AuthorTitleCitationSummaryYearKey Terms
Nancy S. Kim Blameworthiness, Intent, and Cultural Dissonance: the Unequal Treatment of Cultural Defense Defendants 17 University of Florida Journal of Law and Public Policy 199 (August, 2006) Many scholars have debated the wisdom and meaning of the cultural defense. The use of the term itself is a misnomer as it is rarely used to advocate a formalized defense. In this Essay, I use the term cultural defense to refer to any use of cultural evidence in criminal cases to justify, exculpate, or mitigate a defendant's actions.... 2006  
Justin Neel Baucom Bringing down the House: as States Attempt to Curtail Indian Gaming, Have We Forgotten the Foundational Principles of Tribal Sovereignty 30 American Indian Law Review 423 (2005-2006) Indian casinos have been springing up all over the country as tribes are trying to cash in on what some Indians believe may be the best (and only) means to sustain tribal economic development and to make improvements in the lives of their people. Indian gaming is growing at about twice the rate of commercial casino gaming nationwide. The state of... 2006 Yes
Luke A. McLaurin Can the President "Unsign" a Treaty? A Constitutional Inquiry 84 Washington University Law Review 1941 (2006) In May 2002, President Bush sparked controversy in the international community with his purported unsigning of the Rome Statute of the International Criminal Court (ICC), a major multilateral treaty. Although President Clinton had signed the Rome Statute on December 31, 2000-- the last day in which the treaty remained open for signature--with... 2006  
Donald P. Harris Carrying a Good Joke Too Far: Trips and Treaties of Adhesion 27 University of Pennsylvania Journal of International Economic Law 681 (Fall 2006) Now is the time for international lawyers to focus on the issue of fairness in the law. The new maturity and complexity of the system calls out for a critique of law's content and consequences. Its extensive coverage and its audacious incursions into state sovereignty demand a new emphasis on the system's values, aims, and effects. Should fairness... 2006  
Naoki Kanaboshi Competent Persons' Constitutional Right to Refuse Medical Treatment in the U.s. and Japan: Application to Japanese Law 25 Penn State International Law Review Rev. 5 (Summer 2006) The goal of this article is to clarify the meaning and scope of the constitutional right to refuse medical treatment in Japan. Once clarified, the constitutional right to refuse treatment could govern the interpretation and application of relevant statutes in certain situations. This thesis posits that the right to refuse treatment is protected... 2006  
Bryan J. Nowlin Conflicts in Sovereignty: the Narragansett Tribe in Rhode Island 30 American Indian Law Review 151 (2005-2006) American Indian tribal sovereignty is important to both tribal members and the states in which they reside. Historically, the line between tribal sovereignty and state jurisdiction is not easy to find. Jurisdictional conflicts are a sign of healthy sovereigns, as a weak sovereign cannot defend against encroachments upon its jurisdiction. The... 2006 Yes
  Constitutional Law -- Political Question Doctrine -- Ninth Circuit Holds That Whether the President May Conclude a Treaty with Hong Kong Does Not Constitute a Political Question. -- Wang v. Masaitis, 416 F.3d 992 (9th Cit. 2005) 119 Harvard Law Review 2300 (May, 2006) The political question doctrine mandates that the political branches, rather than the courts, determine the constitutionality of certain courses of action. Since the doctrine requires courts to recognize the President's discretion over many aspects of foreign affairs, judicial treatment of the doctrine is often intertwined with issues of... 2006  
Ileana M. Porras Constructing International Law in the East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius' De Iure Praedae-the Law of Prize and Booty, or "On How to Distinguish Merchants from Pirates" 31 Brooklyn Journal of International Law 741 (2006) Throughout history, and across the globe, peoples and nations have encountered and entered into relationship with one another. While keeping in mind the dangers of oversimplification, it could nevertheless be argued that despite their variety, international relations fall mostly into either of two familiar types: The first takes the form of war or... 2006 Yes
