Law Commons^™

Montana Water Rights Protection Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this Act are: (1) to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana, and in recognition of article I, and section 3 of article IX, of the Montana State Constitution for (A) the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation; and (B) the United States, for the benefit of the Tribes and allottees; (2) to authorize, ratify, and confirm the water rights compact entered into by the Tribes and the State, to the extent that the Compact is consistent with this Act; (3) to authorize …

Navajo-Utah Water Rights Settlement Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this section are: (1) to achieve a fair, equitable, and final settlement of all claims to water rights in the State of Utah for (A) the Navajo Nation and (B) the United States, for the benefit of the Nation; (2) to authorize, ratify, and confirm the agreement entered into by the Nation and the State, to the extent that the agreement is consistent with this section; (3) to authorize and direct the Secretary (A) to execute the agreement and (B) to take any actions necessary to carry out the agreement in accordance with this section; and (4) …

Aamodt Litigation Settlement Completion, United States 116th Congress

Native American Water Rights Settlement Project

Amends the Aamodt Litigation Settlement Act (Pub. L. 11-291) to increase funding for Pueblo Water Facilities from $106.4 million to $243.4 million and making available $137 million for Regional Water System funding.

Default Culpability Requirements: The Model Penal Code And Beyond, Scott England

Faculty Scholarship

This Article examines section 2.02(3) of the Model Penal Code, both as proposed by the ALI and as modified by MPC states, and recommends new default culpability rules to replace it.

The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section …

Kob-4 Interviews Serge Martinez: Landlords, Tenants Feel Impact Of State Eviction Moratorium, Serge A. Martinez

Faculty Scholarship

"A lot of folks in New Mexico have month-to-month leases that come up for renewal every 30 days or so, and even folks that have longer leases, it's been nine months since the Supreme Court issues their order so a large percentage of leases in New Mexico have come up for renewal in that time period,” said Serge Martinez, a professor at UNM School of Law.

View story at KOB-4

New Mexico In Depth Interviews Vinay Harpalani: Complexity Of Colorism, Vinay Harpalani, Claudia Silva

Faculty Scholarship

“Our discourse on race in this country has largely been framed around black or white,” said University of New Mexico civil rights law professor Vinay Harpalani.

But assumptions about varying shades of skin color can, for example, lead someone who is Indian, like himself, to be mistaken as Hispanic, he said.

Academics who’ve studied racial discrimination say discrimination based on a person’s skin-tone exists across many racial and ethnic groups and generally manifests as a systematic preference for lighter skin over darker skin.

Harpalani explains it can be the other way around in some instances, such as the bullying Clark …

Kob-4 Interviews Josh Kastenberg: Mother Wants Answers After Son Found Dead In New Mexico Jail, Joshua Kastenberg, Tommy Lopez

Faculty Scholarship

In the court file, there’s no explanation of why he wasn’t simply let go. Legal experts say judges need to give that explanation.

"You have to explain, if you’re a judge, to the defendant why it is that you’re assessing them money," said former judge and UNM professor Joshua Kastenberg.

Archuleta had a long record, and Kastenberg believes that’s a big factor in the judge setting bail.

"You want judges to be able to exercise their discretion, but without a ruling, we don’t know what this particular judge had in his or her thought processes," he said.

He says the …

Unm Newsroom Interviews Nathalie Martin: Unm Law Professor Practices Yoga And Meditation In Stressful Times, Nathalie Martin, Maggie Branch

Faculty Scholarship

A professor at The University of New Mexico School of Law has become a very accomplished Yogi – someone who studies and is proficient in yoga. Nathalie Martin, who has been a part of the UNM law faculty since 1998, was featured in a magazine put together by the Property Brothers and HGTV regarding her Yogi status.

Albuquerque Journal Interviews Joshua Kastenberg On New Benchmarks For Evidence Rules, Joshua Kastenberg, Isabella Alves

Faculty Scholarship

Joshua Kastenberg, University of New Mexico School of Law professor, said the opinion means eyewitness testimony will have to undergo more corroboration before being allowed into evidence. For example, he said there will also have to be surveillance camera footage or more than one person accurately describing the suspect before eyewitness testimony can be admitted.

