Law Commons^™

Would You Make It To The Future? Teaching Race In An Assisted Reproductive Technologies And The Law Classroom, Sonia Gipson Rankin

Faculty Scholarship

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race? In …

Appellate Court Forum, Verónica Gonzales-Zamora

Faculty Scholarship

State Bar of New Mexico, Annual Meeting 2022

A plenary presentation at the annual meeting, the forum informed the bar about the state of the appellate practice in New Mexico and provided an opportunity to exchange ideas for improvement.

What’S (Race In) The Law Got To Do With It: Incorporating Race In Legal Curriculum, Sonia Gipson Rankin

Faculty Scholarship

Gen Z is defined as including persons born after 1996 and, in 2018, the first Gen Z would have been twenty-two years old, the historically traditional age that many complete undergraduate studies and enter law school. With Gen Z entering law schools, the legal academy has been wholeheartedly preparing for the arrival of the first truly digital native generation in a myriad of ways. However, law training has been slow to progress in addressing the unspoken complexities of context and unconscious bias in the classroom with this population. Today’s Gen Z students were predominately raised in de facto segregated schools …

The Political Urgency Of Black Manhood: Frederick Douglass On Constitutional Theory, John M. Kang

Faculty Scholarship

How did Frederick Douglass—one who was born a slave, one who had been denied all formal education, one who had been sundered from his family, one who had been starved, tortured, and, on occasion, nearly killed—manage to muster the courage to do something as bold as challenge the United States Supreme Court? This Article suggests that Douglass, in order to assert his right as an American citizen, first had to assert his right as a man in an explicitly gendered sense. That is, Douglass had to muster a powerful sense of manliness that could elevate him psychologically to assert his …

Civil Procedure Update 2022 (Handout And Slide Deck), Verónica C. Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

If You Draw It, Students Learn It: An Approach To Teaching Contracts And Other Doctrinal Courses, Paul Figueroa

Faculty Scholarship

Spring 2019 was my first semester as a tenure-stream law professor. That semester I taught Legal Remedies and Contracts II—two subjects that overlap in their coverage of contract damages. I felt very comfortable teaching contracts, given my nearly twenty years of experience on contractual matters in both the private and public sectors. My first few classes went well, which validated my initial confidence. However, my optimism about the semester evaporated when I attempted to teach the parol evidence rule (“PER”).1 It was a Monday, and before starting my Contracts II class I asked the students, “How was the weekend?” followed …

Sprinting A Marathon: Next Steps For Gender Equity In Criminal Law Employment, Maryam Ahranjani

Faculty Scholarship

In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the initial findings of the TF as published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine and on the ABA Criminal Justice Section website. This Article describes the results of a survey of diverse criminal lawyers and judges conducted at the end of 2020, as well …

Creating Lightbulb Moments: Developing Higher-Order Thinking In Family Law Classrooms Through Court Observations, Sonia Gipson Rankin

Faculty Scholarship

This article fills a critical gap in the family law literature by arguing that teaching doctrinal family law in conjunction with the application of established learning theory and pedagogy yields a deeper engagement with the subject matter and leads to more practice-ready lawyers. ABA Standards 301, 303, and 304 do not clearly articulate the distinction between experiential education and experiential learning; doctrinal law classrooms are often bereft of experiential learning activities. By incorporating active learning and inclusive pedagogy in the doctrinal classroom and following recommendations from the MacCrate Report and Family Law Education Reform Project, students will be better prepared …

Stated Culpability Requirements, Scott England

Faculty Scholarship

This Article comprehensively reviews the law of stated culpability requirements in Model Penal Code (MPC) jurisdictions. Part I provides an overview of section 2.02(4), explaining how the provision works and its role in the MPC’s culpability scheme. Part II then identifies section 2.02(4)’s main weaknesses, drawing on both the provision itself and the Code’s commentary. Next, Part III reviews the law in the twenty-five states with culpability provisions influenced by the MPC, identifying specific problems that section 2.02(4) has created in the case law. Finally, Part IV recommends new stated-culpability rules that improve section 2.02(4) and more rigorously enforce the …

Against Political Speech, John M. Kang

Faculty Scholarship

The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving of the highest protection. A succession of cases amply supports this proposition. In Virginia v. Black, the Court announced that "lawful political speech [is] at the core of what the First Amendment is designed to protect." The Court similarly declared in Monitor Patriot Co. v. Roy that the First Amendment "has its fullest and most urgent application" to political speech. In McIntyre v. Ohio Elections Commission, the Court held that "handing out leaflets in the advocacy of …

Moving Law Schools Forward By Design: Designing Law School Curricula To Transfer Learning From Classroom Theory To Clinical Practice And Beyond, April Land, Aliza Organick

Faculty Scholarship

Calls for reform of legal education are long-standing and have been renewed with vigor and an increasing demand for “practice-ready” lawyers. As part of these reforms, changes to the American Bar Association Standards have been made that now require law schools to provide experiential learning opportunities, to define specific objectives, and to show that students are making progress toward those objectives. A rapidly developing area of study regarding professional identity formation stresses the importance of supporting and guiding students through experiential learning throughout the course of law school. Additionally, as part of its accreditation process, the ABA will now evaluate …