Ralph A. Litzinger, Duke University Contested Sovereignties and the Critical Ecosystem Partnership Fund 29 PoLAR: Political and Legal Anthropology Review 66 (May, 2006) The Critical Ecosystem Partnership Fund (CEPF) is a new global conservation-funding project created in 2000 through start-up funds from Conservation International, the World Bank, the Global Environmental Facility, and the MacArthur Foundation. It aims to protect the world's biodiversity hotspots, promote civil society, and assist in the Millennial... 2006  
Kristen A. Carpenter Contextualizing the Losses of Allotment Through Literature 82 North Dakota Law Review 605 (2006) Some years ago, scholars issued a call to context, arguing that legal rules should be studied and applied with attention to the historical, personal, cultural, geographic, and other circumstances that give rise to legal problems. These scholars critiqued a strict rule-of-law model wherein abstract legal principles dominated legal thinking. By... 2006  
Erwin Chemerinsky Court Revisits Sovereign Immunity in Discrimination Cases 42-MAR Trial 70 (March, 2006) Over the last decade, few areas of constitutional law have received more attention from the Supreme Court than sovereign immunity. Since 1996, the Court has significantly limited plaintiffs' ability to sue state governments. But its most recent ruling on the issue, in United States v. Georgia, actually opens the door to more lawsuits against states... 2006  
Wenona T. Singel Cultural Sovereignty and Transplanted Law: Tensions in Indigenous Self-rule 15-WTR Kansas Journal of Law & Public Policy 357 (Winter 2006) Two forces that have a tremendous impact on tribal legal systems are in direct conflict with each other. This essay describes what these forces are, explains why they are in conflict, and discusses what can be done to minimize this conflict. The first force is the concept of cultural sovereignty. This concept refers to an indigenous counterforce to... 2006  
Suzana Sawyer , University of California, Davis Disabling Corporate Sovereignty in a Transnational Lawsuit 29 PoLAR: Political and Legal Anthropology Review 23 (May, 2006) This article examines the opening proceedings of a lawsuit against ChevronTexaco filed on behalf of 30,000 Ecuadorians for industrial contamination in the country's Amazonian region. It asks what are the legal and ethical regimes at play in defining (and denying) corporate sovereignty and impunity, corporate entanglements and accountabilities.... 2006  
Eric L. Sherbine Does Cutter v. Wilkinson Change the Analysis of Mandated Dui Treatment Programs?: a Critical Response 6 University of Maryland Law Journal of Race, Religion, Gender and Class 223 (Spring 2006) In the previous issue of the University of Maryland Law Journal of Race, Religion, Gender and Class, Professors Morris Jenkins, Brandene Moore and Eric Lambert of the University of Toledo, along with Professor Alan Clarke of the Utah Valley State College (A.A. proponents), argued that mandatory attendance in Alcoholics Anonymous (A.A.) as a... 2006  
Wright Schickli Equipment Fee Clauses in U.s. Tax Treaties: the Unmolded Progeny of Madame Tussaud? 59 Tax Lawyer 419 (Winter, 2006) C1-3TABLE OF CONTENTS I. INTRODUCTION. 421 II. EQUIPMENT FEE CLAUSES. 422 A. In General. 422 B. A Brief History of Equipment Fee Clauses. 423 C. Scope of Equipment Fee Clauses. 427 III. BACKGROUND REGARDING GENERALLY APPLICABLE U.S. TAX RULES. 427 A. Revenue Characterization. 427 1. In General. 427 2. Sales Income vs. Rental Income. 427 3. Rental... 2006  
Duncan B. Hollis Executive Federalism: Forging New Federalist Constraints on the Treaty Power 79 Southern California Law Review 1327 (9/1/2006) The treaty lives a double life. By day, it is a creature of international law, which sets forth extensive substantive and procedural rules by which the treaty must operate. When these rules prove susceptible to dispute--as is the case with treaty reservations, for example--international lawyers vigorously debate both how to clarify the rules and... 2006  
Caroline T. Nguyen Expansive Copyright Protection for All Time? Avoiding Article I Horizontal Limitations Through the Treaty Power 106 Columbia Law Review 1079 (June, 2006) At the core of this Note is the following question: Can Congress use an alternate source of power to pass copyright legislation that exceeds the enumerated power of the Copyright Clause? In United States v. Moghadam, the Eleventh Circuit used the Commerce Clause to uphold an antibootlegging statute that arguably exceeded the scope of the Copyright... 2006  
