Law Commons^™

The Birth Of The Greenback, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Brief For The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law As Amicus Curiae, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer

Faculty Scholarship

Question Presented: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia, 536 U.S. 304 (2002). Summary of Argument: In Atkins, this Court concluded that a national consensus had developed against the execution of persons with mental retardation and that such executions violated the Eighth Amendment. The Court also stated that the national consensus suggests that some characteristics of mental retardation, such as disabilities in the areas of reasoning, judgment, and control of impulses, undermine the procedural protections of our capital punishment jurisprudence and can jeopardize the reliability and fairness of capital proceedings against …

A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone

Faculty Scholarship

This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in …

Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn

Faculty Scholarship

No abstract provided.

Guantanamo Military Commissions: Reflections From A Legal Observer (Part I, Ii & Iii), Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Legal Education For All (Or More Than Just Lawyers), Carol A. Parker

Faculty Scholarship

Virtually every sector of today's economy would benefit from employing workers with more than superficial knowledge of the law. Fields potentially ripe for the concept include health-care policy, artificial intelligence, cybersecurity, public affairs, banking, and environmental sciences, to name just a few. An interdisciplinary approach would provide graduates of these new programs with greater access to the job markets of interdisciplinary partners—something that traditional joint degrees based on combining the J.D. program with master's degrees from other disciplines rarely do.

Legal Education For All (Or More Than Just Lawyers), Carol A. Parker

Faculty Scholarship

While the need to acquire a working understanding of our laws and regulations seems only to grow, access to legal information is still largely kept at a premium by legal educators, who provide it almost exclusively through the juris doctor degree.

Only a small percentage of American law schools offer master's-level legal-studies degrees, which are typically equivalent to taking two semesters' worth of law-school courses. These non-J.D. graduate degrees are aimed at students seeking knowledge about law, but combining such programs with subject matter drawn from other disciplines to create discrete programs remains rare.

Punitive Military Strikes On Syria Risk An Inhumane Intervention, Jennifer Moore

Faculty Scholarship

The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population.

Brief For Professors At Unm School Of Law, Griego V. Oliver, New Mexico Supreme Court No. 34,306, George Bach, Max Minzner

Faculty Scholarship

Brief on same-sex marriage .

New Mexico's history reflects a deep commitment to equal treatment under the law and the protection of individual liberty. The framers of the New Mexico Constitution created substantial and unique provisions relating to minority rights and individual autonomy that are broader in scope than the corresponding federal law. These include an Equal Protection Clause interpreted more expansively than the Fourteenth Amendment and an Inherent Rights Clause with no federal counterpart. Our state courts have consistently exercised independence and pragmatism in applying these rights guaranteed by the New Mexico Constitution.

A prohibition on marriage for same-sex …

Evaluating High School Students’ Constitutional And Civic Literacy: A Case Study Of The Washington, Dc Chapter Of The Marshall-Brennan Constitutional Literacy Project, Maryam Ahranjani, Jeffrey J. Shook, Caleb Medearis

Faculty Scholarship

The United States maintains a reputation as a vibrant, participatory democracy. Yet, paradoxically, formal civics education has essentially disappeared from America’s public high schools, particularly urban public schools serving low-income and minority students. The Marshall-Brennan Constitutional Literacy Project, which is offered at almost zero cost to public schools and districts, developed as a response to the need for civics education in high schools and as a way to train future lawyers in public speaking, leadership, and counseling. In an effort to support the growth of the Marshall-Brennan Project all over the country, the authors of this piece came together to …

Do Warrants Matter?, Max J. Minzner, Christopher M. Anderson

Faculty Scholarship

We examine traditional criminal wiretaps to determine whether the 4th Amendment's warrant requirement limits law enforcement. We develop a formal model relating law enforcement's decision to pursue a wiretap to its exogenous cost, probability of yielding evidence, and the expected value of that evidence. We use the model to analyze success rates of all traditional federal wiretaps initiated 1997-2004. We find budget constraints cause law enforcement to pursue only taps that are particularly likely to succeed. Thus, eliminating the warrant requirement for traditional wiretaps would matter little, and the significance of a warrant requirement for new investigative programs, such as …

Get Rid Of Tenure For Law Schools, Dawinder S. Sidhu

Faculty Scholarship

Professors with tenure have job security but no incentive to go above and beyond as a teacher.

