{"title":"Narrative-Erasing Procedure","authors":"A. Ralph","doi":"10.2139/SSRN.3033005","DOIUrl":"https://doi.org/10.2139/SSRN.3033005","url":null,"abstract":"In recent years, we have seen the concerning rise of what is best described as “narrative-erasing procedure” in civil pretrial litigation. The Supreme Court has imposed the heightened “plausibility” pleading standard. The Rules Advisory Committee has altered the discovery rules to further emphasize “proportionality” in discovery requests. And settlement pressures at every stage of pretrial litigation are high. \u0000These trends have been the subject of robust academic debate. But missing from this debate is any consideration of the values that narrative supports in civil litigation. Stories are what the law produces, and stories are what grow the law. The democratic functioning of the litigation system relies on the generation, development, and contest of narratives. Because narrative is a vital part of litigation, narrative-erasing procedural developments threaten harmful ossification of the law. Narrative-erasing procedure also has a harsh impact on individuals who are already marginalized in society. Without narrative, the law cannot address longstanding problems and accommodate citizens in changing times. \u0000The article offers a comprehensive account of the way that narrative functions in pretrial litigation—an area that has been understudied to date. The article also advances solutions for the problems caused by narrative-erasing procedure, including policy recommendations and tools for introducing narrative by other means, drawing on Marshall Ganz’s work on “public narrative” in the social movements literature. Without greater attention to the phenomenon of narrative-erasing procedure, we risk sacrificing a core feature of the civil justice system: the contest of narratives that produces fair outcomes.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114796353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Truth, Lies, and Copyright","authors":"Cathay Y. N. Smith","doi":"10.2139/SSRN.3205346","DOIUrl":"https://doi.org/10.2139/SSRN.3205346","url":null,"abstract":"Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. \u0000 \u0000This paper is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this paper argues that the public interest in promoting efficiency, fairness, and production of socially-valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124276207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"\"Liquidated Damages\" in Guest Worker Contracts: Involuntary Servitude, Debt Peonage or Valid Contract Clause?","authors":"M. Ontiveros","doi":"10.2139/SSRN.3205416","DOIUrl":"https://doi.org/10.2139/SSRN.3205416","url":null,"abstract":"Non-citizen migrant workers who come to the United States on short term work visas, especially H-1B visas, often sign contracts that include a promise to work for the employer for a set period of time. These contracts may include a \"liquidated damages clause\" that requires the worker to pay the employer a large sum of money if they stop working for the employer, either to switch employers or to return home. Because these sums of money are so large relative to the worker's ability to pay, they prevent workers from leaving employment. This paper examines whether those liquidated damages clauses are enforceable. It suggests that there are two different ways to analyze these clauses: a contract law approach and a free labor approach. The contract law approach, found in state contract law and the statute that regulates H-1B visas, serves the dual purposes of efficiency and compensation. The free labor approach, found in a variety of statutes passed pursuant to the Thirteenth Amendment to the United States Constitution, on the other hand serves the purposes of protecting individuals and society from the ills associated with modern day slavery. This article examines two different prohibitions contained in the free labor approach - prohibitions against involuntary servitude and debt peonage. It explores and explains the differences between these variations on unfree labor, with a focus on the purpose of prohibiting each arrangement. The article then returns to the problem of liquidated damages clauses in guest worker contracts to examine the implications of these competing approaches (contract law vs. free labor) for advocates, courts and Congress.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121014397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Evolution of the Arbitration Forum as a Response to Mandatory Arbitration","authors":"T. J. Verges","doi":"10.2139/SSRN.3021955","DOIUrl":"https://doi.org/10.2139/SSRN.3021955","url":null,"abstract":"Decades of Supreme Court decisions elevating the Federal Arbitration Act (FAA) have led to an explosion of mandatory arbitration in the United States. A form of dispute resolution once used primarily between merchants and businesses to resolve their disputes, arbitration has expanded to myriad sectors, such as consumer and service disputes, investor disputes, employment and civil rights disputes. This article explores this expansion to such non-traditional contexts and argues that this shift requires the arbitral forum to evolve to increase protections for forced participants and millions of potential claims that involve matters of public policy. By way of example, decades of forced arbitration of securities disputes has led to increased due process and procedural reforms, even as concerns remain about investor access, the lack of transparency and investors’ perception of fairness.