Digital Commons Network^™

Regulatory Takings And Original Intent: The Direct, Physical Takings Thesis Goes Too Far, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

What If There Is No Client?: Prosecutors As "Counselors" Of Crime Victims, Stacy Caplow

Faculty Scholarship

No abstract provided.

Facilitative Mediation Or Evaluative Mediation: May Your Choice Be A Wise One, Scott H. Hughes

Faculty Scholarship

Describing the distinctions and criticisms between facilitative mediation, that provides a setting for disputants to understand and make choices, and evaluative mediation, where the mediator provides guidance. Attorneys should fully understand mediation styles, and explore these options with their client.

Globalizing Intellectual Property: Linkage And The Challenge Of A Justice-Constituency, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Testing Modified Newtonian Dynamics With Low Surface Brightness Galaxies: Rotation Curve Fits, Stacy S. Mcgaugh

Faculty Scholarship

We present modified Newtonian dynamics (MOND) fits to 15 rotation curves of low surface brightness (LSB) galaxies. Good fits are readily found, although for a few galaxies minor adjustments to the inclination are needed. Reasonable values for the stellar mass-to-light ratios are found, as well as an approximately constant value for the total (gas and stars) mass-to-light ratio. We show that the LSB galaxies investigated here lie on the one, unique Tully-Fisher relation, as predicted by MOND. The scatter on the Tully-Fisher relation can be completely explained by the observed scatter in the total mass-to-light ratio. We address the question …

Panel Discussions From "Indian Nations On The Eve Of The 21st Century, John P. Lavelle, Frank Pommersheim, Larry Long, James Abourezk, Christopher Schneider

Faculty Scholarship

On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled "Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land Rights." Those panel discussions are reprinted here, with minor stylistic edits.

The first panel, dealing with water rights, included Mark Van Norman, Susan Williams, Robert Cournoyer, Tony Iron Shell, Professor John Davidson, and moderator Robert Gough.

The second panel, dealing with land rights, was …

Dynamic Treaty Interpretation, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Book Review: Land Grants And Lawsuits In Northern New Mexico By Malcolm Ebright (Unm Press, 1994), Christian G. Fritz

Faculty Scholarship

Malcolm Ebright's Land Grants and Lawsuits in Northern New Mexico contributes significantly to the history of private land grants in New Mexico. The book's central theme is that an injustice was perpetrated by the United States on Hispanic land grant claimants. Having first established the broader legal and historical context, Ebright explores the subject through the disputes over five land grants. He traces the history of the settlement of each selected land grant under the laws and customs of New Mexico prior to 1846 and then examines their adjudication by the United States.

Both Edges Of The Margin: Blacks And Asians In Mississippi Masala, Barriers To Coalition Building, Taunya Lovell Banks

Faculty Scholarship

Asians often take a middle position between White privilege and Black subordination and therefore participate in what Professor Banks calls "simultaneous racism," where one racially subordinated group subordinates another. She observes that the experience of Asian Indian immigrants in Mira Nair's film parallels a much earlier Chinese immigrant experience in Mississippi, indicating a pattern of how the dominant power uses law to enforce insularity among and thereby control different groups in a pluralistic society. However, Banks argues that the mere existence of such legal constraints does not excuse the behavior of White appeasement or group insularity among both Asians and …

An Historical Analysis Of The Binding Effect Of Class Suits, Geoffrey C. Hazard, John L. Gedid, Stephen Sowle

Faculty Scholarship

No abstract provided.

The Pre-Emption Presumption That Never Was: Pre-Emption Doctrine Swallows The Rule, Susan Raeker-Jordan

Faculty Scholarship

No abstract provided.

Linguistics And The Composition Of Legal Documents: Border Crossing, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

"Toward A Contractarian Account Of Family Governance", Marsha Garrison

Faculty Scholarship

No abstract provided.

Autonomy Or Community? An Evaluation Of Two Models Of Parental Obligation, Marsha Garrison

Faculty Scholarship

No abstract provided.

Slashing And Burning Prisoners Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Religious Rituals And Latcrit Theorizing, Margaret E. Montoya

Faculty Scholarship

After the first annual LatCrit conference held at La Jolla, California, Professor Keith Aoki observed that "issues of religion and spirituality are submerged not far below the surface of emerging Latina/o Critical Theory." He proposed that LatCrits begin to "unbracket" religious affiliation and identity in the construction and representation of individual and group racial identities. Professor Aoki further posited that "[i]n a paradoxical way, religion simultaneously may be both more and less difficult to voluntarily discard than race, language or nationality as a constitutive element of one's individual and group identity.

Some Observations On The Juvenile Commitment Cases: Reconceptualizing What The Child Has At Stake, James W. Ellis

Faculty Scholarship

These remarks will focus on the constitutional issues surrounding the treatment and habilitation of children with mental disabilities. I believe that we need to rethink the premises on which we construct our analysis of these problems, and it will surprise few in this audience that I conclude the Supreme Court of the United States did not get it precisely right.