Studies over the past three decades show that people are terrible at giving eyewitness testimony on people who are outside their own demographic, Kastenberg said. Police, generally unconsciously, played into that.

Before, federal law put eyewitness credibility in the “lap of the jury,” Kastenberg said. …

The New York Times Interviews Joshua Kastenberg On Election Day And Deployment Of The National Guard, Joshua Kastenberg, Dave Phillips

Faculty Scholarship

Federal troops have not been used to guard against election violence since the years after the Civil War when the Army was stationed across the South to put down the Ku Klux Klan and protect Black voters, said Joshua Kastenberg, a retired Air Force lieutenant colonel and military judge who teaches military law at the University of New Mexico School of Law.

“Presidents have historically been very reluctant to call out the Army. They’ve used the authority briefly and responsibly,” he said. But, he cautioned, there are almost no checks on the president’s power to send in troops. Challenges in …

Is It Time To Revisit Qualified Immunity?, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The right to sue and defend in the courts of the several states are essential privileges of citizenship. Eight generations ago, this right was unavailable to black people, because descendants of African slaves were never intended to be citizens. Then, and for years to come, local governments failed to protect African Americans from violence and discrimination and were sometimes complicit in those violations.

Qualified immunity was born in 1982 when the Supreme Court decided Harlow v. Fitzgerald. With an outflow of questionable court decisions shielding officers solely because they act under color of state law, it is time for the …

Looking Back, Looking Forward: Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

Since the Criminal Justice Section’s Women in Criminal Justice Task Force launched in November 2018, we have heard from women in criminal law around the country about their experiences with (1) hiring, (2) retention, and (3) promotion of women in criminal justice. We set many goals for ourselves, including hosting listening sessions, publishing columns, and collecting data, and we are proud of all we have accomplished over the past nearly two years.

Housing & Education Roundtable Discussion, Serge A. Martinez, Deb Haaland

Faculty Scholarship

View the Video: https://www.facebook.com/RepDebHaaland/videos/393076688380815/

Congresswoman Deb Haaland (NM-01), held a Facebook Live discussion on access to education and affordable housing. During her address, Congresswoman Haaland discussed the importance of accessible education during this pandemic. Haaland also mentioned the role evictions and financial stress play in education. COVID-19 risks have moved schools to virtual learning from home beginning in the Spring of 2020. Provisions in the CARES Act that protected families from falling behind financially including a $1200 stimulus payment, $600 additional weekly unemployment benefits, and eviction protections expired at the end of July, raising concerns about an increase in evictions …

Access To Education And Affordable Housing (Panel Discussion), Serge A. Martinez, Deb Haaland

Faculty Scholarship

"Housing is not just about housing--there's a straight line from housing stability to educational achievement and other issues including public health, physical and mental health and community development."
- Professor Serge Martinez.

Congresswoman Deb Haaland held a discussion on access to education and affordable housing, particularly the importance of accessible education and the role evictions and financial stress play in education.

If the video is not playing, watch the panel discussion on Facebook (log-in not required).

Argument Analysis: On First Day Of New Term, Supreme Court Seems Skeptical Of Texas’ Arguments In Interstate Water Dispute With New Mexico, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

"Toughen Up, Buttercup" Versus #Timesup: Initial Findings Of The Aba Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

"Practicing criminal law as a woman is like playing tackle football in a dress.” Andrea George, Executive Director of the Federal Public Defender for Eastern Washington and Idaho, began her testimony to the American Bar Association’s Women in Criminal Justice Task Force with that powerful observation. In the wake of the #MeToo movement, the ABA has focused on ways to enhance gender equity in the profession and in the justice system. The Criminal Justice Section of the ABA has invested significant resources in the creation of the Women in Criminal Justice Task Force (WCJ TF), which launched its work in …

Fears Of Tyranny: The Fine Line Between Presidential Authority Over Military Discipline And Unlawful Command Influence Through The Lens Of Military Legal History In The Era Of Bergdahl, Joshua E. Kastenberg

