AuthorTitleCitationSummaryYearKey Terms
Oona A. Hathaway Treaties' End: the Past, Present, and Future of International Lawmaking in the United States 117 Yale Law Journal 1236 (May, 2008) ABSTRACT. Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is... 2008  
T. Leigh Anenson Treating Equity like Law: a Post-merger Justification of Unclean Hands 45 American Business Law Journal 455 (Fall, 2008) How absurd for us to go on until the year 2000 obliging judges and lawyers to climb over a barrier which was put up by historical accident in 14 century England and built higher by the eagerness of three extinct courts to keep as much business as possible in their own hands, so that these hands might be full of fees! --Zechariah Chafee, Jr. The New... 2008  
Jordan Wilder Connors Treating like Subdecisions Alike: the Scope of Stare Decisis as Applied to Judicial Methodology 108 Columbia Law Review 681 (April, 2008) The Supreme Court has explained that stare decisis binds the Court to both its result and those portions of the opinion necessary to [the] result. Yet the Supreme Court does not seem to extend this principle to those necessary portions, herein called subdecisions, that involve methodological questions. For example, when a case rests on a... 2008  
Diane E. Hoffmann Treating Pain v. Reducing Drug Diversion and Abuse: Recalibrating the Balance in Our Drug Control Laws and Policies 1 Saint Louis University Journal of Health Law & Policy 231 (2008) I. Introduction. 233 II. Arrests and Prosecutions of Physicians for Opioid Prescribing. 236 A. Dr. Frank Fisher. 239 B. Dr. Cecil Knox. 242 C. Dr. William Hurwitz. 245 D. Dr. Jeri Hassman. 250 E. Dr. Ronald McIver. 253 III. The Roots of the Conflict--A Clash of Cultures. 256 IV. The History of U.S. Drug Enforcement Related to Physician Prescribing.... 2008  
Robert O. Saunooke Tribal Justice 47 Judges' Journal 15 (Fall, 2008) I was intrigued by an article entitled Access to the Courts: Equal Justice for All written a few years ago by former ABA president Robert J. Grey Jr. The goal of the article was a noble one. President Grey set forth in great detail the obstacles and challenges to making courts more accessible and justice more obtainable for all people. President... 2008 Yes
Alex Tallchief Skibine Tribal Sovereign Interests Beyond the Reservation Borders 12 Lewis & Clark Law Review 1003 (Winter 2008) After describing how, from a global perspective, traditional concepts of state sovereignty have moved away from being uniquely tied to exclusive control of territories, this Article shows how the United States concept of tribal sovereignty is also no longer tied to territorial sovereignty. This is evident from the fact that, mostly through Supreme... 2008 Yes
Timothy G. Burroughs Turning Away from Islam in Iraq: a Conjecture as to How the New Iraq Will Treat Muslim Apostates 37 Hofstra Law Review 517 (Winter 2008) Can freedom of religion be reconciled with death for apostasy? The 2006 Constitution of Iraq binds the new Iraqi state to upholding both the freedom of religion and the principles of Islam, which includes capital punishment for leaving Islam according to many scholars. In resolving this seeming collision of ideological commitments, the new Iraq... 2008  
Josh Stellmon Under the Guise of 'Treaty Rights:' the Nez Perce Tribe of Idaho, Steelhead, and Gillnetting 29 Public Land & Resources Law Review 63 (2008) I. Introduction. 64 II. Fishing, Anadromous Fish and the Nez Perce People. 66 A. History and Culture. 66 B. Fish and Contemporary Nez Perce Society. 70 III. Legal Issues Surrounding the Current Gillnetting Plan. 70 A. Treaty Fishing Rights and Government Regulation. 71 1. The Puyallup Decisions. 71 2. Share and Share Alike: Apportionment of... 2008 Yes
Erik S. Laakkonen Up in Smoke? Narragansett, Hicks, and the Erosion of Tribal Sovereign Immunity 11 Journal of Gender, Race and Justice 453 (Spring 2008) The Supreme Court has long recognized the doctrine of tribal sovereign immunity from suit. The doctrine was developed exclusively under federal common law, unlike state immunity, and is firmly rooted in American Indian law. Despite its benefit to tribal entities, in recent years the Supreme Court has suggested the need for Congress to abrogate, or... 2008 Yes
