| Author | Title | Citation | Summary | Year | Key Terms |
| Pete Heidepriem |
Tribal Remedies, Exhaustion, and State Courts |
44 American Indian Law Review 241 (2020) |
A bedrock feature of sovereignty is a court exercising jurisdiction. For Native nations, this is at risk. Through its judicial institution, a sovereign nation supports the force and effect of its laws, promotes respect for authority, and maintains culture. A rule in federal law, which this Article calls the tribal remedies doctrine, provides; Search Snippet: ...acceptable. Establishing a uniform approach is critical to supporting tribal sovereignty and preventing arbitrary geography from determining each tribe's authority. U.S. Supreme Court precedent, with special attention to Iowa... |
2020 |
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| Michael Lopez |
Tribal Rights: the 1872 Mining Law's past and Future |
34-WTR Natural Resources & Environment 53 (Winter, 2020) |
To many, miners embody the quintessential narrative of the American West: freedom, individualism, opportunity, and progress. Books, movies, museums, theme parks, and sports franchises celebrate, often with romanticized nostalgia and a nationalistic flair, the hardships endured by miners. In the mid-nineteenth century, the forty-niners and; Search Snippet: ...An infamous example is the experience of the Nez Perce Tribe, or Nimiipuu, whose homeland-- in what is today north-central... |
2020 |
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| Seth Davis |
Tribalism and Democracy |
62 William and Mary Law Review 431 (November, 2020) |
Americans have long talked about tribalism as a way of talking about their democracy. In recent years, for example, commentators have pointed to political tribalism as what ails American democracy. According to this commentary, tribalism is incompatible with democracy. Some commentators have cited Indian Tribes as evidence to support this; Search Snippet: ...Article argues that Indian Tribalism is compatible with American democracy. Indian Tribal sovereignty ensures opportunities for self-government. Indian Tribal governance is compatible... |
2020 |
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| Onalee R. Chappeau |
Trusting the Tribe: Understanding the Tensions of the Indian Child Welfare Act |
64 Saint Louis University Law Journal 241 (Winter, 2020) |
Remember your birth, how your mother struggled to give you form and breath. You are evidence of her life, and her mother's, and hers. Remember your father. He is your life, also . Remember you are all people and all people are you. Remember you are this universe and this universe is you. Remember all is in motion, is growing, is you. Remember; Search Snippet: ...that Section 1915 of the ICWA recognized and incorporated a tribe's exercise of its inherent sovereignty over Indian children--therefore, it did not, and could not, delegate this existing sovereign authority to Indian tribes at all. [FN241] This argument was in line with other... |
2020 |
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| Frédéric Gilles Sourgens |
Truths in Translation |
44 Fordham International Law Journal 101 (October, 2020) |
I. INTRODUCTION. 102 II. A PRIMA FACIE LACK OF FACTUAL RIGOR. 107 A. Burden of Proof. 111 1. The Basic Rule in Action. 111 2. Presumptions Shift the Basic Rule. 115 3. Burdens, Presumptions, and (Post-)Truth. 117 B. Standard of Proof. 118 C. Burdens and Standards Cannot Operate Without Presumptions. 124 III. INFERENCES AND PRESUMPTIONS. 124 A; Search Snippet: ...Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5); Sovereignty over Palau Litigan and Palau Sipadan (Indon. v. Malay.), 2001... |
2020 |
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U.s. Supreme Court Update |
30-AUG Journal of Multistate Taxation and Incentives 37 (August, 2020) |
DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. On May 14, 2020, a new petition for writ of certiorari was filed with the Court in Rogers Cnty. Bd. of Tax Roll Corrections v. Video Gaming Technologies, Inc. (Docket No. 19-1298), ruling below at Okla. S. Ct., Docket No. 117491 (12/17/2019).The U.S. Supreme; Search Snippet: ...valorem tax, as assessed against personalproperty owned by a non- Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Court's particularized inquiry balancing test, see White MountainApache Tribe v. Bracker , 448 U.S. 136 (1980) , where the tax does... |
2020 |
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U.s. Supreme Court Update |
30-SEP Journal of Multistate Taxation and Incentives 34 (September, 2020) |
DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. She would like to thank Doran Gittleman for his contributions to this month's article. Before its recess, on June 30, 2020, the U.S. Supreme Court ruled in a 5-4 decision, in Espinoza v. Montana Dep't of Revenue (Docket No. 18-1195), that the Montana Supreme; Search Snippet: ...valorem tax, as assessedagainst personal property owned by a non- Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Court's particularized inquiry balancing test, see WhiteMountain Apache Tribe v. Bracker , 448 U.S. 136 (1980) , where the tax does... |
2020 |
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U.s. Supreme Court Update |
30-OCT Journal of Multistate Taxation and Incentives 32 (October, 2020) |
DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. She would like to thank Doran Gittleman, an associate at Hodgson Russ LLP, for his contributions to this month's article. On July 30, 2020, in Little v. Reclaim Idaho, (Docket No. 20A18), the Court granted the State of Idaho's application to stay the; Search Snippet: ...valorem tax, as assessed against personalproperty owned by a non- Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Court's particularized inquiry balancing test, see White MountainApache Tribe v. Bracker , 448 U.S. 136 (1980) , where the tax does... |
2020 |
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U.s. Supreme Court Update |
30-JUL Journal of Multistate Taxation and Incentives 37 (July, 2020) |
DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. While the U.S. Supreme Court extended certain filing deadlines and postponed certain oral arguments in keeping with the public health precautions recommended in response to the COVID-19 pandemic, the Court did not hit pause! With respect to state and local; Search Snippet: ...remit taxes due the state. Preemption of state taxation. The Tribe asserted below that the imposition of the South Dakota use... |
2020 |
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| Conor Butkus, Symposium Editor |
U.s. V. Oregon: 50th Anniversary |
50 Environmental Law 327 (Spring, 2020) |
Beginning in 1854, the U.S. entered into treaties with the Northwest Tribes that saw the tribes cede vast territories in exchange for rights meant to protect their traditional salmon fishing. For 115 years after that, U.S. citizens and Oregon and Washington attacked those rights and the tribe members seeking to uphold them. The states implemented a; Search Snippet: ...Conor Butkus Beginning in 1854, the U.S. entered into treaties with the Northwest Tribes that saw the tribes cede vast territories in exchange for rights meant to protect... |
2020 |
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| Albert C. Lin |
Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization |
88 George Washington Law Review 890 (July, 2020) |
The conventional account of most U.S. environmental regulation goes something like this: cooperative federalism schemes accommodate state and federal interests while tapping into the respective strengths of centralized and decentralized regulation. In cooperative federalism arrangements, the federal government sets minimum environmental standards; Search Snippet: ...2001) (holding that United States holds title in trust for tribe to lands underlying lake and river); Montana v. United States... |
2020 |
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| Todd B. Adams |
Using Game Theory to Better Understand the Role of the U.s. Supreme Court in the Catastrophe That Befell American Indians in Georgia |
46 Ohio Northern University Law Review 331 (2020) |
How the 1823 case Johnson v. McIntosh affected the catastrophe befalling American Indians in the early Republic is a major, continuing issue in early American Indian law. Some scholars argue that the U.S. Supreme Court placed American Indian national title on a firm legal foundation that it had previously lacked, but others argue that that the; Search Snippet: ...Great Britain still occupied the Northwest in violation of the Treaty of Paris that ended the Revolutionary War [FN27] and prevented Congress from converting American Indian national lands in the Old Northwest into needed cash. [FN28... |
2020 |
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| Robert J. Miller |
Virginia's First Slaves: Indigenous Peoples |
10 Wake Forest Journal of Law and Policy 195 (March, 2020) |
[M]an has dominated man to his injury. [I]nvade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever, and other enemies of Christ . [and] reduce their persons to perpetual slavery . convert them to . use and profit. Pope Nicholas V, Jan. 8, 1455 An inhuman practice once prevailed in this country of making; Search Snippet: ...Powhatan war in 1644 to 1646. [FN60] In the 1646 Treaty of Necotowance that ended the third Powhatan war, the subjugated tribes were required to return any runaway Indian Servants. [FN61] The colonists agreed in the treaty not to enslave any Virginia Indigenous Peoples or Indigenous Peoples that were allied with or paid tribute to Virginia... |
