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Full-Text Articles in Law
Judicial System Rises To Challenges Of Times, Kevin Washburn
Judicial System Rises To Challenges Of Times, Kevin Washburn
Faculty Scholarship
No abstract provided.
President's Missed Chance With Sikhs, Dawinder S. Sidhu
President's Missed Chance With Sikhs, Dawinder S. Sidhu
Faculty Scholarship
Decision to skip temple visit made out of fear, expediency
Out From Under The Shadow Of The Federal Constitution: An Overlooked American Constitutionalism, Christian G. Fritz
Out From Under The Shadow Of The Federal Constitution: An Overlooked American Constitutionalism, Christian G. Fritz
Faculty Scholarship
Most scholars of constitutional law and history equate American constitutionalism with the Federal constitution. This spotlight on the Federal constitution rests on a series of modern assumptions that elevate the status of the Federal constitution over the rich history of state constitutions, and inevitably neglect the central constitutional tenet of the American Revolution - the sovereignty of the people. Viewing American constitutionalism from the perspective of the constitutional legacy of the Revolution suggests a modified paradigm in which state constitutions play a critical role in our understanding the full meaning of American constitutionalism. The idea of a collective sovereign introduced …
1,000% Interest- Good While Supplies Last: A Study Of Payday Loan Practices And Solutions, Nathalie Martin
1,000% Interest- Good While Supplies Last: A Study Of Payday Loan Practices And Solutions, Nathalie Martin
Faculty Scholarship
Would you pay 1000 dollars in fees to borrow 100 dollars for a period of twenty weeks? Is it possible that such a loan is even legal? Welcome to the world of payday lending, one of the fastest growing segments of the consumer credit industry. This Article describes the practices of payday loan companies and then discusses some states failed attempts to institute regulation. These legislative efforts frequently fail because crafty lenders quickly adapt to new legislation by finding loopholes that undermine any consumer protection provided by the new regulatory laws. This Article also reports on an empirical study of …
Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding
Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding
Faculty Scholarship
This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the …
Agency Culture And Conflict: Federal Implementation Of The Indian Gaming Regulatory Act By The National Indian Gaming Commission, The Bureau Of Indian Affairs, And The Department Of Justice, Kevin Washburn
Faculty Scholarship
Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the 'independence' of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ …
Book Review: Responsible Business: Self-Governance And Law In Transnational Economic Transactions Edited By Olaf Dilling, Martin Herberg And Gerd Winter, Laura M. Spitz
Faculty Scholarship
No abstract provided.
Report & Recommendations Legal Scholar Team, Margaret E. Montoya, Tucker Culbertson, Marc-Tizoc González
Report & Recommendations Legal Scholar Team, Margaret E. Montoya, Tucker Culbertson, Marc-Tizoc González
Faculty Scholarship
The Report’s Recommendations for next steps reflect and incorporate the multiple experiences, false starts, insights, frustrations and new beginnings that represent the various ways that diversity works within the different sectors of the legal profession. We have included Recommendations that are already being used as well as some that are ambitious and aspirational. Within each of the four sectors of the profession, the recommendations are broadly categorized, but not prioritized. We recognize that every individual or organization will have its own priorities based on its unique circumstances. We do encourage the Report’s users to select and prioritize recommendations for next …
Protecting New Mexico’S Waters: A Blueprint For The Future, Denise D. Fort
Protecting New Mexico’S Waters: A Blueprint For The Future, Denise D. Fort
Faculty Scholarship
Aquatic species are imperiled by water diversions, introduced species, pollution and now climate change. In the western U.S., water law rewards the withdrawal and use of water, rather than leaving water instream for ecological, recreational and other purposes. New Mexico has no statutory protections for environmental flows and is increasing its diversions of water from rivers. This paper discusses the status of instream flows in the state and proposes policies to better protect the state’s waters.
Review Essay: Antebellum American Thought And Politics'', Max Skidmore
Review Essay: Antebellum American Thought And Politics'', Max Skidmore
Faculty Scholarship
Review Essay of the following works: American Sovereigns: The People and America's Constitutional Tradition Before the Civil War. Christian G. Fritz, : Cambridge University Press , 2008 The Missouri Compromise and Its Aftermath: Slavery and the Meaning of America. Robert Pierce Forbes, : University of North Carolina Press , 2007 Vindicating Lincoln: Defending the Politics of Our Greatest President. Thomas L. Krannawitter, : Rowman and Littlefield , 2008
Civil Rights And The Wartime Supreme Court, Dawinder S. Sidhu
Civil Rights And The Wartime Supreme Court, Dawinder S. Sidhu
Faculty Scholarship
The following essay was written for our Race and the Supreme Court event by Dawinder S. Sidhu, a founding director of the Discrimination and National Security Initiative at Harvard University. Mr. Sidhu’s work focuses on discrimination against Muslim-Americans and those perceived to be Muslim, and he is coauthor of a book published in 2009 titled Civil Rights in Wartime.