Lee Botts , Paul Muldoon Using the Boundary Waters Treaty for the 2ist Century: Revitalizing the Great Lakes Governance Regime 54 Wayne Law Review 1553 (Winter, 2008) I. Introduction. 1554 II. The Opportunity to Reflect on Great Lakes Governance. 1554 III. The Decline of Great Lakes Governance. 1557 A. The Decline in Binational Processes. 1558 B. The Decline in Community and the Rise in Bilateral Advocacy. 1560 C. The Proliferation of Great Lakes Related Institutions. 1565 IV. The Need for Better Governance... 2008  
Alice Edwards Violence Against Women as Sex Discrimination: Judging the Jurisprudence of the United Nations Human Rights Treaty Bodies 18 Texas Journal of Women and the Law L. 1 (Fall 2008) A. INTRODUCTION. 2 B. THE U.N. HUMAN RIGHTS TREATY BODIES. 5 C. FEMINIST CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW AND THE EQUALITY GUARANTEES. 8 D. EQUALITY AND NON-DISCRIMINATION ON THE BASIS OF SEX IN INTERNATIONAL LAW. 18 1. U.N. Charter and the Universal Declaration of Human Rights. 18 2. International human rights instruments. 19 3.... 2008  
Diane M. Ring What's at Stake in the Sovereignty Debate?: International Tax and the Nation-state 49 Virginia Journal of International Law 155 (Fall 2008) Introduction. 156 I. The Normative Implications of Sovereignty for International Taxation. 159 A. The Sovereignty Concept. 159 B. The Functional Role of Sovereignty in Taxation. 167 1. Revenue. 167 2. Fiscal Sovereignty. 168 C. What Norms Are at Stake When States Assert Sovereignty?. 170 1. The Democracy Problems. 170 a. Democratic Accountability.... 2008  
Jennifer L. Greenblatt What's Dignity Got to Do with It?: Using Anti-commandeering Principles to Preserve State Sovereign Immunity 45 California Western Law Review Rev. 1 (Fall 2008) Introduction. 2 I. A Focus on States' Rights: Alden v. Maine and Eleventh Amendment Sovereign Immunity. 4 A. Freeing Eleventh Amendment from Its Textual Mooring. 5 B. Alden 's Fixation on State Dignity. 8 II. A Focus on the Limits of Federal Power: The Anti-Commandeering Principle. 11 A. Anti-Legislative Commandeering (New York v. United States).... 2008  
Nora O'Callaghan When Atlas Shrugs: May the State Wash its Hands of Those in Need of Life-sustaining Medical Treatment? 18 Health Matrix: Journal of Law-Medicine 291 (Summer, 2008) The dispute over the legal duties owed to patients requesting life-sustaining medical treatment (LSMT) judged futile by doctors has proven intractable. This is because no consensus has emerged regarding what constitutes futile medical treatment, when the treatment the patient desires is physiologically effective in sustaining the patient's... 2008  
Daisuke Beppu When Cultural Value Justifies Protectionism: Interpreting the Language of the Gatt to Find a Limited Cultural Exception to the National Treatment Principle 29 Cardozo Law Review 1765 (March, 2008) The World Trade Organization (WTO) maintains the regulation of international trade by promoting a general policy of mutual benefit and fairness amongst all trading nations. The present WTO agreement that governs the trading of goods--the General Agreement on Tariffs and Trade (GATT)--regulates trade relationships between the signatory... 2008  
Mariana Gaxiola-Viss Wrestling with God: the Courts' Tortuous Treatment of Religion 9 Rutgers Journal of Law & Religion 18 (Spring, 2008) Much has been written about whether the Framers' intention when drafting the Establishment Clause of the First Amendment was to exclude religion from the state by a wall of separation, by some lesser measure, or by no measure at all. On one side of the debate, Justice Brennan and prominent commentator Erwin Chemerinsky, among others, advocate a... 2008  
Angela R. Riley (Tribal) Sovereignty and Illiberalism 95 California Law Review 799 (June, 2007) Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this Article, I argue that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards... 2007 Yes
