Law Commons^™

Washington Monthly Interviews Vinay Harpalani: Asian Americans And The Pursuit Of Unhappiness, Vinay Harpalani, Reginald C. Oh

Faculty Scholarship

EXCERPT:

There are, however, several problems with depicting Asian Americans as victims of affirmative action. First, it is necessary to distinguish between affirmative action and negative action. Affirmative action refers to admissions policies that use the race of an underrepresented racial group as a “plus factor” in admissions. According to the law professor Vinay Harpalani, negative action “refers to policies or practices which disadvantage Asian Americans” in comparison to whites. If schools like Harvard covertly impose a higher standard for Asian Americans than for whites, the problem is negative action, not affirmative action. And if Harvard’s admissions decisions are …

The Washington Post Interviews Vinay Harpalani: The Courts Have Served As An Anti-Democratic Force For Much Of U.S. History, Vinay Harpalani, David A. Love

Faculty Scholarship

Certainly there are examples in which the high court has upheld the rights of the marginalized and disadvantaged. However, as Vinay Harpalani, associate professor of law at the University of New Mexico, has noted, “even when the U.S. Supreme Court makes rulings that seem to favor people of color, those rulings usually serve the interests of wealthy, elite White Americans.”

Harpalani cited how the Brown decision stemmed in part from Cold War strategy and the need for the United States to appeal to people in African, Asian and Latin American countries. “Racial segregation at home did not bode well …

How To Combat New Mexico’S Housing Crisis? Unm Law Professor And Advocate Serge Martinez Has Answers., Serge A. Martinez, Annabella Farmer

Faculty Scholarship

Years before he became a law professor at the University of New Mexico, Serge Martinez worked in the South Bronx helping tenants defend their rights. The experience planted a seed that would grow into a deep-rooted belief: Housing is a basic human right. “Without stable housing, any other intervention, any social service we have is going to fail,” he says.

Martinez teaches at the UNM law school’s Economic Justice Clinic, focusing on issues of housing stability and tenant protections. He represents clients struggling with housing insecurity and advocates for housing reform. In 2020 he also co-founded a nonprofit called …

Pulling Back The Curtain: A Follow-Up Report From The Aba Criminal Justice Section Women In Criminal Justice Task Force, 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. Pulling Back the Curtain follows up on the initial findings of the TF. The findings are published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine. This report describes the results of a subsequent survey of diverse criminal lawyers and judges conducted at the end of 2020. The survey posed questions related to …

Reassessing The Ahistorical Judicial Use Of William Winthrop And Frederick Bernays Wiener, Joshua E. Kastenberg

Faculty Scholarship

Government lawyers, like the courts continue to cite to Winthrop. Most recently, in the pending appeal titled Larabee v. Harker, the government ‘s counsel quoted Winthrop for the proposition that “retired officers are a part of the army and so triable by court-martial—a fact indeed never admitting of question.” It is unlikely that the government’s counsel considered the matters presented in this brief article, or that Winthrop rested his statement on dicta rather than any constitutional statement on jurisdiction. Likewise, whatever criticism may be given to Justice Alito’s Ortiz dissent, I am not suggesting that either he, or Justice Neil …

'That Name Is Dead To Me': Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

Faculty Scholarship

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name - one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen names after obtaining a …

Civil Procedure Update 2021: New Mexico Annual Judicial Conclave, Verónica Gonzales-Zamora

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2021 to September 1, 2021.

When Engineering Solutions Cause Legal Problems: The Developing Field Of Reservoir Rights And Liabilities, Joseph A. Schremmer

Faculty Scholarship

For well over a decade, the pages of this Quarterly have undoubtedly been filled with discussions of cutting-edge drilling and completion technologies. This article discusses some of the problems that all these engineering solutions have caused for the law of oil and gas. It begins in Part II with a brief outline of how the law slowly develops through the common law process and illustrates how that process responds, also slowly, to rapid technological and social changes, like the unconventional hydrocarbon revolution. Part III then surveys how courts have begun to reform the legal rights and remedies in common reservoirs …