Judicial Evaluation Of Expert Opinions: Recent Developments, David J. Stout
Judicial Evaluation Of Expert Opinions: Recent Developments, David J. Stout
Faculty Scholarship
The paper addresses the basic rules of Daubert v. Merrell Dow Pharmaceuticals, Inc. and Rule 702 under both federal and New Mexico law. The paper attempts to distill in summary form the essential principles of the Alberico scientific validity analysis. The focus is on the validity analysis because of its centrality to the admissibility of scientific opinion evidence. Third, it examines the two recent New Mexico decisions that further explain important issues relating to expert opinion evidence.
Testimony Before The U.S. Sentencing Commission On The Tribal Law And Order Act, Kevin Washburn
Testimony Before The U.S. Sentencing Commission On The Tribal Law And Order Act, Kevin Washburn
Faculty Scholarship
Under longstanding policy, the U.S. Sentencing Commission takes the position that tribal court convictions ought not be counted for purposes of evaluating a convicted defendant's criminal history. Because in some cases this policy underestimates a defendant's criminal history, it undermines the utilitarian and retributive purposes of federal sentencing. The Tribal Law and Order Act, currently pending in Congress and supported by the President, should cause the United States Sentencing Commission to reconsider its position on tribal convictions. The Act would provide clear federal authorization for tribal court felony sentences of up to three years per offense as long as tribal …
Second Affidavit In Duluth V. Fond Du Lac Band Of Lake Superior Chippewa, Kevin Washburn
Second Affidavit In Duluth V. Fond Du Lac Band Of Lake Superior Chippewa, Kevin Washburn
Faculty Scholarship
No abstract provided.
Double Down-And-Out: The Connection Between Payday Loans And Bankruptcy, Nathalie Martin, Koo Im Tong
Double Down-And-Out: The Connection Between Payday Loans And Bankruptcy, Nathalie Martin, Koo Im Tong
Faculty Scholarship
This Article reviews the literature on the debate regarding the causal relationship between filing for bankruptcy and the use of payday loans but does not weigh in on the subject. Rather, it uses these studies, as well as a general discussion of bankruptcy filing and payday loans, as a backdrop for analyzing new data regarding the correlation between bankruptcy filing and the use of payday loans. This Article reports on an empirical study conducted in the state of New Mexico that measures rates of payday loan use among bankruptcy debtors from a large sample of publicly available bankruptcy data. Part …
The Future Of The United States Commission On Civil Rights, Dawinder S. Sidhu
The Future Of The United States Commission On Civil Rights, Dawinder S. Sidhu
Faculty Scholarship
In The Future of the U.S. Commission on Civil Rights, Professors Lisa Crooms and Dawinder Sidhu discuss the potential for expanding the mandate of the Commission. Professor Crooms opens by noting that suggestions to expand the Commission’s mandate to include human rights have been around for decades, and argues that such ideas are still worth adopting. She comments that the Commission would have to engage in extensive fact-finding in order to justify such an expansion. Professor Crooms raises further concerns over manipulation of the appointment process for commissioners, but that such manipulation has not necessarily jeopardized the Commission’s role. Indeed, …
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max J. Minzner
Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max J. Minzner
Faculty Scholarship
Judgments do not bind nonparties. This core due process constraint on issue preclusion means that courts can only adjudicate questions of fact and law with respect to those individuals appearing in court. However, the operation of stare decisis routinely extinguishes the rights of nonparties without notice or an opportunity to be heard. This Article examines the due process challenge to the operation of precedent. The traditional justifications for applying a due process analysis only to preclusion and not to precedent are inadequate. Instead of excepting stare decisis from the operation of procedural due process, we should see it as meeting …
It Taxes A Village: The Problem With Routinely Taxing Barter Transactions, Sergio Pareja
It Taxes A Village: The Problem With Routinely Taxing Barter Transactions, Sergio Pareja
Faculty Scholarship
Under current law, all true barter transactions, such as babysitting cooperatives, create taxable income. Although the IRS often fails to catch unreported transactions, lawyers and accountants have an ethical duty to advise clients to report these taxable transactions on their income tax returns. This article proposes that Congress change the law to generally exclude barter transactions from income when they do not rise to the level of being a trade or business of the taxpayer. This simple change to the law will allow communities to work together without worrying about tax disincentives for doing so.