Judicial Philosophy 2022: Ethics & Professionalism In Appellate Decision-Making, Verónica Gonzales-Zamora

Faculty Scholarship

Handout

Virtual Continuing Legal Education Program, Judicial Education Center, University of New Mexico School of Law

Judicial philosophy often plays a role in judicial appointments and elections. Members of the public ask candidates about their approach to the decision-making and law-making functions of the courts. The panel will delve into the ethical implications and challenges of serving on a court whose primary functions are error correction, statutory and regulatory interpretation, determinations of public policy, and development of common law. In discussing their personal philosophies and the challenges of deciding cases in panels, the panelists will also emphasize the impact of …

Regulating Natural Gas Venting And Flaring As Waste: A Review Of The New Mexico Approach, Joseph A. Schremmer

Faculty Scholarship

Special issue: Law and Policy for Gas Flaring in a Low-Carbon Economy.

This essay interrogates the regulation of routine venting and flaring of natural gas as a source of prohibited “waste,” using New Mexico’s recently adopted Waste Rule as an example. It begins with a survey of both the environmental and economic benefits to be achieved by limiting or eliminating venting and flaring and the direct and indirect costs of doing so, including the forgone opportunity to produce crude oil. Then the essay explains the common law and statutory definitions of “waste” to demonstrate that the concept implicates a balancing …

Is The Court Of Indian Offenses Of Ute Mountain Ute Agency A Federal Agency For Purposes Of The Fifth Amendment’S Double Jeopardy Clause?, Barbara L. Creel

Faculty Scholarship

This case, which examines the application of the U.S. Constitution’s Double Jeopardy Clause, sits within the intersection of tribal courts, federal Indian law, and federal criminal law and jurisdiction. Essentially, the question is whether a Native American Indian can be punished twice for the same conduct—first in tribal court and a second time in federal court.

Asian Americans, Racial Stereotypes, And Elite University Admissions, Vinay Harpalani

Faculty Scholarship

Asian Americans have long occupied a precarious position in America’s racial landscape, exemplified by controversies over elite university admissions. Recently, this has culminated with the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College case. In January 2022, the Supreme Court granted certiorari in this case, and it will hear arguments and make a ruling in the next year or so. Students for Fair Admissions (“SFFA”) has attempted to link “negative action,” or discrimination against Asian Americans in admissions in favor of White Americans, with “affirmative action,” or race-conscious admissions policies intended to increase the enrollment of …

Boston Globe Interviews Vinay Harpalani: Supreme Court Agrees To Hear Harvard Affirmative Action Case, Could Cause ‘Huge Ripple Effect’ In College Admissions, Vinay Harpalani, Laura Krantz, Deirdre Fernandes

Faculty Scholarship

EXCERPT

Harvard has already said that if it abandoned race-conscious admissions, African-American and Hispanic representation would decline by nearly half.

Still, the Supreme Court could surprise the country, said Vinay Harpalani, an associate law professor at the University of New Mexico School of Law, possibly curbing the use of affirmative action rather than ending it altogether.

“Even if Harvard and UNC’s policies are ruled unconstitutional, it will be interesting to see the justices’ opinions and how much they limit affirmative action,” Harpalani said in an e-mail. “The question is just how far will they go?”

Global News Toronto Interviews Joshua Kastenberg: U.S. Supreme Court Blocks Biden Vaccine Mandate, Joshua Kastenberg, Miranda Anthistle

Faculty Scholarship

The Supreme Court rejected the Biden Administration’s workplace vaccine mandate which would require employees at large businesses to be vaccinated or undergo weekly testing.

Constitutional law expert Joshua Kastenberg shares that this decision is not quite as bleak as one might think. He even has some advice for POTUS.

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

Adapting To A 4°C World, Clifford Villa

Faculty Scholarship

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

A Contentious Mission: Water Supply And Corps Of Engineers Reservoirs, Reed D. Benson

Faculty Scholarship

The U.S. Army Corps of Engineers operates hundreds of multi-purpose reservoirs nationwide, many of which provide water for municipal and industrial purposes. Demands for water from Corps reservoirs are sure to grow, and Congress has ordered the Corps to report on whether water supply should become a primary mission of the agency. The Corps has experienced controversy over water supply decisions, including disputes involving its Missouri River reservoirs and Lake Lanier in Georgia. When the Corps proposed a national Water Supply Rule in 2016 it drew significant opposition, forcing the agency to withdraw the rule and reassess its policies. This …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

Don't Blame The Flint River, Clifford Villa

Faculty Scholarship

Since appearing in modern form fifty years ago, the Clean Water Act has proven a powerful force for environmental justice, helping to clean up urban waterways across the country. Through establishment of water quality standards and enforcement of regulatory requirements, the Clean Water Act has compelled public authorities and private companies to upgrade infrastructure and curtail
discharge of sewage and other industrial effluent. At the same time, urban communities have continued to struggle with water pollution beyond the reaches of the Clean Water Act. This Article briefly examines three such communities: the Anacostia area of Washington, D.C.; the neighborhoods along …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …