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Articles 1 - 19 of 19
Full-Text Articles in Law
Collective Security With A Human Face: An International Legal Framework For Coordinated Action To Alleviate Violence And Poverty, Jennifer Moore
Collective Security With A Human Face: An International Legal Framework For Coordinated Action To Alleviate Violence And Poverty, Jennifer Moore
Faculty Scholarship
Part I of this article will explore some of the diverse theoretical and cultural roots of the human security concept set forth in the U.N. Charter, as well as the limited historical impact of the human security concept in global affairs since the United Nation's birth. Part II confronts the negative impact of the "War against Terrorism" on the war against poverty by linking recent developments in Iraq and the Great Lakes Region of Africa. Finally, Part III analyzes the international law arguments supporting a legal obligation to promote human security in the U.N. Charter, various human fights instruments, and …
Hipaa Privacy And Security: Issues For Employer-Sponsored Health Plans, Mary Leto Pareja
Hipaa Privacy And Security: Issues For Employer-Sponsored Health Plans, Mary Leto Pareja
Faculty Scholarship
This article discusses issues about privacy standards and provides an overview of security issues related to the Health Insurance Portability and Accountability Act ("HIPAA"). Some of the privacy issues include who must comply, what information is protected, and permissible disclosure of protected information. The overview of security issues covers administrative, physical, and technical safeguards, as well as organizational requirements. Any practitioner who works with employers that sponsor a health plan for their employees should be aware of these issues, as this is a new area of potential risk for those clients.
Fallacies Of American Constitutionalism, Christian G. Fritz
Fallacies Of American Constitutionalism, Christian G. Fritz
Faculty Scholarship
Fallacies of American Constitutionalism' examines the pervasive assumptions in the scholarship of historians, lawyers, and political scientists that impute the central role of the federal Constitution to how Americans understood written constitutions after their Revolution. American struggles to come to grips with the meaning of the sovereignty of the people before and after 1787 reveals very different views about the people as the sovereign from those reflected in the federal Constitution and dispel the notion that our prevailing constitutional view is an unbroken chain stretching back to 1787.
Analyzing The Constitutional Tensions And Applicability Of Military Rule Of Evidence 505 In Courts-Martial Over United States Service Members: Secrecy In The Shadow Of Lone Tree, Joshua E. Kastenberg
Analyzing The Constitutional Tensions And Applicability Of Military Rule Of Evidence 505 In Courts-Martial Over United States Service Members: Secrecy In The Shadow Of Lone Tree, Joshua E. Kastenberg
Faculty Scholarship
This article analyzes MRE 505 in both a comparative and Constitutional context. Part I provides a procedural overview of both MIRE 505, and its federal counterpart, CIPA, for protecting evidence vital to national security in the criminal court context. Both mechanisms for protecting sensitive information are analyzed for their efficiency from a prosecutorial perspective. Part II analyzes the defendant's twin Constitutionally-based rights to present a complete defense and to a public trial. MRE 505, impacts to some degree, these twin rights. Part III then reviews the legal framework of MRE 505 within the salient Lonetree case. Within the context of …
Universal Jurisdiction And The Concept Of A Fair Trial Prosecutor V. Fulgence Niyonteze: A Swiss Military Tribunal Case Study, Joshua E. Kastenberg
Universal Jurisdiction And The Concept Of A Fair Trial Prosecutor V. Fulgence Niyonteze: A Swiss Military Tribunal Case Study, Joshua E. Kastenberg
Faculty Scholarship
It is the overall goal of this article to assess and evaluate concepts of universal jurisdiction and the interrelated right to a fair trial within the capsule of Prosecutor v. Niyonteze. This article analyzes the Niyonteze trial both within a framework of comparative law and against contemporary international law theories of universal jurisdiction and fair trial standards. In this article the term "due process" is subsumed into the larger concept of a fair trial. Likewise, a specific theory of universal jurisdiction is adopted. While universal jurisdiction and the right to a fair trial are often seen as exclusive areas, this …
The Use Of Conventional International Law In Combating Terrorism: A Maginot Line For Modern Civilization Employing The Principles Of Anticipatory Self-Defense & Preemption, Joshua E. Kastenberg
The Use Of Conventional International Law In Combating Terrorism: A Maginot Line For Modern Civilization Employing The Principles Of Anticipatory Self-Defense & Preemption, Joshua E. Kastenberg
Faculty Scholarship
This article analyzes the existing concepts of the right of self-defense and preemption under international law. Part I quickly reviews both the evolution of warfare and the state of religious-based terrorism. The former presents a useful starting point for understanding customary international law and its subset, generally referred to as "the laws and customs of war. Customary international law provides context to the application and shortcomings of contemporary codified international law, and, therefore, serves an important heuristic function in understanding the international legal limits on combating this increasingly frequent form of terrorism. In the end, this article concludes that both …
The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn
The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn
Faculty Scholarship
The National Indian Gaming Commission's management contract review process is complicated, time-consuming and governed by detailed regulations. This article explains how the process actually works within the Commission and addresses some of the common issues that arise.
