Digital Commons Network^™

A Decade After 9/11, Ignorance Persists, Dawinder S. Sidhu

Faculty Scholarship

While our soldiers do their job in Iraq and elsewhere, we as members of this society possess our own solemn responsibility to eradicate ignorance and discrimination, and extend social acceptance and respect to all Americans – irrespective of skin color or ethnic origin.

Response To House Memorial 41 Requesting A Study Of The Use Of Natural Gas As A Transportation Fuel, Kevin Washburn, Kevin Boberg, Jeffrey Kendall

Faculty Scholarship

This paper addresses legal, logistical and technological issues related to the use of compressed natural gas (CNG) as a transportation fuel in New Mexico. It was prepared at the request of the NM State legislature in House Memorial 41.

Lawyering Beyond Without Leaving Individual Clients Behind, April Land

Faculty Scholarship

As clinical teachers answer the exciting call to move beyond the traditional model of individual client representation, we should not leave behind the vital lessons that law students learn from individual clients. Individual representation is ideal for teaching law students lawyering skills and values in a human context. Representing individual clients gives students the opportunity to experience full ownership over representation, to experience the role of the attorney, and to feel the profound weight of professional responsibility. Representationof individual clients also grounds the social justice objectives that clinical programs seek to achieve. As clinical programs and other areas of law …

Teaching, Thinking, And The Legal Creative Process, Barbara P. Blumenfeld

Faculty Scholarship

The author asks how we can teach student how to think as she reflects on how many students with excellent basic writing skills were not fully developing the reasoning before writing their paper.

Part One of this essay formulates the creative process necessary for developing good legal analysis, arguments, and documents, and suggests its encouragement by non-result oriented teaching. Part Two explains a class the author designed, which succeeds, at least in part, in bringing thinking to the surface for study and discussion.

Legislature Mustn't Rush Redistricting (No One Size Fits All In Judicial Selection), Kevin Washburn

Faculty Scholarship

No abstract provided.

Hoping For A Smooth [Redistricting] Process This Time, Kevin Washburn

Faculty Scholarship

No abstract provided.

Building On Best Practices–Call For Ideas And Authors, Antoinette M. Sedillo Lopez

Faculty Scholarship

The Clinical Legal Association Best Practices Implementation Committee is planning a follow-up publication to Best Practices for Legal Education by Roy Stuckey and others. The vision of the book is to build on ideas for implementing best practices, and to develop new theories and ideas on Best Practices for Legal Education.

The Need For Faculty Status And Uniform Tenure Requirements For Law Librarians, Carol A. Parker

Faculty Scholarship

Various statuses, tenure tracks, and performance review standards exist in law librarian tenure or continuous appointment policies. Professor Parker argues that law library leaders should insist on faculty status for librarians, develop uniform performance review standards for retention and promotion policies, and support scholarship with workshops and time off from administrative duties to write. Winner of the "AALL LexisNexis Call for Papers Open Division Award" for 2010.

Challenges Associated With Providing Tenure And Continuous Appointment Opportunities For Academic Law Librarians, Carol A. Parker

Faculty Scholarship

Successful tenure candidates will excel as librarians, master shared governance concepts and understand their institutions culture. Candidates should engage in self-reflection and seek feedback throughout the tenure-track process. Supportive directors and supervisors will provide support to candidates and ensure well-developed promotion and tenure policies exist and are consistently applied.

Tenure Advice For Law Librarians And Their Directors, Carol A. Parker

Faculty Scholarship

Successful tenure candidates will excel as librarians, master shared governance concepts and understand their institution’s culture. Candidates should engage in self-reflection and seek feedback throughout the tenure-track process. Supportive directors and supervisors will provide support to candidates and ensure well-developed promotion and tenure policies exist and are consistently applied.

New Adventures Of The Old Bureau: Modern-Day Reclamation Statutes And Congress Unfinished Environmental Business, Reed D. Benson

Faculty Scholarship

Congress established the reclamation program in 1902, and the hundreds of federal water projects built in the 20th century helped shape the West. Today, the Bureau of Reclamation plays an enormously important role in managing these projects. But with no big new dams to build, the Bureau has been forced to revise its mission to address todays water management challenges, such as stretching finite water supplies and restoring aquatic ecosystems. Through both site-specific enactments and programmatic statutes, Congress in recent years has given the Bureau new authority and direction to address these modern challenges. But Congress has left a significant …

A Crisis Of Confidence And Legal Theory: Why The Economic Downturn Should Help Signal The End Of The Doctrine Of Efficient Breach, Dawinder S. Sidhu