Rethinking The Plra: The Resiliency Of Injunctive Practice And Why It’S Not Enough, Allison Freedman

Faculty Scholarship

During the latter part of the twentieth century, prison populations in the United States increased exponentially and the nation became notorious for mass incarceration. Despite what many viewed as a broken prison system, in 1996 Congress passed the Prison Litigation Reform Act (“PLRA”), with the avowed purpose of hindering prisoners and their advocates from bringing civil rights actions to challenge prison conditions, laws, and policies. To accomplish this, Congress curbed courts’ most powerful remedial tool—injunctive relief. As a result, early scholarship predicted that injunctive practice would become a useless tool in prison reform litigation.

Instead, twenty-five years after Congress passed …

Brief For The National Stripper Well Association As Amicus Curiae, L. Ruth Fawcett Tr. V. Oil Producers, Inc. Of Kansas, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

In its briefings, the Class in this appeal, in spite of the evidence, evokes the myth of a great conspiracy between operators and marketers, and it advances a theory that threatens impermissible economic and underground waste of natural gas resources. The language of the parties' oil and gas leases, on the other hand, sets up bargained-for arrangement that enables the parties to share in the benefits of stripper gas production and promotes conservation of the state's natural gas reserves.

Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse

Faculty Scholarship

Indian Civil Rights/Education Lawsuit

View this and other court documents at Turtle Talk.

Congress’s declared federal policy is “to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children.” 25 U.S.C. § 2000. This federal policy is the touchstone of the federal government’s trust obligation to Indian families and their children. When the BIA (through the BIE) fails to protect the rights of Indian children to “educational opportunities that equal or exceed those for all other students in the United States,” courts have a vital role to …

Intolerable Histories And Imperfect Narratives: Nationhood, Identity, And The Integrity Of Law In Post-Vichy France And Beyond, Kaela S. Holmen

Foreign Languages & Literatures ETDs

The principal aim of this thesis project is to examine the socio-legal context of the Vichy regime in World War II France, and to provide an understanding of how that context informed, and continues to inform, the integrity of French nationhood. With Ernest Renan’s oubli serving as a framework for the solidification of nationhood, I will demonstrate that the betrayals to French law and custom that were committed in an attempt to right the wrongs of the Vichy resulted in an imperfect forgetting, and ultimately, a more fragmented national sense of self. I contend that this imperfect oubli resulting from …

The Harvard Crimson Interviews Vinay Harpalani: Supreme Court Delays Decision On Reviewing Harvard Admissions Lawsuit, Vinay Harpalani, Vivi E. Lu, Dekyi T. Tsotsong

Faculty Scholarship

Vinay Harpalani, a law professor at the University of New Mexico, said SCOTUS’ delay might mean it is “a little bit less likely” to take the case.

“A lot of experts, including me, didn’t think the court was going to grant cert on this because there’s a lot of other cases coming up,” he said.

“It does seem to indicate that there are justices on the fence a bit who want to know more and are willing to delay the case, because we don’t know when the Solicitor General will file their briefs,” Harpalani said.

Harpalani said the Solicitor General’s …

Anomalous Anatomies: How The Tsa Should Screen For Transgender People, Karissa J. Kang, John M. Kang

Faculty Scholarship

A transgender person faces obstacles trying to negotiate a gender-binary world. Going through a TSA checkpoint is no different. A substantial number of transgender persons have reported that they were detained and examined because they were transgender.1 Why this situation persists and what policy reforms should be implemented to alleviate it are the subjects of this Essay. This Essay is devoted mainly to the theme of transgender rights, rather than race, a central theme of the symposium in which this Essay appears. Given the relatively small pool of transgender individuals for whom data is available, this Essay is unable to …

Downtown Condos For The Rich: Not All Bad, Michael Lewyn

New Mexico Law Review

Through a survey of the academic and popular literature as well as a review of relevant data, this Article suggests that the growth of high-end condominiums is likely to increase supply and hold down costs for local residents. Part I of the Article discusses the background of the debate, including the increased popularity of downtown life, the explosion of urban housing costs in some cities, and the growth of high-cost condos. Part II critiques the claim that the growth of high-end condos will fail to lower housing costs and suggests that this claim is wrong because (1) at least some …

