Forthcoming Articles, Volume 17: Issue 1

Charles W. “Rocky” Rhodes, Over the Threshold of Constitutional Adjudicative Retroactivity

Professor Rhodes’s article addresses potential retroactivity issues facing same-sex marriages. After some experimenting, the Supreme Court pronounced that its constitutional decisions overruling prior precedents or applying new legal rules govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a different legal framework. But, the application of Obergefell v. Hodges to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to disrupt settled understandings and expectations, such as in property transactions with third parties or in divorce actions predicated on the parties’ cohabitation beginning and ending before legal recognition was afforded to their union. Building on the insights of prior scholars, this Article constructs a more comprehensive typology of the institutional, remedial, and procedural doctrines that serve to protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions.


Catherine M. Christopher, The Bridging Model: Exploring the Roles of Trust and Enforcement in Banking, Bitcoin, and the Blockchain

This article addresses the issue that bitcoin has long been touted as a currency and a payment system that relies on cryptography and mathematics rather than trust. But, is Bitcoin really trustless? And if so, would that be a good thing? Professor Christopher proposes a new conceptualization of the role of trust in business and contracting: the bridging model, which allows for a more nuanced understanding of the interplay between enforcement and trust in contract formation. This article undertakes a critical deconstruction of Bitcoin and the blockchain, their themes of democracy and transparency, and the idea that they are trustless. The bridging model is applied first to traditional banking, to illustrate and analyze the enforcement mechanisms underpinning the U.S. dollar as currency and the banking system as a whole, and demonstrate that the enforcement mechanisms (government backing and regulation) are not as robust as generally believed. The bridging model is then applied to Bitcoin, to show not only that the system requires more trust than is generally understood, but also that in both currency and payment systems, some trust might actually be a good thing.



Professor Christine Manolakas, Qualified Residence Interest Deduction: A Win for Unmarried Co-Owners

Despite the seemingly simple language of the statute, the interpretation of the home mortgage interest deduction has recently garnered much attention as the Internal Revenue Service and the courts grappled with its application to unmarried co-owners of a residence. In determining whether the indebtedness limitations apply on a “per-residence” or “per-taxpayer” basis, the Internal Revenue Service, the Tax Court, and the Ninth Circuit have conducted in-depth analysis of the language of the statute, the statute’s legislative history, implications of related tax provisions, social and policy concerns, and financial consequences, and have consulted almost every canon of statutory interpretation. This article examines the legislative history and evolution of the present qualified residence interest deduction and analyzes the differing interpretations of the indebtedness limitations and the ultimate effect of the differing interpretations on taxpayers with different marital status. Also examined is the Internal Revenue Service’s surprising announcement that it will follow the Ninth Circuit’s holding in Voss v. Commissioner that the indebtedness limitations apply separately to each unmarried co-owner of a residence. The article concludes with a discussion of possible options for future legislation with regard to the qualified residence interest deduction, repealing or limiting the current deduction or replacing the deduction with a tax credit. 


Marc J. Randazza, The Freedom to Film Pornography

Broadly, Mr. Randazza’s article addresses misconceptions of commercial pornography, and the overarching question of whether it is legal to film pornography throughout the United States. Both California and New Hampshire Supreme Courts have held that pornography is not prostitution, but the question remains murky for other states. This article breaks that analysis down by first asking whether commercial pornography fits the definition of “prostitution” under state law. If it does, then the question is whether the state’s free speech clause, or the First Amendment would tolerate prosecution of a commercial pornographer under that law. Randazza claims one analysis answers both questions, concluding that pornography does not fit the definition of prostitution, and even if it did, it could not be constitutionally prohibited as such.


Rebecca Flanagan, Pre-Competencies as Precursors: Enhanced Admissions Criteria in the Age of Seat-Deposit Anxiety

Professor Flanagan states that law schools have begun only recently to admit that law student preparedness is a problem. It does not affect all law schools in the same measure. However, common factors such as falling bar pass rates and continuing negative press coverage of law schools have galvanized law school administrations to admit that law student under preparedness is a problem that is not going away. The article proposes the solution of adopting pre-competencies in admissions, looking to the medical school model for development and implementation. Pre-competencies would serve as precursors to legal learning; they are the skills and knowledge that provide a foundation for legal analysis, reasoning, and professional development. Although the idea of an additional admissions requirement would strike fear into the hearts of enrollment administrators still struggling to fill seats, adopting more transparent and thorough admissions requirements could potentially enlarge and enrich the applicant pool. 


