Digital Commons Network^™

Back To The Future: Regional Differences In New Mexico Water Rights, G. Emlen Hall

Faculty Scholarship

You could say that I am here this morning as an advance man of tomorrows detailed talks on the active water rights management regulations that were recently adopted by the Office of the State Engineer, because I am going to talk about those a little bit in a historical context. You could also say that I am here to warm you up to that topic, so that you are ready for tomorrow's detailed controversial discussion of those. My job as the warmer up may be simply to inform you about the acronym that people are using in my world to …

Albuquerque Journal Interviews Moore About War On Terror Meeting, Jennifer Moore

Faculty Scholarship

"There are just so many issues," she said, from allegations of widespread mistreatment at places like Bagram Air Force Base and Guantanamo to concerns for due process of those accused of criminal activities. Where the first panel will take a "big picture" approach, the second will review more specific applications of law.

Testimony On The Regulation Of Indian Gaming, Oversight Hearing On Indian Gaming, Before The United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.

Dspace, Institutional Repositories And The Open Access Movement: Why Should You Care?, Carol A. Parker

Faculty Scholarship

The amount of digital scholarly output grows daily, yet only a small fraction of legal scholarly communication is published in traditional venues such as law reviews and journals. Some of this digital scholarly communication makes it to the Web and becomes a resource often referred to as "gray literature," but this can be a haphazard process at best. The UNM School of Law Library employs DSpace, an open source digital institutional repository, to enable the Law faculty to collect, preserve, index, and distribute their digital work, as well as to provide a community for peer review of works in progress. …

The Aftermath Of Hurricane Katrina, An Unnatural Disaster, Eileen Gauna

Faculty Scholarship

This report analyzes key policy decisions, as well as actions and inaction under health, safety, and environmental laws, that could have better protected New Orleans from the effects of Katrina before the hurricane and those that could have improved the emergency response in its wake. In the area of public health, safety, and the environment, the paper explores the implementation of wetlands law and policy, bad decisions regarding the construction and maintenance of the levee system designed to protect New Orleans, pollution prevention and clean-up laws, and energy policy. In the area of emergency response, it reviews policy decisions related …

Field Marshall Douglas Haig: A Negative Leadership Lesson In Military History, Joshua E. Kastenberg

Faculty Scholarship

A very brief analysis of the “bloody mindlessness” leadership trait of Field Marshall Douglas Haig.

Testimony On The Regulation Of Indian Gaming, United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Congress must shore up NIGC regulatory authority over Class III gaming, guard against regulatory capture in tribal regulatory commissions, and reconsider the legitimacy of federal oversight of tribal economic decision-making. Congress should give the NIGC greater authority over licensure of those involved in Indian gaming and circumscribe the federal role over tribal economic decisions.

Environmental Justice, Eileen Gauna, Catherine A. O'Neill, Clifford Rechtschaffen

Faculty Scholarship

This white paper describes briefly the remarkable journey of community-based environmental justice advocates over the last 15 years and their impact on environmental regulation. It will also describe some of the empirical evidence of disparities and the regulatory dynamics that make these inequities an intractable problem, despite the collective efforts of grassroots leaders, environmental justice organizations, public interest law firms, and governmental officials. The paper then focuses on one important set of issues that must be tackled in order to achieve environmental justice: those involving injustice in risk regulation. We strive in this white paper, as allies in this collective …

Reconsidering The Commission’S Treatment Of Tribal Courts, Kevin Washburn

Faculty Scholarship

Since the U.S. Sentencing Commission first enacted the federal Sentencing Guidelines, the Guidelines have treated tribal courts in a manner that is impossible to reconcile with other modem federal policies of respect for tribal self-determination and self-governance. In refusing to count tribal convictions for purposes of routine calculation of criminal history, the Commission has disrespected tribal courts. The Commission's tribal courts policy is anachronistic and out of step with modem efforts to support tribal courts. The Commission should amend the guidelines to reflect the principle that misdemeanor convictions from tribal courts are entitled to the same level of respect as …

Insurance Bad Faith And Punitive Damages After Sloan V. State Farm, David J. Stout

Faculty Scholarship

The New Mexico Court of Appeals had concluded that there was a "real distinction" between the "bad faith" sufficient to prove a simple breach of the implied covenant of good faith and fair dealing for an award of compensatory damages and the "bad faith" sufficient to sustain an award of punitive damages.

Recently the New Mexico Supreme Court clarified when an instruction on punitive damages must be given in an insurance bad faith case. The court's analysis is noteworthy for the effort to clarify the standards for both first and third patty bad faith. Finally, the court rewrote UJI Civil …

Recovering The Lost Worlds Of America's Written Constitutions, Christian G. Fritz

Faculty Scholarship

Recovering the Lost Worlds of America's Written Constitutions,' originating as the sixth Brennan Lecture delivered at Oklahoma City University Law School on November 7, 2002, explores the transformation of the right of revolution in the wake of the American Revolution. The significance of displacing the singular sovereign in the person of the king with the collective sovereign of 'the people,' gave rise to constitutional understandings that are at odds with today's constitutionalism that emphasizes the necessity of procedural regularity to effect legitimate constitutional revision. The article explores how 'circumvention' of such procedures was consistent with an earlier concept of the …

Latinas In Legal Education- Through The Doors Of Opportunity: Assimilation, Marginalization, Cooptation Or Transformation?, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

The Role Of History And Culture In Developing Bankruptcy And Insolvency Systems: The Perils Of Legal Transplantation, Nathalie Martin

Faculty Scholarship

In this Article, Professor Nathalie Martin examines societal attitudes toward debt and financial failure in the context of two global trends, the liberalization of bankruptcy and insolvency laws, and the increased availability of consumer credit around the world. The Article begins, with a description of the history of the U.S. economy, its risk-oriented capitalist ethos, its consumer culture, and its resulting consumer and business bankruptcy laws. The Article next briefly addresses the personal bankruptcy systems of Continental Europe, noting that in some places, U.S.-style bankruptcy systems have been enacted but not necessarily accepted. Professor Martin then discusses new laws being …

Off-White In An Age Of White Supremacy: Mexican Elites And The Rights Of Indians And Blacks In Nineteenth-Century New Mexico, Laura Gomez

Faculty Scholarship

No abstract provided.