Rules To Bind You: Problems With The Uspto’S Ptab Rulemaking Procedures, Andrew Dietrick, Jonathan Stroud

New Mexico Law Review

This Article analyzes some of the recent rules, guidance documents, policy-based administrative decisions, and rulemaking procedures used by the United States Patent and Trademark Office (USPTO), and concludes that the USPTO is improperly promulgating substantive rules sub rosa via, inter alia, updates to the Trial Practice Guide (TPG), an ostensibly nonbinding document that controls many broad substantive and procedural aspects of the Patent Trial and Appeal Board (PTAB), and in doing so, avoids appellate, Congressional, and stakeholder review of such decisions.

Part I will review the established law of administrative agencies’ rulemaking authority and procedures, specifically reviewing formal rulemaking, “informal” …

Consumer Welfare: Would Competitive Injury Claims Under The New Mexico Unfair Practices Act Actually Undermine Consumer Protection?, Raquel Koch Pinto

New Mexico Law Review

When the New Mexico Unfair Practices Act (UPA) was enacted in 1967, the language adopted did not clearly state whether the legislature intended to confer standing to competitors to sue for unfair or deceptive trade practices. Before the New Mexico Supreme Court decision in Gandydancer, LLC v. Rock House CGM, LLC,1 the New Mexico Court of Appeals and the U.S. District Court for the District of New Mexico—applying state law—had interpreted the statutory term “any person” as an opening for businesses to sue competitors under the UPA in certain circumstances. However, the New Mexico Supreme Court approached the UPA in …

Motel Blues: Inspecting Patel’S Impact On The Law Of Administrative Searches, Casey Adams

New Mexico Law Review

Administrative inspections are a vital tool for agencies charged with guarding public health and safety at all levels of government. Fire, health, sanitation, building, and labor departments across the country rely on administrative inspections to ensure that regulated entities comply with laws and rules. But administrative inspections clearly have a privacy dimension as well—after all, an inspection may involve a uniformed agent of the government making demands to see documents or access nonpublic areas, sometimes under threat of criminal penalties and always with the specter of further enforcement action lingering in the background.

Finding the balance between these two competing …

The Case For Outside Reverse Veil Piercing In New Mexico, Laura Spitz

New Mexico Law Review

This article proceeds as follows. Part I sets out the current law on veil piercing in New Mexico. Jurisdictions that adopt outside reverse piercing often apply much the same test for both traditional and outside reverse veil piercing cases; accordingly, the best predictor of how New Mexico courts will approach outside reverse piercing is how they have approached traditional veil piercing.

Part II summarizes the positions of other jurisdictions to have considered outside reverse veil piercing, as well as themes, concerns, and key debates in outside reverse piercing cases. This jurisprudence points in the direction of adopting the doctrine in …

Introduction, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Better Balance: Why The Second Judicial District In New Mexico Should Prioritize Use Of Preliminary Hearings, Kathryn Sears

New Mexico Law Review

The New Mexico Constitution guarantees that felony charges shall not be brought against a person prior to either a grand jury indictment or a preliminary hearing finding of probable cause. But in March 2020, due to the COVID-19 pandemic, New Mexico courts were forced to halt the use of grand jury proceedings. As a result, all felony charges brought for the remainder of the year 2020 were vetted through preliminary hearings. Moreover, New Mexico is a unique jurisdiction because it applies the Rules of Evidence in full strength at preliminary hearings. This Comment makes a case for the continued expansion …

A Familiar Crossroads: Mcgirt V. Oklahoma And The Future Of Federal Indian Law Canon, Dylan R. Hedden-Nicely, Stacy L. Leeds

New Mexico Law Review

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles …

Private Actors, Public Records, And New Mexico’S Inspection Of Public Records Act, John Kreienkamp

New Mexico Law Review

In a series of three recent court decisions, New Mexico’s appellate courts have grappled with IPRA’s implications for private entities. In State ex rel. Toomey v. City of Truth or Consequences2 and New Mexico Foundation for Open Government v. Corizon Health, the Court of Appeals held that the records of a private contractor performing services on behalf of a public body were subject to inspection under IPRA to the extent they related to government business.

