Scholars@UNLVLaw

Professor Studies the Art of Writing Persuasively

2011-11-17T18:30:00.000-08:00

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.

“In my scholarship, I’m more interested in how the judicial decision making process works, and especially in how to persuade decision makers, than I am in what the rules are,” she said.

Berger’s most recent work draws on cognitive studies of decision making. In particular, she is exploring whether judges engage in something similar to the “recognition-primed decision model” that has been identified in studies of experts in other professions. When a person experienced in an area is faced with a complex issue, these studies indicate that the expert quickly recognizes patterns and then makes a decision based on simulating or imagining the outcome of various approaches. The model emerged in studies of decision makers such as firefighters, nurses, jet pilots, and military commanders.

“Even though there are many differences between judges and military commanders in the field, it will be interesting to examine whether the decision model provides insights into judging.”

Berger said one area where judges might be likely to demonstrate this type of decision making would be at the trial court level where a judge is more likely to have to make decisions based on uncertain facts under time pressure. One challenge in her research has been the difficulty of obtaining sufficient trial court decisions on a particular subject to analyze.

Berger has been interested in rhetoric and writing for a long time. “I was a journalist before law school, and I’ve always been interested in how communication and composition work,” she said.

After entering the legal field, Berger became more interested in the interpretation of writing.

“If you can see what is effective and figure out why, you can apply that principle to your own writing,” she said.

Berger said she was particularly drawn to the Boyd School of Law because of its youth, energy, and commitment to the community. In addition, she said taking the position at Boyd School of Law gives her the opportunity to work with people whom she has admired in the legal writing field. Previously, Berger taught at the University of San Diego School of Law, Thomas Jefferson School of Law, and Mercer University School of Law.

“I get a very positive and optimistic outlook about the future from most of the people I meet here at UNLV,” she said.

Professor Challenges Traditional Legal Thought with Newest Projects

2011-11-17T18:00:00.001-08:00

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.

Originally, McAffee explained, Congress sent out 12 proposed amendments. Two of the 12 failed, and the remaining 10 comprise what we now know as the Bill of Rights. However, much of the history of the Ninth Amendment had become lost because of semantics.

“It became habitual among legal scholars in the first third of the 19th Century to refer to the Bill of Rights with the amendments proposed by Congress. Judges used to refer to the ‘11th Proposed Amendment’ … what we now know as the Ninth Amendment,” McAffee said.

McAffee said that most of the case law prior to the Griswold v. Connecticut decision, which most legal scholars point to for an interpretation of the Ninth Amendment, seems to share the assumption that the Ninth Amendment is a federal provision. His intention is to write an article about the original reading of the Ninth Amendment, 20 years after his first. In addition, he intends to explore the ways in which he feels Lash “basically got it wrong too” in “The Lost History of the Ninth Amendment.”

“There’s stuff I’ve become aware of that I didn’t even know of when I wrote my original article,” McAffee said.

In addition, McAffee is working with Professor Christopher L. Blakesley on a book about justiciability and national security issues involving the war powers. In the book, the professors are exploring University of Berkley School of Law Professor John Yoo’s interpretation of the president’s war powers. Yoo was an official in the United States Department of Justice during the Bush Administration. Yoo’s memos on enhanced interrogation techniques broadly interpreted the president’s war powers.

McAffee said that the president’s powers during war time, as defined by the Constitution, include how war should be fought and what strategies should be used.

“The question is, are there some issues that relate to tactics and strategy that are still entirely within the scope of the legislative powers held by Congress?” McAffee said.

The book will explore the administration’s decision to use enhanced interrogation techniques and the president’s role during times of war.

In addition, McAffee is working on an article for the Nevada Law Journal about Terry v. Ohio, a U.S. Supreme Court decision that permitted law enforcement officials to stop and search people for “reasonable suspicion.” McAffee will write about how the decision lends itself to the possibility of racial profiling.

“(The decision) was one of our unhappier results, I think,” McAffee said.

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

2011-11-17T17:30:00.000-08:00

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.

“In Las Vegas, playing recorded music is a big deal,” she said.

Recently, Congress proposed legislation that would expand such compensation to radio broadcasts. LaFrance’s article critiques the proposed legislation, then goes beyond, analyzing what steps need to be taken to apply the right more broadly.

LaFrance also presented the paper at a major music conference in Boston, after receiving a research grant from the University of Houston Law Center. A shorter version of the paper has been published in the Music Business Journal put out by the Berklee College of Music in Boston.

Currently, LaFrance has a number of projects in her areas of study. She has just completed a comparative law article analyzing unfair competition laws in the United States and Europe.

“In the United States, our concept of ‘unfair competition’ applies when one party uses a brand name or a confusingly similar name, passing off a product or service as though it were coming from another party,” LaFrance explained. “In Europe, it’s much broader.”

LaFrance said that the European standards for unfair competition do not require consumer confusion. For instance, LaFrance said, one company could not market an imitation perfume by comparing it to the brand name perfume.

“In the European Union, if a company achieves success, the policy is to protect that brand and that success and not let others cheapen it,” she said.

LaFrance also recently completed an article about the hazards of experiential theater, particularly about the risks of personal injury. Her interest in the topic came when she attended a performance in which she witnessed injuries.

“I am a big fan, but I am concerned that the theatre companies don’t self-regulate or take precautions,” she said. “This is an attempt to encourage this industry to mitigate the risks while still engaging in artistic experimentation.”

Additionally, LaFrance is finishing up work on an entertainment law casebook that covers both domestic and international entertainment law.

“I’ve tested the international material on some students at UNLV and elsewhere. I will test the domestic materials on students next spring,” she said.

Student Analyzes Ninth Circuit Reversal in Published Article

2011-11-17T17:00:00.000-08:00

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.

Serrano said he reviewed the facts in the case and found he agreed with Markell’s original opinion rather than the Ninth Circuit’s.

“It was a plainly wrong decision, but not surprising if you consider that the sanctioned attorneys were the only party to present their case, and given the court’s unfamiliarity with bankruptcy policy and code,” Serrano said, referring to the Ninth Circuit’s opinion.

Serrano consulted with Boyd School of Law Professor Nancy Rapoport, who originally alerted him to the decision and agreed that it raised important procedural and ethical issues. Rapoport suggested this situation would make an interesting article submission to the American Bankruptcy Institute (ABI) Journal. He submitted the article, and it appeared in the September 2011 edition. The article’s publication coincided with the ABI’s conference hosted at the Four Seasons Hotel in Las Vegas, and Serrano said he received a great deal of positive feedback from those in attendance, including from Markell.

Serrano first became interested in bankruptcy during his first year, when he taught basic bankruptcy concepts as part of the school’s community service program. He ultimately won the bankruptcy community service award that spring.

“I believe an understanding of basic bankruptcy concepts is important for every attorney doing any kind of business or family practice, because it is an option available to most individuals and businesses,” he said. “What happens if your client, their partners, or third parties consider filing bankruptcy? Especially in this economy, it is super important to understand the consequences of bankruptcy.”

Later this academic year, Serrano will intern for the U.S. Bankruptcy Court, District of Nevada and compete with a team of Boyd students in the Duberstein Bankruptcy Moot Court Competition in Brooklyn, New York.

Professor Nancy Rapoport Examines the Practices of Bankruptcy Lawyers

2011-04-26T19:29:00.000-07:00

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 (www.theamec.com), 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 4^th 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

2011-04-26T19:28:00.003-07:00

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

2011-04-26T19:28:00.001-07:00

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

2011-04-26T19:28:00.000-07:00

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.”

Professor Sylvia Lazos Fights for Equality

2010-12-20T17:40:00.001-08:00

Sylvia Lazos, Justice Myron Leavitt Professor of Law, has been researching issues of diversity since arriving at the UNLV Boyd School of Law in 2003. She has written on a variety of issues, including how initiatives by the electorate affect the civil rights of minorities, the difficulties in appointing judges who are minorities and women to the federal bench, and in general, why the concept of "diversity" has not easily gained access to mainstream legal thought.

Her latest project is an empirical investigation of whether judicial performance evaluations are fair to minorities and women judges. Her interest in this project began when she was enlisted to help form a panel for the National Association of Women Judges for the purpose of commenting on a recent controversy in Missouri. The Missouri State Bar administered judicial performance evaluations that were published on the Internet in order to aid voters to cast an informed vote in retention elections. However, a recent statistical study had revealed that the survey used in Missouri scored women judges eight points lower than men, and black judges ten points lower than white judges, on a 100-point scale.

In the upcoming issue of Law and Society Review, Lazos will publish with her co-author, political scientist Dr. Rebecca Gill, an analysis of the judicial evaluation polls conducted by an independent consultant hired by the Las Vegas Review-Journal. The judicial evaluation poll data from 1998-2008 found that even after statistically controlling for judicial qualifications and performance records, women on average score 11.5 points lower than their male colleagues. Lazos and Gill attribute this rating difference to systemic unconscious bias, because there is no evidence that women judges as a group are less qualified than men. Unconscious bias, as distinct from explicit prejudices, cause people who believe they are neutral to nonetheless make judgments linked to race, gender or other factors.

Lazos and research assistant Mallory Waters have just completed analysis of another data set of judicial performance evaluations from Missouri, also controlling for qualitative and performance factors and found similar results in this data set. Even after controlling for experience, education, and other factors, women judges on average are rated 10 points lower than male judges.

In the next phase of Lazos's work, she will be looking to enlist the help of local judges to observe how the court room is different for women judges as opposed to male judges, and to confirm her theory that gender bias is at work in explaining the consistently lower evaluations that women receive in this state.

Lazos’s other research interests are in the area of education. She has been serving on the Clark County Superintendent's Equal Opportunities Advisory Commission since January 2010. Just recently named a Lincy Institute Fellow, she is working with colleagues from the UNLV College of Education to determine the efficacy of English Language Learner programs currently in use at the elementary school level at CCSD. This research, funded by The Lincy Institute, will help identify the teaching practices that are most effective. These research-based recommendations will be presented as part of a Brookings Mountain West event in May 2011. Lazos believes that this research work is the beginning of a truly collaborative research partnership with CCSD

Professor Keith Rowley Strives to Serve

2010-12-20T17:40:00.000-08:00

In May and July 2010, respectively, the American Law Institute (ALI) and the Uniform Law Commission (ULC) approved extensive amendments to the official text of Uniform Commercial Code (UCC) Article 9, governing personal property security interests. William S. Boyd Professor of Law Keith Rowley actively participated in 18 months of UCC Article 9 Joint Review Committee meetings and conference calls that culminated in the amendments and accompanying commentary.

That experience has already paid dividends for students enrolled in his Secured Transactions course; forms the basis of an article he is writing for the American Bankruptcy Institute Journal; has provided additional fuel for his ongoing research and writing about what he calls the “Polyform Commercial Code,” a portion of which he presented in mid-November at the University of Tulsa College of Law; and is infiltrating a less provocative book about the law of secured transactions he is currently writing for Aspen (Wolters Kluwer). It has also made him the resident expert on the proposed amendments and the de facto liaison to the Nevada Bar and the Nevada Legislature, which may take up a bill to enact some or all of the amendments after it convenes in early 2011.

This latter role is not unfamiliar: after reading a two-part article Rowley wrote for the Nevada Lawyer in 2004 (which later morphed into a longer, updated article in the Uniform Commercial Code Law Journal and continues to thrive as a periodically-updated on-line resource), then-Senator Terry Care sought Rowley’s counsel during the 2005 legislative session regarding pending bills proposing to revise or amend six articles of Nevada’s version of the UCC. Rowley has since consulted with legislators, state bar leaders, and other interested parties regarding similar efforts in eleven other states and keeps a wide audience updated on UCC legislative developments (and related topics) through two blogs to which he contributes, his Boyd website, and his work as Developments Reporter for the American Bar Association Business Law Section’s UCC Committee.

In addition to serving all who legislate, adjudicate, practice, teach, study, or are otherwise affected by commercial law through his work with the ALI, the ABA, and his presence in the cybersphere, Rowley more directly serves the legal academy through leadership roles in the Association of American Law Schools (AALS). Having chaired the AALS Section on Commercial and Related Consumer Law until the January 2010 AALS annual meeting in New Orleans, Rowley continues to serve on that section’s executive committee as Immediate Past Chair. In January 2010, he became Chair-Elect of AALS Section on Contracts, and will take over as Chair at the January 2011 AALS annual meeting in San Francisco.

Rowley pursues scholarship across a broad spectrum of contract and commercial law topics (while also indulging a passion for law and popular culture that has thus far produced a book chapter on lawyers and lawyering on The West Wing, contributions to two ABA Journal cover articles and another forthcoming in National Jurist, and several conference papers). Along with several law review articles, book chapters, and conference papers in various stages of progress, and his forthcoming book for Aspen, he is also currently writing a second book on selected topics in the law of contracts for LexisNexis, and is under contract to write a third. Just as Rowley’s involvement in the Article 9 amendment process informs the secured transactions book he is writing for Aspen, his awareness-raising and consulting efforts pertaining to UCC Articles 1, 2, and 2A will benefit both of the LexisNexis books.

In addition to pursuing his own scholarship, Rowley also devotes considerable effort to promoting scholarship across a broad spectrum of contract and commercial law topics.

In January, Rowley moderated a program he conceived and organized for the AALS Section on Commercial and Related Consumer Law on the recently-promulgated ALI Principles of the Law of Software Contracts. The program – The Principles of the Law of Software Contracts: A Phoenix Rising from the Ashes of Article 2B and UCITA? – yielded a print symposium in the Tulane Law Review, which Rowley organized, and is the launching point for a book-length collection of essays, responses, and replies.

In February, Rowley brought more than 80 legal academics and practicing attorneys from thirty-one states and several foreign countries to the Boyd campus for the 2010 Spring Conference on Contracts, which received rave reviews virtually guaranteeing a sequel in the not-too-distant future. Several papers presented at the conference have since appeared, or are forthcoming, in a variety of law reviews.

In January 2011, Rowley will moderate a program he has conceived and spent considerable time this fall organizing for the AALS Section on Contracts. Navigating Lombard Street in a Fog: Seeking (or Ignoring) Landmarks of Intent and Context will explore foundational issues including whether the parties’ intent is or should be an integral part of contemporary contract law; the extent to which context affects or should affect a party’s ability to consent or the significance of its manifested consent; and, assuming that intent and context matter, how best to determine and give effect to the parties’ intent in the context of their transaction. The discussion promises to be lively and the program, like the 2010 Spring Contracts Conference, will provide a platform for several emerging contract scholars as well as a showcase for some of the leading lights in the field.

Professor Marketa Trimble Joins the Boyd School of Law Faculty

2010-12-20T17:11:00.000-08:00

The Boyd School of Law is fortunate to be the home of not only nationally but also internationally recognized scholars in the fields of international law and intellectual property law. This year the Boyd community welcomed a new addition to this group of renowned scholars and respected educators – Professor Marketa Trimble. Her research concerning cross-border aspects of intellectual property law combines her interest in both fields and provides insights that are extremely valuable in the global economy.

In her forthcoming book on cross-border enforcement of patents Professor Trimble explores the challenges that patent holders face because of the existing patent regime, which despite the global use of inventions, still follows a country-by-country model for protecting those inventions. Notwithstanding efforts at the international level to create a system that would facilitate patenting in multiple countries, inventors still find the costs of doing so prohibitive. Most patent holders can patent their inventions in only one or a few countries and therefore relinquish the benefits from their inventions in much of the world. Professor Trimble uses examples from the United States and Germany – the two largest patent litigation venues in the world – to show how patent holders attempt to mitigate the problem by reaching activities in third countries through U.S. and German patent laws. Her book will be published by Oxford University Press in 2012.

In her research, which also concerns cross-border problems in copyright, Professor Trimble uses her broad experience, education and foreign language abilities. She came to the United States from Europe, where she worked as a lawyer for the government of the Czech Republic. In her capacity as head of the European Union Law Unit at the Czech Ministry of Justice, she prepared the country for membership in the European Union in the area of cross-border judicial cooperation, conflict of laws and enforcement of intellectual property. She represented the country in the committees of the European Commission, the executive body of the European Union, where she also worked as a national legal expert in Eurostat, the central statistical body of the European Union. After moving to the United States and interning for a judge she returned to law school and earned master’s and doctoral degrees at Stanford Law School to complement her master’s and doctoral degrees from the Czech Republic, all of which contribute to her valuable and unique background.

Spotlight: Alumnus Michael J. Higdon ’01

2010-12-20T17:10:00.000-08:00

Michael J. Higdon ’01 is a Boyd School of Law alumnus of many firsts. He was the first student Editor-in-Chief of the Nevada Law Journal, the first graduate to be hired as a U.S. Ninth Circuit Court of Appeals law clerk, the first graduate hired to teach at Boyd, and the first graduate hired as a tenure-track law professor.

Recognized for his talents, Higdon caught the attention of other law schools and secured a tenure-track position at the University of Tennessee College of Law. He was appointed Associate Professor of Law beginning in 2009.

Higdon teaches and writes in the areas of family law; sexuality, gender and the law; and legal writing. He also has published in the areas of law and rhetoric; and wills, trusts, and estates. His work has been published in a number of journals including the Wake Forest Law Review, the U.C. Davis Law Review, and the Indiana Law Journal. Higdon’s work has caught the attention of some of the leader’s in his disciplines. For instance, his article on informal adoption is cited in Dukeminier’s Wills, Trusts, and Estates, the leading textbook in that area.

Additionally, in August, Higdon was quoted in Time magazine as a result of a piece he wrote, focusing on methods of teaching and critique. The article features Higdon’s comparison between teaching and the reality TV show Project Runway, pointing out methods of critique used on reality television shows and how those examples can help law professors offer more effective critique to law students.

At present a member of the Legal Writing Institute’s Board of Directors, Higdon has also given presentations at a number of universities, most recently at Arizona State University School of Law.

His most recent article, “To Lynch a Child: Bullying and Gender Non-Conformity in Our Nation's Schools,” forthcoming in the Indiana Law Journal, builds on previous articles he has written relating to discrimination on the basis of gender or sexual orientation. Higdon currently serves on an LGBT commission at the University of Tennessee, which is dedicated to making the university a more inclusive environment for LGBT students.

When asked about his future in terms of scholarship, Higdon said, “both my immediate and long-term goals are to continue writing pieces that focus, generally, in the area of law and psychology but, more specifically, the way in which bias and prejudice influence the legislative process and the degree to which law can have a psychological impact on minority communities in the U.S.”

Higdon adds that: “I enjoy the process of research and writing scholarly articles, primarily because I love teaching; scholarship makes me a more critical thinker and, thus, a better teacher.”

Before teaching, Higdon began his career as a law clerk. Upon graduation from Boyd, he was selected from intense competition to be a judicial law clerk for Judge Procter Hug, Jr. of the United States Court of Appeals for the Ninth Circuit before practicing commercial litigation and employment law for two years with the Las Vegas firm of Schreck Brignone (now part of Brownstein Hyatt Farber Schreck).
In 2004, Higdon was hired as a Boyd faculty member. He served as Lawyering Process Professor from July 2004 to July 2009. He also was invited to serve as a visiting professor at Seattle University School of Law.

While teaching at Boyd, Higdon was recognized by the student body as the 2006 law faculty member of the year. He also coached several outstanding student moot court teams and served as adviser to the Society of Advocates, the Boyd School of Law’s moot court program. In 2009, Higdon was named the William S. Boyd School of Law Alumnus of the Year, the highest and most prestigious alumni award given by the school.

A Summa Cum Laude graduate of Boyd’s charter class, Higdon is a recipient of the James E. Rogers Award for Outstanding Academic Achievement. He holds a B.A. in English from Erskine College, Due West, SC, and an M.A. in Communication Studies from UNLV.

Professor Jeffrey Stempel Wins Liberty Mutual Prize

2010-03-17T16:47:00.001-07:00

In February 2010, Professor Jeffrey Stempel was named the winner of the Liberty Mutual Prize. The prize is awarded annually for an exceptional article on the law of property and casualty insurance, its regulation and corporate governance.

Entries are judged by a panel consisting of judges, attorneys, and professors having particular expertise in the insurance law field, who evaluate submissions on the basis of quality of analysis, originality, thoroughness of research, creativity, and clarity of thought and expression. Professor Stempel’s article, "The Insurance Contract as a Social Instrument and Social Institution," was "the clear and unanimous choice of the panel," according to the notification of the award.

The article will be published in 2010 by the William & Mary Law Review. In addition, Professor Stempel has been invited to formally present the article this fall at Boston College Law School.

According to Dean John Valery White of the Boyd School of Law, "This is a significant honor for Jeff and, by association, for the law school. While we all know Jeff's work is great, it is nice to see a confirmation of our assessment by others.”

Professor Stempel’s article suggests that insurance policies are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. This fact, he writes, "has significant implications regarding the manner in which insurance policies are construed in coverage disputes." Specifically, traditional contract analysis should be supplemented by appreciation of the particular function of the policy in dispute as part of the insurance product's larger role as a social and economic instrument or institution.

The article examines in detail the frequently litigated issue of how many "occurrences" have taken place within the meaning of liability instance. It also considers issues of "business risk," "accidental" events, liquor liability exclusions, claims for inherent diminished value of vehicles involved in automobile collisions, trigger of coverage, and the workers' compensation implications of post-injury suicide.

Thomas & Mack Legal Clinic Weaves Scholarship with Service

2010-03-17T16:46:00.001-07:00

The Boyd School of Law’s clinical studies program consistently rates among the top programs in the nation, due largely to its innovative clinician-scholar model. The founding vision of the Boyd School of Law included a strong clinical studies program, a “law firm within the law school” where providing law students with hands-on experience representing real clients in actual cases and national-level research and understanding of best practices are deployed to enhance and improve legal policy and practice for underserved communities. Unlike many law schools, which staff their clinical programs with staff attorneys, the professors who teach students and supervise cases in Boyd’s Thomas & Mack Legal Clinic are full law school professors with ambitious scholarly agendas that are interwoven with their clinical casework. As a result, students in the Thomas & Mack Legal Clinic learn not only good lawyering, but also are immersed in cutting-edge issues of law and policy as a regular part of their clinic work.

Founding faculty member Professor Mary Berkheiser’s work on juvenile waiver of counsel is an example of the marriage between scholarship, public policy, and community service. When Berkheiser established the Juvenile Justice Clinic in 2000, she was disturbed by the alarming rate at which children in the Clark County Juvenile Court waived their constitutional right to counsel, and the paucity of representation for children in delinquency matters. In 2001, the concern about juvenile waiver of counsel motivated Berkheiser to inititate a bipartisan effort with state legislators to strengthen the statutory requirements for juvenile waiver of counsel in Nevada. Berkheiser’s research on the issue, published in a 2002 Florida Law Review article titled The Fiction of Juvenile Right to Counsel: Waiver in the Juvenile Courts, continues to be cited in top law journals. And today, Berkheiser’s Juvenile Justice Clinic students enjoy the opportunity to partner with a vibrant juvenile public defender office that was built up in the wake of the waiver of counsel legislation.

Immigration Clinic professors David Thronson and Leticia Saucedo have brought their unique scholarly interests to the community service and outreach work that clinic students undertake. Thronson’s scholarly work analyzing issues in the intersection of family law and immigration law has influenced both academic discourse and judicial decisions. Saucedo’s groundbreaking scholarship on the brown-collar workforce has drawn on empirical studies of workers in the Las Vegas construction industry. This scholarship informs Immigration Clinic students in the provision of much needed direct client representation, but guides systemic reform efforts such as a human trafficking statute drafted by students and adopted in Nevada to expand protections for workers as trafficking victims.