Poverty, Culture And The Bankruptcy Code: Narratives From The Money Law Clinic, Nathalie Martin

Faculty Scholarship

In this article, Professor Nathalie Martin shares her experiences attempting to teach clinical law, after many years of experience teaching in the doctrinal classroom. She describes the culture shock she and her students experienced while trying to provide bankruptcy, consumer, and business law assistance to people who came from backgrounds so different from their own. The article explores culture, race and social status, and how these necessarily affect the attorney-client relationship. The article also questions the practice of separating clinical legal education from the rest of legal education, and encourages schools to take a more integrated approach to teaching law. …

Executive Power And The War On Terror, Norman C. Bay

Faculty Scholarship

Two important paradigm shifts have occurred in the war on terror. First, the United States has treated terrorism as a military issue, not a law enforcement problem. Second, the United States has centralized its intelligence apparatus under the direction of the newly-created Director of National Intelligence and lowered the wall that separated external security or foreign intelligence activity from internal security or domestic law enforcement. In tandem, these changes are of historic dimension. They also occur against a backdrop in modern times in which the executive branch has steadily accumulated power. In pursuit of the war on terror, we have …

Environmental Clean-Up Expenses: Taxing Times For The Blm And Miners, Sergio Pareja

Faculty Scholarship

In 2001, the BLM amended 43 C.F.R. Section 3809 to give the BLM the power to require that mining companies establish a trust fund to provide for long-term maintenance and water treatment. The amended regulations do not mention taxes, and there is no evidence in the legislative history that the BLM ever contemplated the income tax effect of utilizing a trust mechanism to provide for environmental clean-up. While a partner at a law firm, the author of this article had the privilege of being the primary drafter of the first two trust agreements ever required by the BLM under these …

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

Lawson Edward Thomas And Miami's Negro Municipal Court, Ernesto A. Longa

Faculty Scholarship

Highlights Lawson Edward Thomas's career as a civil rights attorney and judge of Miami's apartheid municipal court (1950-1963).

Pollution Without Solution: Flow Impairment Problems Under Clean Water Act Section 303, Reed D. Benson

Faculty Scholarship

"This Article deals with one section of the CWA, section 303, and its implications for flow-impaired streams and related policy issues. While the CWA's main thrust is controlling pollution from "point sources" through a system of permits and technology-based effluent limits, section 303 takes a different approach, focusing on the quality of individual waterbodies and requiring corrective steps for each one that falls below standards. Section 303 addresses not only point source discharges, but other human activities that affect the chemical, physical, and biological integrity of the nation's waters, including pollution from non-point sources, and perhaps even flow impairment. Thus, …

The Picture Of Equality, Alfred Dennis Mathewson

Faculty Scholarship

This article discusses an eyewitness's analysis of events and circumstances surrounding cases involving the desegregation and integration of schools and colleges.

Wet Water Law: New Mexico Style, G. Emlen Hall

Faculty Scholarship

Table of Contents for a course reader. v. 1. The nature of a New Mexico prior appropriation water right -- The attributes of new Mexico water rights -- Surface water and groundwater in New Mexico -- The State Engineer: an administered system -- Statutory adjudications -- New appropriations, transfers and sales of a New Mexico water right -- Emerging issues -- Water planning in New Mexico -- Constraints on the state law of prior appropriation -- v. 2. Emerging local issues -- Federal constraints on the state system -- Native American constraints on the state system -- Interstate water rights.

The Supreme Court Of Science Speaks On Water Rights: The National Academy Of Sciences Columbia River Report And Its Water Policy Implications, Reed D. Benson

Faculty Scholarship

Professor Benson reviews the Report on Columbia River water withdrawals and their effects on salmon recently issued by the National Academy of Sciences to the Washington State Department of Ecology, the agency responsible for managing Washingtons water withdrawals from the Columbia and its tributaries. After reviewing the Report, Professor Benson compares its recommendations with western water law's doctrine of prior appropriation and finds that many of the Report's recommendations are in direct conflict with prior appropriation principles. Finally, Professor Benson discusses the potential impact of the Report on water law in Washington and throughout the West. He concludes that, because …

Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner

Faculty Scholarship

This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. This article analyzes the key assumptions underlying jurisdictional and choice of law analyses both inside and outside Indian Country. After a summary overview of current tribal court systems, this Article attempts to identify features of tribal courts that might indicate that they a) might disadvantage non-tribal litigants and b) are threatened by the incursion of concurrent state jurisdiction. The article points to one potential reason that the Court has assumed that all Indian tribes are alike, which …

The Gift Of Enron: An Opportunity To Talk About Capitalism, Equality And The Promise Of A North American Charter Of Fundamental Rights, Laura Spitz

Faculty Scholarship

In this Article, Enron is positioned as a promising opening in the debate about economic globalization and the regulation of advanced capitalism in North America. As a contribution to that debate, the author suggests that there are two aspects of advanced capitalism which call for supranational response and regulation. First, advanced capitalism is increasingly transnational (as distinct from international and intranational). This brings unique regulatory challenges to the fore. Second the regulation of advanced capitalism can be usefully understood as a substantive equality issue (as that concept in understood in Canadian law). In the past, this aspect of capitalism-thef act …