Law Commons^™

A Psychology Of Emotional Legal Decision Making: Revulsion And Saving Face In Legal Theory And Practice, Peter H. Huang, Christopher J. Anderson

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Professor Martha C. Nussbaum is an accomplished scholar in an impressive variety of fields. Drawing on her diverse academic backgrounds, Nussbaum has written extensively about emotions and their importance for law from the perspective of her primary specialty, philosophy. Her book Hiding from Humanity criticizes the roles that two particular emotions, disgust and shame, play in the law. Its central thesis is that, as legal actors, we should be wary of disgust and shame because indulging in those emotions allows us to hide from our humanity - both our humanity in the general sense and also those specific features of …

Rethinking The Great Lakes Compact, Mark Squillace

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On December 13, 2005, the Governors and Premiers of the Great Lakes states and provinces signed a Compact and Agreement that commits the parties to a rigorous program to regulate individual water uses, with citizen suits to enforce the requirements. While the Great Lakes-St. Lawrence River Basin Water Resources Compact and companion Agreement are commendable in many respects, this Article argues that people who care about the future of the Great Lakes should urge policymakers to reject the current proposals and rethink the entire approach. The proposed compact is fundamentally flawed and will not achieve the ultimate stated goal of …

The Virtues And Vices Of Sovereignty, Sarah Krakoff

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American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …

A Digital Age Communications Act Paradigm For Federal-State Relations, Kyle D. Dixon, Philip J. Weiser

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This article captures the effort of the Digital Age Communications Act (DACA) to craft a new framework for the federal-state relationship in implementing a next generation telecommunications regulatory regime. In particular, it sets forth a DACA model that would implement a "rule of law" regulatory paradigm for an era of technological dynamism. This era requires, as the article explains, a coherent federal framework that circumscribes the role of state and local authorities so as to advance sound competition policy goals. The sole exception to this policy is the recognition that a basic local service rate retains both political and practical …

Fiduciary Duties And Unincorporated Business Entities: In Defense Of The "Manifestly Unreasonable" Standard, Mark J. Loewenstein

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This article wades into the debate between contractarians and anti-contractarians over the extent to which statutes on unincorporated business entities should limit the ability of the participants in those entities to contract around fiduciary duties. Statutes enacted in the past several years provide considerable, but not complete, freedom to limit fiduciary duties. Contractarians argue that statutory limitations are inefficient and unnecessary, while anti-contractarians take the view that the statutes provide too much freedom of contract. This article stakes out a middle ground, arguing that the drafters of the statutes got it right and that in the absence of statutory limitations …

The First Half Century Of Western Water Reform: Have We Kept Faith With The Rivers Of The West?, Charles Wilkinson

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No abstract provided.

Three Versions Of Nonsense, Paul Campos

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Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

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The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Publications

The 2006 Colorado General Assembly passed legislation adopting a 1000-year limitation applicable to interests in trust, practically eliminating the Rule Against Perpetuities ("RAP"). This article discusses the legislation's impact on the RAP in trust and non-trust situations.

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

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The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

"Particular Intentions": The Hillmon Case And The Supreme Court, Marianne Wesson

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The case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed identity. The author's investigations into newspaper …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

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No abstract provided.

International Environmental Law: 2006 Annual Report, Jane C. Luxton, Lakshman Guruswamy, Kevin L. Doran

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No abstract provided.

Tax Strategies Are Not Patentable Inventions, Andrew A. Schwartz

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The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson

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No abstract provided.

Cite Checking: A Brave New World, Susan Nevelow Mart

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The Current State Of International Law, S. James Anaya

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No abstract provided.

The Ethics Of Electronic Record Sharing, Barbara A. Bintliff, Georgia Briscoe

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No abstract provided.

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

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This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

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The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

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No abstract provided.

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

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No abstract provided.

A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins

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No abstract provided.

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

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No abstract provided.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

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No abstract provided.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

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No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

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In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

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No abstract provided.

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

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This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

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This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …