Nevada Law Journal Volume 26 Article Abstracts and Notes
Issue 1:
Nothing to Gain: The Disparate Impact of the Capital Gains Tax Preference on Women and Persons of Color
Ann Murphy, Professor of Law, Gonzaga University School of Law
Tax preference provisions are scattered across the Internal Revenue Code, and the capital gains tax rate offers an enormous advantage for wealthy taxpayers. When first enacted, it was touted as eliminating the “lock-in effect” which caused investors to hold on to their investment property. Today, it is justified as encouraging investment and eliminating gains produced merely by the passage of time. The provision’s unequal benefits are hidden from the picture. Although not overtly discriminatory, the preference operates as a tax cut for the wealthy. Women and persons of color see little benefit from the lower tax rate. The difficulty of comparing tax data by gender, race, and ethnicity exacerbates this inequity. The exclusion of women and persons of color from the reduced tax rate contributes to the overall inequality of wealth, a situation that must be remedied. Historically, Congress has been reluctant to make meaningful adjustments to eliminate this built-in inequality, such as taxing unrealized gains or providing comparable benefits to women and persons of color This article provides a brief history of the capital gains preference, examines statistical income and wealth disparities based on gender and race, and proposes solutions to reduce the negative impact of the capital gains preference that leaves behind women and persons of color.
Immigration Detention Expansion by Stealth
Denise Gilman, Clinical Professor of Law and Co-Director, Immigration Clinic, The University of Texas at Austin School of Law
A quiet but dramatic expansion of the government’s civil immigration detention power has taken place in recent years, beginning with the first Trump Administration but then taking further hold after President Trump left office at the end of his first term. The stealthy change in detention has taken place as a result of legal interpretations that sweep additional migrants, specifically certain asylum seekers, into a legal category of mandatory detention that allows for presumptive and non-reviewable detention. The result is widespread deprivation of liberty without review of the justification for that loss of freedom.
This new detention landscape provides a permissive backdrop for the second Trump Administration’s explicit plans for mass detention of migrants. The expanded immigration detention authority normalizes widespread immigration detention and provides a legal platform for even broader detention without review. Taking advantage of that reality, the current Trump Administration has undertaken an effort to push existing boundaries of immigration detention even further, including by sending migrants to Guantanamo Bay, holding entire families in custody, and utilizing military bases as detention camps. This Article highlights the dangers of expansive and expanding detention authority and urges a return to fundamental liberty principles in the immigration detention context.
Immigration detention has frequently drawn the attention of scholars. Initially, much of the focus was on mandatory detention of certain migrants, particularly those with criminal histories. Eventually, attention turned also to critique the flaws in detention determinations for migrants not subjected to mandatory detention, which lead to high levels of detention even where release is theoretically available. However, scholars have not yet confronted the growth in the government’s authority to detain in recent years. As such, they have also not explored the consequences that will follow under an Administration committed to deploying detention as broadly as possible.
The Article begins by considering how the U.S. immigration detention system took such an expansive turn. It then lays out the reasons why the largely-unnoticed shift in immigration detention presents serious concerns. The immediate impact is significant, depriving tens of thousands of asylum seekers of recourse to challenge their detention. The extension of unreviewable detention authority particularly impacts migrants at the U.S. southern border, and this is the largest group in detention currently. The potential consequences are even greater than this direct impact, though. The broad power to detain could be expanded even further under this recent interpretation of the legal framework, eliminating any review of liberty deprivations for most migrants. The new expansive detention authority undercuts the fundamental right to liberty, potentially reshaping civil detention parameters in highly problematic ways.
Finally, the Article suggests approaches for addressing and counteracting the expansion of immigration detention power in the hopes of restoring liberty as a central principle. In doing so, the Article considers immigration detention contours in Spain to offer a model that might encourage a reset of the detention system in the United States and the imposition of meaningful limits on civil immigration detention.