Joshua P. Welsh Firm Ground for Wetland Protection: Using the Treaty Power to Strengthen Conservation Easements 36 Stetson Law Review 207 (Fall 2006) Wetland conservation is a national and international legal imperative. Wetlands provide a variety of functions in the natural environment and a number of values for human beings. Beyond their intrinsic value, wetlands serve as habitat for fish and wildlife, help to recharge groundwater and enhance water quality, and aid in the control of... 2006  
Chang-fa Lo From S&d Treatment to S&d Agreement under the Wto: Developing Friendlier Global Governance of Trade for Developing Countries 1 Asian Journal of WTO & International Health Law & Policy 33 (March, 2006) Since developing Members of the WTO are diverse in their positions and concerns, it would not be possible to form unified views for these countries on all issues. However, the need of S&D treatment for developing Members should be the same. The WTO has made a lot of effort to discuss and incorporate S&D provisions in different agreements. However,... 2006  
Sarah J. Farley Gonzalez v. Raich and the Federal Child Pornography Statutes: Balancing the Commerce Clause and State Sovereignty 2 Seton Hall Circuit Review 621 (Spring, 2006) L1-2Introduction . L3622 I. History of Child Pornography Legislation. 623 A. Brief History of Commerce Clause Jurisprudence. 623 B. The Federal Child Pornography Statutes. 626 II. The Circuit Split. 629 A. Circuits that Upheld the Child Pornography Statutes as Constitutional. 629 B. Circuits that Struck Down the Statutes. 635 C. Analysis of Circuit... 2006  
Eugene R. Fidell Guantánamo and All That 53-FEB Federal Lawyer 45 (February, 2006) Editor's Note: This speech was given at the Eighth Circuit Judicial Conference in Colorado Springs, Colo., on Oct. 20, 2005. It has been slightly edited for style. The source is not Robert Graves's autobiography, but rather a funny little book 1066 and All That detailing the history of England from the time of the Norman Conquest to, roughly,... 2006  
Yuval Shany How Supreme Is the Supreme Law of the Land? Comparative Analysis of the Influence of International Human Rights Treaties upon the Interpretation of Constitutional Texts by Domestic Courts 31 Brooklyn Journal of International Law 341 (2006) We emphasize that it is American standards of decency that are dispositive .. While the practices of other nations, particularly other democracies, can be relevant . they cannot serve to establish the first Eighth Amendment prerequisite, that the practice is accepted among our people. The [Australian] Constitution is our fundamental law, not a... 2006  
Larry Catá Backer Ideologies of Globalization and Sovereign Debt: Cuba and the Imf 24 Penn State International Law Review 497 (Winter 2006) This article examines two fundamentally different perspectives when nation-states participate as creditors and debtors. The issue of sovereign debt--its character and effect--is really part of the much larger battle between two fundamentally opposed visions of the nature and character of the nation-states in general, and debtor states in... 2006  
Dan Danielsen, Northeastern University School of Law Imperialism, Sovereignty and the Making of International Law. By Antony Anghie. Cambridge, New York: Cambridge University Press, 2005. Pp. Xix, 356. Index. $110, £60 100 American Journal of International Law 757 (July, 2006) Reading Antony Anghie's Imperialism, Sovereignty and the Making of International Law is at once confounding and revelatory. The ambition of the book, wrought with skillful erudition and unflinching narrative style, is much larger than fleshing out the traditional history of international law with a more articulated catalogue of the crimes that the... 2006  
Wenona T. Singel , Matthew L.M. Fletcher Indian Treaties and the Survival of the Great Lakes 2006 Michigan State Law Review 1285 ( (Special) 2006) Introduction 1286 I. Indian Treaties and Natural Resource Protection. 1288 A. Treaty Rights. 1289 B. Great Lakes Indian Treaties. 1291 II. Incorporating Indian Tribes and Indian Treaties. 1293 A. Indian Treaties in Federal and State Litigation. 1293 B. Indian Tribes as Stakeholders in International Compacting Process. 1295 Conclusion 1296 The... 2006 Yes