Faculty Scholarship

This article is divided into three sections, each with an analysis on the relationship between the commander in chief and military justice. Section I defines unlawful command influence and presents an overview of unlawful command influence prior to 1950 with an instance of presidential influence which would amount to the deprivation of the right to a fair trial. Section II of the article presents a legal history of three pre-Uniform Code of Military Justice (UCMJ) Court opinions for the purpose of showing the existence of judicially recognized constitutional restraints against commander in chief influence over courts-martial. These opinions present historic …

Case Preview: In Newest Chapter In Long-Running Water Dispute, Court Will Hear First-Ever Challenge To Ruling By Interstate River Master, Reed D. Benson

Faculty Scholarship

Find out more information regarding Texas v. New Mexico at SCOTUSblog.

Read more about Professor Reed Benson's involvement on the UNM Law News Page.

Kob Interviews Joshua Kastenberg About Constitutional Rights During Covid-19, Joshua Kastenberg, Brittany Costello

Faculty Scholarship

No abstract provided.

Front Matter, New Mexico Law Review

New Mexico Law Review

No abstract provided.

Unlimited Vindication: Choosing Statutes Of Limitations In The Era Of Constrained Personal Jurisdiction, Patricia Youngblood Reyhan

New Mexico Law Review

This Article examines the relationship between personal jurisdiction and choice of law in the context of choosing statutes of limitations to either permit or bar plaintiffs’ claims in cases where the parties or the facts underlying the cause of action are connected with multiple states or nations. During the period of constitutionally-permissible exercises of expansive personal jurisdiction, existing from 1945, when the United States Supreme Court decided International Shoe v. Washington, to the 2010s, states gradually rejected the then-prevalent rule that reflexively chose the limitations law of the forum, whether that law favored the vindication interests of the plaintiff or …

Genetic Evidence, Maoa, And State V. Yepez, Nita A. Farahany, Roderick T. Kennedy, Brandon L. Garrett

New Mexico Law Review

This amicus brief offers two main contributions. First, we describe how MAOA studies based on the prior “candidate-gene approach” are unreliable due to inherent flaws in the methodology, leading to inconsistencies in replication. Second, the general scientific consensus has emerged that the earlier MAOA studies (upon which the defense experts relied) are now an outdated method of studying psychiatric genetics. Third, to the extent that recent studies adopting the more rigorous genomewide association studies (GWAS) have attempted to replicate the earlier findings of MAOA candidate-gene studies, they have found no reliable correlation between MAOA and violence.

The Future Of Nondelegation: Resurrecting The Doctrine Though A Novel Balancing Test, Jarrod Alec Greth

New Mexico Law Review

In Gundy v. United States, the Supreme Court of the United States was split 4 - 4 on the question of nondelegation. With a vacancy on the Bench, half of the Court took no issue with Congress delegating nearly unlimited discretion to the United States Attorney General over the enforcement and applicability of the Sex Offender Registration and Notification Act to offenders whose crimes preceded the Act’s enactment. The other half of the Court saw this grant of vast power as a violation of the nondelegation doctrine; the idea that Congress may not delegate its Article I lawmaking powers to …

Who Watches The Watchmen? Character And Fitness Panels And The Onerous Demands Imposed On Bar Applicants, Artem M. Joukov, Samantha M. Caspar

New Mexico Law Review

This Article discusses the onerous requirements that state bars sometimes impose on bar applicants to prove good moral character despite the vague definition of the term and the apparently limitless amount of evidence that a character and fitness panel can rely on to deny or delay admission. We present recent examples of decisions that beg the question of whether state bars are really preventing the entry of the unethical into the profession or simply screening out applicants that panelists dislike. We also discuss at least one potential problem highlighted within the process by COVID-19. This Article argues that while most …

Sharpening The Cat's Paw: Reconceptualizing Cat's Paw Liability To Fit The Needs Of Contingent Workers After Armstrong V. Arcanum Grp. Inc., Ransom Smith

