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Law, Environmental Dynamism, Reliability: The Rise And Fall Of Calfed, Dave Owen Jan 2008

Law, Environmental Dynamism, Reliability: The Rise And Fall Of Calfed, Dave Owen

Faculty Scholarship

No abstract provided.


Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson Jan 2008

Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson

Faculty Scholarship

No abstract provided.


Finding Trademark Use: The Historical Foundation For Limiting Infringement Liability To Uses "In The Manner Of A Mark", Margreth Barrett Jan 2008

Finding Trademark Use: The Historical Foundation For Limiting Infringement Liability To Uses "In The Manner Of A Mark", Margreth Barrett

Faculty Scholarship

No abstract provided.


Rethinking Compensation For Mental Distress: A Critique Of The Restatement (Third) §§ 45-47, John L. Diamond Jan 2008

Rethinking Compensation For Mental Distress: A Critique Of The Restatement (Third) §§ 45-47, John L. Diamond

Faculty Scholarship

No abstract provided.


American Indians, Crime And The Law: Five Years Of Scholarship On Criminal Justice In Indian Country, Kevin Washburn Jan 2008

American Indians, Crime And The Law: Five Years Of Scholarship On Criminal Justice In Indian Country, Kevin Washburn

Faculty Scholarship

Opening remarks.


Restoring The Grand Jury, Kevin Washburn Jan 2008

Restoring The Grand Jury, Kevin Washburn

Faculty Scholarship

Though it is enshrined in the Constitution, the grand jury is one of the least respected institutions in American criminal justice today. Scholars regard the grand jury just as doctors regard the appendix: an organic part of our constitutional makeup, but not of much use. While scholars have proposed reforms, most of them seem only loosely related to the fundamental purpose of the grand jury. In an era of plea bargains, the grand jury can serve a crucial role in insuring popular legitimacy in the criminal justice system. In light of the criticism, however, the grand jury seems to be …


Sex Offender Registration In Indian Country, Kevin Washburn, Virginia Davis Jan 2008

Sex Offender Registration In Indian Country, Kevin Washburn, Virginia Davis

Faculty Scholarship

This article critiques Sex Offender Registration and Notification Act [SORNA] and places it in the context of the broader scheme of public safety and criminal jurisdiction on Indian reservations. Part I briefly explains the jurisdictional background of criminal law and regulatory authority on Indian lands. Part II discusses the particular development of federal and tribal sex offender registration and notification laws. Part III explains how SORNA engages Indian tribes and other registration jurisdictions as a prelude to discussion of the obstacles of effective implementation on Indian lands. Part IV offers some criticisms of SORNA for further fragmenting regulatory and criminal …


The Legacy Of Bryan V. Itasca County: How An Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion In Indian Gaming Revenue, Kevin Washburn Jan 2008

The Legacy Of Bryan V. Itasca County: How An Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion In Indian Gaming Revenue, Kevin Washburn

Faculty Scholarship

This Article places Bryan v. Itasca County in historical context and gives credit where credit is due. From the perspective of three decades, it describes the litigation and its ramifications, and highlights the work of the legal services attorneys who brought Indian tribes this landmark victory. Part I briefly describes the litigation through the state supreme court. Part II discusses, in much greater detail, the appeal to the U.S. Supreme Court. Part III analyzes the unanimous Supreme Court opinion reversing the state courts and describes the breathtaking scope of the opinion, as well as its implications. Part IV briefly describes …


Disability Advocacy And Atkins, James W. Ellis Jan 2008

Disability Advocacy And Atkins, James W. Ellis

Faculty Scholarship

This Article examines the correlation between the Court's perception and its resolution of the constitutional issues, most dramatically exhibited in Atkins. Part II of this Article briefly examines the history of discrimination against persons with mental retardation. Part III of this Article traces the history of the Court's decisions involving persons with mental retardation, giving special attention to the way in which the Justices' opinions reveal their apparent understanding of mental retardation and the relationship between individuals who have the disability and the law.5 Finally, Part IV addresses the Atkins opinion itself, with emphasis on the Court's understanding of mental …


Uniendo Comunidades By Learning Lessons And Mobilizing For Change, Margaret E. Montoya Jan 2008

Uniendo Comunidades By Learning Lessons And Mobilizing For Change, Margaret E. Montoya

Faculty Scholarship

Building community, that is, sustaining our connections to family and our ancestry is often hampered by going to law school. Law schools are highly adept at assimilating you into a profession and a worldview that can be at odds with who you were and how you saw the world before you began law school. Unfortunately, in order to fit in, it can seem advantageous to forget tus ralces, your roots. I began by talking about unigndo comunidades as a progressive objective and have been talking about the second part of your conference theme, learning lessons and mobilizing for change, as …


Shadow War Scholarship, Indigenous Legal Tradition, And Modern Law In Indian Country, Christine Zuni Cruz Jan 2008

Shadow War Scholarship, Indigenous Legal Tradition, And Modern Law In Indian Country, Christine Zuni Cruz