2020 |
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| Hilary C. Tompkins |
Walking in Beauty in the Law |
46 No. 4 Litigation 47 (Summer, 2020) |
As lawyers, we often assume a persona or style in our work to be an effective advocate on behalf of our client. I have been practicing for more than two decades, and over the years, I have changed my style based on who I was working for, what seemed to be effective, and, lastly, my sense of self. I have come to believe that the last category is the; Search Snippet: ...not analyzing the potential impact of the pipeline on the tribe's downstream treaty and water rights. Ultimately, the D.C. district court judge agreed... |
2020 |
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| David Goad |
Water Law Be Dammed?: How Dam Construction by Non-hegemonic Basin States Places Strain on the Customary Law of Transboundary Watercourses |
35 American University International Law Review 907 (2020) |
I. INTRODUCTION. 908 II. BACKGROUND. 910 A. The History of Development on the Harirud River. 910 B. History Surrounding the Grand Ethiopian Renaissance Dam. 913 C. Legitimacy of Dam Construction. 916 D. Sovereignty. 916 E. Overview of Transboundary Watercourse Law. 917 F. Equitable and Reasonable Utilization. 918 G. The No-Harm Principle. 921 III; Search Snippet: ...on the Nile). See Waseem Ahmad Qureshi, Indus Water Treaty: An Impediment to Indian Hydro-Hegemony , 46 Denv. J. Int'l L. & Pol'y 45, 51... |
2020 |
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| Meghan M. Carter , Jennifer R. Wendel |
Water Rights Adjudications in Idaho Have Statewide Impacts |
63-OCT Advocate 16 (October, 2020) |
In 528 AD, the Roman Emperor Justinian issued the edict, By the law of nature these things are common to mankind--the air, running water, the sea, and consequently the shores of the sea. With these words, Justinian codified the modern-day public trust doctrine, and began an era of public management of natural resources. Though Justinian's Rome; Search Snippet: ...claims, a court must first determine what water use a Tribe is entitled to, determined by the purpose of the reservation and the treaty between the Tribe and the United States. Secondly, the court must quantify the... |
2020 |
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| Elizabeth A. Reese |
Welcome to the Maze: Race, Justice, and Jurisdiction in Mcgirt V. Oklahoma |
8/13/2020 University of Chicago Law Review Online Online 1 (August 13, 2020) |
The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation's reservation boundaries had never been disestablished. The Supreme Court's 5-4; Search Snippet: ...persons who freely enter their territory. In Oliphant v. Suquamish Indian Tribe , the Court held that [b]y submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non- Indian citizens of the United States A clear double standard with the States, but tribes aren't states, they are Indians and the Court sees their sovereignty... |
2020 |
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| Sital Kalantry , Nicholas Koeppen |
When Contact Kills: Indigenous Peoples Living in Voluntary Isolation During Covid |
68 UCLA Law Review Discourse 268 (2020) |
During the global pandemic, people around the world are at risk of serious illness and death from contact and proximity to other people. But Indigenous peoples, particularly those in voluntary isolation, have always faced that risk. International organizations have relied on the right to self-determination as the primary legal grounds to justify; Search Snippet: ...for fear that it signals that they accept the territorial sovereignty claims of Indigenous communities. On the other hand, IACtHR case law on the... |
2020 |
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| Aditi Deal |
When less Is More: a New Formula for Avoiding Equally Divided Decisions in the Supreme Court |
58 Houston Law Review 185 (Fall, 2020) |
The Supreme Court of the United States is designed to serve as the judiciary branch of government's final word on an issue. It is often presented with contested issues and asked to serve as a tiebreaker. So, when the Supreme Court itself doles out an equally divided decision, is it failing at its core responsibility? This Comment addresses that; Search Snippet: ...Washington , the United States brought an action on behalf of Native American tribes against the State of Washington, claiming that the State had violated a fishing treaty. [FN73] The district court issued an injunction to stop the State from violating the fishing treaty, and the Ninth Circuit Court of Appeals affirmed in favor of the tribes. [FN74] The issues in the case were numerous, ranging from... |
2020 |
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| Gregor Allen MacGregor |
