Thursday, November 17, 2011

Professor Studies the Art of Writing Persuasively

Professor Linda L. Berger studies the art of writing persuasively.

“I’m not writing so much about substantive law as I am about how you would write something in a substantive field to persuade someone else in that field,” Berger said.

Berger, who is in her first year as a professor at UNLV William S. Boyd School of Law, researches and writes in the field of legal rhetoric. Recently, she has analyzed and written about the ways in which judges’ decisions match up with the stories and images (narratives and metaphors) that are traditional in our culture. In one article, Berger examined the influence of traditional images of mothers, fathers, and families on child custody decisions. Similarly, culturally embedded stories of wise judges (going back to King Solomon) can be seen to have affected those decisions. In addition to uncovering such images and stories through rhetorical analysis, Berger also makes suggestions for lawyers to work more imaginatively with metaphor and narrative. These suggestions can help lawyers better fit their clients’ situations into the rules that grew up alongside long-established stories and images.

Professor Challenges Traditional Legal Thought with Newest Projects

William S. Boyd School of Law Professor Thomas McAffee’s current scholarly works challenge the way legal scholars have traditionally viewed implied fundamental rights and how a recent presidential administration has viewed the war powers.

“Most of the scholarship on the Ninth Amendment has been mainly wrong,” McAffee said. “The largest percentage of scholarly works has presumed that its reference to other rights retained by the people is a reference to unenumerated rights and may relate to the natural rights thought to be inherent. I am convinced that the text was referring to all the rights that were secured by the system of enumerated powers granted by the states.”

The Ninth Amendment, McAffee said, should be read as a companion to the 10th Amendment—the “twin guardians of federalism.” McAffee’s current research explores that idea, along with some of the points made in the book “The Lost History of the Ninth Amendment” by Kurt T. Lash. McAffee hopes to update a law review article he wrote in 1990 for the Columbia Law Review on the subject, in light of some of the more current interpretations of the Ninth Amendment.

Professor Studies Hazards of Experiential Theater, Public Performance Rights of Recording Artists

William S. Boyd School of Law Professor Mary LaFrance, who currently holds the title of IGT Professor of Intellectual Property Law, is spending her time working on intellectual property and entertainment law projects, exploring a variety of entertainment and advertising issues.

Most recently, LaFrance published an article in the Harvard Journal of Sports and Entertainment Law about the practical challenges of implementing a public performance right for sound recordings.

“This exists in almost every other country in the world except the United States,” LaFrance said.

Elsewhere, whenever a record is played publicly, record companies and performers receive compensation. In the United States, broadcasters and public venues pay royalties to composers and publishers in order to play a song, but the record companies and performers receive nothing. Currently, the only performances in the United States for which such compensation is paid are those which occur on satellite radio, Internet radio, or streaming music services, such as Spotify or Pandora.

Student Analyzes Ninth Circuit Reversal in Published Article

When William S. Boyd School of Law student Jaime E. Serrano, Jr. ‘12 found out about a United States Ninth Circuit Court of Appeals decision handed down concerning a bankruptcy court sanctions last year, he felt compelled to write about it.

The Ninth Circuit’s unpublished opinion vacated a ruling made in the United States Bankruptcy Court of Nevada by the Honorable Bruce A. Markell that imposed sanctions on a law firm representing a single asset, single creditor debtor in a Chapter 11 proceeding.  The judge approved a sanctions motion on the debtor because they filed their bankruptcy petition in bad faith in an attempt to delay the repossession of a Porsche 911. Markell also ordered sanctions on the debtor’s subsequently retained attorneys for furthering the proceedings.  The Ninth Circuit reversed the attorney’s sanctions.

Notably, Gov. Brian Sandoval, then a federal judge, affirmed the original sanctions opinion when it was first appealed to the Federal District Court in Nevada. However, the Ninth Circuit found the sanctions to be “unduly harsh” and disagreed with Markell’s legal conclusions.

Tuesday, April 26, 2011

Professor Nancy Rapoport Examines the Practices of Bankruptcy Lawyers

Nancy B. Rapoport studies intersections:  the intersections between professional responsibility and various fields of law.  She’s known best for her work studying the behavior of bankruptcy lawyers, but she also studies corporate governance and the images of lawyers in popular culture. 

She came to academia from Morrison & Foerster, where she practiced bankruptcy law.  “What I love about bankruptcy law is that it’s the last great frontier of generalist practice, wrapped inside a specialty.  At MoFo (yes, that’s its nickname), I was both a transactional lawyer and a litigator, and I had to be at least familiar with other areas of law that intersected bankruptcy law, including labor and employment law, intellectual property, and of course secured transactions.”

While she was at MoFo, she started thinking about her first research project based on her experience doing a conflicts check at her firm.  “I marked pretty much everyone as potentially adverse, because folks can team up in various ways during a Chapter 11 case.”  That conflicts check was several inches high, and it triggered a question:  do state ethics rules really work in Chapter 11 cases?  Rapoport’s answer is no, and she’s written extensively about conflicts of interest ever since.

She’s also written a lot about professional fees in Chapter 11 cases, both because she’s interested in how law firms bill their clients and because she has been a fee examiner in some large Chapter 11 cases, and she's just been named the fee examiner in the Station Casinos cases.  Using a team of law students and recent graduates, Rapoport and her staff ask why professionals have chosen to staff particular tasks in certain ways and how their work product relates to their billable time.  “Being an expert—especially when I’m hired by a bankruptcy court directly—gives me a window into how lawyers practice today, and that helps me do a better job as a researcher as well.”

Her work in the area of law and popular culture has led to an ongoing relationship with the Association of Media and Entertainment Counsel (, where she co-chairs the Law School Advisory Board.  AMEC is about to launch a writing competition for law students as a way of getting them interested in the entertainment law field. In 2009, AMEC presented her with the Public Service Counsel Award at the 4th Annual Counsel of the Year Awards.

In her spare time, Rapoport competes pro-am (she’s the “am”) in ballroom dancing in the American Rhythm and American Smooth divisions.  She chose the Boyd School of Law because she appreciates the close-knit community of very active scholars, the talented students and staff members, and the ability to be part of a school that continues to invent its own traditions.

Professor Ann Cammett Seeks Access to Justice for Families on the Margins

Professor Ann Cammett
is well versed on the impact of incarceration on families. Cammett notes that "as a family lawyer providing support to formerly incarcerated parents, I was struck by the breadth of civil consequences faced by them upon release from prison – barriers to voting, employment, housing, education and other critical life supports – all of which prevented them from successfully reunifying with their families, establishing themselves within their communities, and regaining status as productive members of society."
Since her time as a Skadden fellow in 2000, Cammett has engaged in the work of identifying the range of these sanctions, and educating advocates to provide support to low-income clients in navigating them.  She later worked as a policy analyst in New Jersey, providing technical assistance to government and community-based organizations, engaging in legislative activity, and assisting with the development of model programs to facilitate more positive prisoner reentry outcomes by addressing civil sanctions.
In particular Cammett recognized that civil barriers at the intersection of incarceration and family law were not being adequately addressed. Many prisoners are also parents, and are at risk for automatic termination of parental rights. Moreover, in many states child support obligations continue to accrue in prison, despite the fact that parents earn little or no money to satisfy them – a practice that renders many low-income parents debtors upon release.
Professor Cammett sought, through her scholarship, to define the public policy impact of burgeoning child support arrears on prisoner reentry. She broke new ground by identifying child support debt, coupled with aggressive federal enforcement mechanisms, as a de facto collateral consequence of incarceration. Her current research agenda explores the broader contours of child support policy toward incarcerated parents. "Deadbeats, Deadbrokes & Prisoners," a forthcoming article in the Georgetown Journal on Poverty Law and Policy, demonstrates how modern day mass incarceration has radically skewed the paradigm on which the child support system is based, removing millions of parents from the formal economy, diminishing their income opportunities after release, and rendering them ineffective economic actors within established normative family support structures. She specifically notes how this flawed policy approach creates unintended consequences for the children of these parents by compromising a core non-monetary goal of child support system – parent-child engagement – as enforcement measures serve to alienate parents from the formal economy after reentry and drive them underground and away from their families.
Professor Cammett came to Boyd after a teaching fellowship at Georgetown University’s clinical program, and founded the Family Justice Clinic, bringing her extensive portfolio of service to low-income clients. The clinic, now jointly directed by Professor Elizabeth MacDowell, has a particular focus on prisoners and their families, clients engaged with immigration issues, and those affected by the child welfare system and other forms of state intervention. Student attorneys in the clinic explore the role of families in society, the strengths and weaknesses of state intervention into families, and the meaning of access to justice for children and parents, through direct representation of clients and associated policy projects.
In February of 2011, the Family Justice Clinic at the Boyd School of Law provided testimony in support of Nevada’s proposed Senate Bill 87, The Uniform Collateral Consequences of Convictions Act. The Act, based on the Uniform Law Commission’s draft legislation, seeks to alleviate some of the disabling invisible civil penalties that follow a person after a plea or conviction for a crime. While collateral consequences inhibit successful reintegration by individuals, what is less commonly explored is the negative effect that these barriers have on families. The Family Justice Clinic stands ready to provide education on these issues.