Just Who Are Humanitarian Workers?, Jennifer Moore

Faculty Scholarship

On the 19th of August, World Humanitarian Day, we honor the contributions of humanitarian workers around the world, especially those who have lost their lives helping people in war-torn societies.

Mascaras Y Trenzas: Reflexiones. Un Proyecto De Identidad Y Analysis A Traves De Veinte Anos (Masks And Braids: Reflections, A Project On Identity And Analysis Over Twenty Years), Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory and LatCrit methodologies, vocabulary, categories, and pedagogical approaches. In this Section, titled 'On Mascaras,' I am grappling with race (and gender secondarily) in public space -- un/masking my professional persona. In using the word 'wrestle' in the subheading I am referring to this struggle over a re-allocation of the social power that inheres in racial hierarchies, namely, the back-and-forth exchanges involved in changing the racial ambiance by exposing and transforming the presumptions, especially regarding notions of inferiority, that cabin our thinking and restrain our relationships. My original paper was something of an outburst, challenging …

Nearing Thirty Years: The Burger Court, Strickland V. Washington, And The Parameters Of The Right To Counsel, Joshua E. Kastenberg

Faculty Scholarship

In Strickland v. Washington, the Court issued a standard for determining when defense counsel's ineffective performance, through no direct fault of the prosecution, law enforcement, public, or judiciary, undermined the fairness of a trial such that a conviction or sentence had to be rendered as a violation of due process. The article's conclusion presents a model for applying the legal history underlying Strickland to ineffective assistance cases.

Recent Proposals To Change The Traditional Military Retirement System To Mirror The Federal Service Retirement: Eroding Discipline And Civil-Military Relations Through Potentially Unlawful And Certainly Questionable Acts, Joshua E. Kastenberg

Faculty Scholarship

This Article explores the potential immediate and secondary effects of retirement reform on military discipline. Part I of this Article presents the most recent proposal, articulated in 2011 by the Defense Business Board ("DBB"), and analyzes its inherent shortcomings. Part II provides an interlocking broad view analysis as to why the conversion of retirements in a 401(k) model could prove disastrous to discipline. This interlocking analysis addresses: (1) the potential for erosion of the civil-military relationship, (2) the relationship between the Takings Clause12 of the Fifth Amendment and military retirements, (3) the principle of detrimental reliance, and (4) the inapplicability …

Lessons On Terrorism And "Mistaken Identity" From Oak Creek, With A Coda On The Boston Marathon Bombings, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Black Kinship Circles In The 21st Century: Survey Of Recent Child Welfare Reforms And How It Impacts Black Kinship Care Families, Sonia M. Gipson Rankin

Faculty Scholarship

The Black American community has been celebrated for the historical success of kinship care. With an eye on the long legal history of attempts to address kinship care families, the federal government created an exploratory program to concentrate on solving the three goals of child welfare. Title IV-E Flexible Waiver program of the Social Security Act implemented in 2005 was designed to address the permanency, wellbeing, and safety of children with the goal of decreasing the number of children in out-of-home care.

• This paper argues Title IV-E Flexible Waivers should be used to address the continued health and economic needs …

Threats Demand Our Action, Margaret E. Montoya

Faculty Scholarship

Those of us who identify as progressive see this as a time when speaking up and engaging on public policy is our duty. I am writing to express my deep concern and dismay about the state of the federal government under Donald Trump. Like others, I have marched, donated, and joined Wednesday’s International Women’s Day protests against the administration of Donald Trump.

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Faculty Scholarship

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

The Perils And Promise Of Teaching Margaret Montoya’S Máscaras Article In The First Year Law School Curriculum, Christian G. Fritz

Faculty Scholarship

Placing Máscaras squarely in the context of challenging students to engage in a critical analysis of law and their legal education, as well as frankly acknowledging how hard it is to talk about race honestly, would seem to be a good prescription for encouraging such discussions. The article has a relevance that goes far beyond the literature of Critical Race Theory. In the end, Máscaras has remarkable potential as a catalyst for discussing important questions about the nature of law in America.