Who Gets In? The Quest For Diversity After Grutter, Margaret E. Montoya, Athena Mutua, Sheldon Zedeck, Frank H. Wu, Charles E. Daye, David L. Chambers
Who Gets In? The Quest For Diversity After Grutter, Margaret E. Montoya, Athena Mutua, Sheldon Zedeck, Frank H. Wu, Charles E. Daye, David L. Chambers
Faculty Scholarship
Transcript of The 2004 James McCormick Mitchell Lecture. On March 8, 2004, the University at Buffalo Law School hosted its annual Mitchell Lecture,1 a panel discussion entitled, "Who Gets In? The Quest for Diversity After Grutter." The Mitchell Committee decided to focus this year's lecture on innovative proposals to ensure diversity in law school admissions in light of the Supreme Court's ruling in Grutter v. Bollinger, which confirmed that race and ethnicity could be taken into consideration in admission decisions for diversity purposes. Noting that much of the debate about Grutter thus far has emphasized the decision's constitutionality or its …
Where Is Health Law Going?: Follow The Money, Robert L. Schwartz
Where Is Health Law Going?: Follow The Money, Robert L. Schwartz
Faculty Scholarship
Where has health law come from? Where will it be going? To follow the development of this discipline, follow the money. Where substantial financial interests entered the health care enterprise, lawyers have been sure to follow--or, sometimes, to lead. Where we can predict there will be concentrations of money, we can predict there will be concentrations of lawyers, and, not too far behind, legal academics. The very birth of "health law" (or, at least, its transformation out of "medical law") was a consequence of a newly developing medical economy. Since the term "Health Law" was first used as a casebook …
Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber
Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber
Faculty Scholarship
Santa Clara Pueblo v. Martinez nakedly presents a conflict between the individual rights norm of equality and the communal or collective political right of the first sovereigns within U.S. borders. The conflict underlies the discourse in law scholarship and reflects disparate cultural visions between mainstream society and American Indians. In Indian law the decision has saliency with positive and negative force injected into different arenas besides equal protection, gender, and membership qualifications. It is a major fortification for the federally recognized tribal sovereigns to exclude external law and forums, the federal law and courts, in how tribes exercise self-government. The …
Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber
Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber
Faculty Scholarship
First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates …
Clear The Air: The Road Taken: A Reflection On Michael C. Blumm & William Warnock's Roads Not Taken: Epa Vs. Clean Water, Clifford J. Villa
Clear The Air: The Road Taken: A Reflection On Michael C. Blumm & William Warnock's Roads Not Taken: Epa Vs. Clean Water, Clifford J. Villa
Faculty Scholarship
EPA vs. Clean Water presents case studies of the ostensible failure of the United States Environmental Protection Agency (EPA) to implement the Clean Water Act in three principal areas: water quality impacts from dam operations, state water quality certification for nonpoint source discharges, and antidegradation requirements for nonpoint sources.