Faculty Scholarship

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Laws electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista's engagement of …


Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay Jan 2008

Old Blood, Bad Blood, And Youngblood: Due Process, Lost Evidence, And The Limits Of Bad Faith, Norman C. Bay

Faculty Scholarship

Under the law of lost evidence, absent a showing of bad faith, no due process violation occurs when the police lose potentially exculpatory evidence. This is so even though the evidence may be critical to the defense and even though post-conviction DNA testing has exonerated more than 200 individuals. Ironically, the case that developed that rule of law, Arizona v. Youngblood, is founded on the conviction of an innocent man. This Article critically examines Youngblood and provides a conceptual framework for examining the constitutional right of access to evidence. Supreme Court precedent reflects two different, sometimes competing, visions of procedural …


Making And Breaking Habits: Teaching (And Learning) Cultural Context, Self-Awareness, And Intercultural Communication Through Case Supervision In A Client-Service Legal Clinic, Antoinette M. Sedillo Lopez Jan 2008

Making And Breaking Habits: Teaching (And Learning) Cultural Context, Self-Awareness, And Intercultural Communication Through Case Supervision In A Client-Service Legal Clinic, Antoinette M. Sedillo Lopez

Faculty Scholarship

This Article begins by offering teaching objectives that can be used to focus supervision and education on effective representation of clients from different cultures as issues arise in the course of representation. The Article then discusses the context of student supervision and explains how case supervision sessions can be extremely effective moments during which to pursue those teaching goals. The Article next examines vignettes that grew out of cases handled by the University of New Mexico's Clinical Law Program.


Taxation Without Liquidation: Rethinking "Ability To Pay", Sergio Pareja Jan 2008

Taxation Without Liquidation: Rethinking "Ability To Pay", Sergio Pareja

Faculty Scholarship

This Article proposes a novel way to tax wealth transfers. Specifically, it suggests that we divide all assets transferred by gift or bequest into two classes--illiquid assets and liquid assets. The recipient should include those assets in income but be allowed two options. With respect to illiquid assets, the recipient should be able to avoid immediate income inclusion if he takes the property with an income-tax basis of zero. With respect to liquid assets, the recipient should be allowed a full income-tax deduction if he rolls the gift or bequest into a deductible IRA. The combination of these simple rules …


Are Blue And Pink The New Brown? The Permissibility Of Sex-Segregated Education As Affirmative Action, Dawinder S. Sidhu Jan 2008

Are Blue And Pink The New Brown? The Permissibility Of Sex-Segregated Education As Affirmative Action, Dawinder S. Sidhu

Faculty Scholarship

This Article examines segregation and affirmative action in a different context-that of gender. Title IX of the Education Amendments of 1972 ("Title IX") l° prohibits discrimination on the basis of gender in education programs or activities that receive federal financial assistance. The regulations implementing Title IX, however, explicitly permit recipients of federal funding to offer single-sex schools, classes, and extracurricular activities. The regulations also permit recipients to "take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex.” This Article discusses whether and to what extent the affirmative action provision …


Brief For Respondent Iqubal As Amicus Curiae, Dawinder S. Sidhu, Brian E. Robinson Jan 2008

Brief For Respondent Iqubal As Amicus Curiae, Dawinder S. Sidhu, Brian E. Robinson

Faculty Scholarship

Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens.


The Sikh Turban: Post-9/11 Challenges To This Article Of Faith, Dawinder S. Sidhu, Hena Singh Gohil Jan 2008

The Sikh Turban: Post-9/11 Challenges To This Article Of Faith, Dawinder S. Sidhu, Hena Singh Gohil

Faculty Scholarship

This essay examines how the turban has transformed from a sacred piece of attire for Sikhs to a target for discriminatory conduct and an object of marginalization after 9/11. Part I provides an introduction to Sikhism, which originated in 17th century South Asia, and discusses the religious significance of the Sikh turban. Part II examines incidents of discrimination in several contexts involving turbaned Sikhs in America. Part III analyzes the debate surrounding assimilation that has been taking place in the West, which implicates conspicuous articles of faith, including the Sikh turban. The essay also explores the legal remedies available to …


The Alchemy Of Exile: Strengthening A Culture Of Human Rights In The Burundian Refugee Camps In Tanzania, Jennifer Moore Jan 2008

The Alchemy Of Exile: Strengthening A Culture Of Human Rights In The Burundian Refugee Camps In Tanzania, Jennifer Moore

Faculty Scholarship

This Article suggests that our analysis of U.S. immigration policy should also be informed by a broader consideration of the experiences of immigrants and refugees in other parts of the world, including those who will never come to the United States. As we examine the moral, legal, and pragmatic imperatives behind the evolution of U.S. immigration policy, we should bear in mind the historical, political, economic, and cultural realities facing developing countries that host refugees from within their own regions. For some observers, such a global perspective might support calls for greater receptivity to immigrants in the United States. For …


A Sports Seminar With A Free Agent Market Exercise, Alfred Dennis Mathewson Jan 2008

A Sports Seminar With A Free Agent Market Exercise, Alfred Dennis Mathewson

Faculty Scholarship

I have taught a seminar in sports law for approximately twenty years. The course has always included an exercise concerning the negotiation of a professional player contract. At one time, I used the baseball salary arbitration exercise that used to be included in previous editions of Ray Yasser's casebook. The negotiation exercise otherwise always has involved the representation of professional basketball players. I use basketball primarily because it is my favorite sport. I have been tempted to try baseball or football, but over time, familiarity with the exercise has created resistance to change.