Faculty Scholarship

To understand subprime behavior and efficient breaches, it is imperative to first examine the necessary social predicate for economic transactions. Accordingly, Part I will offer an overview of society and the market, highlighting the importance of reciprocity and trust to both. Part II will define the economic transactions implicated by this Article: basic contracting, efficient breach of contract, and the subprime behavior of the current economic crisis. Part III will make explicit the nexus between subprime behavior and efficient breaches by explaining that subprime behavior and efficient breaches are linked by shared elements; they are opportunistic in nature, are interested …

The Due Diligence Process And Its Impact On The Deal: A Primer On Bayoneting The Wounded, Alex Ritchie, A. John Davis

Faculty Scholarship

In earlier times of more rationale schedules, reasonable billing rates, and less client scrutiny over bills and efficiency, an associate could learn due diligence with a partner looking over her shoulder, offering wisdom and encouragement. In the modern age of instantaneous information, excessive billing rates, and unrealistic expectations, transactional firms devote too little attention to due diligence processes and training. The stresses, tensions and risks associated with due diligence only multiply in the context of the big deal – the high-stakes, all-asset, equity and merger transactions. This article seeks to provide insight into the due diligence process, particularly the big …

Correcting Myopia In Domestic Violence Advocacy: Moving Forward In Lawyering And Law School Clinics, Camille Carey

Faculty Scholarship

Lawyers and law school clinics have become myopic in their approach to civil domestic violence lawyering. This article argues that domestic violence lawyering should expand beyond its current focus on family law to move domestic violence law and practice forward. Drawing on theoretical frameworks from criminal law and feminist legal theory, this article proposes a lawyering model that expands individual representation across a wide spectrum of case types while also challenging systems that enable battering or do not support victims in their efforts to secure safety. Holistic representation in family law, public benefits, immigration, housing, mortgage foreclosure, tort, and financial …

Whos The Boss?: The Need For Thoughtful Identification Of The Client(S) In Special Education Cases', Yael Cannon

Faculty Scholarship

This Article explores the various models of representation used by attorneys in special education cases and advocates for thoughtful identification of the client or clients through a contextualized, individualized decision made collaboratively by the lawyer and client(s), with considerations of a panoply of factors. Part I attempts to unpack these models. While clear advantages exist with each of the models, the Article presents case examples and questions that illustrate some of the challenges that may be presented by each model. Part II includes a discussion of the factors that an attorney should consider in each case in determining the appropriate …

Response Essay: Temporal Variance, Hockey, And The Wartime Constitution, Dawinder S. Sidhu

Faculty Scholarship

In "Let 'em Play: A Study in the Jurisprudence of Sport," Professor Mitch Berman explores the concept of "temporal variance," the notion that sports officials should call infractions less strictly in the last, critical moments of a close match, in order to foster the public impression that the players themselves are responsible for the final outcome of the game. Professor Berman relies on several major sports in support of his argument, though hockey is largely absent from his discussion. It seems to me that an analysis of rules and enforcement in this particular sport reveal the wide-ranging problematics of "temporal …

Regulating Payday Loans: Why This Should Make The Cfpb's Short List, Nathalie Martin

Faculty Scholarship

This article briefly describes the history of the Consumer Financial Protection Bureau (CFPB), describes payday and title loan products and their customers, describes the CFPBs general powers, then discusses how and why the CFPB might use its particular powers to bring this industry into compliance with lending norms used throughout the rest of the civilized world.

Groundwater Policy In The Western United States, Denise D. Fort, Summer Mckean

Faculty Scholarship

Groundwater mining is inadequately addressed by state and federal policies in the United States. New Mexico's failure to manage groundwater aquifers has resulted in costly federal rescue projects. Better information and involvement of communities in groundwater policy would provide for more sustainable use of this resource.

Too Hot To Handle: Climate Change And Agricultural Water Use, Denise D. Fort

Faculty Scholarship

The world faces enormous challenges in responding to looming crises in food and water. Responding to this challenge will require flexibility; such flexibility may be impeded by legal institutions. This paper looks at the western United States and discusses the role of irrigated agriculture in that region. Because of climate change, a growing population, declining groundwater, the need to protect ecosystems and other conflicts, the author suggests that all water uses, including long-standing agricultural water rights, need to be examined in light of these changes. Legal systems have tended to serve the status quo, but perhaps the law can help …

Universal Citation And The American Association Of Law Libraries: A White Paper, Jennifer Laws, Timothy L. Coggins, John Cannan

Faculty Scholarship

This white paper is a collaborative endeavor of many individuals, including members of the American Association of Law Libraries and its Digital Access to Legal Information Committee (DALIC), formerly the Electronic Legal Information Access & Citation (ELIAC) Committee. First, Justice Yvonne Kauger introduces the topic by identifying the groundbreaking steps taken by the Oklahoma Supreme Court. Law librarians Carol Billings and Kathy Carlson next provide a detailed and comprehensive history of citation reform and the American Association of Law Libraries’ leadership and involvement in the issue. They also summarize the citation reform steps taken in selected jurisdictions. Finally, John Cannan, …

