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Articles 61 - 71 of 71
Full-Text Articles in Law
Prosecutorial Discretion In The Post-Booker World, Norman C. Bay
Prosecutorial Discretion In The Post-Booker World, Norman C. Bay
Faculty Scholarship
This article takes a measured position. On the one hand, Booker has diminshed prosecutorial discretion somewhat. That point, perhaps, is obvious. In theory, the Guidelines are no longer mandatory, and prosecutors have less power to control sentencing. On the other hand, reports of the demise of the prosecutorial discretion have been greatly exaggerated. Post-Booker, prosecutorial discretion remains vast and, indeed, for a number of reasons is still likely to be greater than it was in the pre-Guidelines era. Much has happened since November 1, 1987, including the passage of mandatory minimum laws and the acculturation of federal judges to the …
When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas
When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas
Faculty Scholarship
In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …
Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz
Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz
Faculty Scholarship
This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …
Denial, Antoinette M. Sedillo Lopez
The Immorality And Inefficiency Of An Efficient Breach, Dawinder S. Sidhu
The Immorality And Inefficiency Of An Efficient Breach, Dawinder S. Sidhu
Faculty Scholarship
This Article attempts to analyze a concept in contract law known as the doctrine of efficient breach, which “compels [or at least encourages or invites] a party to a contract to breach if they can compensate the other party and remain better off than if they had fully performed the contract.”2 This doctrine appears to encourage immoral conduct, namely the breach of a contract. However, in the name of economic efficiency, wealth maximization, and social wealth, several prominent legal scholars, including Judge Richard A. Posner, the “leader of the school of Law and Economics movement,”3 have argued that an efficient …
Adequate Progress, Or Rivers Left Behind? Developments In Colorado And Wyoming Instream Flow Laws Since 2000, Reed D. Benson
Adequate Progress, Or Rivers Left Behind? Developments In Colorado And Wyoming Instream Flow Laws Since 2000, Reed D. Benson
Faculty Scholarship
Colorado and Wyoming have much in common in regard to water supply and water use, and both states have followed the western states' traditional approach in their instream flow laws. This traditional approach, however, has serious practical shortcomings in restoring and protecting instream flows. This Article asks whether Colorado and Wyoming have made “adequate progress” since 2000 in addressing these shortcomings in their instream flow laws. For one of these states, the answer is clear Wyoming has made no progress on its instream flow laws in recent years. Colorado, by contrast, has clearly made progress in strengthening its laws-especially as …
A Few Ironies Of Western Water Law, Reed D. Benson
A Few Ironies Of Western Water Law, Reed D. Benson
Faculty Scholarship
We have a truly outstanding panel of speakers this morning to discuss issues and history relating to water resources in the American West. Water, of course, has always been scarce out here. Some nineteenth century maps of the United States had the words "Great American Desert" written broadly across the West, and that characterization reflected how many people viewed the West in that era. The story goes that President Grant sent a cabinet member to the West with orders to report back on "what it is they need out there." The secretary dutifully wrote back saying, "All this place needs …
American Indians, Crime, And The Law, Kevin Washburn
American Indians, Crime, And The Law, Kevin Washburn
Faculty Scholarship
This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …
Federal Criminal Law And Tribal Self-Determination, Kevin Washburn
Federal Criminal Law And Tribal Self-Determination, Kevin Washburn
Faculty Scholarship
Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …
Tribal Self-Determination At The Crossroads, Kevin Washburn
Tribal Self-Determination At The Crossroads, Kevin Washburn
Faculty Scholarship
The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …
Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick
Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick
Faculty Scholarship
This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.