Law Commons^™

Testimony On H.R. 1924, The Tribal Law And Order Act Of 2009 Before The Subcommittee On Crime, Terrorism And Homeland Security United States House Of Representatives, 111th Congress, 1st Session (December 10, 2009), Barbara L. Creel

Faculty Scholarship

Professor Creel testifies that incarceration alone cannot address the problem of crime in Indian Country and advocates for additional funding and greater access to effective substance abuse treatment programs, education and job training, and culturally-based re-entry programs. Creel's testimony also emphasizes that Native American defendants in tribal court should be afforded the right to counsel, including the right of court appointed counsel, and due process of law. Tribal Law and Order Act 2009: Hearing on H.R. 1924 Before the Subcomm. on Crime, Terrorism and Homeland Security, 111th Cong. (2009) (statement of Barbara Creel, Assistant Professor of Law, University of New …

A Bright Idea From The Black Canyon: Federal Judicial Review Of Reserved Water Right Settlements, Reed D. Benson

Faculty Scholarship

Under the reserved water rights doctrine, lands the federal government has designated for a particular purpose have rights to sufficient water to fulfill that purpose. Reserved water rights are also known as Winters rights after the doctrine's foundational case, in which the United States Supreme Court held that Congress must have intended to reserve sufficient water to irrigate an Indian reservation although the treaty establishing that reservation said nothing about water.

Another Interdisciplinary Collaboration—This Time With A Professor Of German!, Antoinette M. Sedillo Lopez

Faculty Scholarship

The University of New Mexico International Studies Institute has a relationship with the German government in which the Institute runs a summer program at a castle near Dusseldorf known as Schloss-Dyck. In summer 2010, I am going to have the privilege of teaching in the program with a Jason Wilby, a UNM visiting Professor of German. We put a joint proposal together. He will teach about the culture, political environment and constitutional framework right after the Weimar Republic was created as a result of WWI. I will teach about the Nuremberg trials, with a particular focus on the trial of …

What's Race Got To Do With It? Press Coverage Of The Latino Electorate In The 2008 Presidential Primary Season, Laura Gomez

Faculty Scholarship

This article presents a critical analysis of press coverage of Latinos and the presidential election during the Democratic Primary, from January through June 2008. The foundation of this article is a content analysis of 408 articles published in four newspapers about Latinos and the presidential election during the primary season. The four newspapers -- The Los Angeles Times, The New York Times, The Chicago Tribune and The Dallas Morning News -- were selected because they are well respected as newspapers of record and because they represent diverse regions of the country (two from the northeast, two from the southwest). Each …

Changing The Paradigm Of Internet Access From Government Information Systems: A Solution To The Need For The Dod To Take Time-Sensitive Action On The Niprnet, Joshua E. Kastenberg

Faculty Scholarship

The DOD is currently lacking sufficient regulatory authority to ensure the availability of access to conduct operations through cyberspace, because the conduct of its members is predicated on a number of false assumptions which are written into outdated or otherwise poorly designed current regulations. This article addresses those assumptions and existing regulations and argues for new guidance to alter the current paradigm of almost unfettered access. This article is divided into three sections. Section I touches on the nature of DOD cyberspace and the potential harms that result from current social behaviors of the department's personnel. Section II analyzes shortcomings …

Teaching Transactional Skills In A Clinic, Serge A. Martinez, Robert Statchen

Faculty Scholarship

Transactional matters tend to come to us more complicated as is, and there is not a transactional equivalent of the SSI hearing or a drop-in transactional clinic at a soup kitchen. In this presentation, the author reviews clinic goals, time management, and facilitating the students' ability to produces client ready documents.

A Medical/Legal Teaching And Assessment Collaboration On Domestic Violence: Assessment Using Standardized Patients/Standardized Clients, Antoinette M. Sedillo Lopez, Cameron Crandall, Steve Mclaughlin, Diane Rimple, Mary Neidhart, Teresita Mccarty, Lou Clark, Carrie Martell, Gabriel Campos

Faculty Scholarship

Assessment of skills is an important, emerging topic in law school education. Two recent and influential books, Educating Lawyers published by the Carnegie Foundation and Best Practices in Legal Education, published by the Clinical Legal Education Association have both suggested dramatic reform of legal education. Among other reforms, these studies urge law schools to use outcome-based' assessments, i.e., using learning objectives and assessing knowledge and skills in standardized situations based on specific criteria, rather than simply comparing students' performances to each other.

Cause And Effect: The Origins And Impact Of Justice William O. Douglas’ Anti-Military Ideology From World War Ii To O’Callahan V. Parker, Joshua E. Kastenberg

Faculty Scholarship

The intention underlying this Article is to analyze the sources and effects of Douglas's antipathy for the military's legal construct, especially the practice of trial by courts-martial. Douglas did have an effect on the evolution of the military's legal construct, and he almost succeeded in narrowing the military's jurisdiction over its servicemen to a narrow fraction of what its jurisdictional reach is today. Along with Justices Hugo Black, Earl Warren, Felix Frankfurter, William Brennan, and shorter-tenured justices, he succeeded in judicially mandating due-process rights for servicemen accused of offenses.8 However, in his ultimate goal, the extent to which he succeeded …

Non-Intervention And Neutrality In Cyberspace: An Emerging Principle In The National Practice Of International Law, Joshua E. Kastenberg

Faculty Scholarship

The enforcement of neutrality in cyberspace has not yet occurred, and there appears to be no policy for enforcement. This article suggests a rubric using existing laws for exerting executive authority. Section I of this article discusses the emergence of conflict in cyberspace. This article focuses on the executive branch's authority to enforce neutrality in cyberspace. Section II provides a basic rubric of neutrality rules as applied to conflict in cyberspace. Section III analyzes the most recent cyberconflict, the Georgian-Russian War of 2008, and the potential consequences the United States risked because it lacked a cyber neutral position. Finally, the …

When Something Is Not Quite Right: Considerations For Advising A Client To Seek Mental Health Treatment, Carol M. Suzuki

Faculty Scholarship

This Article explores rules of professional responsibility, theory, and reasoning processes related to advising clients to seek mental health treatment. Furthermore, this Article looks at cultural and financial aspects of treatment, and concludes with recommendations on how a lawyer should counsel her client once she determines that mental health treatment is appropriate. Part I discusses humanitarian reasons that support a lawyer's decision to advise her client to seek mental health treatment. Part II of this Article discusses rules of professional conduct relevant to advising a client to seek mental health treatment. Part III sets out a framework for considering how …

Dairies In New Mexico: The Environmental Implications Of A New Industry, Denise D. Fort, Anthony Edwards

Faculty Scholarship

The dairy industry, at first blush, might seem to be an odd growth industry for New Mexico, but the last decade has seen an extraordinary expansion of the industry in the state. The presence of the industry has consequences for the state in several domains, including water quantity and water quality, as well as economics, animal welfare and state finances. This article is an attempt to characterize these implications for water policy and to solicit insights from those who are familiar with the industry.

Commencement Address, Cuny School Of Law, Margaret E. Montoya

Faculty Scholarship

Who we are, how we see ourselves, how we want to be seen, what we value, how our memories connect us to specific histories in specific places — we communicate this information best through narratives. In Spanish we sometimes call such stories cuentos — an accounting. I encourage all of you to take time over the next few days to celebrate your graduation, this singular accomplishment of your lives, by accounting — by telling stories to those who have helped you, held you up, fed you, wiped your tears, paid your bills. Share your recollections.

Putting Probability Back Into Probable Cause, Max J. Minzner

Faculty Scholarship

When deciding whether a baseball player is likely to get a hit, we look at his history of success at the plate. When deciding whether to listen to the advice of a stock analyst, we look at whether the prices of her past recommendations rose or fell. But when police officers claim that they have probable cause to believe a certain location contains evidence of a crime, we do not look at whether they have been right or wrong when they have made the same claim in the past. This is a mistake. Law-enforcement-search success rates vary widely, even when …

Albuquerque Journal Interviews Moore About U.S. Detention Camps, Jennifer Moore

Faculty Scholarship

Professor Jennifer Moore of the University of New Mexico School of Law said her work in international law led her to concerns that treatment of Guantanamo prisoners has created people more likely to commit acts of terrorism against the United States.

Moore, who worked with refugees of the Rwandan genocide, said that in dealing with the remaining Guantanamo prisoners, "We should keep in mind not just legality, but the legacy of how the U.S. is looking to prevent terrorism. Due process may be the strongest tool."