This article maintains that IPRA requests must be directed to the public body, not a private contractor, and that a private entity is not a …

Evaluating Causation In Nmhra Retaliation Claims After Nassar: Why New Mexico Courts Should Adopt A Motivating Factor Causation Standard, Elisa Cibils

New Mexico Law Review

New Mexico courts apply a federal burden-shifting test to decide employment retaliation claims brought under the New Mexico Human Rights Act (NMHRA). In New Mexico courts’ application of this test, it is unclear whether the employee has to initially show whether the protected activity she engaged in—such as filing a discrimination complaint—was the “but-for” cause of the adverse employment action against her, or if it is sufficient for her to show that the protected activity was one motivating factor—among other potentially lawful or non-discriminatory factors—that contributed to the employer’s retaliatory acts against her. In light of the recent United States …

Understanding The Nuances: Diversity Among Asian American Pacific Islanders, Vinay Harpalani

Faculty Scholarship

Asian American Pacific Islander (AAPI) Heritage Month recognizes the collective contributions of all AAPIs, but it is also an opportunity to move beyond the collective and highlight the nuanced differences between various AAPI groups. Lumping together all of these groups, without appreciation for their unique histories, experiences, and challenges, can obscure important differences, which in turn reinforces stereotypes. For example, although the “model minority” stereotype depicts AAPIs as high academic achievers from relatively privileged socioeconomic backgrounds, this is only accurate for a subset of the AAPI population. Higher education institutions in particular should highlight the vast diversity among AAPIs, as …

Exploring The Role Of Core Positive Selves With Men Convicted Of Child Sexual Offenses: A Character Strengths Initiative, Tiffany A. Miner

Individual, Family, and Community Education ETDs

The aim of this study was to help men convicted of child sexual offenses learn to recognize and engage their character strengths over 12 months. Participants were six men convicted of contact and noncontact (internet) child sexual offenses. All participants were members of a community-based reintegration group for registered citizens. In the first weeks of the study, participants received the Values in Action Inventory of Strengths survey. The survey, containing 240 questions—10 items for each of the 24 character strengths outlined—helped participants identify their top character strengths. The study explored (a) how the men could use their character strengths to …

Building Asian American And Black Solidarity For Racial Justice In Today’S America, Vinay Harpalani, Sunu P. Chandy, Sholanna Lewis, Frank H. Wu

Faculty Scholarship

About the Panel: Although there have been tensions, including those tied to colorism, between the Asian American and Pacific Islander and Black communities in America, there has been an equally long history of mutual support and collaboration between these two communities. How does anti-Blackness in the AAPI community impact the work of building solidarity with Black activists? In this conversation, we highlight our common ground so that Asian American and Black social justice communities can push forward our collective needs to fight racial injustice and other forms of discrimination in this country.

The Stress Test: Searching For Wellbeing In Law School, Annie Swift

Student Published Scholarship

Swift hosted a related podcast episode “A Conversation About Well-Being in Law School”. In this episode, she interviewed Dr. Katie Young, PhD, J.D., and professor of sociology at UM Amherst and author of "How to be (Sort Of) Happy in Law School."

Brownfields Cleanup: A Look Back And Ahead Toward Superfund Authority, Clifford Villa

Faculty Scholarship

Did you know that the U.S. Environmental Protection Agency, through the Superfund program within each of the ten regional offices across the United States, has millions of dollars to spend each year for cleaning up contaminated sites that are not designated “Superfund” sites? Not many people seem to know that, even lawyers who practice in environmental law, or even law professors who teach it. If these elite folks do not know that, then how would ordinary community members know that, people with busy lives who don’t do Superfund for a living? The short answer is, they probably don’t know either.

Ohkay Owingeh Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.