Reflections On The Lsac National Longitudinal Bar Passage Study: Two Findings That Have Immediate Impact, Leo M. Romero

Faculty Scholarship

This brief article discusses two specific findings that may be easy to overlook in the volume of national bar passage data Linda Wightman has produced for LSAC.

Maintaining The Status Quo: Protecting Established Water Uses In The Pacific Northwest, Despite The Rules Of Prior Appropriation, Reed D. Benson

Faculty Scholarship

Water law in the Northwest states has long been based on the well-established rules of the Prior Appropriation Doctrine. In recent years, however, the four Northwest states often have not applied these rules against existing water users. State legislatures, courts, and water resource agencies have routinely changed the rules, or refused to implement them, if doing so might curtail current uses. This Article examines the ways in which the Northwest states have maintained the water use status quo despite the traditional rules. The Article then evaluates the economic and environmental implications of state efforts to protect existing water uses, and …

The Environmental Justice Misfit: Public Participation And The Paradigm Paradox, Eileen Gauna

Faculty Scholarship

This Article argues that current administrative processes fail to effectively incorporate an important form of public participation in decision-making -- the participation by communities bearing the greatest environmental risks. This Article advocates an "environmental justice style" public participation model as a more promising approach because it calls for a recasting of the role of community participation in environmental decision-making -- a recasting which transcends traditional, modern, and proposed decision-making paradigms.Part II of this Article provides a brief history of the environmental justice movement. Part III addresses the role of the public under three models of administrative policy and decision-making: the …

Excursions Of A Random Walk Related To The Strong Law Of Large Numbers, Max J. Minzner, Travis Lee, Evan Fisher

Faculty Scholarship

No abstract provided.

Civil Liability For Pure Economic Loss Under American Tort Law, Herbert Bernstein

Faculty Scholarship

No abstract provided.

The Justice Who Wouldn't Be Lutheran: Toward Borrowing The Wisdom Of Faith Traditions, Marie Failinger

Faculty Scholarship

Although many authors have debated the propriety of the use of religious arguments in public policy discussions and lawmaking, few have critically reviewed the jurisprudence of particular judges through the lens of their own faith-traditions. Preliminarily, this article attempts a modest contribution to the discussion about the use of religious argument in public discussions by suggesting that judicial opinions should be viewed rhetorically and that religious assumptions and claims may legitimately be "borrowed" analogically into such opinions, at least their forensic and epideictic elements. More concretely, it analyzes themes in some of Justice William Rehnquist's opinions to determine how consistent …

The Gentleman’S Agreement In Legal Theory And In Modern Practice: United States, Herbert Bernstein, Joachim Zekoll

Faculty Scholarship

No abstract provided.

The Plausibility Of Legally Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Decius S. Wade's The Common Law, Andrew P. Morriss

Faculty Scholarship

Decius S. Wade played important roles in Montana's legal history as Chief Justice of the Territorial Supreme Court (1871- 1887), member of the Code Commission (1890-1895), and prominent lawyer. Wade wrote The Common Law sometime in late 1894 or early 1895 for a February 1895 address to Helena bar members celebrating the 1895 passage of the Civil, Political, Penal, and Civil Procedure Codes by the Montana Legislature. Although I disagree with much of Wade's analysis, his manuscript deserves attention now for two reasons.

First, Wade played a critical role in the development of Montana's legal system and his views on …

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Faculty Scholarship

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Debating The Proper Role Of National Law Under The New York Convention, Thomas E. Carbonneau

Faculty Scholarship

One of the many consequences of the progressive development of globalization apparently has been to incite a vigorous debate among leading members of the international arbitral community about the role of national law in implementing the enforcement regime of the New York Arbitration Convention (Convention). The debate was provoked by federal court rulings in two recent cases: Chromalloy Aeroservices v. Arab Republic of Egypt (Chromalloy) and Alghanim & Sons v. Toys"R" Us (Toys "R" Us). Prior to these opinions, there appeared to have been an implicit consensus in the international community regarding the "anational"character of …

A Comment On The 1996 United Kingdom Arbitration Act, Thomas E. Carbonneau

Faculty Scholarship

The 1996 United Kingdom Arbitration Act is a remarkable piece of legislation. It is a highly accessible statutory framework both from a linguistic and organizational standpoint. The 1996 Act represents a substantial improvement over prior English arbitration statutes,including the 1979 Act. The new legislation is comprehensive, thorough, cogent and coherent. In its presentation and content, it easily rivals both longstanding and recentlegislative enactments on arbitration. It is built upon a wealth of knowledge and expertise of arbitration law and practice, and embodies a very contemporary and integrated concept of arbitration. This commentary endeavors to highlight and appraise the most significant …