Christopher L. Beals A Review of the State Sovereignty Loophole in Intellectual Property Rights Following Florida Prepaid and College Savings 9 University of Pennsylvania Journal of Constitutional Law 1233 (9/1/2007) I. Historical Review of State Sovereign Immunity and The Intellectual Property Loophole. 1235 A. Evolution of the Eleventh Amendment and Sovereign Immunity. 1236 B. Limits on Sovereign Immunity. 1238 1. Ex parte Young. 1238 2. Congressional Legislation. 1240 a. Commerce Clause. 1240 b. 14th Amendment, Section 5. 1242 3. State Waiver of Immunity.... 2007  
Joy M. Purcell A Right to Leave, but Nowhere to Go: Reconciling an Emigrant's Right to Leave with the Sovereign's Right to Exclude 39 University of Miami Inter-American Law Review 177 (Fall 2007) I. Introduction. 177 II. The Concept of a Right to Emigrate. 181 A. The Origin of a Universal Right to Freedom of Movement. 181 B. The Current Status of the Right to Emigrate. 186 III. Limits on Emigration: Sovereignty and Regulation of Immigration. 192 A. The U.S. Interpretation of Sovereignty. 192 B. Sovereignty and Regulation. 193 IV. Exceptions... 2007  
Kyle S. Conway A Tale of Two Sovereigns: the Implications of Dairyland Greyhound Park, Inc. v. Doyle on Tribal and State Self-government 2007 Wisconsin Law Review 1313 (2007) Men being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. -- John Locke No one paying attention to Wisconsin politics could have ignored the heated political debate that began when Governor Jim Doyle negotiated expanded... 2007 Yes
Michael T. Schwaiger A Visible Radiation: Interpreting the History of the Eleventh Amendment as Foreign Policy to Circumscribe the Treaty Power 2 Duke Journal of Constitutional Law & Public Policy 217 (2007) I Introduction. 218 II Federalism and the Treaty Power. 222 A. Recent Federalism Jurisprudence and Treaties. 223 B. The Treaty Power: Text, Structure, and History. 226 C. The Nationalists and the Federalists on the Treaty Power. 230 1. The Nationalist Position. 230 2. The Federalist Position. 234 III The Foreign Policy History of the Eleventh... 2007  
Jordan J. Paust Above the Law: Unlawful Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to Unchecked Executive Power 2007 Utah Law Review 345 (2007) Whether they constitute torture or violence to life and person, it is quite clear that the tactics portrayed in photos from Abu Ghraib Prison, namely the stripping naked and hooding of persons for interrogation purposes and the use of dogs for interrogation and terroristic purposes, are patently illegal interrogation tactics. Such treatment... 2007  
James B. Cronon Accession to a Surrender of Sovereign Autonomy in Law?: the Effect of the European Union Membership Process upon Romania 36 Georgia Journal of International and Comparative Law 189 (Fall, 2007) On January 1, 2007, the Republic of Romania finally entered the European Union (EU), along with the Republic of Bulgaria, pursuant to the latest of a long series of accessions to the EU. This accession increased the total number of sovereign nations within the EU to twenty-seven. The treaty between the Union members and the proposed new members was... 2007  
Timothy Zick Active Sovereignty 21 Saint John's Journal of Legal Commentary 541 (Spring 2007) If there was something revolutionary about the recent federalism era, it was the manner in which the Court spoke of the states. When they entered the Union, the states were sometimes referred to as mere corporate forms. In recent federalism precedents, by contrast, the Rehnquist Court routinely referred to the states as sovereign. The Court... 2007  
Ronald Singh Advancing a "Carrot and Stick" Framework for Effective Caricom Environmental Cooperation and Governance 16 Penn State Environmental Law Review 199 (Fall 2007) This article reinforces the strong link between economic growth and environmental integrity. In the Caribbean, the bid to preserve the environment's integrity is an unattainable task without the cooperation of the CARICOM member states. Although the birth of CARICOM had promised to usher in an era of mutual support and cooperation very little of... 2007  
