Professor Trimble Guest Blogs at JINÉ PRÁVO

The Boyd School of Law is very pleased that Professor Marketa Trimble has been invited to guest blog at JINÉ PRÁVO during the month of November. Her posts, all in Czech, include a post on "gaming law" and teaching "gaming law" in law schools, a post on possible reforms of U.S. legal education, and a post on cross-border problems in patent law, including a link to Professor Trimble's upcoming book on the topic. We look forward to Marketa's informative blogging on a wide range of topics!

UNLV to Host 8th Annual Colloquium on Labor and Employment Law

The Boyd School of Law is very pleased to anounce that it has been selected to host the 8th Annual Colloquium on Labor and Employment Law. Professors Ann McGinley (right) and Ruben Garcia will be organizing the conference, scheduled for fall 2013, and other Boyd faculty members will be attending and participating in the conference as well. Additional conference details are forthcoming. Please put the 8th Annual Colloquium on Labor and Employment Law on your fall 2013 calendars!

Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court

By Professor Rachel Anderson

The U.S. Supreme Court granted cert in Kiobel v. Royal Dutch Petroleum on October 17, 2011. 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011)(No. 10-1491).  This means that, among other things, the Supreme Court will be deciding a split between the Second, on one side, and the Fifth, Seventh, Eleventh, and District of Columbia Circuits, and now also the Ninth Circuit, on the other side, on whether corporations can be held liable for torts committed in violation of the law of nations or a treaty of the United States under the Alien Tort Statute, 28 U.S.C. § 1350.  In Kiobel, which was decided by the Second Circuit on September 17, 2010, the majority of a three-person panel held that “the customary international law of human rights has not to date recognized liability for corporations that violate its norms.” 621 F.3d 111, 125 (2010). In Sarei v. Rio Tinto, decided by the Ninth Circuit on Oct. 25, 2011, the majority of the Ninth Circuit sitting en banc held that "a violation of a sufficiently established international norm" could give rise to a cause of action for corporate liability under the Alien Tort Statute. Rio Tinto, slip op. at 19341, __ F.3d at *7.  As is noted in the opinion itself, "this holding puts [the Ninth Circuit majority] at odds with the Second Circuit majority in Kiobel." Rio Tinto, slip op. at 19363, __ F.3d at *20 (citing 621 F.3d at 120).  For more information about the Ninth Circuit’s holding in Rio Tinto go to Corporate Liability Under the ATCA: Rio Tinto Revisited, Oct. 26, 2011. Kiobel will be argued in tandem with Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S.L.W. 3059 (U.S. Oct. 17, 2011)(No. 11-88).  For more information about the questions presented by these two cases go to U.S. Supreme Court Takes Up Issue of Corporate Liability For Human Rights Violations, Oct. 19, 2011.

Professor Rapoport's Blogspot Named to Top 25 Business Law Blogs of 2011

The Boyd School of Law is very pleased to announce that Professor Nancy Rapoport's Blogspot has been selected as one of the LexisNexis Top 25 Business Law Blogs of 2011. Each of the Top 25 Business Law Blogs creates an invaluable content space for corporate- and securities-related matters. Nancy Rapoport's Blogspot also contains content about governance in higher education, bankruptcy ethics, popular culture and the law, professional responsibility, movies, and ballroom and Latin dancing. Congratulations, Nancy!

Is it Time for an International Convention on Online Gambling?

By Professor Marketa Trimble

At the 2011 International Gaming Conference organized by the International Association of Gaming Advisors (IAGA) on September 30 – October 2, 2011, I suggested to André Wilsenach, the CEO of the Alderney Gambling Control Commission, that the time is right for an international convention on online gambling. Our conversation concerned online gambling not only because of Mr. Wilsenach’s pioneering role in online gambling regulation but also because of the Conference’s focus on online gambling. Although not all Conference panels were organized to address online gambling specifically, the discussions always gravitated to the inescapable issues of online gambling regulation.

Boyd Unveils Public Interest Law Film Festival

By Professor Jeanne Price

The Boyd School of Law's first Public Interest Law Film Festival takes place on Friday, September 30. The Festival celebrates the Law School's commitment to public service and the relationships among student organizations, public interest groups, community members and the Law School. Films shown at the Festival highlight the contributions of four individuals representative of important social movements - Shirley Chisholm, Thelton Henderson, Cruz Reynoso, and Sargent Shriver. Facilitators of the discussion that follow each film include State Assemblywoman Lucy Flores (Boyd '10), filmmaker Abby Ginzberg, Professor David Tanenhaus, and Professor and former Congresswoman Dina Titus.