How Law Schools Benefit When Librarians Publish, Teach And Hold Faculty Status, Carol A. Parker

Faculty Scholarship

Many non-director academic law librarians publish and teach legal research classes. Some hold faculty status as well. Law librarians have expertise in the development and delivery of legal research instruction methodologies and are developing a body of literature documenting their efforts to create and share a pedagogy of legal research instruction. Principles of shared faculty governance entitle library faculty to contribute to the development and delivery of a curriculum of legal research instruction. Encouraging law librarian participation in the shared governance of law schools should lead to increasing opportunities for the successful reform of legal education curricula with respect to …

Environmental Review Of Western Water Project Operations: Where Nepa Has Not Applied, Will It Now Protect Farmers From Fish?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wangers recent decisions applying NEPA to the Bureau's …

Tribal Court Convictions And The Federal Sentencing Guidelines: Respect For Tribal Courts And Tribal People In Federal Sentencing, Barbara L. Creel

Faculty Scholarship

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendants criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an 'upward departure' to increase the Native defendant's overall federal sentence. Washburn's proposal seeks to gain 'respect' for tribal courts, based upon a premise that tribal convictions must be afforded …

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

Faculty Scholarship

The purpose of this Article is to explain why the D.C. Circuit got it wrong. Part I provides an overview of the facts and relevant law that formed the basis for the decision. Part II shows that the court misapplied the basic factors set forth initially by the Court in Eisentrager and later clarified in Boumediene. Part III contains a proposed framework that reorients and reframes these factors in order to make habeas jurisdiction analyses more workable and consistent with the historical justifications for the writ, separation of powers considerations, and governing case law. Part IV applies this framework to …

Response Essay: Temporal Variance, Hockey, And The Wartime Constitution, Dawinder S. Sidhu

Faculty Scholarship

In “Let ‘Em Play”: A Study in the Jurisprudence of Sport,1 Professor Mitchell Berman offers a thoughtful and engaging defense of the concept of temporal variance, the notion that “some rules of some sports should be enforced less strictly toward the end of close matches.” In support of his position, Professor Berman draws on various professional sports, including tennis, basketball, and baseball. Largely absent as a source of information or subject of the overall discussion is hockey, a sport with which Professor Berman acknowledges he is less familiar. The purpose of this response is to address my concerns with temporal …

Public On Paper: The Failure Of Law To Protect Public Water Uses In The Western United States, Reed D. Benson

Faculty Scholarship

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective. This paper identifies the relevant legal principles and briefly explains …

Can They Do That To Me?! Does The 8th Amendment Protection Children’S Best Interests?, Maryam Ahranjani

Faculty Scholarship

Children are our nation’s most valuable resource and also arguably our most vulnerable population. Recent decisions by the Supreme Court, including Roper v. Simmons (2005), Graham v. Florida (2010), and J.D.B. v. North Carolina (2011) indicate its willingness to consider the special characteristics of children in determining their rights; but, by and large, the Court’s analysis does not hinge on the best interests of the child. Can They Do That to Me?! Does the Eighth Amendment Protect Children’s Best Interests? explores case law in the public school and juvenile justice system arenas and concludes that a child-centered approach to punishment …

Elena Kagan And The Miracle At Harvard, Kevin Washburn

Faculty Scholarship

During the past ten years, Harvard Law School has been transformed. Current students embrace the institution enthusiastically, appreciating not only the Harvard degree, but the process of earning it. Elena Kagan deserves much of the credit. Kagan led Harvard Law School through this transformation, which is identified here as the "Miracle at Harvard."

Can Havruta Style Learning Be A Best Practice In Law School?, Barbara P. Blumenfeld

Faculty Scholarship

Havruta is a traditional Jewish method that seems compatible with legal education because of its focus on process, and so adaptable to law school training in legal reasoning, and because it is based upon dispute and resolution, another aspect that corresponds with the study of law. A unique form of collaborative student centered learning involving pairs of students, this article considers the application of Havruta to the law school setting and whether it should be incorporated into the law school curriculum.

Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction In Kansas, Aliza Organick

Faculty Scholarship

This Article questions the continued viability of the Kansas Act federal legislation, which extended Indian country criminal jurisdiction to the state of Kansas, while leaving unimpaired preexisting tribal and federal jurisdiction over the same offenses. This Article concludes with recommendations for legislative reform and the consideration of intergovernmental agreements with an eye toward providing a solution that respects modern policies of tribal self-determination, protects the financial resources and judicial economy of state and tribal courts, and protects the rights of defendants who may be subject to multiple prosecutions for the same offense.