Digital Commons Network^™

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), Ferrel V. Ontario, Laura Spitz

Faculty Scholarship

The issues in this appeal are whether Bill 8, An Act to Repeal Job Quotas and Restore Merit-Based Employment Practices in Ontario ("Bill 8''), contravenes section 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter''), and, if so, whether the contravention is justified under section I of the Charter. This brief reviews the Government's repeal of the Federal Emplyment Equity Act (EEA). This repeal impairs designated groups to the greatest extent possible by removing all of the mechanisms which are necessary to remedy systemic discrimination in employment. Additionally, where discrimination is effected by the wholesale repeal of human …

The Inevitable Collision: Affirmative Action And The Constitution, Jennifer Moore

Faculty Scholarship

This Comment, like a traditional Comment regarding affirmative action, will provide analysis pertaining to the historical events that shaped modem affirmative action policies. However, this Comment will also examine the recent settlement of Taxman v. Board of Education, a most intriguing display of political maneuvering which remains shrouded in controversy." Taxman would have presented the upreme Court with an ideal lens through which to examine the constitutionality of affirmative action. However, as a result of industrious manipulation, the Court narrowly missed that opportunity. Because a live controversy no longer exists, this Comment will focus on the Supreme Court's lost chance …

Facilitative Mediation Or Evaluative Mediation: May Your Choice Be A Wise One, Scott H. Hughes

Faculty Scholarship

Describing the distinctions and criticisms between facilitative mediation, that provides a setting for disputants to understand and make choices, and evaluative mediation, where the mediator provides guidance. Attorneys should fully understand mediation styles, and explore these options with their client.

Panel Discussions From "Indian Nations On The Eve Of The 21st Century, John P. Lavelle, Frank Pommersheim, Larry Long, James Abourezk, Christopher Schneider

Faculty Scholarship

On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled "Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land Rights." Those panel discussions are reprinted here, with minor stylistic edits.

The first panel, dealing with water rights, included Mark Van Norman, Susan Williams, Robert Cournoyer, Tony Iron Shell, Professor John Davidson, and moderator Robert Gough.

The second panel, dealing with land rights, was …

Book Review: Land Grants And Lawsuits In Northern New Mexico By Malcolm Ebright (Unm Press, 1994), Christian G. Fritz

Faculty Scholarship

Malcolm Ebright's Land Grants and Lawsuits in Northern New Mexico contributes significantly to the history of private land grants in New Mexico. The book's central theme is that an injustice was perpetrated by the United States on Hispanic land grant claimants. Having first established the broader legal and historical context, Ebright explores the subject through the disputes over five land grants. He traces the history of the settlement of each selected land grant under the laws and customs of New Mexico prior to 1846 and then examines their adjudication by the United States.

Religious Rituals And Latcrit Theorizing, Margaret E. Montoya

Faculty Scholarship

After the first annual LatCrit conference held at La Jolla, California, Professor Keith Aoki observed that "issues of religion and spirituality are submerged not far below the surface of emerging Latina/o Critical Theory." He proposed that LatCrits begin to "unbracket" religious affiliation and identity in the construction and representation of individual and group racial identities. Professor Aoki further posited that "[i]n a paradoxical way, religion simultaneously may be both more and less difficult to voluntarily discard than race, language or nationality as a constitutive element of one's individual and group identity.

Strengthening What Remains, Christine Zuni Cruz

Faculty Scholarship

This paper is intended to encourage discussion and stimulate action and thought as well as to support the ongoing work in tribal courts in this area. We are involved in an ongoing process of developing an indigenous body of law and system of justice. We must pay particular attention to how we are going about the development of our court systems and look closely at what is developing. Incorporating customary law, whether wholly or partially, into our developing legal systems makes them truly unique to our individual tribes and reflective of the concepts we, as Indian people, have of law …

Recommendations For An Environmentally Sound Federal Policy On Western Water, Reed D. Benson

Faculty Scholarship

The organizations and individuals who have produced this report have worked for years to promote environmentally sound federal policy and action with respect to water in the American West. The Western Water Policy Review Advisory Commission's (the "Commission") evaluation of these issues presents an excellent opportunity to address long-standing concerns. We believe the Commission can help advance federal policy to promote sustainable use, management and protection of western waters. We begin with a brief look at current water problems in the West from our perspective. We then identify four general priorities for the federal government: taking steps toward restoring more …

The Environmental Justice Misfit: Public Participation And The Paradigm Paradox, Eileen Gauna

Faculty Scholarship

This Article argues that current administrative processes fail to effectively incorporate an important form of public participation in decision-making -- the participation by communities bearing the greatest environmental risks. This Article advocates an "environmental justice style" public participation model as a more promising approach because it calls for a recasting of the role of community participation in environmental decision-making -- a recasting which transcends traditional, modern, and proposed decision-making paradigms.Part II of this Article provides a brief history of the environmental justice movement. Part III addresses the role of the public under three models of administrative policy and decision-making: the …

A Nineteenth Century Habeas Corpus Mill: The Chinese Before The Federal Courts In California, Christian G. Fritz

Faculty Scholarship

Law has long been acknowledged as central to the Chinese experience in nineteenth century America, but legal historians have only recently shown a revived interest in this subject. Most of this renewed interest has focused on the experience of the Chinese before the courts and their efforts as a beleaguered minority to secure judicial protection from the discrimination they faced. Nonetheless, relatively little attention has been given to the many thousands of habeas corpus cases brought by the Chinese after 1882 in California's federal courts. San Francisco's federal judges sought to hear Chinese habeas corpus cases with judicial fairness and …

Reflections On The Lsac National Longitudinal Bar Passage Study: Two Findings That Have Immediate Impact, Leo M. Romero

Faculty Scholarship

This brief article discusses two specific findings that may be easy to overlook in the volume of national bar passage data Linda Wightman has produced for LSAC.

Maintaining The Status Quo: Protecting Established Water Uses In The Pacific Northwest, Despite The Rules Of Prior Appropriation, Reed D. Benson

Faculty Scholarship

Water law in the Northwest states has long been based on the well-established rules of the Prior Appropriation Doctrine. In recent years, however, the four Northwest states often have not applied these rules against existing water users. State legislatures, courts, and water resource agencies have routinely changed the rules, or refused to implement them, if doing so might curtail current uses. This Article examines the ways in which the Northwest states have maintained the water use status quo despite the traditional rules. The Article then evaluates the economic and environmental implications of state efforts to protect existing water uses, and …

A Closer Look: The Case For A Mediation Confidentiality Privilege Has Not Been Made, Scott H. Hughes

Faculty Scholarship

Exploratory article looking at many examples weighing in on: Does the value of mediation settlement outweigh society's right to information? Or a victim's right to evidence?

Excursions Of A Random Walk Related To The Strong Law Of Large Numbers, Max J. Minzner, Travis Lee, Evan Fisher

Faculty Scholarship

No abstract provided.

Some Observations On The Juvenile Commitment Cases: Reconceptualizing What The Child Has At Stake, James W. Ellis

Faculty Scholarship

These remarks will focus on the constitutional issues surrounding the treatment and habilitation of children with mental disabilities. I believe that we need to rethink the premises on which we construct our analysis of these problems, and it will surprise few in this audience that I conclude the Supreme Court of the United States did not get it precisely right.