Barbara Buckley, Executive Director of Legal Aid Center of Southern Nevada, will open the Festival, and Dean John White will introduce Judge Johnnie Rawlinson of the U.S. Court of Appeals for the Ninth Circuit who will make closing remarks. A reception will follow in the Wiener-Rogers Law Library. Professor Ann Cammett, who started the Festival project, hopes that the Festival will become an annual event: "I think the concept naturally lends itself to repeating. There are many ways to envision public interest law and many themes to coalesce around. Besides, it is always a good idea when Boyd has an opportunity to engage with members of the larger community."

More information about the Festival is available here.

Professor Rapoport Introduces New Blog

You may be familiar with Nancy Rapoport's Blogspot, where Professor Nancy Rapoport blogs about a range of issues, including corporate governance, bankruptcy ethics, popular culture and the law, Enron and other corporate fiascos, professional responsibility, movies, ballroom and Latin dancing, as well as other issues that grab her attention.

Professor Rapoport also has a second blog, Law School Survival Manual: From LSAT to Bar Exam, which is a companion to her co-authored book of the same name and is designed to help law students survive every part of the law school and bar examination process.

The Boyd School of Law proudly announces the introduction of Professor Rapoport's third blog, Corporate Scandal Watch. Corporate Scandal Watch will include commentary on corporate scandals, including why businesses run by smart people can still manage to find themselves in hot water. Enjoy one, two, or all three blogs!

Boyd Welcomes Five New Faculty Members

The Boyd School of Law is pleased to welcome five new faculty members.

Professor Linda Berger, one of the nation's leading figures in Legal Writing and Law and Rhetoric, comes to Boyd after serving on the faculties at Mercer University School of Law, Thomas Jefferson School of Law, and the University of San Diego School of Law.

Professor Michael Kagan, an expert in immigration law, asylum law, international human rights, and evidence law, served on the faculties of Tel Aviv University and the American University in Cairo and brings with him a decade of experience building legal aid programs for refugees throughout the Middle East and Asia.

Nevada Supreme Court Addresses Family Court Jurisdiction

By Professor Thomas McAffee

In Landreth v. Malik, 251 P.3d 163 (Nev. 2011), the Nevada Supreme Court held that a district court judge serving in a family court division may decide a case involving subject matter outside the scope of the statute setting forth the family division's jurisdiction. The family court judge had entered a default judgment in a conflict over competing property ownership claims of an unmarried couple — "a subject matter outside NRS 3.223’s scope." The court reasoned that the "Legislature does not have the constitutional authority to limit the constitutional powers of a district court judge in the family court division." But it did not conclude that the jurisdictional statute was unconstitutional. It was ambiguous and needed to be harmonized with other statutes. Since the family court division "was constitutionally established as a ‘division of any district court,’ Nev. Const. art. 6, § 6(2), and the judges sitting in family court are district court judges whose power and authority are derived from the Constitution and not statutorily," judges should be reluctant to read generally worded statutes, such as NRS 3.223, as conferring only specified jurisdiction.

Nevada Supreme Court Refuses to Apply Nondelegable Duty to Reno Hospital

By Professor Stacey Tovino

Whether a hospital is liable for the negligence of a physician on the hospital's medical staff depends on the application of several tort, agency, and health law doctrines including vicarious liability, actual agency, ostensible agency, corporate responsibility, corporate negligence, the law of nondelegable duties, and the corporate practice of medicine prohibition. In Renown Health, Inc. v. Vanderford, 235 P.3d 614 (Nev. 2010), the Nevada Supreme Court held that Renown Regional Medical Center did not have an absolute nondelegable duty to provide nonnegligent medical care to an emergency room patient through its independent contractor physicians. The Court also held, however, that the Medical Center could be liable for the acts of its independent contractor emergency room physicians under the doctrine of ostensible agency. The Court’s decision makes it slightly more difficult, but not impossible, for an injured patient to recover from a defendant hospital that hosts a negligent emergency room physician.

An Online Gaming Ruling of the Court of Justice of the European Union

By Professor Marketa Trimble

On September 15, 2011, the Court of Justice of the European Union ("CJEU") issued a preliminary ruling that concerns online gaming (Jochen Dickinger and Franz Ömer, C-347/09). CJEU preliminary rulings do not decide the merits of cases, but provide binding interpretations of European Union ("EU") law based on questions submitted to the CJEU by national courts of the EU member states. Although it will be necessary to wait for a national (in this case Austrian) court to render a decision on the merits in the case, the preliminary ruling sheds light on the conditions for online gaming regulation that may be permissible under EU law.

