An open letter to Nevada's governor and legislature and to the Board of Regents.

I was hoping to be able to speak at today's special meeting of the Board of Regents, during the public comment session, but I had to leave to teach my class later this morning. Here's what I would have said:

You have a very difficult task in front of you, with Nevada's budget situation getting worse every day, and I don't envy you. I did want to give you a feel for how some of the research done at the Boyd School of Law contributes directly to Nevadans and to the country as a whole.

First, some bragging about our students. I'm one of the faculty advisors to the Gaming Law Journal and the Nevada Law Journal (lexis.com). Those two magazines publish both faculty research (not just our faculty's research, but the research done by scholars elsewhere as well) and student research. The GLJ is still rather young, but the NLJ's research has been cited by courts here in Nevada, including the Nevada Supreme Court, and by other courts. One of the country's most famous and well-regarded judges, the Hon. Richard Posner of the United States Court of Appeals for the Seventh Circuit, has cited the NLJ more than once. By publishing useful and high quality research, our students are providing courts with the means to make good decisions.

Second, the research that I'm doing in terms of bankruptcy ethics (the behavior of bankruptcy lawyers) is part of my overall research agenda, which is geared to supporting the behavior of good lawyers and to getting bad lawyers out of the legal system. It's not every day that I see, on the front page of the Review-Journal, an article on the reasonableness of attorney fees in bankruptcy cases (here). Part of my own research involves developing ways to help bankruptcy courts determine whether attorneys fees are reasonable. Reasonableness is a balancing act. The fees must compensate good lawyers and other professionals for their work in helping a debtor reorganize, but they can't carry a lot of redundancies and inefficiency. Dollars saved by reviewing fees for reasonableness can inure to the benefit of unsecured creditors, who get paid after the professionals are compensated for their work. (Distribution of payments in bankruptcy is more complicated than this description, but this one will suffice here.) Based on my work in this area, I've been asked twice to assist a bankruptcy court in Fort Worth in reviewing fees of two large chapter 11 cases, and I'm currently assisting the bankruptcy court here in Nevada in a similar capacity. The Boyd students and graduates who help me in this work are learning about how large chapter 11 cases work, and about how lawyers and other professionals fit into that process. It's good hands-on learning that will serve them well in their careers.

My research in bankruptcy ethics has also enabled me to help out the Office of the U.S. Trustee (which is part of the Department of Justice) in ferreting out lawyers who may be violating the ethics rules about the unauthorized practice of law. My ability to be useful in such matters is directly tied to my research. In my view, teaching, research, and service are inextricably linked.

My research about legal education has also informed my teaching. I've been hearing for some time that law students are trained to write memoranda--not to advise clients. (Our clinic students, of course, get the training that comes with dealing with live clients.) That's one of the reasons that my upper-level Professional Responsibility students are doing presentations in class. It's also why those presentations require teamwork. Teaching students legal ethics in a way that forces them to construe statutes (the Model Rules of Professional Conduct and figure out how to convey information to people who don't already know it is part of their legal training. Again, it's a mix of teaching and research that lets me give students the opportunity to practice some of the skills that they'll need after graduation.

While I was waiting in line to speak this morning, I heard numerous examples of what the budget cuts will do to the educational system in Nevada. I couldn't help thinking about what a success story Boyd is. We're a young law school, and yet we're able to turn law students into skilled and ethical lawyers. We're doing a very good job on what amounts to a shoestring budget: we're understaffed, our students' tuition dollars are stretched to the breaking point, and we still do everything that a good law school must do in order to be relevant to legal education and to the public.

Several of us have had many opportunities to go elsewhere. I'm choosing to stay because I believe in the strength of our school, even in the face of this budget crisis, and because I value what my colleagues are doing to keep our school's trajectory moving in the right direction.

As you consider how to deal with the budget crisis, I would urge you to focus not just on how (and how much) we at UNLV teach but also on how our research benefits the state and the country (and, for some of my colleagues, the international community). Investing in education here in Nevada is crucial if our state is to survive. We can and should invest wisely--with all that "investing wisely" means-- but we have to invest.

We're number 51, and I am NOT happy about it.

See here.

Greetings from a non-mediocre institution.

It's no secret that Nevada's budget is in horrible shape, and that problem is not likely to improve in the near future.  We are living in interesting times, with all that that phrase entails.

