Digital Commons Network^™

Is There A Right To Life For The Colorado River?, Reed D. Benson

Faculty Scholarship

A recent lawsuit, declaring the Colorado River has legal rights of its own, received national attention in the New York Times and High Country News. While the lawsuit had no chance of success, it highlighted important issues.

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying on" …

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.

Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury

Faculty Scholarship

In support of states interested in learning more about market-based policy options, the Georgetown Climate Center developed Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations to explore technical aspects of a possible regional cap-and-invest policy, as an illustrative example of a market-based approach to a multi-state transportation policy. The paper focuses on two subjects: which fuels might be covered under a policy, and which entities in the transportation fuel supply chain might be responsible for reducing emissions.

The recommendations made in this paper are intended to support robust market-based policies that provide flexibility and enable innovation while …

Manual On Pro Bono Appeals Programs For State Court Appeals, Verónica C. Gonzales-Zamora

Faculty Scholarship

Throughout the country, appellate bench, bar, and court staff have designed pro bono programs for state court appeals to help litigants of modest means who cannot afford quality appellate representation. The aim of this manual is to serve as a practical tool for appellate pro bono programs and for the expansion of and cross-pollination between existing programs. The manual provides a basic framework and then provides specific information on programs in 24 states.

Veronica Gonzales-Zamora worked on the sections covering Arizona, Colorado, Massachusetts, Nevada, New Mexico, Virginia, and Washington D.C.

The New York Times Interviews Kastenberg On The History Of The Military Charge: Misbehavior Before The Enemy, Joshua E. Kastenberg

Faculty Scholarship

The New York Times interviews Joshua Kastenberg on the Military Charge, Misbehavior Before the Enemy, regarding a Navy Seal. Kastenberg provides history and context for previous uses of this charge.

The Law And The Human, Laura Spitz

Faculty Scholarship

The law plays a role in the social construction of what it means to be human. The stakes are high, especially for those, like the Indigenous Peoples of North America, whose bodies and cultures have been both humanized and dehumanized through law.

Listen on Soundcloud.

Full hyperlink: https://soundcloud.com/cornellcas/the-law-and-the-human

An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak

Faculty Scholarship

An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions in New Jersey surveys emissions and energy trends, describes a “deep decarbonization pathway” for the state, and identifies the types of policies that would be necessary to achieve those reductions. Many of the policies address the power and transportation sectors, which account for more than 60 percent of total greenhouse gas emissions from New Jersey. The report also includes options for improving building efficiency, reducing methane leaks from natural gas infrastructure, restoring natural carbon sinks in forests and wetlands, and incorporating equity considerations to address the needs of frontline …

Safeguarding Judicial Integrity By Making The Executive Branch's Unfettered Amicus Gateway Transparent: An Argument For The Supreme Court To Exercise Its Inherent Authority To Make Public The President's Tax And Investment Records, Joshua E. Kastenberg

Faculty Scholarship

This article proposes a rule to "level the playing field" in amicus practice. Currently, the executive branch is not required to submit a fiscal disclosure statement to the Court or the lower courts when filing an amicus brief. But there is little evidence to support that the executive branch is filing "in the best interest of the United States," due to the lack of transparency in the White House. Using a historic model as well as contemporary ethics analysis, it becomes clear that there is no historic precedent for requiring the executive branch to conduct itself in the best interest …

Brief For Washington Legal Foundation As Amici Curiae, Arguedas V. Seawright, Verónica C. Gonzales-Zamora, Harrold D. Stratton

Faculty Scholarship

Mr. Seawright, a State Farm insurance agent, failed to provide adequate information to make informed decisions about whether (and in what amount) the plaintiffs should purchase uninsured or unknown motorist (“UM”) coverage. Plaintiffs brought a putative class action alleging that Mr. Seawright violated New Mexico’s Unfair Practices Act, NMSA 1978, §§ 57-1-1 to -19 (“the UPA”), which entitles anyone harmed by an unfair business practice to “bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater.” § 57-12-10(B).

Because § 57-12-10(B) of the UPA requires a loss of money or property” to …

Is The "Act Of God" Dead?, Clifford J. Villa

Faculty Scholarship

In more than twenty years with the U.S. Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned that the number of reported cases where the act of God defense had prevailed against environmental liability, under all statutes and all federal circuits, was also exactly zero.