Professor Edwards Contributes to "Law as a Discourse Community: Critical Perspectives on Legal Discourse"

Congratulations to Professor Linda Edwards who is writing a chapter in a book entitled "Law as a Discourse Community: Critical Perspectives on Legal Discourse," which will be published by Carolina Academic Press. Please see below for a description of the book.

Proponents of critical legal studies, critical race theory, feminist legal theory, lat crit, and postmodern legal theory all have critiqued traditional foundationalist legal discourse and have attempted to construct alternative discursive accounts of law and its relationship to society. Peter Goodrich has argued that these critical perspectives are all located within legal discourse. Many critical and postmodern theorists, however, have maintained that these critiques are external to legal discourse, i.e., that they are essentially meta-critiques of the domain itself. If Goodrich is correct, then how can critical perspectives really fundamentally change the discourse community? Alternatively, if the latter position is correct can legal discourse evolve in order to accommodate the perspectives of these “outsider” narratives? The essays in this volume will engage these questions directly.

Eliminating Class Actions – A Tsunami in the Wake of AT&T Mobility v. Concepcion Threatens Access to Justice

By Professor Jean Sternlight

When the Supreme Court handed down its decision in AT&T Mobility v. Concepcion, commentators expressed concern that the decision might effectively bring an end to many consumer and employment class actions. The five-four decision held that courts' use of California's Discover Bank test for whether an arbitral class action waiver is unconscionable was preempted by the Federal Arbitration Act. The Court explained that the Discover Bank rule, which would classify as unconscionable those class action waivers contained in consumer contracts of adhesion that would insulate companies from claims that they cheated large numbers of consumers out of individually small sums of money, effectively requires "the availability of classwide arbitration" and thereby "interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA."

Nevada Supreme Court Analyzes Statutory Definition of Mental Retardation in Death Penalty Case

By Professor Mary Berkheiser

In the death penalty case of Ybarra v. State, 247 P.3d 269 (Nev. 2011), Ybarra challenged the district court’s finding that he was not mentally retarded and therefore was not categorically excluded from imposition of the death penalty. This was a case of first impression concerning the proper analysis to be performed under the statutory definition of mental retardation in NRS 174.098, which contains three components: (1) significant limitations in intellectual functioning, (2) significant limitations in adaptive functioning, and (3) age of onset.

The Court began by spelling out the standard of review. The determination whether a capital defendant is mentally retarded is based on factual conclusions but requires distinctively legal analysis to determine whether the elements of mental retardation have been proven; therefore, an appellate court reviews such a determination as a mixed question of fact and law. Applying that analysis, the appellate court gives deference to the district court’s factual findings, so long as those findings are supported by substantial evidence and are not clearly erroneous, but the appellate court reviews the legal consequences of those factual findings de novo.

Nevada Supreme Court Holds that Transfer of Clean Water Coalition Monies to General Revenue Budget Violates Nevada Constitution

By Professor Sylvia Lazos

In Clean Water Coalition v. The M Resort, 255 P.3d 247 (Nev. 2011), the Clean Water Coalition (CWC), an intergovernmental group made up of four political subdivisions based in Clark County, as well as private parties, challenged a 2010 legislative bill that transferred to general revenues $62 million that the CWC had raised from assessments and sewer connection fees to home owners and businesses based in Clark County. The Nevada Supreme Court held that the 2010 transfer of CWC monies for general budgetary purposes violated Art. 4, Sections 20 and 21 of the Nevada Constitution.

Nevada Supreme Court Applies Full Faith and Credit Clause in Sex Offender Registration Case

By Professor Thomas B. McAffee

In Donlan v. State, 249 P.3d 1231 (Nev. 2011), Eugene W. Donlan filed a petition in district court to terminate his requirement to register as a sex offender. The Nevada Supreme Court upheld the district court's denial of Donlan's petition, rejecting his argument that the Full Faith and Credit Clause (U.S. Const. Art. IV, § 1) requires Nevada to recognize California's termination of his sex offender registration requirement.

In 1985, Donlan plead guilty to a sex offense, which required him to register as a sex offender in California. The conviction was eventually set aside. Since 1986 Donlan registered as a sex offender in California and Nevada, in Nevada since moving here in 2005. In July of 2009, the California Department of Justice terminated his registration requirement. But in September of 2009 the district court denied his petition to terminate his Nevada registration duty.

