Law Commons^™

More Than #Freebritney: Remedying Constitutional Violations In Guardianship For People With Disabilities, Hannah Shotwell

New Mexico Law Review

Adult guardianship is used as a method to restrict the decisionmaking rights of some individuals with intellectual or developmental disabilities who have been deemed “incompetent.” However, the use of guardianship to remove someone’s decisionmaking rights violates the equal protection rights granted by the New Mexico Constitution. Discrimination against people with developmental disabilities must be substantially related to an important governmental interest, and the current state of guardianship fails to meet that bar. Further, guardianship violates the state constitutional guarantee of due process because it infringes on the fundamental right to the least restrictive means of care. New Mexico must adopt …

Dedications To Dean Frederick M. Hart, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Front Matter, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Using Insurance To Regulate Food Safety: Field Notes From The Food Produce Sector, Timothy D. Lytton

New Mexico Law Review

Foodborne illness is a public health problem of pandemic proportions. In the United States alone, contaminated food sickens an estimated 48 million consumers annually, causing 128,000 hospitalizations and 3,000 deaths. Nowhere is this crisis more acute than in the fresh produce sector, where microbial contamination in growing fields and packing houses has been responsible for many of the nation’s largest and deadliest outbreaks.

This Article examines emerging efforts by private insurance companies to regulate food safety on farms that grow fresh produce.

Previous studies of using insurance to regulate food safety rely on economic theories that yield competing conclusions. Optimists …

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

New Mexico Law Review

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 …

Oil’S Well That Ends Well—An Application For A New Mexico-Texas Transboundary Well And Its Implications, Molly Samsell

New Mexico Law Review

Oil and gas frequently cross jurisdictional lines—such as those between counties or states—creating a complex commingling of state, local, and private interests left to the states to resolve independently through statutes and regulations. Historically, the federal government’s regulation of oil and gas was limited to leasing operations on federal and Indian lands, interstate transmission related to commerce, natural gas rates, emergencies related to war, imports, oil pricing, regulation of antitrust issues, allocation of manufacturing, and federal taxation. States retain all other powers, such as policing and imposition of taxes. State administrative processes only address local issues, while multistate correlative rights …

A Model Of Collegial Judicial Decision-Making: The Ransom-Montgomery Years On The New Mexico Supreme Court, Michael B. Browde, Mario E. Occhialino

New Mexico Law Review

After first providing brief biographies of the justices and their personal relationship, the article examines two subject matter areas where their differing views were most fully developed and made a significant contribution to the development of the law:

• First, the restructuring of the law of negligence with an emphasis on the creation and nature of a duty of care; and
• Second, the legal principles governing the jurisdiction of the New Mexico appellate courts and the resulting tension between legislative and judicial authority over provisions governing access to the appellate courts.

The article concludes with our assessment that sound judicial development …

A Deliberate Difference?: The Rights Of Incarcerated Individuals Under The New Mexico State Constitution, Carson Thornton González

New Mexico Law Review

Historically, to bring claims against government officials for unconstitutional prison conditions, individuals incarcerated in New Mexico had one vehicle for redress: Section 1983 claims based on the protections of the Federal Constitution. If an individual seeks relief via Section 1983 for prison conditions that are in violation of the Eighth Amendments protections against cruel and unusual punishment, courts apply a “deliberate indifference” standard to determine the liability of prison officials. This defendant-friendly standard requires that incarcerated plaintiffs suffer an objective harm and—crucially—that the relevant officials have a culpable state-of-mind of deliberate indifference. In 2021, the New Mexico Legislature passed the …

Legal Benefits Of Homeownership, Nino C. Monea

New Mexico Law Review

The law prizes expensive, single-family homes above all other forms of housing. This Article details the many ways that the law benefits homeowners and distains renters, mobile-home owners, and the homeless. There are seven topics: (1) zoning laws mandate single-family homes and ban localities from requiring affordable housing, (2) the Tax Code allows homeowners to write off innumerable expenses but virtually nothing for renters, (3) lenders seeking to foreclose on a mortgage must surmount many hurdles, but landlords may act with nearly a free hand to evict, (4) federal, state, and local institutions all work to support the housing market …