Meredith Mullins American-Indian Law - Taxation - Michigan General Property Tax Act Is Not Valid Against Indian Reservation Land Alloted under the 1854 Treaty Because Congress Did Not Expressly Authorize It. Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514 (6th Cir. 85 University of Detroit Mercy Law Review 57 (Fall 2007) In Keweenaw Bay Indian Community v. Naftaly, the Sixth Circuit granted leave to appeal to determine whether application of the Michigan General Property Tax Act (hereinafter Act) would violate the terms of the 1854 Treaty. Plaintiff, a federally recognized American-Indian tribe and the successor in interest of the Chippewa Indian bands, filed a... 2007 Yes
Christopher Cowan An Unworkable Rule of Law: the Ada, Education, and Sovereign Immunity; an Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis 80 Southern California Law Review 347 (January, 2007) On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (ADA), signed into law by the former President Bush. In the proclamation, President Bush call[ed] on all Americans . . . to fulfill the promise of the ADA [and] to give all people the opportunity to live... 2007 Yes
Klaus Ferdinand Gärditz, University of Bayreuth Article 36, Vienna Convention on Consular Relations-treaty Interpretation and Enforcement-international Court of Justice-fair Trial- Suppression of Evidence 101 American Journal of International Law 627 (July, 2007) Case Nos. 2 BvR 2115/01, 2 BvR 2132/01, & 2 BvR 348/03. 60 Neue Juristische Wochenschrift 499 (2007). At (Federal Constitutional Court of Germany), September 19, 2006. On September 19, 2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held in jointly... 2007  
Ndiva Kofele-Kale Asserting Permanent Sovereignty over Ancestral Lands: the Bakweri Land Litigation Against Cameroon 13 Annual Survey of International and Comparative Law 103 (Spring, 2007) The Article focuses on the recently concluded Bakweri land case against Cameroon in the African Human Rights Commission. The Article uses this litigation as the basis for a re-examination of a host of issues relating to the enforcement of human rights, especially land rights, in post-colonial countries making the slow transition from single-party... 2007  
Orde F. Kittrie Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing its Deterrence Capacity and How to Restore it 28 Michigan Journal of International Law 337 (Winter 2007) Introduction. 338 I. NPT Overview. 346 II. The NPT's Verification Weaknesses. 350 III. Introduction to Sanctions. 354 A. Sanctions Goals. 356 1. Coercing a Change in Target Behavior. 356 2. Reducing or Containing Target Ability to Implement Objectionable Policies. 357 3. Deterring Other Actors that Might Contemplate Objectionable Actions. 357 4.... 2007  
Michael Muskheli Bankruptcy Law 29 University of Arkansas at Little Rock Law Review 805 (Summer, 2007) Article I, Section 8, Clause 4 of the United States Constitution provides that Congress shall have the power to establish uniform Laws on the subject of Bankruptcies throughout the United States. Pursuant to this Clause, Congress has enacted extensive legislation on the subject, also referred to as the Bankruptcy Code (the Code). One section of... 2007  
Martin H. Redish , Daniel M. Greenfield Bankruptcy, Sovereign Immunity and the Dilemma of Principled Decision Making: the Curious Case of Central Virginia Community College v. Katz 15 American Bankruptcy Institute Law Review 13 (Spring, 2007) Every war is comprised of a series of individual battles, each an attempt to secure an intermediary strategic advantage in the service of a greater purpose. Some ultimately prove to be relatively inconsequential. Others are transformational. In Central Virginia Community College v. Katz a dramatic campaign for control of sovereign immunity law was... 2007  
Robert A. McDonald Bankruptcy--does Bankruptcy Code Section 106 Authorize a Waiver of Sovereign Immunity for Emotional Distress Claims? 30 Western New England Law Review 265 (2007) Imagine that you are a lower-middle-class taxpayer and you have finally realized your lifelong dream of starting your own business. After years of having to punch someone else's clock, you are finally ready to hang up your own shingle. You hope that the joy felt during the ribbon-cutting ceremony is a sign of a long and prosperous financial future.... 2007  