Martin H. Malin, The Three Phases of the Supreme Court’s Arbitration Jurisprudence: Empowering the Already-Empowered

Professor Malin addresses states that arbitration agreements coupled with class-action waivers and other onerous provisions have become common in employment, consumer, and other transactions.  The Supreme Court’s decisions enforcing such agreements have encouraged their use.  Scholars have largely critiqued the Court’s decisions. This article finds that the Court’s arbitration jurisprudence has not been so monolithic.  Rather it has evolved through three phases. In Phase I, the Court overruled older case law and held that pre-dispute agreements to arbitrate statutory claims were enforceable pursuant to the Federal Arbitration Act (FAA).  Phase II substantially undermined the effective vindication doctrine, but state contract law doctrines used to police overreaching adhesive contracts continued to support the vision of arbitration as an accessible forum.  In Phase III, however, the Court has held that the FAA mandates enforcement of class-action waivers, premising its holding on an FAA policy of enforcing arbitration agreements according to their terms. The article demonstrates how the latest phase of the Court’s arbitration jurisprudence is obliterating state contract-law doctrines that policed overreaching by dominant parties, elevating the interests of the parties imposing the terms, and enshrining the imposing party’s interests in the FAA and the Supremacy Clause of the Constitution. 


Christopher C. French, Insuring Landslides: America’s Uninsured Natural Catastrophes

This article states that landslides occur in all fifty states and cause approximately $3.5 billion in property damage annually. Yet, in America, “all risk” homeowners and commercial property insurance policies exclude coverage for landslides, and there is only limited availability of expensive, stand-alone “named peril” insurance policies that cover landslide losses. Consequently, the affected homeowners are often left financially devastated homeless with a mortgage to pay on an unsaleable piece of property.  This Article analyzes the problem of insuring landslide losses in America and proposes ways to help solve it. It describes both historical and recent landslide events, discusses the insurance industry’s response to the problem of insuring landslides, and considers how other countries such as Belgium, France, New Zealand, Norway, Romania, Switzerland, Iceland and Australia address the issue of insuring landslide losses. It concludes by offering two ways to transform the insurance market for landslide losses in America.


Provost Nancy Rapoport, On Shared Governance, Missed Opportunities, and Student Protests

Recent student protests calling for a more diverse and inclusive environment often target university administrations with a list of demands, most of which involve hiring more women and people of color and adding more gender/race studies to the curriculum. But administrators don’t hire faculty members; the faculty has a significant role in making those decisions. In short, the student protesters lack an understanding of how shared governance works. But, sometimes, so do faculty members and administrators. The binary model of shared governance fails to consider that many administrators come from faculty, and some still teach and do research. The binary model also fails to consider that the fulcrum is at the departmental chair level: full-time faculty members with additional administrative responsibilities. Provost Rapoport suggest a different model of shared governance, but with one point that stays the same: students who want universities to change should understand how shared governance works. 


Professor Marketa Trimble, Marketa Trimble Becomes the Inaugural Samuel S. Lionel Professor of Intellectual Property Law   

Professor Trimble became the first Samuel S. Lionel Professor of Intellectual Property Law, and delivered a speech on the date of her inauguration. Her speech addresses the dynamic importance of intellectual property law in a legal education, and Mr. Lionel’s recognition of that importance through his gift of The Samuel Lionel Intellectual Property Chair to Boyd.   


Kristen Matteoni, The Right to Reimbursement: Nevada Courts Should Follow the Trend and Forbid Insurers From Seeking Recoupment of Defense Costs

With the ever-increasing price tag attached to litigation, a prevailing issue in insurance law concerns which party, insurer or policy holder, should bear the burden of defense costs. This issue, known as the right to reimbursement, focuses on whether a commercial general liability policy allows an insurer to be reimbursed for the costs of defending claims that are later found not to be covered under the insurance policy. Insurers and policy holders alike rely on principles of contract, equity, and public policy in arguing either for or against the right to reimbursement. States including California, Texas, Pennsylvania, and New York have been particularly active in this area and have developed conflicting legal rationales and precedents within their respective jurisdictions. This Note analyzes these rationales and applies them to Nevada in an attempt to create precedent based on equity and fairness.


Emily L. Dyer, Need a Ride? Uber: The Trendy Choice That Could Turn Threatening

Ms. Dyer’s note addresses the controversy surrounding Uber’s disruption of the taxicab monopoly in Nevada, specifically regarding the necessity to protect citizen safety. The note introduces how transportation-networking companies have changed the transportation market, and highlights Uber’s long journey to legality in Nevada. The note then addresses the public safety concerns of Uber and how Nevada’s current regulations may not provide adequate safeguards. Additionally, it addresses the background-check standards for transportation-network companies in Nevada in comparison to Nevada's taxicab regulations. Next, it discusses three possible solutions to help counter the current lax requirements in Nevada, and finally, is considers the monetary realities of the suggestions presented.