in a previously all-male workplace creates a hostile work environment for women entering the workplace because of their sex,” she concludes, “even if the behavior is not specifically directed at women.”

In addition, she asserts, “They [courts] should also conclude that group behavior that harasses individual men who fail to conform to masculine norms occurs “’because of sex.’”

Third, she states, “Hazing and horseplay, when they are sufficiently severe or pervasive, can occur because of sex and should be prohibited when they do . . . [and]finally, gender- and sex-neutral harassing behavior directed at men or women because of their sex should be illegal if it is sufficiently severe or pervasive to alter the terms or conditions of employment.”

Saucedo Breaks New Ground in Immigration Research

The research agenda of Professor Leticia M. Saucedo examines the incorporation of immigrant communities into the workplace and the effectiveness of the current legal system in protecting immigrants’ rights. Her work explores the legal rights of newly arrived immigrant brown collar workers and the barriers they face to full workplace protection. Her research breaks new ground in legal scholarship because it brings sorely needed social science research, including original empirical data, into legal discussions about the incorporation of immigrants into restructured industries in the United States. Professor Saucedo’s research combines theories from social science with employment, immigration, and human rights law.

Associate Dean Steve Johnson of the Boyd School of Law notes that “Professor Saucedo is splendidly equipped to pursue her research agenda. She was managing editor of the Harvard Latino Law Review, was briefing attorney to Chief Justice Phillips of the Texas Supreme Court, and litigated employment and education cases for the Mexican American Legal Defense and Education Fund. She has built on that experience in her scholarship.”

Professor Saucedo’s first article, published in the Notre Dame Law review in 2004, introduced the phenomenon of the brown collar workplace. She followed with articles on employment discrimination (in the Ohio State Law Journal), legal disparate treatment and disparate impact doctrines (in the Michigan Journal of Law Reform), forms of protection for immigrant workers from an immigration law perspective (in the University of Richmond Law Review), and mediating domestic violence cases (in the Buffalo Law Review).

Professor Saucedo has enhanced her research through collaboration with sociologist Cristina Morales on an empirical study examining the differential gendered responses of immigrant workers to their working conditions in the Las Vegas construction industry. This is the first of a series of projects to develop data and insights as to this labor market. This research has already led to several articles by Professor Saucedo, including an article in the University of Chicago Legal Forum.

Professor Saucedo’s articles have been well received. They have been widely reprinted and cited, and Professor Saucedo has presented her work at conferences held at Yale, University of Chicago, UCLA, Seton Hall, University of Wyoming, and University of San Francisco, among others.

In spring 2008, Professor Saucedo was appointed a research scholar at the Warren Institute on Race, Diversity and Ethnicity at the University of California, Berkeley, School of Law. She currently is visiting at Duke University School of Law.

Alum Attracts International Attention

Andy Spalding ’03 is quietly but inexorably emerging from under the judicial radar as a notable international legal authority, suggesting a promising future as a law professor.

In August, The Wall Street Journal featured Andy’s evaluation of the federal government’s stepped-up pursuit of overseas bribery by corporations.

The Journal sought him out in large part because he currently is a Fulbright scholar in Mumbai, India, and a former high-energy Washington, D.C., securities-fraud lawyer who now is studying the impact of the Foreign Corrupt Practices Act (FCPA) in emerging markets.

The article appreciably raised his professional profile, gaining him increased access to important policy makers both in the U.S. and in India, but Andy is not interested primarily in fame or power. Instead, he is driven to use this access to make a difference.

His immediate, short-term goal is to solve a relatively unforeseen dilemma produced by the U.S. government’s increased attention to the FCPA. Although enhanced FCPA enforcement does appear to deter bribery, it also rather unexpectedly deters investment in emerging markets, functioning something like a de facto economic sanction.

For Andy, this development is alarming, given the potentially historic opportunities for overcoming poverty in these countries. He is seeking, therefore, to help develop some efficacious solutions to this dilemma and to share them among businesspeople and lawyers in the U.S. and India.

His long-term goal is to earn a professorship in a law school, and he already has taken a noteworthy step, serving as a visiting scholar in the Securities Law course at the University of Mumbai’s Government Law College. To date he has taught significant modules comparing U.S. and Indian business law.

Andy writes, “I have realized . . . that my true passions are for policy and education. I love to reflect on the broader course of public policy and the law, and I love to see people's minds grow.”

Not surprisingly, Andy said he was inspired to teach by “some truly remarkable professors--Bybee, Markell, Bryant, Tobias, McAffee, and others--who showed me that these goals can be pursued at the same time, with great effectiveness.”

In the classroom, Andy said he would “hope to help students see the broader policy implications and social impact of their work, and for these to be a source of personal fulfillment.”

As a researcher, he said he would “hope to promote a greater sophistication in understanding the impact of anti-bribery legislation in emerging markets, so that we can effectively deter bribery while also promoting development.”

After receiving his J.D. from the Boyd School of Law, Andy clerked first for U.S. District Court Judge Howard D. McKibben and then for Ninth Circuit Court Judge Jay S. Bybee.

Next, he spent two and a half years as a Securities Litigation and Enforcement Associate for a Washington, D.C., law firm, where he represented companies in SEC enforcement proceedings while simultaneously performing pro bono work that included representing a Latina domestic abuse victim before the U.S Citizen and Immigrations Service.

More recently, Andy served as Special Assistant to the General Counsel, U.S. Department of Health and Human Services, where he represented the U.S government in federal appellate litigation.

He has been invited to present papers at an American Bar Association colloquium, the University of Cape Town, South Africa, and the University of Mumbai, India, Government Law College.

Andy holds a B.S. in politics from Whitman College and an M.A. and Ph.D. in political science from the University of Wisconsin, Madison.

Saltman Center for Conflict Resolution: Fall 2009 Newsletter

Click here to see the fall newsletter for the UNLV Boyd School of Law Saltman Center for Conflict Resolution. Ranked in the top 10 law school dispute resolution programs in the nation, you will read about the following Center activities: the new Strasser Mediation Clinic; a Peace in the Desert lecture by veteran journalist Daniel Schorr; a Judicial Candidates Forum; hosting of the International Client Counseling Competition; civilian oversight of the Las Vegas Metro Police Department; and practical advice for dealing with lying in negotiation. Michael and Sonja Saltman also discuss the future of the Center.