Denise Gilman Calling the United States' Bluff: How Sovereign Immunity Undermines the United States' Claim to an Effective Domestic Human Rights System 95 Georgetown Law Journal 591 (March, 2007) The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment, and to ensure the victim adequate compensation. C1-2Table of Contents... 2007  
Bradford Mank Can Plaintiffs Use Multinational Environmental Treaties as Customary International Law to Sue under the Alien Tort Statute? 2007 Utah Law Review 1085 (2007) I. Introduction. 1086 II. General Principles: The Evolution of ATS Cases from Filartiga to Sosa. 1089 A. History of the ATS. 1089 B. The Law of Nations: Filartiga v. Pena-Irala and Its Progeny. 1090 C. United States Treaties. 1093 D. Private Versus State Actors. 1095 E. Defenses. 1098 III. Environmental Claims Under the ATS Before Sosa. 1100 A.... 2007  
Austen L. Parrish Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights 31 American Indian Law Review 291 (2006-2007) For much of the nineteenth and twentieth centuries, the international community resisted the notion of indigenous rights. In recent years, however, thishas changed. The emergence of indigenous rights in international law finally may be upon us. At the very least, the language of both international instruments and certain court decisions has... 2007  
Guadalupe T. Luna Chasing Treaty Promises 18 Berkeley La Raza Law Journal 105 (2007) In their quest for housing throughout history and still today, Latinas/os continuously witness the disregard of international and domestic law. A survey of the legal methods various municipalities employ in seeking to eliminate Latinas/os from their communities, exemplifies how alleged legal rules advance power relationships in the United States.... 2007  
Emily L. Thompson , F. Soniya Yunus Choice of Laws or Choice of Culture: How Western Nations Treat the Islamic Marriage Contract in Domestic Courts 25 Wisconsin International Law Journal 361 (Summer 2007) The topic of Islamic family law is one of controversy and much debate among Muslims and non-Muslims alike. All Muslims are in agreement, however, that Islamic law, or shari'a, is the law of God and that it is obligatory upon Muslims to obey its divine provisions. Except for municipal regulations, Islamic law is not made by the state; it is... 2007  
Nestor M. Davidson Cooperative Localism: Federal-local Collaboration in an Era of State Sovereignty 93 Virginia Law Review 959 (June, 2007) Introduction. 960 I. Background: Federal-Local Cooperation and Constitutional Structure. 964 A. The Importance of Direct Federal-Local Cooperation. 966 B. Local Autonomy and the Intermediary of the States. 975 II. Local Government Powerlessness and State Sovereignty. 979 A. Plenary State Control of Local Governments and the Unitary State. 980 B.... 2007  
James F. Caputo Copy-katz: Sovereign Immunity, the Intellectual Property Clause, and Central Virginia Community College v. Katz 95 Georgetown Law Journal 1911 (August, 2007) In January 2006, the Supreme Court decided the relatively unheralded case of Central Virginia Community College v. Katz. Dividing 5-4, the Court held that the history and structure of the Bankruptcy Clause of the United States Constitution indicate that it contains an implicit waiver of state sovereign immunitythat is, when states ratified the... 2007  
Graeme B. Dinwoodie Copyright Lawmaking Authority: an (Inter)nationalist Perspective on the Treaty Clause 30 Columbia Journal of Law & the Arts 355 (Spring 2007) Scholars have long questioned the compliance of various aspects of copyright law with the demands of the United States Constitution. Over the past fifteen years, however, these questions have been asked with increasing frequency about increasingly diverse aspects of the copyright statute (both existing and proposed). Many of those constitutional... 2007  
Marisa Silenzi Cianciarulo Counterproductive and Counterintuitive Counterterrorism: the Post-september 11 Treatment of Refugees and Asylum-seekers 84 Denver University Law Review 1121 (2007) The United States has a long and rich history of protecting individuals fleeing persecution. The country was founded as a haven from religious persecution, and became home to Quakers, Puritans, Catholics, Huguenots and other religious denominations unwelcome in England and other parts of Europe in the seventeenth and eighteenth centuries. This... 2007  