Seeking Educational Self-Determination: Raza Studies For Revolution, Margaret E. Montoya, Marcos Pizarro, Monica Nanez, Ray Chavez, Nadine Bermudez
Seeking Educational Self-Determination: Raza Studies For Revolution, Margaret E. Montoya, Marcos Pizarro, Monica Nanez, Ray Chavez, Nadine Bermudez
Faculty Scholarship
This article is a multi-textured effort to explain the educational, social justice work of MAESTR@S, an innovative, organic group of educational activists fighting to address the needs of Latina/o youth. It is unlike anything we have ever written and probably unlike anything you are likely to read in an academic journal such as Equity & Excellence in Education.We do not have a well-defined result that we are reporting to you. Instead, we see ourselves on a quest, with a deep concern about the current educational choices facing most raza youth and their teachers, and a commitment to try to work …
Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez
Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez
Faculty Scholarship
Our goal in this article is to demonstrate how perspective, political agenda, and personal experiences affect how stories about the Mexico-U.S. Border are framed. The framing is shaped by audience and emotional appeal, as well as political agenda. Stories framed and portrayed as personal experiences and stock narratives about a group or country can shape the attitude, experience, and behavior of others. Our discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration …
The Next Great Generation Of American Indian Law Judges, Kevin Washburn
The Next Great Generation Of American Indian Law Judges, Kevin Washburn
Faculty Scholarship
This short essay, which was the keynote address at a conference of the same title in 2010, argues that the best predictors of good Indian law judging are education, familiarity and experience. People who have been raised believing that there are only two orders of government in the United States are often surprised when they encounter the legal existence of Indian tribes. Most judges become more comfortable with notions of tribal sovereignty after prolonged exposure to cases discussing those principles. Thus, educating all Americans about Indian tribes in primary and secondary education would produce better policy-makers in general and better …
Arizona's Notice Of Claim Statute: Guidance On Clearing This Procedural Hurdle And Suggestions For Its Improvement, Dawinder S. Sidhu
Arizona's Notice Of Claim Statute: Guidance On Clearing This Procedural Hurdle And Suggestions For Its Improvement, Dawinder S. Sidhu
Faculty Scholarship
The Arizona Constitution empowers the legislature to establish rules for how and under what circumstances the State may be sued. Pursuant to this constitutional authority, the Arizona State Legislature enacted Arizona Revised Statutes Section 12-821.01, which requires those with claims against an Arizona public entity or employee to file notice of the claims prior to the initiation of legal action. This procedural prerequisite to initiate a suit may be prudent as a matter of public policy. In practice, however, the state courts have been unable to issue reliable decisions with respect to the statute’s requirements. The state courts’ evolving understanding …
First Korematsu And Now Ashcroft V. Iqbal: The Latest Chapter In The Wartime Supreme Court's Disregard For Claims Of Discrimination, Dawinder S. Sidhu
First Korematsu And Now Ashcroft V. Iqbal: The Latest Chapter In The Wartime Supreme Court's Disregard For Claims Of Discrimination, Dawinder S. Sidhu
Faculty Scholarship
This Article is concerned with shedding light on Iqbal. It will argue that this relatively obscure legal opinion may be one of the most infamous and harmful to American jurisprudence and individual rights of this generation. In particular, it will argue that (1) the Iqbal Court misapplied the traditional pleading standards that govern motions to dismiss for failure to state a claim in finding Iqbal’s particular complaint deficient and, in doing so, functionally and needlessly heightened those standards;19 and (2) the Court erred in finding unremarkable Iqbal’s allegations that the government engaged in blanket racial profiling of Muslims and Arabs …
An Introduction To Islamic Law By Wael B. Hallaq, Jennifer Laws
An Introduction To Islamic Law By Wael B. Hallaq, Jennifer Laws
Faculty Scholarship
This is a review of An introduction to Islamic law, by Wael B. Hallaq.
A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger
A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger
Faculty Scholarship
In Part I, we describe our experience supervising our clinic students on Election Day 2008 and our observations of their learning through the repetitive experiences they had representing several clients in rapid succession. In Part II, we discuss cognitive science research into skills learning, including several necessary elements for optimal learning. In Part III, we review existing legal scholarship on teaching storytelling to lawyers and compare it with cognitive science findings. Finally, in Part IV, we apply cognitive science principles to teaching storytelling through experiential learning and describe the necessary elements for creating effective learning situations. We also suggest some …