Law Commons^™

Speaking Law To Power: Joan Fitzpatrick, 1950-2003 (Obituary), Jennifer Moore

Faculty Scholarship

Her scholarship embraced the rights of refugees and migrants, legal limits on the waging and methodology of war, due process before international tribunals, and essential restraints on the exercise of state power in self-proclaimed emergencies, including the war on terrorism.

Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes Doe II under a multi-tiered rubric. The first tier involves analyzing whether the Ninth Circuit was correct in its jurisdictional interpretation. The second tier studies the extent to which the Ninth Circuit's use of international law expanded previously accepted usage by United States courts. For example, after reading Doe II, a question arises as to whether the Ninth Circuit created a "complete" universal jurisdiction for torts under the ATCA. The final tier, involves analyzing foreseen legal consequences. That is, does Doe II expand causes of action for foreign human rights violations because the decision reduces possible defenses …

Understanding Conflict In A Postmodern World, Scott H. Hughes

Faculty Scholarship

This article looks at new theories about the nature and dynamics of human systems in conflict.

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.

Brief For American Association On Mental Retardation, The Arc Of The United States, The Judge David L. Bazelon Center For Mental Health Law, The Arc Of Georgia, And The Georgia Advocacy Office, Stripling V. Head, James W. Ellis, Carol M. Suzuki Ms., Norman C. Bay, Christian G. Fritz

Faculty Scholarship

Pursuant to Rule 37.2(b) of the Rules of this Court, The Arc of the United States, el al., move the Court for leave to file a Brief Amici Curiae in support of the petition in the above-entitled case. Counsel for Petitioner has granted his consent to the filing of this brief. Counsel for Respondent, however, has notified counsel for amici that Respondent does not consent.

Amici include national and state professional and voluntary associations concerned with criminA1 proceedings affecting people with mental disabilities. Amici thus have expertise concerning criminal defendants with mental disabilities and the impediments to fair judicial processes …

The Interior Department's Water 2025: Blueprint For Balance, Or Just Better Business As Usual?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation (USBR or the Bureau) observed its centennial in 2002, and celebrated 100 years of building dams and supplying water for irrigation and other purposes in the western United States. In 2003, the U.S. Department of the Interior (the Interior) and the Bureau shifted their focus to the future of the West and its water supply needs, producing a document called Water 2025: Preventing Crises and Conflict in the West.

Environmental Justice: Stakes, Stakeholders, Strategies, Eileen Gauna, Shiela Foster

Faculty Scholarship

A quick review of the beginning prominence of and continued work for environmental justice.

Improving New Mexico's Water Management, Denise D. Fort, Tom Mcguckin

Faculty Scholarship

This paper reviews several measures that New Mexico should pursue to improve its management of water. The crisis in New Mexico’s water affects all of the citizens of the state, but hasty responses may promise more than they can deliver. In this paper we present several measures that will allow better use of the resources that the state has, and rectify imbalances in how water has been managed in the state.

The Customary International Law Of War And Combatant Status: Does The Current Executive Branch Policy Determination On Unlawful Combatant Status For Terrorists Run Afoul Of International Law, Or Is It Just Poor Public Relations?, Joshua E. Kastenberg

Faculty Scholarship

This paper reviews the domestic and international law basis for the executive authority to determine combatant status, and analyzes the legality of contemporary practice. It also accepts, as a definition for unlawful combatants: "persons violating the traditional laws and customs of war." Unlawful combatants do not meet the traditional captured combatant (prisoner of war) protections embodied in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter Geneva Convention I). Part I of this paper examines the historic views of combatant status among sovereigns. It also addresses the evolutionary purpose of the law of armed conflict in …

The Right To Assistance Of Counsel In Military And War Crimes Tribunals: An International And Domestic Law Analysis, Joshua E. Kastenberg

Faculty Scholarship

This article serves two purposes. The first is to explore, and if possible, determine, what "international standards" exist regarding minimum levels of defense representation in international and war crimes tribunals. Military commissions are included in this latter category. The second purpose is to determine whether, in the current United States military commission scheme, defense counsel are expected to provide "adequate representation" within the requirements of both domestic and international law. Part I of this article explores the evolution of legal rights accorded to enemy combatants under both treaty and customary international law. Part II of this article addresses the meaning …

Dead To Rights: A Father's Struggle To Secure Mental Health Services For His Son. Georgetown Journal On Poverty Law And Policy, April Land

Faculty Scholarship

This Article analyzes the gap between children's statutory rights and their actual access to services within the educational, medical and juvenile justice systems. This Article lays out the strong statutory rights and protections in the areas of special education and contrasts them with actual experience in trying to secure appropriate education, Medicaid and the juvenile justice system. The Article concludes that the agencies responsible for administering federal law must not be permitted to continue to avoid compliance with clear statutory mandates. They are failing to meet their legal responsibilities by asserting that services should be provided by other agencies, rather …

Zuni Indian Tribe Water Rights Settlement Act Of 2003, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: Zuni Indian Tribe Water Rights Settlement Act of 2003, PL 108-34, 117 Stat. 782 (June 23, 2003). Parties: Zuni Tribe, US, AZ. The Act ratifies the Settlement Agreement concerning Zuni Indian Tribe water rights in the Little CO River basin, AZ. It authorizes appropriations for acquisition of water rights and associated lands and, for fiscal years 2004 through 2006; and for actions necessary to restore, rehabilitate, and maintain the Zuni Heaven Reservation, including the Sacred Lake, wetlands, and riparian areas. The US shall take legal title of specified lands in the Gila and Salt River Base and Meridian …

Indigenous Pueblo Culture And Tradition In The Justice System: Maintaining Indigenous Language, Thought And Law In Judicial Review, Christine Zuni Cruz

Faculty Scholarship

In this paper Christine Zuni Cruz considers several issues that have emerged from her personal experience working as an Associate Justice on the Pueblo Appellate Court in the United States. These concerns relate to maintaining the culture of the Pueblo within an acknowledged western, and specifically Anglo-American, framework of justice. The key elements discussed include language, process and knowledge. This paper provides a North American perspective on the interface between Indigenous law and western legal frameworks. It therefore has resonance in the contemporary Australian landscape, where efforts to secure Indigenous rights and interests in land encounter difficulties both in regards …

Tohono O'Odham Settlement, Tonhono O'Odham Nation Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Tohono O'odham Settlement (Apr. 30, 2003). Parties: Tohono O'odham Nation, AZ, US, Tucson, Asarco Inc., Farmers Investment Co., two allottee classes. The Settlement Agreement has been revised to eliminate any conflicts with PL 108-451. The parties are a part of the Gila River adjudication. The Nation has a water right of 79,200 acre-feet per year, sourced in ground and surface water. This water may be put to any use. The Nation may use the water off-reservation according to the attached contracts or pursuant to state law, but the uses must remain within the state. Provisions are made for …

Estate Tax Repeal Under Egtrra: A Proposal For Simplification, Sergio Pareja

Faculty Scholarship

This Article generally discusses the Economic Growth and Tax Relief Reconciliation Act of 2001 and proposes a relatively simple change that would simplify and reduce the costs of estate planning. Specifically, the Article proposes that the first spouse's unused basis step-up should be transferred to the surviving spouse automatically at the death of the first spouse

Are County Officials Liable For Forcibly Executing A Search Warrant Against A Sovereign Indian Tribe, John P. Lavelle

Faculty Scholarship

No abstract provided.

Current Issues In Native American Law, Gloria Valencia-Weber, Taiawagi Helton, Paul Frye, Samuel Winder, John Echohawk

Faculty Scholarship

Report of the Proceedings of the Judicial Conference of the United States Court of Appeals for the Tenth Circuit.

Transcribed conference panel session: Gloria Valencia-Weber focuses her segment on important language on Indian sovereignty in the Nevada v. Hicks case.

Un/Braiding Stories About Law, Sexuality And Morality, Margaret E. Montoya

Faculty Scholarship

Traditional doctrine insists that we tame sexual desire by pretending that goodness and Godliness is defined by celibacy and abstinence, but the Church is simply wrong to insist that we accept a theology that negates and silences and suppresses a central part of our lives. To the extent that we believe in a life after death, many of us have won a chance at Heaven not by denying and suppressing our sexuality but by struggling to develop our capacity to experience joy through sexual desire and to honor the responsibility of not generating misery for ourselves and others through that …

Problem Solving In A Multidisciplinary Environment: Must Ethics Get In The Way Of Holistic Service, J. Michael Norwood

Faculty Scholarship

Authored with Alan Paterson. The article analyzes the strengths and weaknesses of delivering legal services as a part of a multidisciplinary practice (MDP). The analysis considers multidisciplinary practices from the perspectives of clients served, lawyers, the legal profession, and the general public, but emphasizes the quality of the relationships amongst the legal and nonlegal professionals involved in the MDP. While sounding a cautionary note about the need to preserve core ethical and professional values when implementing a MDP, the article seeks a balance among the common, and sometimes competing interests, of the public, the legal profession, and society whereby it …

The Supreme Court's Indian Law Decisions: Deviations From Constitutional Principles And The Crafting Of Judicial Smallpox Blankets, Gloria Valencia-Weber

Faculty Scholarship

The first section discusses sovereignty and the sources for foundational principles that pertain to the relationships among tribes, the states, and the federal government. The sources are the documented discourse and covenants of the constitutional evolution, the Articles of Confederation and Perpetual Union (Articles), and the Constitution of 1787 as they developed state jurisdiction related to Indian matters. Second, the paper discusses the colonial period and reality versus the fictions or myths of discovery and conquest. Third, the paper covers the conflict and unity in the pre-Revolutionary period. Fourth, the paper considers the Articles as the first U.S. model to …

Superfund Vs. Mega-Sites: The Coeur D'Alene River Basin Story, Clifford J. Villa

Faculty Scholarship

Stretching across the "panhandle" of northern Idaho, the Coeur d'Alene River Basin evokes a mixed sense of wonder. Within this vast region of mountains and marshes, forests and farmland, creeks and canyons, a vibrant mining industry emerged more than a century ago. Along with the mining industry came the mining towns-and the mining pollution. Over time, the volume of mining wastes discharged into waters of the Coeur d'Alene Basin reached Brobdingnagian proportions: enough waste to fill a football field with a pile four miles high.

Mental Retardation And The Death Penalty: A Guide To State Legislative Issues, James W. Ellis

Faculty Scholarship

The interest in State Legislatures in the topic of mental retardation and the death penalty has obviously heightened with the U.S. Supreme Court's decision in Atkins v. Virginia.' The purpose of this document is to provide legislators and advocates with guidance in implementing the Atkins decision, so that each State's death penalty legislation is in full compliance with constitutional requirements.

The Jurisprudence Of The Military Industrial Complex, Laura Spitz, Ann Scales

Faculty Scholarship

What is the jurisprudence of the military-industrial complex? The military-industrial complex has arrived at a comfy situation where it is either exempt from the rule of law, or else gets to make every decision that informs what the rule of law would require in a given situation. Professor Sptiz talks about the connections among business interests and military interests, focusing on the business or industrial aspects of the military-industrial complex.