G. Braxton Price Inevitable Inequities: the Public Duty Doctrine and Sovereign Immunity in North Carolina 28 Campbell Law Review 271 (Spring 2006) On January 30, 2005, a young mother and her son made their way down a meandering country road in rural North Carolina on their way to church. Accompanying them were two sisters, a six-year-old and a ten-year-old, who were friends of the family. A few miles from church, the right front tire of the compact car in which the group rode dropped off into... 2006  
  International Law -- Treaty Remedies -- Seventh Circuit Finds Implied Right of Action in Vienna Convention on Consular Relations. -- Jogi v. Voges, 425 F.3d 367 (7th Cir. 2005) 119 Harvard Law Review 2644 (6/1/2006) It has been said that treaties are compacts or contracts among nations rather than conventional law. Little wonder, then, that fitting them within the domestic legal framework is so vexing. Recently, in Jogi v. Voges, the Seventh Circuit concluded that the Vienna Convention on Consular Relations provides foreign defendants with an implied cause... 2006  
Tseming Yang International Treaty Enforcement as a Public Good: Institutional Deterrent Sanctions in International Environmental Agreements 27 Michigan Journal of International Law 1131 (Summer 2006) Introduction. 1132 I. A Brief Overview of the Problem of Treaty Enforcement. 1134 A. The Difficulty of Coercing States: Traditional Sanctions Options. 1135 1. Countermeasures: Retorsion, Reciprocal Action, and Reprisals. 1135 2. Membership Sanctions. 1136 3. Treaty-Based Mechanisms: Bilateral and Collective Sanctions. 1137 B. Alternatives to... 2006  
Ann Woolhandler Interstate Sovereign Immunity 2006 Supreme Court Review 249 (2006) In Nevada v Hall, the Supreme Court held that the Constitution does not prevent a state from opening its courts to suits against other states. The Court therefore affirmed a California damages judgment against Nevada arising from an automobile accident in California. More recently, in Franchise Tax Board v Hyatt, the Court unanimously allowed a... 2006  
Kathleen M. Sullivan, California State University, Los Angeles Introduction: Negotiating Sovereignty in the Context of Global Environmental Relations 29 PoLAR: Political and Legal Anthropology Review Rev. 1 (May, 2006) For a wide and diverse audience of Americans, the tsunami in the Indian Ocean in December 2004 and the floods in the aftermath of Hurricane Katrina in 2005 drove home the realization, perhaps as never before, that natural disasters never reshape the lives of everyone equally, even when people share the same physical space of disaster. Television,... 2006  
Andrew Koppelman Is it Fair to Give Religion Special Treatment? 2006 University of Illinois Law Review 571 (2006) It is widely believed that the First Amendment puts courts and legislatures of the United States in a double bind when it comes to religion: requiring them to remain neutral with respect to religious concerns, while simultaneously protecting these same concerns. Many areas of law currently recognize religious exemptions from generally applicable... 2006  
John Alan Cohan Judicial Enforcement of Lifesaving Treatment for Unwilling Patients 39 Creighton Law Review 849 (June, 2006) I. INTRODUCTION. 850 II. THE NATURE OF THE RIGHT OF AUTONOMY. 855 III. PARENTAL REFUSAL TO CONSENT TO LIFESAVING TREATMENT FOR MINOR CHILDREN. 860 A. Nature of the Right to Act As Surrogate Decision Makers for Children. 860 B. The Dichotomy Between the Right to Hold Religious Beliefs and the Right to Act upon Them. 861 C. Case Law Overriding... 2006  
Jesse K. Martin Kansas v. Prairie Band Potawatomi Nation: Undermining Indian Sovereignty Through State Taxation 6 University of Maryland Law Journal of Race, Religion, Gender and Class 251 (Spring 2006) In Kansas v. Prairie Band Potawatomi Nation, the Supreme Court undermined the historic and deeply-rooted sovereign status of Indian tribes by focusing on a hyper-technical application of precedent and ignoring the practical impact of the Kansas motor fuel tax. The Court determined that the state tax, as applied to the Nation Station's sale of... 2006 Yes
Ralph Brubaker Katz and the New Bankruptcy Exception to States' Constitutional Sovereign Immunity: Abandoning Hood's in Rem Theory (And Seminole Tribe) 26 Bankruptcy Law Letter Letter 1 (3/1/2006) The Supreme Court has now squarely addressed the effect of its monumental state sovereign immunity decisions of Seminole Tribe and Alden in the context of federal bankruptcy proceedings. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252, 34 Collier Bankr. Cas. 2d (MB) 1199, 42 Env't. Rep. Cas. (BNA) 1289, 67... 2006 Yes