This raises two obvious questions: (1) why does the act of God defense so often fail? and (2) …

Command Responsibility In The Twenty-First Century: The United States Basic Framework And Future Military (And Quasi-Military) Operations, Joshua E. Kastenberg

Faculty Scholarship

The article analyzes the constitutional basis of command responsibility as well as how this responsibility has been shaped by the Judicial Branch and Congress. It also briefly discusses the application of international law and human rights norms in the context of two models of future operations and the corresponding potential for command liability, beginning with the Commander in Chief. This article focuses on two principle areas of consideration. The first involves the use of non-military personnel who assist or take part in quasi-military roles. An increasing concern arises from questions over the extent of responsibility of United States command authorities …

Brief For The Council Of University Presidents On Legislative Council V Martinez As Amicus Curiae, No. S-1-Sc-36422, Kevin Washburn

Faculty Scholarship

On April 7, 2017, the Governor exercised an extraordinary line-item veto of portions of the Fiscal Year 2018 appropriation bill eliminating all funding for the Legislature and for higher education in New Mexico. Governor's House Executive Message No. 56 (April 7, 2017), Petitioner's Exhibit D, at 3-7. Amici have a fiduciary responsibility to their institutions to advocate for a resolution quickly to mitigate the many harms caused by this budget crisis. CUP takes no position on the outcome of this action, but Amici do request that this case be decided expeditiously so that other constitutional actors do not waste time …

San Francisco Chronicle Interviews Joshua Kastenberg About President Trump's Missle Strike On Syrian Airfield (Experts See Trump Strike As Illegal Unless U.S. Under Threat Or U.N. Authorizes), Joshua E. Kastenberg

Faculty Scholarship

No abstract provided.

What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn

Faculty Scholarship

Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, …

Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts, Kevin Washburn

Faculty Scholarship

No abstract provided.

Brief For Association Of Commerce & Industry As Amici Curiae, Beaudry V. Farmers Insurance Exchange, Et Al., Verónica C. Gonzales-Zamora

Faculty Scholarship

Plaintiff-Appellee Craig Beaudry seeks to make New Mexico the sole jurisdiction in the nation in which the mere act of enforcing an arms-length contract against a breach- lawfully and in compliance with the contract's negotiated terms--can result in the enforcing party being liable under tort to pay compensatory and punitive damages to the breaching party. Affirming such a rule would upend long-established business principles and expectations; convolute fundamental distinctions between contract and tort law; materially invade and alter established bodies of substantive law in other areas; and create bad law and even worse policy for the people and businesses of …

We've Got Letters, Maryam Ahranjani

Faculty Scholarship

Three curriculum guides supporting Washington Post Newspaper in Education (NIE) Program.

From Me to You

This guide focuses on the places from which news is reported — by the letters. Activities and illustrations urge writing the first thank you notes and other letters of appreciation. “Ageless love letters” give an example of how media can use letters on special dates and holidays. This article and the Dodson letter can also be used to discuss how historians and social scientists can use letters to understand the social mores, illnesses and associations of time periods.

Letters Take Many Forms

We begin this …

Puzder Is The Wrong Person For The Job, Serge A. Martinez

Faculty Scholarship

No abstract provided.

The Power Of Community Action:Anti‐Payday Loan Ordinances In Three Metropolitan Areas, Nathalie Martin, Robert N. Mayer, Steve Graves

Faculty Scholarship

Local ordinances that restrict payday lending constitute an important strategy in the overall attack on this problematic form of lending. In this report, made possible by the generous support of Silicon Valley Community Foundation, we describe and analyze campaigns in three locales that differ markedly in the opportunities and challenges faced by ordinance advocates. The locales are Santa Clara and San Mateo counties in California (“Silicon Valley”); Dallas, Denton, and Tarrant counties in Texas; and Salt Lake County in Utah. This report finds both commonalities and important variations among these campaigns. While there is no single recipe for a successful …

Public News Service Interviews Mary Pareja And Maryam Ahranjani, Nm Law Professors Join Opposition To Sessions At U.S. Attorney General, Maryam Ahranjani, Mary Leto Pareja

Faculty Scholarship

More than 1,100 law professors signed a letter asking members of Congress to reject Sessions' nomination because he would not be the best person to the lead the fight on anti-discrimination issues.

