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Friday, June 28, 2013

Ian C. Bartrum is Associate Professor of Law at the UNLV Boyd School of Law.

On June 27, he was quoted in the Las Vegas Sun article Nevada same-sex couples still in limbo after Supreme Court rulings. "The ruling says across the board, all kinds of federal benefits now apply to people who got married in another state but now live in Nevada. And the huge neighbor to the West just legalized same-sex marriage ... within a couple of weeks, we may see more people transplanting to Nevada who have California same-sex marriages. So the state may end up having to administer benefits to married couples it doesn't actually recognize. It's a pretty interesting mess," he said.

Professor Bartrum's research interests are in constitutional history and theory, the Establishment Clause, and constitutional education.

Tuesday, June 25, 2013

Shelby County v. Holder: Justice Roberts Tells Congress to Do a Better Job on Their Legislative Homework, and Greatly Expands the Doctrine of State Sovereignty

By Sylvia R. Lazos, Justice Myron Leavitt Professor of Law

This morning the United States Supreme Court struck down, in a 5-4 conservative vs. liberal vote lineup, Section 4 of the Voting Rights Act of 1965, the civil rights statue that President Johnson considered his single most important legislative achievement. By knocking down Section 4 coverage formula, section 5 pre-clearance mechanism has been vitiated, unless Congress acts to “correct” the deficiencies of Section 4 newly found by the Court. Section 4 identifies certain “covered jurisdictions,” namely 15 states that make up the “old South,” as well as parts of Arizona, Alaska, New Mexico and California, as being places that must shoulder an extra burden of showing that changes in voting practices that impact minorities are not motivated by discriminatory motive. Section 5 of the Voting Rights Act requires these “covered jurisdictions” to get pre-clearance from the Department of Justice before enacting any voting law changes, which have run the gamut from changing the hours that polling stations remain open to racially gerrymandered redistricting. This procedural mechanism has been a key provision used by voting rights lawyers in fighting changes that arguably would depress minority voter influence.

The main points of disagreement between the conservative majority and the liberal minority is whether Congress adequately did its homework when it voted to reauthorize the Voting Rights Act in 2006, and what is the appropriate level of review when the judiciary checks on Congress’s remedial work under its enforcement powers of the Fifteenth Amendment.

As the opinion points out, the Voting Rights Act has been reauthorized four times in the Nation’s history. Most recently, in 2006 Voting Rights reauthorization, Congress was aware that a conservative Court might apply more rigorous review to Congressional remedies enacted under Voting Rights Act, such as Sections 4 and 5. Accordingly, Congress worked hard to build what it thought would be a solid record, nearly a year full of hearings --52 in all -- 90 witnesses, and a 15,000 page record. During these hearings, civil rights groups conceded that the outrages of the past, for example, literacy tests administered to only African- and Mexican- American voters, and blatant racial gerrymandering by white controlled legislatures, were no longer common place and were a thing of the past. However, evidence presented before Congress made the case that the covered jurisdictions continued to be racially polarized, and that majorities were using new, more subtle, stratagems to suppress minority votes. Opponents argued, as the Court emphasized today, that Congress should loosen up its grip on covered jurisdiction because these blatant discriminatory practices had been overcome. However, Congress sided with civil rights groups, strengthened provisions of Sections 5, and reauthorized the Voting Rights Act, with a supermajority vote of 390-33 in the House and 98-0 in the Senate. President George W. Bush signed the Voting Rights Act reauthorization into law, even though preclearance provisions of Sections 4 and 5 of the Voting Rights Act apply mostly to red states.

Now seven years later, the Supreme Court’s conservatives are undoing Congress’s political compromise. The constitutional violation, Chief Justice Roberts explains, lies in the legal principle of “equal state sovereignty.” Citing to the 1789 Framers’ intent, “our Nation was and is a union of States, equal in power, dignity, and authority.” The Voting Rights Act, according to Roberts, is “extraordinary legislation” justified only by the “blight of racial discrimination in voting” that “infected” the country in 1960s. Fifty years later, although discrimination has become more subtle, the “extraordinary” Voting Rights Act’s section 4 and 5 remedies are no longer constitutionally justified. Justice Roberts writes that Congressional use of its remedial Fifteenth Amendment powers must identify “current burdens and current needs,” and remedies “must be sufficiently related to the problem that it targets.”

To the lay reader of this opinion, today’s Court opinion may be justified in that the Court is rebuking Congress for being anchored in the Nation’s discriminatory racial past. However, to students of constitutional law, this decision should be disturbing.