Richard J. Peltz Limited Powers in the Looking-glass: Otiose Textualism, and an Empirical Analysis of Other Approaches, When Activists in Private Shopping Centers Claim State Constitutional Liberties 53 Cleveland State Law Review 399 (2005-2006) I. L2-4,T4Introduction 399 II. L2-4,T4Background: Taking Textbook Enumerated Powers to the Mall 401 A. L3-4,T4Federal and State Constitutions 401. B. L3-4,T4The State Action Requirement 404. III. L2-4,T4Inquiries and Findings: Two Questions, Few Answers 407 IV. L2-4,T4Method and Analysis: Eighteen Opinions and Six Modes of Argument 410 A.... 2006  
Mike Pellegrino Maximizing Favorable Tax Treatment for Software Embedded in Purchased Assets 105 Journal of Taxation 79 (August, 2006) The tax treatment of software, on both the federal and state levels, has not kept pace with the accelerating use of software to control machinery and equipment, from the very simplest objects to the most complicated. The old approaches, including the separate invoice test, simply do not work and elevate form over substance to a degree unacceptable... 2006  
R. Slovenko Milestones in the Evolution of Standards for Experimental Treatment or Research 25 Medicine and Law 523 (September, 2006) Abstract: The abuses in experimentation that marked the 20 century has resulted in regulations. Standards for experimental treatment or for research involving human subjects has been a major development of the twentieth century, coming about in response to the horrendous experiments carried out by Nazi Germany and also in the United States and... 2006  
Jonathan F. Will My God My Choice: the Mature Minor Doctrine and Adolescent Refusal of Life-saving or Sustaining Medical Treatment Based upon Religious Beliefs 22 Journal of Contemporary Health Law and Policy 233 (Spring, 2006) Introduction I. Presumptions: Minors and Medical-Decision-Making A. The Common Law Age of Majority and the Twenty-Sixth Amendment B. The Ethics of Medical Decision-Making II. Why We Allow Parents to Decide and When We Do Not III. The Rights of Minors: Statutory Exceptions, Abortion, and the Mature Minor Doctrine A. Statutory Exceptions B. Abortion... 2006  
Richard Warren Perry , San Jose State University Native American Tribal Gaming as Crime Against Nature: Environment, Sovereignty, Globalization 29 PoLAR: Political and Legal Anthropology Review 110 (May, 2006) This essay proposes that the legal form of Native American tribal sovereignty lately deployed in the establishment of casinos and other risky enterprises is not simply an atavistic political-legal curiosity. Rather, it is exemplary of contemporary forms of spatial governmentality which, as they emerge from layered mappings of spatial difference... 2006 Yes
Michael C. Blumm & James Brunberg Not Much less Necessary...Than the Atmosphere They Breathed: Salmon, Indian Treaties, and the Supreme Court--a Centennial Remembrance of United States v. Winans and its Enduring Significance 46 Natural Resources Journal 489 (Spring 2006) A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision protected critically important cultural and economic practices from white encroachment. The landmark case came as a surprise in an era... 2006 Yes
Major Nicholas F. Lancaster Occupation Law, Sovereignty, and Political Transformation: Should the Hague Regulations and the Fourth Geneva Convention Still Be Considered Customary International Law? 189 Military Law Review 51 (Fall, 2006) Has customary international occupation law changed as a result of actions taken by the Coalition Provisional Authority (CPA) in Iraq under authority of United Nations (UN) Security Council Resolution 1483? The CPA legislated extensively in the areas of government and economics, using its authority under Resolution 1483. Although justified by the... 2006  
Thomas Adam Peters Olympic Airways v. Husain: the United States Supreme Court Expands the Scope of an "Accident" for Purposes of Article 17 of the Warsaw Convention and Consequently Contradicts its Application of Multilateral International Treaty Interpretation 31 Oklahoma City University Law Review 193 (Spring 2006) This comment explores how American courts interpret and apply international treaties, specifically the interpretation of the Warsaw Convention. Included in the analysis is the recent Supreme Court decision in Olympic Airways v. Husain, where the Supreme Court held that a flight attendant's refusal to move a passenger from an area close to the... 2006  