Consumer Scams And The Elderly: Preserving Independence Through Shifting Default Rules, Nathalie Martin

Faculty Scholarship

Modern technology has made it easier than ever for scammers, legitimate businesses with dubious intentions, and even charities to take advantage of telemarketing. For reasons including reduced mental faculties and loneliness, the elderly are increasingly at risk for losing money, credit, and ultimately independence to those who would exploit them. In this Article, Professor Martin explores the benefits of existing regulations, bankruptcy, and reverse mortgages as solutions to these problems. Professor Martin also recommends a new default rule for elderly consumers: no solicitations unless the consumer opts in.

Latina/Os' And Latina/O Legal Studies: A Critical And Self-Critical Review Of Latcrit Theory And Legal Models Of Knowledge Production, Margaret E. Montoya, Francisco Valdes

Faculty Scholarship

For the twelfth time in as many years, the LatCrit community convened its annual conference to underscore the importance of location and locality in the work that we do. The conference theme's framing around Critical Localities: Epistemic Communities, Rooted Cosmopolitans and Knowledge Processes not only focused our collective attention on questions of epistemic community and intellectual (as well as physical) location, but also invited reflection on the meanings we inscribe onto the positions we elect to stake out for ourselves and our work in light of the options and traditions that serve as background. The "Critical Localities" theme invites an …

Leadership Development Programs For Academic Law Librarians (In Special Issue Entitled, Our Commitment To Building Leaders: Programs For Leadership In Academic And Special Libraries), Carol A. Parker

Faculty Scholarship

In 2003 the American Association of Law Libraries (AALL) identified leadership development as one of three primary goals for the organization during this decade. Motivated by a desire to provide leadership training opportunities and expand mentoring programs, a special committee on leadership development created a Leadership Academy for AALL members. The two-day program challenges participants to increase self-awareness of leadership skills and opportunities, and provides them with strategies to emerge as leaders in their organizations and the profession. Academy participation initiates a year-long program of formal mentoring and includes activities held during the AALL annual meeting.

Judicial Review As Soft Power: How The Courts Can Help Us Win The Post-9/11 Conflict, Dawinder S. Sidhu

Faculty Scholarship

This Article seeks to answer these questions. In this Article, I will argue that the American response to Islamic terrorist factions must move outside the military sphere in which battles are fought between arms and men to a more conceptual contest for hearts and minds, where the ammunition in this abstract war will be fundamental American principles, particularly a constitutional commitment to the rule of law, and where advancements in the war will be based on incrementally increased attraction to America. This approach will speak to one’s will and conscience in an effort to secure a more lasting respite from …

On Appeal: Reviewing The Case Against The Death Penalty, Dawinder S. Sidhu

Faculty Scholarship

There is perhaps a no more divisive and significant issue in the United States than that of capital punishment./ The debate over the death penalty is of vital import and intrigue because it involves death, the termination of an individual's known existence. Not only does the death penalty involve death, but more properly, it involves the deliberate taking of life.3 It is precisely because the death penalty involves the willful extermination of human life that the debate must be thoroughly examined. This article attempts to add this needed clarity by evaluating the various arguments against the death penalty.

Death Penalty For Women In North Carolina, Elizabeth Rapaport, Victor Streib

Faculty Scholarship

Is Justice Marshall right? Have women received "favored treatment" under our death penalty laws and procedures? The national data might lead to such a presumption, given that over 99% of the people executed in the United States are men, but the analyses and explanations are far from simple. The authors have written about this national phenomenon for the past two decades, sharing a strong interest in the issue but not always agreeing in their explanations. Now we examine the North Carolina experience within the national context. This article reports the results of that examination, beginning with North Carolina's history of …

The Subprime Crisis And The Link Between Consumer Financial Protection And Systemic Risk, Erik F. Gerding

Faculty Scholarship

This Article argues that the current global financial crisis, which was first called the subprime crisis,' demonstrates the need to revisit the division between financial regulations designed to protect consumers from excessively risky loans and safety-and-soundness regulations intended to protect financial markets from the collapse of financial institutions. Consumer financial protection can, and must, serve a role not only in protecting individuals from excessive risk, but also in protecting markets from systemic risk. Economic studies indicate it is not merely high rates of defaults on consumer loans, but also unpredictable and highly correlated defaults that create risks for both lenders …

End-Of-Life Care: Doctors' Complaints And Legal Restraints, Robert L. Schwartz

Faculty Scholarship

Health lawyers and policymakers cannot always see the same shadows of the laws that are visible to health care providers, and sometimes those shadows have penumbras and emanations that are not visible to those outside of a narrow medical practice. Sometimes those shadows, whether real or imagined, cause doctors to act inconsistently with the intent of the law, and inconsistently with the requirements of good medical practice. Doctors may misread or misunderstand a law. Still, if the law as misread or misunderstood actually affects medical practice, we should not be blind to the fact of the misunderstanding. Listen to doctors' …