Getting it Just Right: The Goldilocks Level of Securities Regulation
David Nows, Assistant Professor of Law, Thomas R. Kline School of Law of Duquesne University
Across the world, developed economies use roughly the same framework to regulate entrepreneurial ventures raising capital. The minor differences in how developed countries regulate securities for emerging businesses primarily lie in their legal thresholds for fundraising caps, disclosure requirements, and the criteria for accredited investors. This uniform regulatory framework persists despite significant empirical evidence that the citizens of developed countries vary widely in their desire to pursue entrepreneurial opportunities, their perceptions of the number and quality of entrepreneurial opportunities available to them, and their perceptions of their own ability to succeed in entrepreneurship. This paper advocates for a new approach to securities regulation in the developed world that seeks to tilt the balance between capital formation and investor protection in the direction that best represents the entrepreneurial goals and desires of the citizenry.
To date, legal scholars have written extensively about securities law reforms in the opposing directions of investor protection and capital formation for new ventures. Largely, these scholarly debates fall along partisan lines. This article reframes the debate of striking the right balance between investor protection and capital formation by emphasizing the simple fact that the citizenry being governed has opinions on how entrepreneurial activity and fundraising should function. This article argues that those opinions should be an important factor in determining the securities regulations ultimately adopted in a given jurisdiction.
In developing the idea of “getting it just right,” this article looks at various metrics across many developed countries, then, focuses in on three key metrics and three securities regulation schemes. The key metrics studied are: the securities laws in each jurisdiction, the feelings of the citizenry toward entrepreneurship, and expert opinions of each jurisdiction’s fundraising environment. In combining first-of-its-kind comparative securities law research with empirical data from a highly-respected longitudinal study in its 25th year, this article makes a significant contribution to the existing literature by providing a new way to balance the competing concerns of investor protection and capital formation in a way that is flexible, dynamic, and removes partisan considerations from the equation.
Buy, Build, or Both?: On the Antitrust Laws’ Supposed Preference for “Internal Growth” over Acquisitions
Geoff Manne, President and Founder, International Center for Law & Economics
Justin (Gus) Hurwitz, Director of Law & Economics Programs, International Center for Law & Economics
This article challenges recent claims claim by antitrust enforcers that the U.S. antitrust laws embody a preference for “internal” or “organic” growth over external expansion through acquisition. It begins by examining the modern use of this claim in speeches, enforcement actions, and the 2023 Merger Guidelines issued by the Federal Trade Commission and Depart-ment of Justice. It then considers the legislative history of the 1950 Celler-Kefauver and 1976 Hart-Scott-Rodino Acts, which are frequently been cit-ed as showing Congressional support for internal growth. Careful reading of these Acts, however, shows that Congress’s central goal was to close a loophole regarding asset acquisitions, and only passing (and disputed) con-cern about “organic” expansion. Further, the FTC’s own reports at the time, which purportedly justified a hostility toward “buying” rather than “build-ing,” were shown to be flawed and later quietly disavowed by their authors.
Turning to modern economics, the article highlights the ways in which ac-quisitions can promote competition through efficiencies, innovation, and dynamic resource reallocation—sometimes spurring more internal invest-ment rather than crowding it out. It concludes that current hostility toward mergers is at odds with both the legislative record and mainstream economic understanding, and that there is no statutory basis for an antitrust preference requiring firms to “build” instead of “buy.”
Uncovering Red Flags in the Silver State: Recognizing and Expanding the Corporate Duty of Oversight in Nevada by Daren Dunaway
A Safe Structure: Utilizing Antitrust Structuralism to Address Institutional Investors in the Housing Market by Vanessa Brady
The Worker Fight Against Compelled Listening: The Past, Present, and Future of Captive Audience Meetings in the Wake of Amazon.com by Hailey Simpson
Issue 2:
Unlocking the Corporate Governance Potential of Mutual Fund Investors
Jeffrey Manns, Associate Dean, Professional Outcomes; Professor of Law, George Washington Law School
America’s mutual fund governance has long consisted of a system of money manager dominance and shareholder impotence. While mutual funds pool together unprecedented sums of capital, investors historically have had no meaningful role in governance and have faced a choice of “love it or leave it” when it comes to their investments in mutual funds.
The controversy over mutual fund managers’ advocacy of Environmental, Social, and Governance (ESG) principles in portfolio companies has reinvigorated interest in repairing the dysfunctional principal-agent relationship between investors and money managers. The management of BlackRock, the world’s largest money manager, ignited an ESG voting controversy by championing unfettered managerial discretion to vote portfolio company shares. Leaders at the two other largest asset managers, the Vanguard Group and State Street, followed in BlackRock’s footsteps in embracing broad managerial discretion related to ESG issues.