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114609723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Why Legal Writing is “Doctrinal” and More Importantly Profound","authors":"H. Lloyd","doi":"10.2139/SSRN.3143233","DOIUrl":"https://doi.org/10.2139/SSRN.3143233","url":null,"abstract":"So long as we must use the questionable term “doctrinal” when referring to law school courses, this article challenges everyone (including law professors who teach legal writing) to stop directly and indirectly referring to legal writing as a “non-doctrinal” course. Use of “non-doctrinal” can be code for “lesser” thereby suggesting that legal writing has lesser import than other law school courses. Erroneously so marking legal writing as “lesser” damages legal education across the board. It damages students and law professors not teaching legal writing by suggesting that legal writing and the theory, skills and insights taught by legal writing merit less of their time which in turn increases the odds that both students and other faculty will remain ignorant of the critical knowledge and skills that legal writing teaches. It also damages law professors teaching legal writing because it invites disparate treatment such as lack of tenure, lower pay, lack of equal voting rights, and lack of equal respect. As a result, law professors teaching legal writing encounter greater difficulties in publishing scholarship, difficulties which deprive us all of the scholarship so silenced or deterred. \u0000Such erroneous code also ignores the profound subject matters addressed in legal writing courses today, a number of which subject matters are briefly surveyed in this article. Such erroneous code further ignores fundamental principles of semantics and fundamental insights of modern cognitive psychology embraced by legal writing courses today. \u0000In addition to examining the foregoing, this article also explores why the term “doctrinal” should be replaced with terms and phrases such as “meaningful” and \"intertwined proper theory and practice” when referring to and evaluating courses and their content.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127392596","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Freedom to Film Pornography","authors":"Marc J. Randazza","doi":"10.2139/SSRN.2864532","DOIUrl":"https://doi.org/10.2139/SSRN.2864532","url":null,"abstract":"Repeat after me WITH FEELING: 1. \"Pornography is not prostitution\"2. \"It is legal to film porn everywhere in America\" Now, download the article and read it so that you can learn why. You'll be smarter, and more interesting at parties. Some smarmy sanctimonious clown will think that surfing Reddit substitutes for three years of law school and a bar exam. They'll say \"you know you can only film porn in California and New Hampshire.\" Then you can proclaim \"oh yeah, well I read the complete study of this issue and you are WRONG.\" You'll be the coolest one at the party. All because you read this law review article about the First Amendment right to film pornography.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129366462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tilting at Stratification: Against a Divide in Legal Education","authors":"Rebecca Roiphe","doi":"10.2139/SSRN.2704195","DOIUrl":"https://doi.org/10.2139/SSRN.2704195","url":null,"abstract":"Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers out of the profession. A closer analysis of the debate in the 1920s demonstrates that those in favor of two separate educational tracks were similarly motivated by status and elitism. They hoped to relegate the bottom tier of the profession to a permanent lower caste. The article draws on the history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers -- not just those who graduate from elite schools -- ought to be trained in the complex nature of the law and its relation to society, culture, and politics.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128457295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How Bayesian Are Judges","authors":"J. Knight, G. Gulati, D. Levi","doi":"10.2139/SSRN.2687813","DOIUrl":"https://doi.org/10.2139/SSRN.2687813","url":null,"abstract":"Richard Posner famously modeled judges as Bayesians in his book, \"How Judges Think?\". A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they did on their probabilistic calculations (the officers who conduct the search have to file, in every case, a \"return\" detailing what was found in their search). Based on detailed interviews with thirty judges our answer to the \"How Bayesian are Judges?\" question is: Not at all. The puzzle we are left with, given that acting in a Bayesian fashion is normal behavior for the rest of us, is why we get these puzzling results for judges in the search warrant context?","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128088082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation","authors":"Lauren A. Newell","doi":"10.2139/SSRN.2346496","DOIUrl":"https://doi.org/10.2139/SSRN.2346496","url":null,"abstract":"With computers, text messages, Facebook, cell phones, smartphones, tablets, iPods, and other information and communication technologies (“ICTs”) constantly competing for our attention, we live in an age of perpetual distraction. Educators have long speculated that constant exposure to ICTs is eroding our ability to stay focused, and recent research supports these speculations. This raises particularly troubling implications for the practice of law, in which being able to pay sustained attention to the task at hand is crucial. Research also indicates that the brains of today’s young people, the “Digital Generation,” may function differently than the brains of their elders because the Digital Generation have grown up immersed in digital technology. This suggests that the techniques today’s legal professionals might use to cultivate attention in the face of technological distraction could prove to be inappropriate for future generations of lawyers. When the Digital Generation are both the attorneys and the clients, it may be the practice of law — rather than the lawyers — that needs to change. This paper explores the science of attention and explains why attention is important. Next, it introduces the Digital Generation and their relationship with digital technology. It then examines the connection between ICT exposure and attention and reviews several suggestions that others have made about how legal professionals should respond to the challenges ICTs pose to focused attention. This paper then takes the conversation in a new direction: It predicts ways in which the legal profession, rather than the legal professionals, will necessarily have to adapt to technology in the future. Finally, it offers thoughts about how the legal profession should view its relationship with technology going forward.","PeriodicalId":198476,"journal":{"name":"Nevada Law Journal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132679556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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