Punishment For Ecological Disasters: Punitive Damages And/Or Criminal Sanctions, Leo M. Romero

Faculty Scholarship

This article addresses the means of punishing conduct that causes serious environmental harm like the Exxon Valdez oil spill. In particular, it considers the appropriateness and effectiveness of both punitive damages and criminal sanctions as remedies in such cases in light of the U.S. Supreme Court's approaches to reviewing both punitive damages awards and criminal sentences for excessiveness. This article recommends, first, that state legislatures should authorize and regulate punitive damages so that appellate courts will not interfere with punitive damages awards, as happened in the Exxon case. Second, states should enforce criminal provisions in environmental statutes against both corporate …

Madison In Post-9/11 Cyberspace: Applying Federalist No. 10 To The Online Battle For ‘Hearts And Minds’, Dawinder S. Sidhu

Faculty Scholarship

To be sure, there are at least a few problems with the approach of drawing upon the Framers for guidance with respect to the issues of the day. First, the Framers did not reach consensus on all matters. The famous rivalry between the Alexander Hamilton, a staunch nationalist from New York who favored a strong federal banking system and central government, and Jefferson, a republican from Virginia who preferred an agrarian lifestyle and trusted the people to do right by American society, perhaps best illustrates the fact that the Framers themselves were not in lockstep as to the makeup of …

Cujo Goes To College: On The Use Of Animals By Individuals With Disabilities In Postsecondary Institutions, Dawinder S. Sidhu

Faculty Scholarship

This Article examines the extent to which animals may be used by individuals with disabilities in a particular setting-postsecondary institutions.

Wartime America And The Wire: A Response To Posner’S Post-9/11 Constitutional Framework, Dawinder S. Sidhu

Faculty Scholarship

This article challenges Not a Suicide Pact by using a single component of practical experience that has factored into legal reasoning: television. In particular, it will invoke various themes from The Wire—an HBO series that explores the relationship between the drug trade and law enforcement in Baltimore, Maryland—to demonstrate the problematic nature of the aforementioned arguments set forth in Posner’s book.

Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza Organick

Faculty Scholarship

Part I of this article will provide a historical context for the Declaration by surveying the international recognition of the concept of "Indigenous" rights that led to the adoption of the Declaration. Part II will discuss the positions taken by each no-vote state and the reasoning employed by these states in support of those positions. Part Ill will focus on how U.S. Tribes might turn the Declaration into a living document in spite of the United States' continued resistance to do so.

Tribal Law And Best Practices In Legal Education: Creating A New Path For The Study Of Tribal Law, Aliza Organick

Faculty Scholarship

In Part I of this article, I explore the importance of introducing law students to tribal law and the culture of other local legal systems early and often. I assert that when the legal academy ignores the role that culture plays in the formation and understanding of our own legal system and the legal systems of other communities, we are ignoring the most basic and core aspects of society. By disregarding the role culture plays in legal systems, we are doing a disservice not only to our students, but also ultimately to the legal community and our clients. By failing …

From Conflict To Cooperation: State And Tribal Court Relations In The Era Of Self-Determination, Aliza Organick, Tonya Kowalski

Faculty Scholarship

State and Tribal sovereigns have historically had a tense relationship, beginning in colonial times, when states vied with the federal government for trading rights and for control of Indian lands. Today, that tension still expresses itself in matters such as gaming compacts, criminal and civil jurisdiction, and taxation, to name just a few. While different sovereigns within a federal system may always vie for resources and power to some extent, it is time for states and Tribes to focus on what a more mutually supportive relationship with Tribal communities has to offer. This Essay explores the history of the two …

The Evolving Architecture Of North American Integration, Laura Spitz

Faculty Scholarship

Given its potential significance for democracy, sovereignty, government, governance, and justice in each of Canada, the United States, and Mexico, North American integration qua integration has thus far received surprisingly little attention from legal scholars and social scientists. While an expanding body of research explores the dynamics of continental integration in other contexts (especially Europe) and/or examines the meaning of globalization, regionalism, and multilateral internationalism in a general sense, the specific constitution of an integrated North American space remains largely undertheorized. This Article aims to advance the literature in this area by examining legal discourse as an example of the …