Oil And Gas Secured Transactions In Kansas, Joseph A. Schremmer

Faculty Scholarship

Successfully handling oil and gas secured transactions in Kansas requires understanding two bodies of law: Article 9 of the Kansas Commercial Code (Article 9 or UCC) and Kansas real property law. This article surveys the creation, perfection, priority, and enforcement of consensual liens in oil and gas property under both sets of rules.

Reviewing Reservoir Operations: Can Federal Water Projects Adapt To Change?, Reed D. Benson

Faculty Scholarship

This Article begins by reviewing the purposes for federal water projects, and identifies some of the trade-offs involved in operating projects for certain purposes. It then addresses the legal factors that determine or influence project operations, beginning with project authorizing statutes and ending with federal environmental laws. The Article examines Corps and Bureau policies regarding project operating plans, the reasons for agency reluctance to review and revise their plans, and some of the factors that prompt the agencies to proceed with reviews. It then summarizes periodic review requirements in two analogous contexts—federal land management plans, and hydropower project licenses—and considers …

Chief Justice William Howard Taft's Conception Of Judicial Integrity: The Legal History Of Tumey V. Ohio, Joshua E. Kastenberg

Faculty Scholarship

In 1927, Chief Justice William Howard Taft led a unanimous Court to determine that, at minimum, the right to an impartial and independent judiciary meant that the judge had to lack a personal interest in the outcome of the trial. While the decision, Tumey v. Ohio, was based on a judge’s pecuniary interest, it was also part of Taft’s efforts to ensure that the nation’s judges, from the municipal courts to the Supreme Court had the public’s confidence in their integrity. Tumey, therefore, is not simply a decision on pecuniary interests. It can, and should, be applied to …

Explaining The Modernized Leasing And Right-Of-Way Regulations For Indian Lands, Kevin Washburn, Jody Cummings

Faculty Scholarship

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called "piggybacking" on pre-existing rights of way and clarifying …

U.S. Nonprofit Activity In Cuba: Challenges In Cuban Law And Practice, Laura Spitz, Elizabeth Brundige, Lucía Domínguez Cisneros, Eduardo Peñalve

Faculty Scholarship

American regulatory restrictions on nonprofit activity in Cuba have decreased dramatically over the past three years.1 As a result, interest in undertaking projects in Cuba among U.S. nonprofits has increased significandy over that same period. Despite President Trump's recent directive that rolled back several aspects of the previous administration's Cuba policy and ordered new restrictions on U.S.-Cuban engagement, 2 U.S. nonprofits are unlikely to be deterred from seeking to expand their engagement in Cuba over the long term. As nonprofits explore potential opportunities and navigate legal and political challenges, this Article seeks to advance the conversation 3 by answering the …

Consumer Credit In America: Past, Present, And Future, Pamela Foohey, Jim Hawkins, Creola Johnson, Nathalie Martin

Faculty Scholarship

We began organizing this symposium at the start of 2016 with the recognition that consumer credit and financial services were in a state of flux prompted in significant part by the Great Recession. The Dodd-Frank Wall Street Reform and Consumer Protection Act brought with it the Consumer Financial Protection Bureau. The CFPB’s creation marked the most significant moment in modern American consumer law. Consumers gained an advocate charged with protecting them through researching, monitoring, and regulating the providers of consumer financial products and services, enforcing federal consumer financial protection laws, and, as importantly, empowering consumers.

The Prisonization Of America's Public Schools, Maryam Ahranjani

Faculty Scholarship

Over the past generation, episodes of mass school violence in American public schools have led to the “prisonization” of schools. The problems associated with prisonization practices have been identified and well-documented in the legal literature over the past few years, and they include the school-to-prison pipeline, as well as the over-policing of vulnerable populations like students with disabilities and African-American and Latino children. This piece seeks to contribute to existing literature in two ways. While national attention has turned to the lack of rigorous research on the effectiveness of prisonization practices, and studies are underway to identify whether prisonization practices …

A Reexamination And Reformulation Of The Habendum Clause Paying Quantities Standard Under Oil And Gas Leases, Alex Ritchie

Faculty Scholarship

The Koontz standard as originally stated by the Texas Supreme Court has lost its way. It has evolved into a two-prong test that wrongly focuses on past performance based on arbitrary and uncertain accounting calculations rather than future projections. As occurred in the 1980s, a price downturn provides motivation to reexamine provisions such as the two prong paying quantities standard in the habendum clause of the oil and gas lease. This article examines the habendum clause and the evolution of the paying quantities standard which will determine whether a lease continues in effect or terminates automatically. This article also seeks …