New Mexico Law Review

Contingent workers—those employed by staffing firms and contracting firms but often subject to the supervision and control of a firm’s client—are a particularly vulnerable class of employees, less likely to be treated by their employers with the same degree of protection against workplace discrimination as workers in traditional employment arrangements. The Tenth circuit case of Armstrong v. Arcanum Grp. Inc. magnified yet another disadvantage that contingent workers run up against when attempting to challenge an alleged discriminatory decision. Following Armstrong, contingent workers who premise their retaliatory or discriminatory discharge claims on the acts of biased employees who influence employment …

Privacy As A Civil Right, Alvaro M. Bedoya

New Mexico Law Review

As the first U.S.-born Hispanic senator, Senator Dennis Chávez of New Mexico left a rich legacy of advocacy for civil rights and civil liberties. In this lecture, the fourth U.S. Senator Dennis Chávez Endowed Lecture on Law and Civil Rights, I explore an idea at the intersection of those two bodies of law: the right to privacy. In 2020, the hallmark of surveillance is its ubiquity; “everyone is watched.” Unfortunately, this discourse erases the fact that, across American history, the burdens of government surveillance have fallen overwhelmingly on the shoulders of immigrants, heretics, people of color, the poor, and anyone …

Federalism, Foreign Affairs, And State Courts: The Habeas Corpus Act Of 1842 And The Permanent Debate Over The Status Of International Law, Jake Karr

New Mexico Law Review

There is today an ongoing debate over the status of customary international law within U.S. law. Proponents of both “modern” and “revisionist” positions advance absolutist arguments based on vague constitutional provisions, conflicting theories of constitutional structure, cherry-picked statements of favorite Founding Fathers, historical practice of the relevant branches of government, and Supreme Court precedent. Unsurprisingly, consensus around constitutional meaning remains elusive. This Article demonstrates that the current scholarly stalemate is neither novel nor unique to post-Erie debates over federal common law and the power of the federal judiciary. Indeed, Congress addressed many of the same constitutional arguments nearly two centuries …

Alcohol Prohibition In The New Mexico And Arizona State Judiciaries At 100 Years: The Development Of Law And Shaping Of Society In The Southwest, Joshua Kastenberg

New Mexico Law Review

This article is examines the development of liquor limitation laws in the New Mexico and Arizona territories. The decisions issued by the territorial courts were persuasive on the state supreme courts in the sense that neither Arizona’s nor New Mexico’s justices decided to overturn prior territorial decisions on alcohol. The article analyzes Arizona and New Mexico Supreme Court decisions prior to and during the National Prohibition Act. The period of the National Prohibition Act’s was a time of significant federal law-enforcement action. Doctrines of preemption, incorporation of laws through “reference,” double jeopardy involving prosecutions under federal and state sovereigns, and …

Scooting Under The Influence: Criminal Liability In The Age Of Micro-Transit, Jacques Chouinard

New Mexico Law Review

Over the past two years, dockless electric scooters have become a staple of modern urban transit. Dockless electric scooters and other micro-transit devices present a unique challenge in the realm of criminal liability. Considering that electric scooters are lightweight, low-speed devices with an ambiguous regulatory status, how will driving under the influence statutes be enforced when scooter riders inevitably “scoot” while intoxicated? This question requires rapid and innovative answers; scooter riders in a number of jurisdictions have already been charged under existing driving under the influence statutes with varying levels of success. This comment seeks to provide those answers by …

Civil Military Relations Panel, Joshua E. Kastenberg

Faculty Scholarship

In the first week of this month, the nation was surprised to learn that retired general officers (generals and admirals) including James Mattis, Colin Powell, Michael Glenn Mullen, and William McRaven (to name a few) spoke out against President Donald Trump’s response to demonstrations across the United States. President Trump threatened to unilaterally invoke the 1807 Insurrection Act and federalize the National Guard as well as use the active duty Armed Forces of the United States as a “super police force.”

The conduct of the retired generals is not without detractors. The Constitution was constructed with the idea that a …