David B. Stratton , Pepper Hamilton LLP; Wilmington, Del. strattond@pepperlaw.com Once More into the Breach 25-APR American Bankruptcy Institute Journal 32 (April, 2006) In its recently-issued opinion Central Virginia Comm. College v. Katz, 126 S.Ct. 990 (2006), the U.S. Supreme Court revisited the issue of sovereign immunity and the Bankruptcy Code, and held that an action to avoid and recover preferential transfers from a state agency pursuant to Code §§547 and 550 was not barred by the doctrine of sovereign... 2006  
Steven W. Strack Pandora's Box or Golden Opportunity? Using the Settlement of Indian Reserved Water Right Claims to Affirm State Sovereignty over Idaho Water and Promote Intergovernmental Cooperation 42 Idaho Law Review 633 (2006) When the State of Idaho initiated the Snake River Basin Adjudication, or SRBA, on June 17, 1987, it was widely expected that the United States and the four Indian tribes within the Snake River Basin would file a large number of water right claims. Many viewed the long-dormant claims as a Pandora's Box that, once opened, would wreak havoc upon the... 2006 Yes
Gerald Torres Panel Ii: Sovereignty 41 Texas International Law Journal 423 (Summer, 2006) Panel topic: Sovereignty and self-determination continue to play a surprisingly significant discursive and political role in today's human rights discourse. The concepts are invoked by countries like the United States and the United Kingdom as well as by some developing countries and by certain ethnic and indigenous groups. What might the different... 2006  
Emeka Duruigbo Permanent Sovereignty and Peoples' Ownership of Natural Resources in International Law 38 George Washington International Law Review 33 (2006) In the dilapidated Portuguese cocoa plantation houses in Agua Ize, Sao Tome, and Principe, residents gather under a rotting roof to avoid the rain. Above their heads, offering a tantalising glimpse of a world beyond the surrounding dank disrepair, an old election campaign poster hints at the country's anticipated oil boom. It is now! says the... 2006  
Kristen Riemenschneider Philosophy, Trade, and Aids: Current Failures to Obtain a Substantive Patent Law Treaty 11 Virginia Journal of Law & Technology Tech 5 (Summer 2006) I. Introduction II. Conflicts of Ideologies: Differences Between the Developed and the Developing Countries on the Proper Role of IPRs III. Trade and Unfair Bargaining Tactics: The Developed Countries' Leverage Against the Developing Countries A. The Uruguay Round of the General Agreement on Tariffs and Trade B. The Trade-Related Aspects of... 2006  
Paul W. Kahn Political Time: Sovereignty and the Transtemporal Community 28 Cardozo Law Review 259 (October, 2006) We live with a complex conceptual inheritance that draws equally on the thought of classical Greece, Christianity, and the Enlightenment. Oversimplifying greatly, we can say that the Greeks formulated the ambition to subject the soul and the state to the order of reason; the Christians turned from reason to a will informed by grace; and the... 2006  
William J. Watkins, Jr. Popular Sovereignty, Judicial Supremacy, and the American Revolution: Why the Judiciary Cannot Be the Final Arbiter of Constitutions 1 Duke Journal of Constitutional Law & Public Policy 159 (2006) The development of constitutional government in Great Britain and America is inseparable from the debate and the conflict over sovereignty. In Britain, parliamentary sovereignty triumphed over the divine right of kings to form the foundation of British liberty. In America, popular sovereignty triumphed over parliamentary/legislative sovereignty to... 2006  
Jennifer Moore Practicing What We Preach: Humane Treatment for Detainees in the War on Terror 34 Denver Journal of International Law and Policy 33 (Spring 2006) As human beings we do not lose our legal and human personality because we are suspected of links to terrorism. We remain entitled to freedom from arbitrary detention, torture and inhuman treatment at all times and in all situations. In leading the so-called war on terror, however, the United States is honoring these principles in the breach, as... 2006  
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