Melissa A. Waters Creeping Monism: the Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties 107 Columbia Law Review 628 (April, 2007) This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights treaties in interpreting domestic law. Professor Waters argues that recent U.S. Supreme Court decisions (including Roper v. Simmons) should be viewed as part of a transnational trend among common law... 2007  
Hon. Gaylen L. Box , Magistrate Judge Sixth Judicial District Crow Dog: Tribal Sovereignty & Criminal Jurisdiction in Indian Country 50-MAY Advocate 13 (May, 2007) Crow Dog really started something on that hot dusty August afternoon in the Dakota Territory in 1881. The Sioux Nation had been fractured by the United States and its members scattered among various reservations. Just outside the Rosebud Indian Agency on the Great Sioux Reservation, Crow Dog shot and killed Spotted Tail, a Brule Sioux chief.... 2007 Yes
Michael C. Duff Days Without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act 85 Denver University Law Review 93 (2007) In the late winter and spring of 2006, a series of massive pro-immigration rallies occurred in a number of cities throughout the United States. One of the unusual aspects of the rallies was that many of them took place during the week on traditional work days. As one commentator has noted, large-scale political demonstrations historically have... 2007  
Stacy L. Leeds Defeat or Mixed Blessing? Tribal Sovereignty and the State of Sequoyah 43 Tulsa Law Review Rev. 5 (Fall 2007) American Indian legal history is replete with stories of foreseeable consequences. Most of these stories involve the United States failing to uphold treaty guarantees. In each of these stories, the United States ignores the tribal diplomatic efforts of the time, engages in unilateral federal action, and tribal autonomy is forever diminished. In... 2007 Yes
Adam Pekor Department of Revenue v. Davis: Why the Supreme Court Should Strike down the Differential Tax Treatment of In-state and Out-of-state Municipal Bonds 60 Tax Lawyer 807 (Spring, 2007) Justice Cardozo once wrote, [t]he Constitution . was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division. Nowhere does this principle resound more deeply than in the dormant component of the Commerce Clause, which delineates the... 2007  
Robert M. Chesney Disaggregating Deference: the Judicial Power and Executive Treaty Interpretations 92 Iowa Law Review 1723 (July, 2007) ABSTRACT: When confronted with ambiguous treaty language, do judges defer to the interpretation preferred by the executive branch? Should they do so? The descriptive and normative issues associated with judicial deference to executive-branch treaty interpretations are pressing, particularly in light of the impact U.S. treaty obligations might have... 2007  
Timothy R. Hurley Elevating Form over Substance at the Expense of Indian Sovereignty [Wagnon v. Prairie Band Potawatomi Nation, 126 S. Ct. 676 (2005)] 46 Washburn Law Journal 453 (Winter 2007) An unlimited power to tax involves, necessarily, a power to destroy. When the Europeans discovered America in 1492, five million people in 600 Indian tribes already inhabited the area now known as the United States. Each tribe had its own language and government and considered itself a distinct sovereign entity. Sovereignty is the force or power... 2007 Yes
Adam Feibelman Equitable Subordination, Fraudulent Transfer, and Sovereign Debt 70 Law and Contemporary Problems 171 (Autumn 2007) Until recently, debates over sovereign debt have primarily focused on whether and how sovereigns in financial distress should be able to restructure their obligations. More recently, however, since the fall of Saddam Hussein's regime in Iraq, a new topic has gained much attention: whether sovereigns' creditors should be able to enforce obligations... 2007  
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