Faculty Collaborate to Provide Experiential Learning to the Max at Boyd

Students at the William S. Boyd School of Law have many opportunities for experiential learning but a particularly popular one is available only when the Nevada Legislature is in session. During the spring semester of odd-numbered years, thanks to a collaboration among several faculty members, students can participate in a “legislative immersion” experience that includes a legislative externship for up to 12 credits and, if they so choose, an advanced legal writing course on Legislative Advocacy.  And the entire enterprise happens in the capitol, Carson City, 300+ miles from the law school.

Professor Marty Geer, Boyd’s externship program director, has arranged for a variety of externship placements.  Some students are placed with law firms that lobby for non-profit or government entities; others are placed with non-profit organizations such as the ACLU; still others are placed with Nevada’s Legislative Counsel Bureau (LCB) and work in legislative leadership offices or in the legal division of the LCB.  Dean John Valery White, who is part of UNLV’s lobbying team, is the faculty supervisor for the Legislative Externship course and meets with the students several times throughout the semester to discuss their experiences.

This spring semester, Professor Jean Whitney is teaching a course that complements the legislative externship and allows students to complete their required third semester of legal writing.  Advanced Advocacy: Legislative Policy is a hands-on course in which the students select a legislative issue they are interested in, draft a bill, write a policy memo to support their proposed legislation, and make a presentation at a mock legislative hearing This semester Professor Whitney has also arranged for a series of guest speakers, all of whom play some role in the legislative process.  Students have had opportunities to meet with staff from the LCB, including Darcy Johnson (’01); organizational and grass roots lobbyists, including alumnus Denise Tanata Ashby ‘03, Associate Dean Christine Smith and UNR Professor Jim Richardson; and attorney lobbyists. During the last classes, when the students will be giving their “testimony” on the legislation they have drafted, many volunteers from the impressive cadre of alumnae in the Legislature and some of the lobbyists and LCB staff will serve as members of the mock legislative committees that will hear the students’ legislative proposals. This year we have five alumni serving in the Nevada Legislature: Lucy Flores ’10, Jason Frierson ’01, William Horne ’01, John Oceguera ’03, and James Orenschall ’09.

Students taking this unique combination of courses have regular opportunities to put their externship experiences in context as they discuss theories of representation and legislative process, and statutory construction and principles of legislative drafting in the legislative advocacy class.  The combination of “real life” and theory makes for an interesting, and exhausting, experiential learning immersion experience the students won’t soon forget!

Professor Jean Whitney's Advanced Advocacy: Legislative Policy class held in the Nevada Legislature's Committee Hearing Room in Carson City, Nevada. From left, front row: Karl Shelton, 2L; Sean McDonald, 2L; Whitney Richburg, 2L; Steven Miller, UNR graduate student. From left, back row: Max Fetaz, 3L; Debra Amens, 2L; Elana Graham, retired Clark County Deputy District Attorney; Elana L. Graham '10; Seth Floyd '10; Asher Killian, LCB attorney; Darcy Johnson '02, LCB attorney; Jeremy Thompson, 3L.
“Pinning down one thing that I have learned is hard. The session is going by so quickly, and new issues are presented every day, I feel lucky if I am able to recollect issues that were brought up last week. I guess the experience is more about learning the process and the political landscape in Nevada, which is so different from where I grew up. Sitting in the Senate committee on Government Affairs has exposed me to some of the peculiarities of rural Nevada- for instance Pahrump, a town of 41,000 remains unincorporated, and this has had the result that the people there don't get to make zoning decisions- those are made at the county. Also, White Pine county didn't provide workers compensation insurance to their firefighters because they couldn't afford to.  Another thing that I will take away with me is how accessible our government is here in Nevada. It’s true that paid lobbyists outnumber the members of the legislature and their staff, but every day I see unpaid citizen lobbyists testify on issues that affect them and the groups they represent, and the legislators seem to consider the points of view of everyone who testifies- even the certifiable ones.”
- Karl Shelton, 2L

 “My legislative externship has given me the opportunity to help shape some of Assembly leadership's bills.  I have been privileged with a behind-the-scenes look at what goes in to drafting a bill---the research, lobbyist negotiations, causus meetings, and so on.  The legislators and their staff live and breath Nevada policy during the session, working tirelessly to do what it takes to further the policies they believe will positively impact the state.”
- Whitney Richburg, 2L

“This is an amazing experience.  The amount of hands on, close observation of the process is fascinating.  The quality and amount of legislative material on line is a great example of how a state can easily engage the public in the legislative process.  I am most surprised with the level of access to legislators and their willingness to engage and debate the issues.”
- Debra Amens, 2L

“What is the most surprising? This externship is my first in-depth experience with the legislature and politics. I am simply in awe at how much information my Senator is expected to recall. There are so many bills and so many topics and I am amazed that everything can get done in a proper manner in only 120 days. Combining the legislative externship with the legislative drafting class is a great experience. Being able to share my experiences during the session with classmates is very rewarding. As I drafted my statute and memo for class, I kept in mind all the testimony, exhibits, ideas, positions, questions, and confusion that I have watched over the session. The externship opened my eyes to how a really simple idea can actually be so complex.”
- Jeremy Thompson, 3L

Boyd Alumna Researching Domestic Violence Among Ethnic Groups

Kathleen Ja Sook Berquist '09, a UNLV Professor
in the School of Social Work

Professor Kathleen Ja Sook Berquist’s
interest in the care of victims of domestic violence began before she graduated from the William S. Boyd School of Law in 2009. 

Bergquist will be pursuing that interest this year as she completes research work identifying possible linguistic and cultural barriers among local domestic violence providers that may affect education, outreach and intervention within the Spanish-speaking and Asian communities in Southern Nevada. The Lincy Institute recently awarded her a fellowship to conduct her research.

“I heard about the fellowship and thought my research would be perfect to create a community-university partnership,” Bergquist said.

The Lincy Institute at UNLV awards four to six fellowships each year to UNLV faculty who design research projects that pertain to topics of relevance to community need within the areas of education, social services and health; directly involve community agencies in Southern Nevada and contribute to the necessity of the agencies; add to data in any of the named fields; or provide immediate and potential funding opportunities from federal, state or private sources.

Bergquist, who already had her doctorate in counselor education before pursuing her Juris Doctorate, has long been involved with the Asian-Pacific community. She noticed that the three shelters in Las Vegas that provide services for victims of domestic violence report low numbers for domestic violence care within the Asian-Pacific community.

“National and regional numbers on domestic violence do not tend to look at specific ethnicities,” Bergquist said.

“Within the Asian community,” Bergquist said, “data has shown that domestic violence occurs just as often as it does within the non-Asian population, but the fatality rate tends to be higher. The reason is that there is a general distrust of law enforcement or anyone not within the Asian ethnic group, a cultural expectation to not discuss family issues and a different definition of what constitutes domestic violence.”

“Also, because of the rate of population growth among the ethnic communities,” Bergquist said, “shelters have trouble keeping up. Of the people who use the shelter’s service, about 30 percent of them are Hispanic.”

“Maybe the headway has been made there where is hasn’t been made elsewhere,” she said. Bergquist’s legal background has helped her with her current research. In addition to teaching at UNLV, she also does pro bono work for the Legal Aid Center of Southern Nevada. Part of what brought her attention to the subject of domestic violence among minority groups was her work at Legal Aid, where she primarily sees Asian-Pacific clients. 

“Immigration often goes hand-in-hand with family law,” she said, “because immigrants face unique circumstances that U.S. citizens don’t.”

“Immigration is often used by the batterers,” Bergquist said. “Sometimes, the person committing the domestic battery will say that filing a police report will lead to one or both being deported as a way to keep the victim from reporting the crime.”

Bergquist plans to go out to the service providers, along with eight research assistants, and conduct interviews and focus groups to find out who is using the services and what things are being done right. The project must be completed by the end of the year, and Bergquist said the initial research should be finished by the end of the semester.

“My hope is that it will provide valuable information, “ Berquist said. “Just by asking questions, it will raise awareness about the issue.”