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.