The United States Supreme Court’S Enduring Misunderstanding Of Insanity, David Dematteo, Daniel A. Krauss, Sarah Fishel, Kellie Wiltsie

New Mexico Law Review

Within mental health law, the legal defense of insanity has received a disproportionate amount of attention. Classified as a legal excuse, the insanity defense generally negates legal blameworthiness for criminal defendants who successfully prove that at the time of the offense, they did not know right from wrong or were unable to conform their conduct to the requirements of the law, due to an underlying mental health condition. The insanity defense has a lengthy history in the United States, with several different formulations and numerous court decisions addressing various aspects of the defense. Despite its firm entrenchment in U.S. criminal …

Front Matter, New Mexico Law Review

New Mexico Law Review

No abstract provided.

From Zero-Sum To Economic Partners: Reframing State Tax Policies In Indian Country In The Post-Covid Economy, Pippa Browde

New Mexico Law Review

The disparate impact COVID-19 has had on Indian Country reveals problems centuries in the making from the legacy of colonialism. One of those problems is state encroachment in Indian Country, including attempts to assert taxing authority within Indian Country. The issue of the reaches of state taxing authority in Indian Country has resulted in law that is both uncertain and highly complex, chilling both outside investment and economic development for tribes. As the United States emerges from COVID-19, to focus only on the toll exacted on tribes and their peoples ignores the tremendous opportunities for states to right these historical …

Ashamed, Judged, And Unsafe: A Qualitative Study Of Tenant Justice Perceptions To Inform The Redesign Of Housing Court, Daniel W. Bernal

New Mexico Law Review

Scholars have long suspected that tenants were skeptical of housing court, but prior studies—relying principally on surveys— have not borne that out. This qualitative empirical study draws from in-depth interviews and finds, in contrast to these previous studies, that tenants find the housing court process anything but fair, and describe a startling disconnect between their reasons for court attendance and their experiences of the hearings. Such negative justice perceptions may affect participation in housing court, compliance with judgments, and overall confidence in the judicial process. This Article suggests several legal and policy reforms to better align the housing court experience …

Surviving The Field: Providing The Bare Minimum For Farmworkers In New Mexico, Annie Swift

New Mexico Law Review

People have cultivated the land now known as New Mexico for millennia. Throughout the last century, however, state law has denied important protections to agricultural workers and thereby contributed to the creation of an agrarian working class that is especially vulnerable to political majorities and powerful interests. For example, the New Mexico legislature explicitly exempted certain farm workers from the Workers’ Compensation Act in 1937, and from the Minimum Wage Act in 1966. Nationally, farm workers have faced exclusion from various labor, health, and safety laws. Consequently, farm workers have enjoyed few legal safeguards against the risk of injury and …

“Reverse” 404(B) Is Not An Evidence Law Issue: A Call To Revive The Compulsory Process Clause As A Vehicle For Evidence Admission, Clay Wilwol

New Mexico Law Review

In criminal cases, Federal Rule of Evidence 404(b) is typically used by prosecutors seeking to introduce non-propensity “crimes, wrongs, or other acts” evidence against defendants. However, sometimes it is the defendant who seeks to use the Rule as a vehicle for evidence admissibility, either to provide such evidence to implicate the guilt of a third party or to help prove the intent or motive of alleged victims in violent crimes involving altercations. This latter defense-proffered use of Rule 404(b) has been termed “reverse” 404(b), and currently there is disagreement among courts (both federal and state) regarding how to assess the …

Reexamining Relative Bar Performance As A Function Of Non-Linearity, Heteroscedasticity, And A New Independent Variable, Rory Bahadur, Kevin Ruth, Katie Tolliver Jones

New Mexico Law Review

One might believe that a law school's graduates doing better on the bar exam than their matriculating credentials predicted must be primarily attributable to the teaching ability and performance of the institution's faculty. Some scholarship makes such a claim. However, it is empirically untrue. Prestidigitation rather than legal pedagogy yields such superficial results. Law schools manipulating their matriculant pools via academic attrition and transfer is the sleight-of- hand that improves their graduates' bar performance rates. This article reveals the math behind the magic.

This article demonstrates that effective pedagogy may not be the only driver of a law school's students …