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Full-Text Articles in Law
Bioethics Policy: Looking Beyond The Power Of Sovereign Governments (Foreword), Robert L. Schwartz
Bioethics Policy: Looking Beyond The Power Of Sovereign Governments (Foreword), Robert L. Schwartz
Faculty Scholarship
Lawyers are trained to think in terms of power exercised by a sovereign-an institution authorized to enforce a procedurally appropriate decision with coercive force.' Generally, lawyers have a broad notion of what constitutes a sovereign. In the United States, for example, this notion includes the federal government, state governments, most tribal units, traditional territorial governments and their agencies-e.g., school boards, local public park districts, water run-off management districts, and flea abatement boards-and a host of other institutions. As a result, it is difficult for lawyers to recognize that policy also may emanate from other institutions that possess only persuasive authority, …
A Brief History Of New Mexico Water Rights Administration Since 1907, G. Emlen Hall
A Brief History Of New Mexico Water Rights Administration Since 1907, G. Emlen Hall
Faculty Scholarship
Let's get right down to it: If the Big Bang Theory of the beginning of our universe applied to New Mexico water law as we know it today, there would be no trouble setting the date on which the Creation occurred: March 19, 1907.1.0n that date the Water Code under which we now live became effective and the water world we now live in began. So important is this date in the cosmology of New Mexico water rights that every water lawyer and every water engineer---in short, every "eginawyer" in the words of United States District Judge Edwin Mechem---can recite …
The Legal Regime For Protecting Cultural Property During Armed Conflict, Joshua E. Kastenberg
The Legal Regime For Protecting Cultural Property During Armed Conflict, Joshua E. Kastenberg
Faculty Scholarship
This article examines the depth of customary international law – that is the accepted practices and norms of the international community – with respect to cultural property, the 1954 Hague Convention and Additional Protocol One, and Department of Defense and Air Force policy. Section I will discuss the evolution toward a customary development of an international law of war to protect cultural properties. This section also notes the basic principles of the law of armed conflict. Section II examines the terms of the 1954 Hague Convention, and Additional Protocol One to the Geneva Convention. Section II also applies the various …
Honesty, Privacy And Shame: When Gay People Talk About Other Gay People To Nongay People, Steven K. Homer, David L. Chambers
Honesty, Privacy And Shame: When Gay People Talk About Other Gay People To Nongay People, Steven K. Homer, David L. Chambers
Faculty Scholarship
There is a longstanding convention among lesbians and gay men in the United States: Do not reveal the sexuality of a gay person to a heterosexual person; unless you are certain that the gay person does not regard his sexuality as a secret. This article looks that this convention as it applies in the context of conversations between individuals about acquaintances, friends, and the person next door. We focus on the outing of ordinary people by other ordinary people because the day-to-day lies openly gay people tell to protect friends and acquaintances often place the tellers in a personal ethical …
The Pecos River Controversy- How Did We Get Here?, G. Emlen Hall
The Pecos River Controversy- How Did We Get Here?, G. Emlen Hall
Faculty Scholarship
Conference program only.