The newly-established UNLV Innocence Clinic grew directly out of the growing interest of Professor Kate Kruse in the promise of DNA exoneration cases as vehicles for systemic reform, which she explored in a 2006 Wisconsin Law Review article, Instituting Innocence Reform: Wisconsin’s New Governance Experiment. In 2007, when the Rocky Mountain Innocence Center contacted Boyd Law School seeking collaboration on Nevada cases, Kruse was well-positioned to establish a clinic to address the need. In the Innocence Clinic, students learn about the systemic causes of wrongful convictions as they investigate claims of wrongful conviction by Nevada state prisoners. In 2009, Innocence Clinic students worked with state legislators to introduce legislation that expanded a prisoner’s right to petition for postconviction DNA testing and testified in favor of a statute requiring law enforcement agencies to preserve biological evidence collected in crime scene investigations for the length of a prisoner’s sentence.

Dr. Rebecca Nathanson holds a joint appointment in the Schools of Education and Law, and brings her research expertise in child development and child competency to her teaching of law and education students in the interdisciplinary Education Advocacy Clinic. Nathanson’s research focuses on strategies for enhancing the accuracy and credibility of child witnesses’ courtroom testimony. Students in the Education Advocacy Clinic have the opportunity to participate in her innovative Kids’ Court School, a community service project that educates child witnesses in Clark County court cases about the judicial process to help reduce their system-induced stress, while also providing a data set for Dr. Nathanson’s ongoing research in the Department of Educational Psychology.

The Thomas & Mack Legal Clinic expanded its reach this year with the addition of an Appellate Clinic and a Family Justice Clinic, each led by professors whose research interests intersect with their clinical teaching. Professor Anne Traum’s analysis of equitable tolling in habeas cases in a 2009 Maryland Law Review article is already gaining traction in court opinions and filings. She brings her interest and experience in the techniques of persuasive advocacy and the systemic working of federal courts to the law students litigating Ninth Circuit cases in the Appellate Clinic. Professor Ann Cammett’s scholarly work on the collateral consequences of child support enforcement against prison inmates informs the Family Justice Clinic, which explores 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.

Boyd School of Law to Launch Gaming Law Journal

2010-03-17T16:45:00.001-07:00

The William S. Boyd School of Law, with support from the International Masters of Gaming Law, is in the process of launching a new scholarly journal: the UNLV Gaming Law Journal. The first issue will be published in spring 2010. For a list of articles that will appear in the first issue, click here. For a list of the student editors of the journal, click here. The new Journal will be the Boyd School of Law’s second law review, the other being the Nevada Law Journal.

Gaming Law Journal staff members (from left): Heather Moore (Junior Staff), Kendal Davis (Managing Editor), Kimberly Loges (Junior Staff), and Brandon Johansson (Editor-in-Chief). Not pictured here: Steve Johnson (Faculty Advisor), Julian Gregory (Business Editor), Articles/Notes Editors Cristina Olson and Shannon Rowe, and Junior Staff members Tyson Cross, Amaia Guenaga, Kirk Homeyer, Heather Moore, Tristan Rivera and Corina Rocha

The UNLV Gaming Law Journal fits well the missions of the Boyd School of Law. A law school exists to train new lawyers, to produce and disseminate new knowledge about the law, and to serve the various communities of which it is a part. The new Journal will advance all of these purposes.

Pedagogically, service on a review is among the best experiences a student can have while in law school. The student editors of the new Journal will acquire leadership skills, judgment, technical facility, substantive knowledge, and enhanced writing skills. They will grow both from editing high-caliber articles by outside authors and from conceiving and writing their own notes.

We believe that the UNLV Gaming Journal will soon be recognized as the leading review of gaming law in the world. In this, it will fulfill the goal of producing and disseminating knowledge about this dynamic and important area of the law. We are delighted and grateful in this regard to have the financial and intellectual support of the International Masters of Gaming Law for the Journal. This organization has as a core goal enriching analysis of and scholarly discourse about gaming law. The commitment of the International Masters to intellectual integrity and rigor match our own commitment.