When the Navajo Generating Station Closes, Where Does the Water Go? |
31 Colorado Natural Resources, Energy & Environmental Law Review 289 (Summer, 2020) |
Introduction 291 I. Historical Setting of the Current Conflict 292 A. Discovery of the Colorado River; Spanish Colonization Sets the Stage for European Expansion into the Southwest 292 B. American Indian Law: Sovereignty, Trust Responsibility, and Treaty Interpretation 293 C. Navajo Conflict and Resettlement on their Historic Homelands 295 D; Search Snippet: ...Stage for European Expansion into the Southwest 292 B. American Indian Law: Sovereignty, Trust Responsibility, and Treaty Interpretation 293 C. Navajo Conflict and Resettlement on their Historic... |
2020 |
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| Alec D. Tyra |
When the Well Runs Dry: Groundwater Policy and Sustainability Post-agua Caliente |
38 UCLA Journal of Environmental Law & Policy 309 (2020) |
In the height of a seven-year drought in California, The Agua Caliente Band of Cahuilla Indians (the Tribe) sued the Coachella Valley Water District and Desert Water Agency (Together as Water Districts) to secure their right to groundwater stored in the Coachella Valley Aquifer (Aquifer). The Aquifer, like most groundwater resources in; Search Snippet: ...upon Mexico's separation from Spain). In this case, the Tribe alleges they have occupied the Coachella valley since time immemorial... |
2020 |
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| Kim Oosterlinck, Joseph Blocher, Mitu Gulati |
Why Did Belgium Pay Leopold's Bonds? |
83 Law and Contemporary Problems 49 (2020) |
King Leopold II's horrific abuse of the Congo Free State (CFS) was a humanitarian disaster of incalculable proportions, and inspired what has been called the first great international human rights campaign of the twentieth century. This campaign--which united humanitarian and commercial interests --eventually forced Leopold to sell the CFS to; Search Snippet: ...is worth noting, though, that Leopold explicitly demanded that the treaties his representatives signed with native Congolese included articles that delegate to us their sovereign rights... |
2020 |
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| Giuseppe Martinico, Marta Simoncini |
Wightman and the Perils of Britain's Withdrawal |
21 German Law Journal 799 (July, 2020) |
On 10 December 2018, the Court of Justice (CJEU) delivered the Wightman judgment and recognized the unilateral revocability of the notification ex Art. 50 Treaty on European Union (TEU). This article offers a critical analysis of the decision by insisting above all on; Search Snippet: ...odds with popular sovereignty as exercised in a referendum. Popular sovereignty also has other implications, such as in Scotland, where an indigenous Scottish tradition claims that sovereignty resides in the Scottish people, in spite of the alternative claims of Diceyan parliamentary sovereignty. Thirdly, there is external sovereignty: whereby a country may be... |
2020 |
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| Emily Dennan , Emily McEvoy |
Winner, Best Appellate Brief in the 2020 Native American Law Student Association Moot Court Competition |
44 American Indian Law Review 423 (2020) |
Whether the EPA acted unlawfully and arbitrarily and capriciously in abandoning its earlier position recognizing congressional delegation of authority to Indian tribes to administer regulatory programs over their reservations, instead imposing on tribes the burden of demonstrating inherent authority over their reservations. 2. Whether the Tribe; Search Snippet: ...Cherokee Nation v. Georgia , 30 U.S. 1, 17 (1831) Tribal sovereignty is only divested when Congress expressly prohibits tribal authority, or... |
2020 |
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| Andrew J. Maier , Assistant United States Attorney, Eastern District of Wisconsin |
Wisconsin Native American Drug and Gang Initiative |
68 Department of Justice Journal of Federal Law and Practice 125 (November, 2020) |
Wisconsin has 11 federally recognized Native American tribes, with tribal communities and reservations spread throughout the state. Nine of the tribes have tribal police departments. These tribal police departments took on drug trafficking and violent gang activity despite low staffing, poor or absent training, and little to no coordination between; Search Snippet: ...maintains and monitors fishing, gathering, and hunting activities established in treaties between 11 Ojibwe tribes and Congress. The tribes are located across Minnesota, Wisconsin, and... |
2020 |
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| Abigail L. Sia |
Withdrawing from Congressional-executive Agreements with the Advice and Consent of Congress |