But in the face of a shareholder backlash, each of the “Big Three” mutual funds has introduced a “Bounded Choice” approach of allowing mutual fund shareholders to choose how their individual shares will be voted from preset categories of managerial voting guidelines. While well intended, these “Bounded Choice” approaches to portfolio voting fracture the voting power of mutual funds and strip the funds of their potential impact on the corporate governance of portfolio companies.
I argue that BlackRock’s initial logic was right that mutual funds should speak with one voice when it comes to their portfolio companies because they have outsized stakes and risks. But I argue that mutual funds should recognize their principal-agent relationship with shareholders in a more democratic way. The voice of the funds in portfolio company voting should be that of the majority of shareholders rather than of largely autonomous managers. I make the case for an annual, majority-wins Say-on-Voting approach which would give investors the ability to approve or reject the managers’ voting guidelines for the funds’ shares in portfolio companies. The logic of giving investors veto power over managers’ voting guidelines is to vest oversight and accountability back in the hands of the principals, rather than their agents.
The need to gain investor support for voting guidelines would incentivize mutual fund managers to make the case for ESG investing and other substantive issues more clearly to their investors to earn their support. The point of mutual funds is that investors want to rely on the expertise of money managers in overseeing their money. But investors should not be stripped of their status as principals in the process and be reduced to completely passive partners. The hope is that addressing these governance and agency issues may actually reduce the politicization of ESG and other substantive issues by incentivizing investors to be better informed and more engaged in mutual fund democracy.
Time Out for Transfer: Youth Transfer as Punishment
Kristina Kersey, Assistant Professor of Law, University of Tennessee College of Law
The confidentiality of the juvenile court, while laudable in protection of the children charged, often means that people, in general, have little understanding of the inner workings of the court, and only a general assumption on how the practice of transfer of youth for adult criminal prosecution occurs. The cases that do reach the headlines are the most salacious, which leads to a confirmation bias on both the need and the appropriateness of the practice of transfer.
Many scholars have discussed the undeniable impact of adolescent development research on juvenile legal jurisprudence and a general reimaging of youth criminal responsibility. The Supreme Court, through Roper and its progeny, has declared that youth under age 18 will no longer face the death penalty or mandatory life in prison sentences, meaning that more individuals who were sentenced to lengthy prison sentences and grew up in prison will return, decades later, to a changed world. Yet little attention has been dedicated to considering whether they should have been tried as adults in the first place.
The decision to try a child as an adult is, in and of itself, punishment. And a focus on adolescent development research only after youth have grown into adults while incarcerated, is too little, too late. This article explores the transfer determination as punishment and focuses on intermediate novel, concrete, and immediate reforms that would align theory with practice. Previously explored in other areas of law such as the death penalty, moratorium have never been previously explored for transfer. However, what transfer ultimately needs is a time out, a moratorium, to study the practice, address system failures and explore abolition.
We don’t advocate that immature adults be prosecuted as children or move to prosecute even the most Animal Farm-like pigs as people. Time has come to re-examine what justice means for young people who face prosecution as adults. And to reimage the legitimacy of the legal doctrine of trying children as adults.
Shadow Probate
Felix Chang, Professor of Law and Co-Director, Corporate Law Center, University of Cincinnati College of Law
This Article argues that nonprobate instruments (trusts, life insurance, retirement plans, and joint accounts) now comprise a shadow probate system that performs the core functions of probate but evades judicial oversight and public scrutiny. Like probate, shadow probate facilitates succession, though in a manner that caters to the privacy, business continuity, and asset sheltering goals of wealthy clients. By contrast, most households use wills for estate planning—or they avoid planning altogether and lapse into intestacy.
Wills and intestacy must wind through probate courts, which are vested with state authority and therefore follow due process. Shadow probate, on the other hand, is less constrained, allowing its users to subvert the principles of transparency and creditor protections embedded in probate. This schism between probate and shadow probate both reflects and exacerbates wealth inequality.