Mediator Immunity: The Misguided And Inequitable Shifting Of Risk, Scott H. Hughes
Mediator Immunity: The Misguided And Inequitable Shifting Of Risk, Scott H. Hughes
Faculty Scholarship
Although the history of judicial immunity is somewhat troublesome and disconcerting, it is a model of clarity and consistency when compared to the recent developments in mediator immunity. In order for the courts to justify mediator immunity in Wagshal v. Foster and Howard v. Drapkin, it was necessary to either misconstrue the fundamental differences between judges and mediators or ignore the standard tests applied to judicial immunity and jump to a needs-based argument that is clearly self-interested and poorly informed. With regards to statutes and rules, those that promulgate immunity have ignored the substantial problems that will eventually arise from …
A Legacy Of Public Law 280: Comparing And Contrasting Minnesota's New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin Washburn, Chloe Thompson
A Legacy Of Public Law 280: Comparing And Contrasting Minnesota's New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin Washburn, Chloe Thompson
Faculty Scholarship
This article will evaluate the Minnesota Rule by comparing and contrasting its development, as well as its substantive content, with the new Arizona Rules. Part II of this article will describe the Minnesota Rule and compare it to the Arizona Rules that shortly preceded it. Part III will describe the rulemaking processes that produced the Minnesota and Arizona Rules and seek to provide insight into how Minnesota reached such a markedly different result than Arizona. Part III will also mine the insights from these processes and from other sources to offer some explanation as to why the Arizona Supreme Court …
Federal Law, State Policy, And Indian Gaming, Kevin Washburn
Federal Law, State Policy, And Indian Gaming, Kevin Washburn
Faculty Scholarship
This Article will set forth the legal authorization and the economic success of Indian gaming by asking and answering two rhetorical questions: "What makes Indian gaming lawful?" and "What makes Indian gaming successful?" This Article will conclude with the observation that Indian gaming exists almost entirely at the mercy of state governments. It will argue that, while Indian gaming began as a cross-border issue, it no longer has those features. Indeed, it has been transformed into the very antithesis of a cross-border issue, a political issue that is addressed almost entirely in the sphere of state political processes. The issue …
Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn
Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn
Faculty Scholarship
United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court …
Tribal Courts And Federal Sentencing, Kevin Washburn
Tribal Courts And Federal Sentencing, Kevin Washburn
Faculty Scholarship
In light of the overwhelming acceptance of the norm of tribal self-governance in federal Indian policy, the Commission's decision not to credit the legitimate work of tribal courts in adjudicating misdemeanor sentences is surprising. This article critically evaluates this peculiar and unexplained policy. Part I describes the current federal policy toward tribal governments with particular emphasis on tribal courts and explains the role of tribal courts in the unique federal criminal justice regime that governs Indian country. Part II describes the Federal Sentencing Guidelines with particular attention to the provisions on criminal history. Part II also evaluates the Commission's current …
Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle
Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle
Faculty Scholarship
Does the Suquamish Indian Tribe possess inherent sovereign power to exercise criminal jurisdiction over non-Indians alleged to have committed misdemeanor crimes within the boundaries of the tribe's own reservation in violation of the Suquamish Law and Order Code?
At The Intersection Of North American Free Trade And Same-Sex Marriage, Laura Spitz
At The Intersection Of North American Free Trade And Same-Sex Marriage, Laura Spitz
Faculty Scholarship
Using same-sex marriage as a presently salient site of cultural struggle, this article asks whether the U.S. can expect economic integration with Canada-on the scale envisioned by the North American Free Trade Agreement (NAFTA)-without feeling the influence of Canadian culture. The author comes at this question from the United States side because, while much has been written from Canadian points of view as to whether it is possible to protect and maintain national differences in the face of economic integration with the United States, very little has been written about whether economic globalization in North America could mean that Canadian …