In service, the benefits of the UNLV Gaming Law Journal will have global impact. Nevada’s position in gaming and its role as a model for other U.S. states and other countries depends on a regulatory structure that carefully balances numerous economic, social, and legal considerations. New ideas are always needed to keep and improve such balance. As a vehicle for launching and distributing such ideas, we believe that the new Journal will be a positive influence across a wide front.

The inauguration of the UNLV Gaming Law Journal is an exciting event. Yet it represents a progression rather than a culmination. The Boyd School of Law has long had the leading gaming law program of any law school in the United States or abroad. That program includes the largest number of courses anywhere. And the line of the professors in these courses is a catalog of preeminence, starting with Shannon Bybee and Raymond Avansino, continuing with Tony Cabot and Bob Faiss, and featuring as well more recent teachers such as Mark Clayton, Jennifer Roberts, Greg Gemignani, and Claudia Cormier. Our program has benefitted greatly from the counsel and support of our Gaming Law Advisory Council, including leaders in law, government, and the gaming sector from Nevada and abroad.

The UNLV Gaming Law Journal builds on this foundation, and it will be an anchor for our Gaming Law program as it grows and develops.

Boyd Alumnus Jeremy Aguero Makes His Mark in Nevada

2010-03-17T16:41:00.000-07:00

For more than a decade Jeremy Aguero ’04 has steadily built a strong reputation in Nevada as an expert in economic, fiscal and policy analysis. He formed Applied Analysis, a Nevada-based advisory firm, in 1997 and has become a trusted expert on the Nevada economy. What started out as a one-man shop in a basement apartment has grown to become one of Nevada’s largest and well-respected consulting firms.

Aguero’s work history demonstrates a wide range of abilities. He has performed countless economic and fiscal impact assessments for projects of local, regional and national significance. Some of his major projects include The Hospitality Industry’s Impact on the State of Nevada, delivered to the Federal Gaming Impact Study Commission in 1998. In 2003, he chaired the Governor’s Task Force on Tax Policy’s technical working group, co-authoring its 1,400-page report and ultimately receiving the coveted Cashman Good Government Award from the Nevada Taxpayers Association.

In 2005, he served as the lead analyst for the Clark County Growth Task Force; and, in 2008, he was the principal researcher for the Las Vegas Chamber of Commerce Fiscal Impact Series, which helped pave the way for significant reforms to Nevada’s public employee pay and benefit statutes during the 2009 Session of the Nevada State Legislature.

Currently, Aguero is focusing on a number of issues. With the state and local government budget challenges, education reform topics and business restructuring and reposition analyses atop the list. Considered a leading authority on Nevada’s economy, Aguero has also been asked to speak on economic and development trends for numerous professional groups. He has been a recurring presenter for the Las Vegas Chamber of Commerce’s annual Preview Las Vegas event and contributes to the respected Las Vegas Perspective, southern Nevada's definitive annual market profile.

In addition to his professional activities, Aguero is involved actively in the community. Aguero enjoys working with children as well as children’s causes. He lends his time and talents to a number of local organizations as a board member of Nevada Child Seekers, Opportunity Village and Paseo Verde Little League, where he also serves as a coach. Jeremy also coaches U6 boys and U8 girls through the Henderson United Soccer Organization. Passionate about education, he is an adjunct professor at the University of Nevada, Las Vegas, Willliam F. Harrah College of Hotel Administration where he teaches hotel law to undergraduate students.

A fifth-generation Nevadan, Aguero graduated with honors from the University of Nevada, Las Vegas, where he undertook a special course of study under the direction of the late Shannon Bybee and earned the Wm. M. Weinberger Outstanding Graduate Award. He earned a juris doctorate degree from the William S. Boyd School of Law in 2004, graduating cum laude and earning the Dean’s Graduation Award. Aguero currently lives in Henderson with his wife, Melissa, and their children Jacob, Emma and Abrahm.

Blakesley named UNLV Barrick Distinguished Scholar

2009-10-02T13:30:00.000-07:00

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

2009-10-02T13:29:00.000-07:00

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

2009-10-02T13:25:00.000-07:00

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

2009-10-02T12:50:00.000-07:00

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

2009-10-02T10:00:00.000-07:00

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.