First, whenever the Court rebukes Congress for not adequately doing its homework we are in separation of powers territory, or stated otherwise, courts are overstepping their proper judicial role. Courts traditionally have deferred to Congress, even, as Justice Thomas states, when it chooses to pass “stupid laws.” What exactly justifies the Court’s rebuke of a 15,000 page record that led Republicans and Democrats to extend the provisions of the Voting Rights Act?

Second, the Court in this opinion leaves unanswered what level of review it is applying to the use of Congress’s remedial power under the Fifteenth Amendment. Many constitutional scholars have argued that the appropriate standard was Boerne v Flores “congruence and proportionality” standard that the Court has applied since the Rehnquist Court to Fourteenth Amendment remedies. The Fourteenth and Fifteenth Amendments are historically viewed as a package, since they were passed as part of Reconstruction. Today’s decision does not even mention the Boerne case. Instead Roberts’ phrasing that remedies “must be sufficiently related to the problem that it targets” implies that the Court is using intermediate level of review, but we don’t know why.

Third, it is historically inaccurate for Justice Roberts’ opinion to repeatedly make reference to 1789 Framers rather than the 1867 Reconstruction. According to Chief Justice Roberts, Congress has violated “fundamental principle of equal sovereignty” when it sets up a federal “review and veto state enactments before they go into effect.” To back up this statement, Roberts cites the Tenth Amendment, which has been called a mere syllogism by prior Courts. Roberts does not cite to the history of the enactment of the Fifteenth Amendment. The Reconstruction Congress, as the Ginsburg dissent points out, found a multitude of discriminatory and violent acts, such as lynchings and targeted terrorism, whenever freed black men exercised their right to vote. For this reason, the Framers of the Fifteenth Amendment found it necessary to re-set the federalism balance of power, and authorize the federal government to do exactly what Roberts professes the Fifteenth Amendment cannot do, to use federal power to check the ability of the states to discriminate against racial minorities when they exercise their right to vote. The Fifteenth Amendment was designed to allow Congress to use federal powers in order to hold in check state discrimination. This power was not meant to be applied uniformly to every state; rather this extraordinary use of federal power was justified only where the facts indicated that racial discrimination and polarization so burdened minorities’ right to vote that it was necessary for Congress to use this remedy and step in.

Conservatives have used state sovereignty doctrine to check federal power in commerce clause cases, such as Lopez v. US and Morrison v. US. To use this ample and malleable sovereignty doctrine to strike down the Voting Rights Act key provisions makes this opinion controversial. Shelby is something of a time bomb, because the opinion’s legal maneuverings leaves unclear whether the Court will constrain itself in reviewing future exercises of Congressional remedial powers under the Fifteenth Amendment.

Monday, June 24, 2013

Affirmative Action Stands, 7-1, in Fisher v. Texas: Justice Kennedy Says “When We Say ‘Strict Scrutiny’, We Mean It!”

By Sylvia Lazos, Justice Myron Leavitt Professor of Law

This morning the Supreme Court issued its opinion in Fisher vs. University of Texas, affirming on a vote of 7-1, that affirmative action policies in university admissions are constitutional. Many had speculated that this case would give the new conservatives on the Court (made up of Justices Roberts, Alito, Thomas and Scalia) the opportunity to overturn Grutter v. Bollinger, decided a decade ago, when Justice O’Connor sat on the bench rather than Justice Alito. However, after this morning’s opinion it is clear that as long as Justice Kennedy sits on the Supreme Court, Grutter’s precedent stands solid, albeit with some caveats. Although it was clear by the concurrences that conservatives Justices Scalia and Thomas had lobbied to overrule Grutter, the majority of the Court reaffirmed that selective public higher education institutions can use affirmative action in admissions, without violating the Equal Protection clause. Universities can consider scores from high-stakes tests like SATs and LSATs, high school GPAs, factors that indicate an individual’s qualities of leadership and perseverance which are highly related to graduation success, as well as personal cultural background factors, such as socio-economic status and race.