Patent Ethics at Its Best

By Professor Marketa Trimble

Ethics in patent law – or rather, instances in which it is absent – have propelled a number of reform initiatives that should adjust patent law to the realities of today’s practice. Reactions to the practices of so-called “non-practicing entities” or “patent trolls” – entities that do not manufacture or engage in research and development but only aggressively enforce patent rights obtained from others – can be observed in a number of current developments in patent law; some examples are limitations on the availability of injunctive relief, clarification of venue transfer rules, scrutiny of the calculation of damage awards, and interpretations of the work-product doctrine (in the context of non-practicing entities) and the definition of “domestic industry” for purposes of Section 337 proceedings before the ITC. Although these developments will mitigate some of the more questionable practices in patent law, they certainly do not reflect all of the ethical issues that arise in patent practice. To contribute to the discussion of these issues, the Boyd School of Law on Friday, September 23, 2011, will host two distinguished experts in patent ethics, Professor William Gallagher and Professor David Hricik.

Nevada Supreme Court Embraces "Notice-Prejudice" Rule

By Professor Jeffrey Stempel

In Las Vegas Metropolitan Police Department v. Coregis Insurance Co., 256 P.3d 958 (Nev. 2011), the Nevada Supreme Court formally joined the vast majority of states in embracing a "notice-prejudice" rule regarding whether an insurer may deny coverage due to late notice of a loss or claim by the policyholder. Under a notice-prejudice approach, late notice to the insurer is not necessarily fatal to the policyholder’s claim and the tardy policyholder may nonetheless obtain coverage unless the insurer demonstrates that it was prejudiced by the late notice. The Court made clear that the burden of proving prejudice was on the insurer because “it is more practical and equitable” to do so. In addition to stating that the result was required by longstanding administrative regulations (NAC 686A.660(4) states that late notice does not relieve the insurer of its obligations unless failure to comply with a policy’s notice provision “prejudices the insurer’s rights), the Metro-Coregis Court overruled State Farm Mut. Auto Insurance Co. v. Cassinelli, 216 P.2d 606 (1950), which had adopted a strict requirement that late notice was the failure of a condition that excused the insurer from providing coverage.

Nevada Supreme Court Interprets Statute Implementing Foreclosure Mediation Program

By Professor Jean Sternlight

In Pasillas v. HSBC Bank USA, 255 P.3d 1281 (Nev. 2011), and Leyva v. National Default Serving Corp., 255 P.3d 1275 (Nev. 2011), the Nevada Supreme Court made several important interpretations of the statute implementing Nevada's Foreclosure Mediation Program, NRS 107.086 (“NFMP”). Adopted in 2009 in an attempt to deal with the large number of foreclosures in Nevada, the NFMP requires that in order to foreclose on an owner-occupied residence a trustee must provide an election-of-mediation form to the owner together with a notice of default and election to sell. NRS 107.086(2)(a)(3). If the owner elects mediation the deed of trust beneficiary must attend the mediation, mediate in good faith, provide certain documents, and, if attending through a representative, send one with authority to modify the loan.

Nevada Supreme Court Adopts Public Trust Doctrine

By Professor Bret Birdsong

The re-emergence of the public trust doctrine has been among the most significant episodes in the coming of age of American environmental and natural resources law over recent decades. Nevada joined this important trend in Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011). The public trust doctrine holds that the public holds inviolable rights in certain natural resources that a sovereign state owning such resources is constrained to act as a trustee for those public rights. In this case, involving the state's attempted sale of lands in the Colorado River valley to Clark County, the Court explicitly adopted the public trust doctrine as the law of Nevada and described how it constrains the state’s disposal of trust resources. The decision, though particular in its factual scope, is a careful, sweeping, and singing recognition of the public's interest in natural resources owned and managed by the state.

Nevada Supreme Court Applies Quarles's Public Safety Exception

By Professor Katherine Kruse

In Lamb v. State, 251 P.3d 700 (Nev. 2011), the Nevada Supreme Court applied the public safety exception of New York v. Quarles, 467 U.S. 649 (1984), which permits officers to ask a suspect questions without first giving Miranda warnings if they reasonably believe it is necessary to secure their own safety or the safety of the public. In Quarles, the police apprehended the suspect in an armed rape in the supermarket into which he had fled. He had an empty shoulder holster but no gun. After handcuffing him but before giving him Miranda warnings, the police questioned him about the location of the gun.

Nevada Supreme Court Adopts Modern Flexible Approach to Promissory Estoppel Damages

By Professor Jay Mootz

The creation of the doctrine of promissory estoppel is one of the most significant developments in modern contract law. In Dynalectic Co. of Nevada, Inc. v. Clark & Sullivan Constructors, Inc., 255 P.3d 286 (Nev. 2011), the Supreme Court of Nevada unanimously embraced the flexible approach to damages in promissory estoppel cases that is articulated in the Restatement (Second) of Contracts. With its succinct and clear opinion, the Court ensures that Nevada courts will follow the modern trend to determine the appropriate measure of damages by looking to "considerations of what justice requires and the foreseeability and certainty of the particular damages award sought."