Latinas/Os' And The Politics Of Knowledge Production: Latcrit Scholarship And Academic Activism As Social Justice Action, Margaret E. Montoya, Francisco Valdes Jan 2008

Latinas/Os' And The Politics Of Knowledge Production: Latcrit Scholarship And Academic Activism As Social Justice Action, Margaret E. Montoya, Francisco Valdes

Faculty Scholarship

In this article, Professors Montoya and Valdes examine various ways of developing Latina/o legal studies in the United States. As background, they first outline and examine the three main models of knowledge-production established within legal academia during the past century or so: 1) the traditional or imperial model; 2) the safe-space or vanguard model, and; 3) the big-tent or democratic model. Using this historical template to contextualize current efforts in Latina/o legal studies both substantively and methodologically, they next review the record of LatCrit theorists over the past dozen years. With this analytical framework in place, they situate the LatCrit …


Sales Gone Wild: Will The Ftc's Business Opportunity Rule Put An End To Pyramid Marketing Schemes?, Sergio Pareja Jan 2008

Sales Gone Wild: Will The Ftc's Business Opportunity Rule Put An End To Pyramid Marketing Schemes?, Sergio Pareja

Faculty Scholarship

This article analyzes the anticipated effect of the FTC's Business Opportunity Rule on pyramid marketing schemes. Pyramid marketing schemes consistently rank in the top ten lists of consumer complaints received by the FTC and state consumer protection divisions, victimizing 1.5 million Americans a year. One recent class action settlement demonstrated that the victims, who are often relatively poor and uneducated, had an average loss of approximately $8,000 each. The FTC has promulgated a new Business Opportunity Rule in an effort to end these abuses. Promotors of business opportunities will be required to comply with the new rule beginning on July …


Leading Change In Legal Education - Educating Lawyers And Best Practices: Good News For Diversity, Antoinette M. Sedillo Lopez Jan 2008

Leading Change In Legal Education - Educating Lawyers And Best Practices: Good News For Diversity, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.


Culturally Effective Legal Interviewing And Counseling For The Mexican Immigrant - A Case Study, Antoinette M. Sedillo Lopez Jan 2008

Culturally Effective Legal Interviewing And Counseling For The Mexican Immigrant - A Case Study, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.


The Public-Private Distinction In The Conflict Of Laws, William S. Dodge Jan 2008

The Public-Private Distinction In The Conflict Of Laws, William S. Dodge

Faculty Scholarship

No abstract provided.


Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr. Jan 2008

Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.


Addressing The Evidentiary Sources Of Wrongful Convictions: Categorical Exclusion Of Evidence In Capital Statutes, Rory K. Little Jan 2008

Addressing The Evidentiary Sources Of Wrongful Convictions: Categorical Exclusion Of Evidence In Capital Statutes, Rory K. Little

Faculty Scholarship

No abstract provided.


The Transformation Of International Comity, Joel R. Paul Jan 2008

The Transformation Of International Comity, Joel R. Paul

Faculty Scholarship

No abstract provided.


Why Plea-Bargaining Fails To Achieve Results In So Many Criminal Justice Systems: A New Framework For Assessment, Nuno Garoupa, Frank H. Stephen Jan 2008

Why Plea-Bargaining Fails To Achieve Results In So Many Criminal Justice Systems: A New Framework For Assessment, Nuno Garoupa, Frank H. Stephen

Faculty Scholarship

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. In addition to forming an important part of criminal procedure in the United Kingdom, plea-bargaining has been transplanted to several civil law countries such as France and Italy. Informal versions, based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands, and around the world. The Law and Economics literature on plea-bargaining views it as an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Yet the success of …


The Scope Of Criminal Law And Criminal Sanctions: An Economic View And Policy Implications, Roger Bowles, Michael Faure, Nuno Garoupa Jan 2008

The Scope Of Criminal Law And Criminal Sanctions: An Economic View And Policy Implications, Roger Bowles, Michael Faure, Nuno Garoupa

Faculty Scholarship

This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and--more broadly--why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of …


State Practice In The Management And Allocation Of Transboundary Ground Water Resources In North America, Gabriel Eckstein, Amy Hardberger Jan 2008

State Practice In The Management And Allocation Of Transboundary Ground Water Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Scholarship

Throughout the world, international and state political boundaries divide ground water resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be …