But I took umbrage when I read this piece in the National Law Journal (here) about what the budget cuts might do to our school.  (Thanks, though, to all of my buddies who passed along the article to me.)  I haven't seen the summary to which the article referred ("A summary accompanying Smatresk's letter notes that the plan would require significant tuition increases. 'These additional increases will undermine the law school's successful formula and render it a mediocre institution,' the summary reads.")  Whoever wrote that summary was, I'm guessing, trying to communicate that the burden for keeping us from drastic cuts will fall on our students, who will have to pay significantly more in tuition if the state can't figure out a way to help subsidize their education.  "Mediocre," though, doesn't describe us now and won't describe us later.

So far this year, we've hired:

Linda Berger, Mercer School of Law.  Seven edited volumes on legal writing, rhetoric, and the burgeoning field of metaphor & narrative. 11 articles.  Founding editor of J. ALWD.

Ruben Garcia, Cal Western.  Labor law expert, former Hastie Fellow, VAP at UC Davis.  16 articles, one book in progress (NYU Press).

Ian Bartrum, Drake University Law School.  Ribicoff Fellow in Law at Yale Law School, VAP at Vermont Law School.  12 publications on constitutional interpretation and theory.

Michael Kagan, entry-level hire.  Experienced refugee expert in the Middle East and North Africa with stints at Asylum Access, Africa Middle East Refugee Assistance (AMERA), Negotiations Support Unit, Frontiers Association, Musa'adeen Refugee Project, and Egyptian Organization for Human Rights, Amnesty International.  13 articles and book chapters.  Teaching experience at American University in Cairo and Tel Aviv University Faculty of Law.

Year-long visitor:
Lisa Bingham, Indiana University School of Public and Environmental Affairs.  Visitor at Berkeley, Hastings, Maxwell School of Syracuse, and Aberdeen School of Law.  Fulbright fellow in Sweden.  Industrial relations, ADR, and Labor Law expert with over 60 articles in peer-reviewed and law journals, over 25 book chapters, and 5 book reviews.  Expert in labor negotiations and mediation.

That's on top of the folks we've hired over the last few years, each of them gems.  Take a gander at our faculty home page (here).

Ultimately, Nevada has to decide if having an educated workforce is important and, if so, how it might help to encourage and maintain such a workforce.  Not even 12 years ago (we're not even old enough to have a bar mitzvah yet), Boyd was a baby law school, formed out of Nevada's desire to keep its budding law students from having to leave the state to get a law degree.  There has to be some happy medium between the low/no taxes stance we have now and the too-burdensome taxes that too many states have.  In a competitive world, where employers can outsource almost anything to very smart people in other countries, we have to have smart, innovative people on the ground here in Nevada.  That takes education, for starters. 

Mediocre law school?  Nope.  We have a good law school, with engaged faculty and staff members and dedicated students.  It's a warm community--one of the best I've ever enjoyed.  I have confidence that we'll be able to figure out a way to go forward without losing our momentum.  Whether the state is able to figure out a way to get its momentum back is another issue entirely.

Nevada's budget, as seen through the eyes of the UNLV/Brookings Mountain West study.

See here for some very sensible advice.

Another suggestion for dealing with the housing crisis.

See this New York Times op-ed (here).  We have to figure out some way to give banks an incentive to help the folks who can pay their mortgages but who are so underwater that they feel like shnooks for continuing to make payments.  Although I still favor the Van Niel proposal (see here), this one's not a bad start, either.

Another good column on the housing crisis.

I always look forward to the Sunday columns by Gretchen Morgenson (see the latest one here).

Another good column on Nevada's budget crisis.

I look forward to John L. Smith's columns in the Review-Journal, and today's column is no exception (see here).  Let's face it:  imposing taxes on tourists isn't working well for us, because there is a price point at which tourists will choose another vacation location, rather than paying through the nose for lodging.  Imposing higher taxes on food is more broad-based, but it's going to fall disproportionately on the poorest among us, who look to stretch every penny of their budgets.

Mining, on the other hand, probably hasn't reached its price point for taxes.  A couple of observations:  (1) the minerals are here, so as long as the mining companies want to mine here, they're captive; and (2) I'll bet that there are other businesses that aren't at the price point for leaving the state or laying off their employees.  That second point is tricky, because raising taxes on businesses across the board will hurt those smaller businesses with razor-thin profit margins.  And we don't want to go around killing more businesses.  They're dying left and right already.

We need more broad-based taxes, but let's try to levy them on sources that have a solid profit margin (so that the businesses are still left with a hefty profit), rather than on people and business that are struggling to survive.  Maybe it's time for a state luxury tax?

Best explanation of what Nevada needs to do to turn the state's economy around--EVER.