89 Fordham Law Review 797 (November, 2020) |
As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded; Search Snippet: ...See Koh, supra note 9, at 461 (quoting Laurence H. Tribe, A Constitutional Red Herring: Goldwater v. Carter New Republic , Mar. 17, 1979, reprinted in Treaty Termination: Hearings on S. Res 15 Before the S. Comm... |
2020 |
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| Bonnie St. Charles |
You're on Native Land: the Genocide Convention, Cultural Genocide, and Prevention of Indigenous Land Takings |
21 Chicago Journal of International Law 227 (Summer, 2020) |
Genocide is a sensitive topic. While the Genocide Convention is traditionally understood, especially in the popular imagination, to prohibit mass killings, its provisions prohibit a far broader array of conduct. While killings of Indigenous peoples have thus frequently been considered to fall within the bounds of the Genocide Convention, crimes; Search Snippet: ...2. Section IV will briefly explain the history of international Indigenous land conflicts and identify ongoing issues in Indigenous territorial sovereignty and, further, the harm that the taking of Indigenous lands inflicts. It additionally will argue that Indigenous land takings... |
2020 |
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| Kori Cordero |
Yurok Tribe Fishing Court |
59 No. 2 Judges' Journal 26 (Spring, 2020) |
The Yurok Tribe's Justice Center sits near the western end of the Yurok Reservation, an hour south of the Oregon-California border and six hours north of San Francisco. Fishing Court is in session, but the parties are outside discussing the last case from the commercial fishing season. The respondent is self-represented and has just been told that; Search Snippet: ...ability to fish has been a central part of the Tribe's exercise of sovereignty--from the fishing wars of the late 1970s, the largest... |
2020 |
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| Caesar Kalinowski IV |
A Legal Response to the Sovereign Citizen Movement |
80 Montana Law Review 153 (Summer, 2019) |
A little knowledge is a dangerous thing. It may also prove costly. In early 2016, armed antigovernment protesters led by Ammon Bundy occupied the Malheur National Wildlife Refuge in Harney County, Oregon, to challenge the federal government's control over public lands. By February, federal and state law enforcement officers had arrested or killed... |
2019 |
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| James Andrew Black |
A New Custom Thickens: Increased Coastal State Jurisdiction Within Sovereign Waters |
37 Boston University International Law Journal 355 (Summer, 2019) |
History reveals . the difficulties of resolving conflicts of laws as between the law of the flag which governs ships and the law of the coastal State which governs offshore zones. Jurisdiction over foreign vessels operates on a sliding scale of authority. This power fluctuates between coastal States and flag States--the State where a vessel is... |
2019 |
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| Allison Hugi |
A New Weight on the Scale: Strengthening International Human Rights Law by Relying on Treaties in Us Asylum Cases |
17 Santa Clara Journal of International Law L. I (4/29/2019) |
This Article examines the role that domestic asylum cases in the United States can play in improving countries' compliance with international human rights law. Using Australia, Canada, and the UK as case studies, it advocates for the domestic asylum process in the US to consider the status of international human rights treaties in the home... |
2019 |
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| Alejandro Madrazo |
A Sovereign People: How Revolution Undermines the Rule of Law in Mexico |
37 Boston University International Law Journal 123 (Spring, 2019) |
The article is a comparative study in constitutional culture. It traces the genealogy of popular sovereignty in Mexico. Following the evolution and uses of the constitutional clause establishing a right to revolution as an entry point, the article explores the intersection between the concepts of revolution and constitution in Mexico. The article... |
2019 |
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| Timothy Dill |
A Test of Sovereignty: Franchise Tax Board of the State of California v. Gilbert P. Hyatt |
14 Duke Journal of Constitutional Law & Public Policy Sidebar 129 (4/30/2019) |
In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to... |
2019 |
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| John W. Head |
Addressing Global Challenges Through Pluralistic Sovereignty: a Critique of State Sovereignty as a Centerpiece of International Law |
67 University of Kansas Law Review 727 (May, 2019) |