A Critical Look At The ‘Critical Mass' Argument, Dawinder S. Sidhu

Faculty Scholarship

The Supreme Court's pending ruling in Fisher v. University of Texas at Austin is expected to largely decide how or even whether affirmative action can be used in college admissions. The university's argument for why minority enrollments need to reach a certain threshold, however, is problematic because it is inconsistent with previous court rulings involving race.

Fracking Surrounded By Misinformation, Alex Ritchie

Faculty Scholarship

No abstract provided.

The Meaning And Viability Of The Thirteenth Amendment, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Executive Summary On Reciprocity, Alexandra Siek, Barbara Lah, Daniel Marquez, Patrick Redmond

Faculty Scholarship

Law students Daniel Marquez and Patrick Redmond. under the supervision of University of New Mexico Law Librarians Barbara Lah and Alexandra Siek, researched the issue of reciprocity and bar membership. This is a short summary of the memorandum discussing the findings of that research. Collectively the memos discuss the following issues raised by reciprocity: l) the various forms of reciprocal licensing schemes: 2) the impact that reciprocal licensing has had on bar membership 3) a comparison of reciprocal licensing to admission pro hac vice; 4) legal issues such as constitutional concerns raised by the adoption or rejection of reciprocity; and …

Scattered And Dissonant: The Clean Air Act, Greenhouse Gases, And Implications For The Oil And Gas Industry, Alex Ritchie

Faculty Scholarship

In the midst of a domestic oil and gas production revolution, the Environmental Protection Agency (EPA) has constructed a web of findings and regulations to control greenhouse gas (GHG) emissions from stationary sources under the auspices of the Clean Air Act. This Article explores the theoretical and practical implications for the oil and gas industry of EPA’s Clean Air Act GHG regulatory regime that, in light of congressional paralysis, will continue to expand beyond major new and modified oil and gas facilities such as refineries and natural gas processing plants. Future rulemakings directly aimed at the oil and gas industry …

All The Missing Souls: A Personal History Of The War Crimes Tribunals By David Sheffer, Jennifer Laws

Faculty Scholarship

David Scheffer’s memoir records his firsthand experiences as the primary U.S. representative in the processes of building five war crimes tribunals between 1993 and 2006: the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Court of Cambodia, and the International Criminal Court. This review analyzes the strengths and weaknesses of his work and makes recommendations to libraries regarding selection for their collections.

La Verdad, El Poder, Y La Liberacion, Christine Zuni Cruz

Faculty Scholarship

A Reflection on Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 HARV. WOMENS L. J. 185 (1994), 15 CHICANO-LATINO L. REV. 1 (1994)' Professor Margaret Montoyas Mascaras, Trenzas y Grenas: Un/Masking The Self While Unbraiding Latina Stories and Legal Discourse1 was published during the first year of my entry into the legal academy as a visiting professor. This reflection on her influential article addresses three of the major themes that resonate most strongly for me. The first is the assimilative pull of the legal academic institution, the second is the power …

Avoiding Jeopardy, Without The Questions: Recovery Implementation Plans For Endangered Species In Western River Basins, Reed D. Benson

Faculty Scholarship

This article addresses Recovery Implementation Programs (RIPs) for endangered species in the context of four western river basins where the U.S. Bureau of Reclamation (USBR) is a key water supplier and manager. Rather than focus in detail on any particular program, this article addresses these RIPs as a group, representing an alternative approach to Endangered Species Act (ESA) compliance that has taken root in the western water context. Part I of this article provides context, outlining federal and state roles regarding water resources in the West. Part II explains the requirements of the ESA, focusing on federal agency obligations under …

Las Voces De America: Reflecting On Mari Matsuda's Voice, Stories, And Analysis, Margaret E. Montoya

Faculty Scholarship

Professor Matsuda's exhortation to listen to people of color was certainly heard and seized by people of color. It spoke to me personally and inspired me as I was writing my first article, Mascaras, Trenzas y Grerias. Once the multiracial group of scholars that took the name "LatCrit" organized ourselves, we deliberately and intentionally centered our annual conferences around listening to the voices at the bottom, including the local activists in the cities in which we met. We listened to such voices as both method and substance.