Scholarly treatment of will-substitutes dates back at least forty years, to John Langbein’s seminal article on the nonprobate revolution. Since that time, succession planning has seen a proliferation of will-substitutes. Subsequent scholarship has either tracked the piecemeal validation of nonprobate instruments or proposed modest reforms to probate. This Article takes a more holistic approach. It confronts the glaring question that arises as shadow probate threatens to eclipse probate itself: Is probate even necessary today? This Article answers emphatically in the affirmative. Probate is needed more than ever to preserve democracy and combat inequality.
Immigration’s Prejudice Problem
Ellie Norton, Senior Staff Attorney, National Immigration Project
With immigration enforcement sharply rising, noncitizens increasingly face deportation with few constitutional protections. Yet most remain at least entitled to a fundamentally fair removal hearing under the Fifth Amendment’s Due Process Clause. For years, however, immigration courts have been systematically violating noncitizens’ procedural due process rights. And while other scholars have suggested broadscale reforms, statutory and regulatory change has become largely unachievable in the current political climate. This Article offers a distinct, timely solution: reexamining the framework for direct review of procedural due process violations. In most jurisdictions, noncitizens asserting these violations must prove on appeal not only that an error occurred, but that this caused “prejudice” by certainly or likely changing the outcome of their case. As the Article reveals, this exacting prejudice standard is indefensible. It is not only often practically impossible to meet, but it lacks a meaningful foundation and is wholly inconsistent with the frameworks used to review the same errors in criminal, civil, and other administrative proceedings—and even that used to review less serious errors by immigration courts themselves. Maintaining this unjustifiably high prejudice standard risks devastating consequences. This Article therefore proposes that courts reform the current framework by harmonizing it with the well-established harmless error doctrine, which governs direct review of procedural due process errors in almost every other context. Grounded in existing jurisprudence and fundamental constitutional and administrative law principles, this could be achieved through circuit court-level litigation and would meaningfully deter the infringement of noncitizens’ increasingly critical due process rights.
Lies that Matter
Seran Gee, Staff Attorney, Advocates for Trans Equality
This Article proposes a novel assent-based framework for understanding rape law, challenging the traditional focus on consent as the sole determinant of rape. It argues that rape occurs when there is an absence of assent, rather than simply a lack of consent. The Article distinguishes between assent, which reflects a feeling of willingness, and consent, which is an exercise of autonomy that waives one’s right to bodily integrity. By incorporating this distinction, the assent model provides a more nuanced approach to rape law, explaining why certain deceptions—such as misrepresenting the nature of a sexual act—constitute rape, while others do not. The model also addresses complex issues such as consent to sex while unconscious, so-called gender fraud, partner impersonation, and HIV nondisclosure, offering a consistent methodology for determining when deception vitiates assent. The Article further explores the implications of this framework for tort law, university sexual assault policies, the regulation of the body in a range medical contexts, and philosophical debates on the ontology of consent. Ultimately, this assent-based theory of rape offers a more balanced approach to protecting both bodily rights and personal autonomy, while reimagining the role of consent in shaping sexual agency and liberation.
Behind Every Case is a Conversation
Donna Shestowsky, Senior Associate Dean for Academic Affairs and Martin Luther King Jr. Professor of Law, UC Davis School of Law
Trademarks Beyond the Dictionary: A Corpus Linguistics Approach to the International Implementation of the Rule of Foreign Equivalents by George McMullin
Exception to Abolition: Reforming Prison Labor Through Constitutional and State-Level Change by Caren Abourjeily
Issue 3:
Threats and Political Violence by Richard Broughton
The Regulation of Voting by Mail by Eugene Mazo
Textualism and the Fourteenth Amendment’s Citizenship Clause, “Subject To The Jurisdiction Thereof:” A Potential Roberts Court Decision and Whether Article III’s Treason Clause Could Be the Answer by Christian Ketter
Of, By, and For by Steven Winter
Line Warming as a Democratic Practice: Where’s the Line Between Swaying Voters and Empowering Voters? by Elizabeth Gordon
It’s Not a Constitutional Crisis. It's a Constitutional Course Correction. by Mark Rush
Privacy as a Democratic Guardrail: A Case for Fourth Amendment Constraints on Micro-Targeted Persuasion by Susan Tanner
The Court of Small Things, The Curse of Legal Superstition: The Precipitous Decline of Small Claims Court, Why It Matters, and What Can Be Done About It by Telia Williams