Editor's Note: In this Article by KU Law faculty member John Head, we join global issues with Kansas issues. Professor Head explores a central concept of international law--the concept of sovereignty, as exercised by nation-states-- with an eye to urging legal reforms that will help address global challenges that have special relevance to our own... |
2019 |
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| David V. Williams, University of Auckland |
Alison Quentin-baxter and Janet Mclean, this Realm of New Zealand: the Sovereign, the Governor-general, the Crown (Auckland: Auckland University Press, 2017). Pp. Xi + 356. Nzd $65.00 (Hardcover). Isbn: 9781869408756 |
59 American Journal of Legal History 141 (March, 2019) |
The Commonwealth of Nations is a voluntary association of 53 sovereign independent states almost all of which were once members of an indivisible Empire under the British Crown. Most members of the Commonwealth are constituted as republics, but there remain 16 Realms with Queen Elizabeth II as the Sovereign head of state. Though having the same... |
2019 |
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| Christopher Tomlins, Berkeley Law, University of California |
Archiving Sovereignty: Law, History, Violence. By Stewart Motha. Ann Arbor: University of Michigan Press, 2018 |
53 Law and Society Review 611 (June, 2019) |
Archiving Sovereignty has been maturing in Stewart Motha's mind for more than a decade. The book is the culmination of 20 years of research--virtually his entire academic career, to date--but took form primarily after a return visit in 2009 to Colombo, Sri Lanka, where Motha was born and where he spent his childhood before moving to Australia in... |
2019 |
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| Maria Adele Carrai |
China's Malleable Sovereignty along the Belt and Road Initiative: the Case of the 99-year Chinese Lease of Hambantota Port |
51 New York University Journal of International Law & Politics 1061 (Summer, 2019) |
I. Introduction. 1062 II. Hambantota Port: A Strategic Pearl along the Maritime Silk Road. 1067 III. Hambantota Concession Agreement and the Legacies of Colonialism. 1075 IV. Sovereignty and the 99-year Lease Agreement of Hambantota. 1086 V. Conclusion. 1097 |
2019 |
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| Lily Johnson |
Commercial Surrogacy Is the Sale of Children?: an Argument That Commercial Surrogacy Does Not Violate International Treaties |
28 Washington International Law Journal 701 (July, 2019) |
Abstract: Rates of commercial surrogacy have risen with the proliferation of in vitro fertilization. The process is unique in allowing intending parents the opportunity to raise a child of their own genetic material even if they cannot procreate through their own bodies. However, commercial surrogacy has been abused and caused physical and legal... |
2019 |
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| Jennie Bricker |
Defining 'Indian' |
79-MAY Oregon State Bar Bulletin 28 (May, 2019) |
Columbia Park occupies 450 acres along the Columbia River in Tri-Cities, Wash. It hosts an annual event called the Water Follies, which includes a hydroplane race. On July 28, 1996, Will Thomas and Dave Deacy were wading along the river bank near Kennewick, sipping from cans of Busch Light and looking to avoid the race's entrance fee. Thomas... |
2019 |
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| Michael C. Blumm , Jeffrey B. Litwak |
Democratizing Treaty Fishing Rights: Denying Fossil-fuel Exports in the Pacific Northwest |
30 Colorado Natural Resources, Energy & Environmental Law Review Rev. 1 (Winter, 2019) |
Indian treaty fishing rights scored an important judicial victory recently when an equally divided U.S. Supreme Court affirmed the Ninth Circuit's decision in the so-called culverts case, which decided that the Stevens Treaties of the 1850s give the tribes a right to protect salmon migration obstructed by barrier road culverts. The implications... |
2019 |
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| Ying Zhu |
Do Clarified Indirect Expropriation Clauses in International Investment Treaties Preserve Environmental Regulatory Space? |
60 Harvard International Law Journal 377 (Summer, 2019) |
The last twenty years have witnessed a number of investor-state disputes in which investors claimed host states' environmental regulations were indirect expropriations of foreign investments, resulting in host states paying large amounts of compensation to foreign investors. To preserve the regulatory space of host states, in the past decade,... |
2019 |
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| Arlene S. Kanter |
Do Human Rights Treaties Matter: the Case for the United Nations Convention on the Rights of People with Disabilities |