Voicing Differences (Comment), Margaret E. Montoya
Voicing Differences (Comment), Margaret E. Montoya
Faculty Scholarship
Jane Aiken and Kimberly O'Leary undertake the difficult work of developing specific approaches and techniques for taking account of characteristics such as race/ethnicity, gender, dis/ability, and sexual identity in clinical pedagogy. Carolyn Grose uses outsider narratives and popular culture to challenge the "pre-understanding" of students, and to assist them to accept client stories as true and valid. Focusing on the professional value of striving to promote justice, fairness, and morality identified in the MacCrate Report, Professor Aiken exhorts us to promote justice by unmasking privilege, the invisible package of unearned assets--about which I (we? or you?) was "meant" to remain …
Academic Mestizaje: Re/Producing Clinical Teaching And Re/Framing Wills As Latina Praxis, Margaret E. Montoya
Academic Mestizaje: Re/Producing Clinical Teaching And Re/Framing Wills As Latina Praxis, Margaret E. Montoya
Faculty Scholarship
What follows is an analysis that draws connections between activist teaching and activist scholarship and posits that it is the activism, the focus on the needs of Latinas/as, that makes them community service. In Part I, I describe the community lawyering program, one of the clinical law options, available at the University of New Mexico School of Law. In Part Il, I undertake to re-frame the law of wills in order to make this end-of-life ritual more relevant to the lives of Latinas/os. I then I enact a LatCritique of academic discussions and Outsider discourses. I conclude by examining our …
Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz
Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz
Faculty Scholarship
This Article explores the revolutionary period and the early national period of American constitutionalism, examining popular sovereignty as the foundation of American governance and political power. It intends to challenge standard perspectives on American constitutionalism, in particular the notion that the United States Constitution was the model constitution and reflected the mature, complete understanding of how to translate revolutionary theory into republican practice. The Federal Constitution was not the culmination of the "correct" understanding of popular sovereignty, but merely one version that ultimately produced a distinct constitutional tradition. An alternative vision, however, existed, survived, and gave coherence to a rather …
Whose Water Is It? Private Rights And Public Authority Over Reclamation Project Water, Reed D. Benson
Whose Water Is It? Private Rights And Public Authority Over Reclamation Project Water, Reed D. Benson
Faculty Scholarship
The American West, for the most part, is an arid place. The average annual precipitation in the seventeen western states is twenty-one inches, but in many places is far less. Often there is too little water to go around, even in places such as Oregon that are ommonly believed to be wet.' Water is valuable everywhere because it is indispensable; it is even more precious in the West because it is scarce.
Construction Work: The Canons Of Indian Law (Case Note), Max J. Minzner
Construction Work: The Canons Of Indian Law (Case Note), Max J. Minzner
Faculty Scholarship
Congressional pronouncements in the area of Indian law have often been both sweeping and contradictory. To clear away some of the resulting confusion, the Supreme Court has adopted canons for construing these acts: Most importantly, ambiguous statutes and treaties are interpreted in favor of the tribes. In Alaska v. Native Village of Venetie, the Ninth Circuit applied this canon in interpreting the Alaska Native Claims Settlement Act (ANCSA), determining that Alaska's native villages qualify as "Indian country." This Case Note will show that the court's reliance on the canon of construction was misplaced. The most consistent interpretation of recent Supreme …
Family Secrets, Antoinette M. Sedillo Lopez
Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya
Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya
Faculty Scholarship
I analyze the connection of affirmative action to two models of race and racism. I contend that the Supreme Court Justices who continue to support affirmative action adhere to a "prejudice" model in which race is a concept to be overcome and racism is merely a condition of individual ignorance. 13 On the other hand, I posit that Professor Butler's proposals fall within a "white supremacy" model, which looks at race as a historically contingent concept that has been used to subordinate non-white peoples from precolonial times through the present. This historical perspective offers the possibility that the concept of …
Restoring The Humanitarian Character Of U.S. Refugee Law: Lessons From The International Community, Jennifer Moore
Restoring The Humanitarian Character Of U.S. Refugee Law: Lessons From The International Community, Jennifer Moore
Faculty Scholarship
This response essay will first characterize UNHCR's role in the international protection of refugees, as a means of assessing the relevance of UNHCR's perspective to U.S. judicial decision-making in the area of asylum. The paper will then respond to each of the three problematic issues which Professor Fitzpatrick identifies in contemporary U.S. asylum law, by presenting, in each case, a broad proposition of international law which will then be substantiated with reference to relevant principles, guidelines and insights from the international refugee protection community of which UNHCR is a part. Finally, the essay's conclusion will offer a possible rationale for …
Recent Developments, Kevin Washburn
Recent Developments, Kevin Washburn
Faculty Scholarship
Summary of cases in the areas of environmental law, taxation of natural resources, and water rights cases involving Native American tribes.
The Piracy Gap: Protecting Intellectual Property In An Era Of Artistic Creativity And Technological Change, Sherri L. Burr
The Piracy Gap: Protecting Intellectual Property In An Era Of Artistic Creativity And Technological Change, Sherri L. Burr
Faculty Scholarship
This Essay explores what Mark Twain, Bill Gates, and Live Crew have in common with other artistic and informational pioneers. Their creative visions and works challenge society to develop new legal methods for regulating the artistic and technological expansion. As this Essay demonstrates, law follows technology, albeit slowly. The author predicts that the next twenty-five years will pose more challenges to intellectual property laws than the last fifty. As new forms of art are created, reflected in the case of rap music, and new forms of communication evolve onto the information highway, new methods of piracy will abound. The challenge …