Ten years ago, Justice Kennedy was in the dissent in Grutter v. Bollinger, where he argued that while he agreed that attaining diversity is clearly a compelling interest for state universities, he strongly disputed whether the Court had properly applied “strict scrutiny.” In Grutter, Kennedy observed that the University of Michigan Law School almost always admitted African Americans with LSAT/GPAs combined scores at a certain level, while those same combined scores did not result in such high likelihood of admissions for white applicants. Kennedy thought that this pattern was sufficient to indicate that race had been used as a determinative factor in the Michigan admissions process. However, the majority then saw it otherwise. Justice O’Connor, who wrote the majority opinion in Grutter, argued that given the complexity of the University of Michigan Law School’s admissions process and their diligent individual review of each file, that the Court could assume the good faith of the admissions officers and defer to their decisions, and find as a matter of law that race was one of many factors and not the determinative factor in admissions. In Fisher v. Texas, Justice Kennedy rejects Grutter v. Bollinger’s interpretation of how strict scrutiny review is applied, and makes clear that “the particular admissions process used for this objective [of achieving diversity in the student body] is subject to judicial review… the universities must demonstrate with clarity… that use of the [racial] classification is necessary .. [and] narrowly tailored.” To be consistent with strict scrutiny, universities can “receiv[e] no deference.” The admissions process must “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Pursuant to the Legislature’s mandate, University of Texas has in place the Top Ten Percent program, which, as its name indicates, admits the top ten percent of every high school class. This is a race neutral admissions process that easily passes constitutional muster. The factual question in Fisher v. Texas was whether Texas’ supplemental undergraduate admissions plan, which awards points for a composite “personal” cultural background/socio-economic class factor, is an admissions criterion where race, “is a meaningful factor” per Justice Kennedy’s observation in Fisher, or a determinative race-conscious factor. The Supreme Court has dispatched this issue to the lower courts, with instructions by Justice Kennedy that “[s]trict scrutiny cannot be strict in theory but feeble in fact.”

Justice Ginsburg’s lone dissent anticipates a future case – perhaps Fisher itself after remand -- where the Supreme Court will entertain the issues posed in Texas v. Fisher “all over again.” The purpose of Texas’ supplemental admissions plan is to achieve a “critical mass” of minority students in small programs and small classes. During oral arguments, Justice Kennedy was troubled whenever the University of Texas seemed to factually concede that in order to achieve “critical class” its admissions program had to have a target range for the admission of a certain number of minorities, or percentages of the class. Justice Kennedy saw “an inconsistency” in Texas’ claim to race neutral admissions and Texas’ actions in pursuit of its goal of trying to achieve “critical mass.”

Justice Ginsburg observes in her dissent that race is interrelated with class and geographical segregation, particularly in the South. While Texas’ Top Ten program is nominally race neutral, it was mandated by the Texas Legislature as a political compromise because “everyone knows” that given Texas’ segregation history, the Top Ten program would yield a diverse class. The Top Ten percent of an inner city Houston high school would be almost all African American and Latino, while the Top Ten Percent of an affluent suburban high school class would be almost all white. Justice Ginsburg argues that it is better to be forthright about the use of race-consciousness in admissions rather than use “camouflage to maintain minority enrollment.” It is constitutionally preferable, Ginsburg argues, to “candidly disclose … consideration of race [rather than] conceal it.” Ginsburg seems to predict that the lower courts’ trial will be an exercise in whether University of Texas can pull off the legal artifice of proving that their admissions program is not race conscious. In a footnote, she quotes Professor Thomas Reed Powell’s famous statement, “If you think that you can think about a thing inextricably attached to something else without thinking of that thing which it is attached to, then you have a legal mind.”

There is a crisis in K-12 education. As the book, Whither Opportunity?, shows with devastating empirical proof, children who are segregated by poverty, which means that they are likely to be African American and Latino, have a much lower opportunity of succeeding in K-12. They will thus have lower scores in the high stakes college admissions tests, such as SAT. By contrast, children whose parents are affluent, who are likely to be predominantly White, are much better prepared for college. These children will have higher SAT and LSAT scores. Ginsburg, as the most elderly justice on the Court, seems to be warning us that courts and political leaders must come to terms with such “intextricabl[e] attach[ments]” between race and college readiness. Affirmative action is an “after the fact” fix to the weak pipeline K-12 system that produces racially segregated success outcomes.

Five years ago, in Seattle, Justice Thomas argued in his concurrence that political decision makers must find the political will to fix the racial and class inequities of K-12; affirmative action could not be the principal fix to the racial inequities of K-12 outcomes. Both Ginsburg and Thomas are right. Until taxpayers and political leaders resolve to fix K-12, courts will imperfectly deal with affirmative action. Decisions, such as Grutter v. Bollinger and now Fisher v. Texas, will appear unsatisfactory and some sort of “punt,” as the Court deals with this very difficult quandary.

Thursday, June 20, 2013

American Express Co. v. Italian Colors Restaurant Guts Enforcement of Federal Laws

By Jean Sternlight

The Supreme Court’s decision today in American Express v. Italian Colors is ghastly, at least from the perspective of those who believe that federal laws ought to be enforced. In a 5-3 decision the Court (per Justice Scalia) held that it is perfectly acceptable for companies to use arbitration clauses to insulate themselves from federal claims that might be brought by potential adversaries. Specifically, the Court found that it was fine for American Express to prevent restaurant owners from joining together in a class action to bring an antitrust claim, even though it was undisputed that absent collective action the restaurant owners could not feasibly bring the claim either in arbitration or litigation.

Many of you who have taught arbitration may wonder how this holding can be squared with the Supreme Court’s prior decisions stating that arbitration cannot be used to prevent the “effective vindication” of a federal statutory right. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. & Green Tree Financial Corp.-Ala. v. Randolph.

Perhaps the only positive thing I can say about this decision is that Justice Scalia is forthright about the fact that the decision spells doomsday for many consumer and small business claims. The opinion states “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim.” That is, the Court finds that it is fine for a company to use arbitration to effectively prevent persons from bringing claims, so long as the company does not altogether eliminate the right to pursue that claim in theory. “[T]he fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy."

With this decision the Court has also fully endorsed companies’ use of mandatory arbitration provisions to block access to justice rather than to provide an alternative means of obtaining access to justice. There is no pretense in the decision that the restaurants would or could pursue their claims individually in arbitration. As Justice Kagan aptly explains in dissent, “[t]he monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.” She therefore calls this decision a “betrayal” of the Court’s precedents. Through its decision the Court has made clear that the FAA can be used not to redirect claims to an alternative streamlined forum, but rather to (in Justice Kagan’s words) “block the vindication of meritorious federal claims and insulate wrongdoers from liability.”

So now what? One needs no crystal ball to predict that this decision will unleash a new rash of companies issuing arbitration clauses that preclude class actions. These clauses will be designed to block consumer, employee and small business claims entirely rather than redirect those claims to arbitration.

Is this decision horrible enough that it will inspire Congress to take some action? If Congress cares to ensure the enforceability of its laws it could take any of several steps: (1) pass the Arbitration Fairness Act to prevent companies from imposing arbitration on consumers, employees, or small businesses; (2) pass legislation (as Professor Sarah Cole has proposed) to prevent companies from using arbitration to insulate themselves from class actions; or (3) set up and fund strong government agencies that are able to do all the enforcement that is needed of federal laws. Alternatively, Congress may choose to do nothing and allow companies to violate federal laws at will. Unfortunately my crystal ball is not good enough to know which way Congress will go.

Professor Christopher Blakesley Quoted in The New York Times


Christopher L. Blakesley is The Cobeaga Law Firm Professor of Law at the UNLV Boyd School of Law.

On June 19, he was quoted in The New York Times article WikiLeaks Says It Is Working to Negotiate Asylum in Iceland for Snowden. "Iceland 'would be a smart choice' for Mr. Snowden, because authorities there have shown sympathy for the cause of freedom of information and might act favorably on his asylum request," the article reads.

Professor Blakesley is a Barrick Distinguished Scholar, 2009.

Wednesday, June 19, 2013

Professor Rebecca Nathanson Featured in Channel 13 Action News Video

Rebecca Nathanson is the James E. Rogers Professor of Education and Law at the UNLV Boyd School of Law.

On June 18, she was featured in the Channel 13 Action News video and article Kids' Court helps young witnesses before their day in court. "It's extremely stressful, traumatizing for children. Who as a parent would want to put their child in that situation? And again, kids need to have a voice in court," she said.

Professor Nathanson’s research focuses on examining the capabilities and limitations of child witnesses with disabilities.

Monday, June 17, 2013

Professor Jean Sternlight Quoted in The New York Times

Jean Sternlight is the Michael and Sonja Saltman Professor of Law and the Director of the Saltman Center for Conflict Resolution at the UNLV Boyd School of Law.

On June 14, she was quoted in The New York Times article Automakers Push Back Against Consumer Protections. “So one of the main benefits from the company’s standpoint is to eliminate claims against the company,” she said.

Sternlight is nationally and internationally recognized for her scholarship and law reform activities in the field of dispute resolution.

Friday, June 14, 2013

Associate Dean Pindell Selected for UNLV Leadership Development Academy

It was recently announced that Boyd’s Associate Dean of Academic Affairs Ngai Pindell was selected as a member of the inaugural class of UNLV Leadership Development Academy Fellows. Pindell is joined by six other UNLV faculty members.

Under Provost John Valery White, the Leadership Development Academy aims to identify and develop campus leaders who are capable of guiding the University toward its identified goals.

The Leadership Development Academy consists of two components: four to six seminars per semester related to prominent higher education issues and UNLV-specific challenges as well as an administrative placement involving direct contact with a senior administrator.

The Fellows were selected based on personal statements and curricula vitae or résumés that reflect a high level of scholarship and/or strong potential for higher-level leadership.

Originally, the committee anticipated selecting a total of five Fellows; however, the strong pool of applications resulted in the committee’s decision to select seven Fellows instead.

Dean Pindell was also recently named to the Lawyers of Color 50 Under 50 list. The list is a comprehensive catalog of minority law professors making an impact in legal education.


Thursday, June 13, 2013

Law Library and Office of Diversity Initiatives Awarded NEH Grant

By Jeanne Price

The Wiener-Rogers Law Library and UNLV’s Office of Diversity Initiatives have been awarded a grant by the National Endowment for the Humanities to host a series of film showings and discussions focusing on the civil rights movement in the United States. Created Equal: America’s Civil Rights Struggle marks the 150th anniversary of the Emancipation Proclamation. The NEH grant provides funds to communities across the country to support film showings and programming on the history of civil rights in the United States.

The Law Library and Office of Diversity Initiatives will incorporate the film series in existing programs and develop new programming to highlight the issues described in the four featured films – The Abolitionists; Slavery by Another Name; The Loving Story; and Freedom Riders. Over a three year period beginning in September 2013, UNLV scholars and community leaders will participate in forums – including the Diversity Leadership Forum and Latino Youth Leadership Conference – in which the films will play an important role.

The film series complements the Law Library’s collection of documentary films, one of the largest collections of its kind among academic law libraries. We hope that the initiatives and programming that the grant supports will not only inform and encourage dialogue, but also inspire students and other scholars to undertake research in primary source material in the Law Library’s collection, research that might enhance our understanding of the minority experience in Southern Nevada. The Law Library’s collections include the archives of the Las Vegas Chapter of the National Bar Association, the oldest minority bar association of African-American attorneys.

Wednesday, June 12, 2013

Dean Daniel Hamilton Provides Commentary on Illinois Public Media

Daniel W. Hamilton is Dean and Richard J. Morgan Professor of Law at the William S. Boyd School of Law.

On June 11, he provided commentary on WILL Illinois Public Media's Focus show. The segment, titled Decisions, Decisions: The 2012-2013 Supreme Court Term, focused on cases that will set new precedents for same sex marriage, affirmative action, and genetic research. 

Of the Association for Molecular Pathology v. Myriad Genetics case, Dean Hamilton said, "This is very uncharted territory. I leave it to the scientists to determine how sweeping this might be; but just to a lay person, we almost can't understand it without breaking it down into certain kinds of analogies. And you can see the Supreme Court trying to turn the science into something it, and I, and all of us can understand. This could be the sleeper of the term. This could be where 50 years from now, this was the moment when a major paradigm shift took place in our conception of the body as human beings."

Dean Hamilton researches and writes primarily on American property ideology and the legal and constitutional issues raised by the Civil War. He has written numerous articles and reviews on American legal history. 





Dean Rapoport Commended by Director of United States Trustee Program


The Boyd School of Law is very pleased to announce that Interim Dean and Gordon Silver Professor of Law Nancy Rapoport was commended by Clifford J. White III, Director, United States Trustee Program (USTP), for the guidance she provided regarding the USTP final Guidelines governing the review of attorneys’ fees and expenses in large chapter 11 bankruptcy cases.

In his press release, Mr. White stated: "After two public comment periods spanning more than a year – and after hearing from a broad range of commenters from the largest law firms to major investors to academics to the public – the USTP promulgated a new set of Guidelines governing disclosures that should be made to justify fees in the largest bankruptcy cases. We are extremely grateful for the many helpful comments we received from bankruptcy experts, including Richard Levin, Chair of the National Bankruptcy Conference, and law professor Nancy Rapoport."

Copies of the Guidelines and related press releases are available here and here, respectively.

Congratulations, Nancy!

Monday, June 3, 2013

Anti-Defamation League Honors William S. Boyd School of Law with Jurisprudence Award

On May 31, the William S. Boyd School of Law received the Anti-Defamation League's (ADL) 2013 Jurisprudence Award. The annual award honors an institution or a Nevada legal professional who reflects the values of civil rights and the mission of the ADL. Bill Boyd accepted the award on behalf of the law school during a luncheon held at the Plaza Hotel and Casino.

To see photos from the event, click here.