52 Vanderbilt Journal of Transnational Law 577 (May, 2019) |
In the United States, and throughout many other parts of the world, we are witnessing attacks on basic human rights. As poverty, inequality, and suffering are evident in so many parts of the world today, there are those who say that the entire human rights regime has failed. This author does not agree. While it is true that human rights treaties... |
2019 |
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| Uche Ewelukwa Ofodile |
Emerging Market Economies and International Investment Law: Turkey-africa Bilateral Investment Treaties |
52 Vanderbilt Journal of Transnational Law 949 (October, 2019) |
This Article offers a critical and penetrating insight into the bilateral investment treaties (BITs) between Turkey and countries in Africa. Since 2003, Turkey has concluded BITs with twenty-eight countries in Africa. This Article seeks answers to some very important questions. In the BITs between Turkey and countries in Africa, is Turkey merely... |
2019 |
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Federalism--state Sovereign Immunity--structural Inferences--franchise Tax Board v. Hyatt |
133 Harvard Law Review 362 (November, 2019) |
The Constitution contains no textual provision addressing interstate sovereign immunity. Nonetheless, courts have been wrestling with the implications of that silence for over a century. When Gilbert Hyatt sued the Franchise Tax Board of California (FTB), a state agency, in a Nevada court, California's immunity existed at the discretion of the... |
2019 |
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Fifth Amendment--double Jeopardy Clause-- Separate Sovereigns Doctrine--gamble v. United States |
133 Harvard Law Review 312 (November, 2019) |
The Double Jeopardy Clause requires that no defendant be subject to prosecution twice for the same offence. But under the separate sovereigns doctrine, the Supreme Court has long recognized a limit to the clause: a defendant's right against double jeopardy is violated only in the case of two prosecutions by the same sovereign. Because the... |
2019 |
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| David Simson |
Fool Me Once, Shame on You; Fool Me Twice, Shame on You Again: How Disparate Treatment Doctrine Perpetuates Racial Hierarchy |
56 Houston Law Review 1033 (Spring, 2019) |
Title VII race discrimination doctrine is excessively hostile to workers of color, and many observers agree that it needs to be fixed. Yet comparatively few analyses of the doctrine weave together doctrinal and theoretical insights with systematic empirical findings from social science. This Article looks to Social Dominance Theory--a social... |
2019 |
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| Anthony J. Colangelo |
Gamble, Dual Sovereignty, and Due Process |
2019 Cato Supreme Court Review 189 (2018-2019) |
The Constitution's Double Jeopardy Clause is an analytically gnarly beast. What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls. At the center is the so-called dual sovereignty doctrine. This principle holds that separate sovereigns (for... |
2019 |
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| Julian Nyarko |
Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements |
113 American Journal of International Law 54 (January, 2019) |
Scholars have argued that Senate-approved treaties are becoming increasingly irrelevant in the United States, because their role can be fulfilled by their close but less politically costly cousin, the congressional-executive agreement. This study demonstrates that treaties are more durable than congressional-executive agreements, supporting the... |
2019 |
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| Dessa Reimer |
Herrera v. Wyoming |
42-DEC Wyoming Lawyer 20 (December, 2019) |
In May 2019, the U.S. Supreme Court decided Clayvin Herrera v. Wyoming, 139 S.Ct. 1686 (2019). The case is remarkable not only for its procedural history (how often do Wyoming district court decisions go up on direct appeal to the U.S. Supreme Court?), but also for its holding--that the Crow Tribe's hunting right survived Wyoming's statehood, and... |
2019 |
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| Pilar G. Mendez |
Imprisoned Hispanic/latinx Individuals Need Access to Culturally Competent Mental Health Treatment |
28 Annals of Health Law Advance Directive 157 (Spring, 2019) |
Before I built a wall I'd ask to know, What I was walling in or walling out.--Robert Frost, Mending Wall Four-in-ten Hispanic/Latinx individuals living in the United States said that they had serious concerns about their place in Trump's America after the 2016 election. One research study found that President Trump's immigration policies have... |
2019 |
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