See here.  The whole "we don't have to raise taxes to fix the state's economy" problem brings to mind my favorite speech that Michael Douglas gives as President Andrew Shepherd in The American President (see here):

President Andrew Shepherd: For the last couple of months, Senator Rumson has suggested that being president of this country was, to a certain extent, about character, and although I have not been willing to engage in his attacks on me, I've been here three years and three days, and I can tell you without hesitation: Being President of this country is entirely about character. . . .  America isn't easy. America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the "land of the free". . . .  We have serious problems to solve, and we need serious people to solve them. . . .
[pauses]
President Andrew Shepherd: I've loved two women in my life. I lost one to cancer, and I lost the other 'cause I was so busy keeping my job I forgot to do my job. Well, that ends right now. . . .  We've got serious problems, and we need serious people, and if you want to talk about character, Bob, you'd better come at me with more than a burning flag and a membership card. If you want to talk about character and American values, fine. Just tell me where and when, and I'll show up. This is a time for serious people, Bob, and your fifteen minutes are up. My name is Andrew Shepherd, and I *am* the President.

It's time for our candidates to step up to the plate.  Stop going for the votes, and start thinking seriously about how to fix Nevada's economy.  I know that you don't have the scriptwriter of The American President there to make your words powerful, but let's see if you can show that you're serious about your responsibilities to Nevada's citizens.

Does higher education have some explaining to do?

I was reading the op-ed page this morning, and I came across Glenn Cook's A Few Questions for Carson City (here).   Among the questions that he asked, two in particular caught my eye:

-- Why are higher education officials and lawmakers giving a moment's thought to closing Nevada State College at Henderson when its students actually make progress toward degrees and graduate in large numbers, while most UNLV undergraduates drop out? 

-- How much research at UNLV and UNR is funded by taxpayers to explore professors' personal interests, when those professors could be teaching classes instead? In this economy, and with the sacrifices UNLV and UNR face, is it really that unreasonable to ask faculty to suspend all research that isn't self-funded?

Let's take these two questions together.  Assuming that Mr. Cook's stats are correct--and I have no independent info, one way or another, about the graduation rates of either Nevada State College or UNLV--his questions actually illustrate why we need a strong community college system and a strong research university system.  Community colleges and research universities serve different purposes.

In my mind, the mission of community colleges is access.  Excellent community colleges give their students the ability to build a solid foundation for the careers that they choose.  Take a look at Nevada State College's mission statement (here):  "Through student-centered learning, Nevada State College emphasizes and values: exceptional teaching, mentoring, advisement;* scholarship; career and personal advancement; continuing education; and service to our community." 

The mission of research universities is discovery.  Excellent research universities don't just disseminate already-discovered knowledge well; they build upon that knowledge with new discoveries.  And these discoveries aren't the same as the important discoveries that industry produces.  Industry-funded discoveries are intended, by definition, to develop industry objectives and bottom lines.  University-based discovery advances our knowledge in the arts and sciences, and that discovery activity makes our teaching better.  We can talk with our students about what our discoveries mean for our fields, and we can have our students participate with us in those discoveries.** We are changing the fields in which we teach.

So, in response to Mr. Cook's two questions:

(1)  Good for community colleges with good graduation rates!  Those high graduation rates are helping our economy recover from this deep recession by putting better-prepared employees in our workforce.

(2)  If UNLV's graduation rate is too low, let's figure out why.  Is it that UNLV faculty members aren't doing their jobs well, or is it that, with the budget cuts that UNLV has already suffered, UNLV has had to cut back on how often it offers certain core courses?  I know that the latter point is true, and I also know that many of us are picking up larger teaching loads than we used to have. 

I quit private practice in large part because I enjoy teaching students, and I know that my colleagues take pride in their teaching, too. 

But the idea that we should quit researching, unless someone else besides Nevada taxpayers foots the bill, means that we would quit making those discoveries that move our fields forward and enable us to give our students a different experience than they could get at schools without a research mission.  Sure, I'm all for funded research--that research adds to a university's bottom line, thanks to the surcharge that the funding agency pays to the university for overhead.  But not every field has the same access to funding sources, and we shouldn't stifle discoveries in the other fields.  Advances in music, art, and dance will eventually find their way to Nevada's tourism industry.  Advances in the liberal arts will make Nevadans better writers and thinkers. 

If we say, "make UNLV into a teaching institution," then we're creating a massive redundancy in the system and wasting money.  We can have great institutions that have, as their primary mission, a teaching focus, and others that have, as their primary mission, a research function.  Nevada needs both--and now, it needs both more than ever.

*I'm assuming that "advisement" is a typo and that the College means "advising."
** The relative teaching loads in community colleges and research universities means that it's just that much more difficult for professors in community colleges to have time to conduct extensive research in their areas.

Dear Government of the State of Nevada: here are some revenue-raising ideas

Dear Government of the State of Nevada:

As Nevada slips ever further into a budget deficit, and the Governor seeks proposals for up to 10% cuts from state agencies (see here), it's time to consider options for raising revenue, rather than simply cutting further. Some combination of revenue-raising and cutting may be in order, but if we persist in the Governor's cut-only plan, we're going to ruin any hopes for economic recovery.

Here, then, is my list of proposals to help Nevada through this crisis. I'm no genius, and I don't make any claim that my ideas are the best ones out there. I just want to start the ball rolling.

1. California's loss can be our gain, part 1. Both today's New York Times (here) and the Wall Street Journal (here) report that Sen. Dianne Feinstein wants to protect more than one million acres of the Mojave Desert from being used for solar power. Hey, we have desert land--lots of desert land. And even though most solar power uses a lot of water in its processing, there are technologies out there that use less water (see, e.g., here). Why don't we consider becoming the nation's preeminent source for solar power? (Of course, we'll need to build ways of transmitting that power, or it'll be useless. But wait! That will . . . create jobs.)

2. California's loss can be our gain, part 2. California's going through an unprecedented economic crisis, and among other problems that it's facing is the draconian budget cut of its flagship university system (see here). Take a look (here) at what the UC system has achieved, even during a financially disastrous year. I'll bet that some professors in the UC system might be open to coming to Nevada, if Nevada would be willing to invest in what makes professors happy: money to do research, money for travel, money to support students. In the "it'll take spending some money to make money" category, investing in luring some top brains to Nevada--especially if Nevada leverages the new relationship with the Brookings Institution and UNLV (see here)--could create a think tank to solve problems (and . . . create jobs) out here in the desert.

3. McCarran is a good airport, so why isn't Las Vegas a shipping center? When you think gateways, do you think Memphis? (See here.) FedEx did. I like Memphis as a city--loved visiting Graceland, love the music scene--but Las Vegas makes perfect sense as a business-friendly shipping hub. Heck, we're suffering so much economically that if we could give a nationally based business some decent tax breaks, there would be a reason for that business to come here. Oh, and that would . . . create jobs.

4. Go easy on the tourist industry, and make the tax base more even. In a great interview (see here), UNLV Prof. Mary Riddel has pointed out the danger of being a single-industry town. Well, Las Vegas seems to be a single-industry town, and Nevada sure seems to be a single-industry state. And that industry is based on attracting people with discretionary income--income that's increasingly rare these days. Raising the costs for tourists to come here by, say, increasing taxes on them, is not helping our single industry. What would happen if we lowered those taxes, while replacing that lost income for the state by a smaller, broader-based tax generally? I know that increasing taxes is anathema for Nevada politicians, but Albert Einstein (as usual) was right: insanity is doing the same thing over and over and expecting different results. Refusing to reconsider our state's tax system and expecting to come out alive from this recession are mutually exclusive actions.

5. Don't get me started on how many different ways Nevada has gotten Yucca Mountain wrong. (See here.) Here's a riddle for you: why is it safe to store nuclear waste above ground in every other state but not even reasonable to consider storing it on and near the Nevada Test Site (one of the most contaminated areas in North America)?

6. Don't cut the budget across the board. Think about budget cuts this way: when you're facing a personal budget problem, do you cut everything by 10%, or do you figure out which parts of your budget are discretionary and which parts are necessary, so that you can leverage your cuts for the maximum effect? Smart people don't say, "Hmmmm. I need to cut my food intake by 10%, my housing by 10%, and my entertainment budget by 10%." Smart people keep the necessary spending and jettison the discretionary spending.

7. Find a group of smart volunteers who aren't dependent on re-election to do some of the heavy lifting for the politicians. I get it: politicians really can't make the hard decisions, because too many voters have short memories and will resent economically expedient measures if those measures affect their own interests. (Don't gore my ox!) So why can't politicians gather together some smart Nevadans--especially those who own small businesses, the mainstay of any economy--to provide good ideas and political cover? Again, I'm not the best person for the job, by any means, but I'd sure be willing to help if asked.

I keep using the quote that Michael Douglas said in The American President (1995): "We've got serious problems, and we need serious people." We don't need partisan politics; we don't need grandstanding. We need smart people of good will who want to make Nevada thrive. I know that there are such people in our state's government, and there are such people in our state generally. Let's use those brains and, to quote the great Gene Kranz, as played by Ed Harris in Apollo 13 (1995),* "Let's work the problem, people. Let's not make things worse by guessing."

*Wow. 1995 sure was a good year for movies.