AuthorTitleCitationSummaryYearKey Terms
Michael J. Cetra State Sovereign Immunity, as Recognized and Extended Through the Eleventh Amendment of the Constitution of the United States, Bars Administrative Commissions from Adjudicating Private Complaints Against a State Agency That Has Not Consented to Being Subje 41 Duquesne Law Review 795 (Summer 2003) Constitutional Law--Eleventh Amendment - State Sovereign Immunity - Administrative Proceedings - The Supreme Court of the United States held that state sovereign immunity, as understood and extended through the Eleventh Amendment of the Constitution of the United States, bars the Federal Maritime Commission, and similar administrative bodies, from... 2003  
Peter W. Salsich, Jr. Suing and Defending Cities for Federal Constitutional Violations: a Treatise for City Attorneys and Public Interest Litigators M. David Gelfand Lexis Publishing, New York, New York; Third Edition, 2001; Loose-leaf 35 Urban Lawyer 379 (Spring, 2003) Professor David Gelfand has returned a third time to a subject dear to his heart, the extent to which the federal Constitution holds local governments and their officials responsible for decisions that harm private citizens. His one volume book, Suing and Defending Cities for Federal Constitutional Violations, has been dressed up in a loose-leaf... 2003  
Vicki C. Jackson Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence 35 George Washington International Law Review 521 (2003) Sovereign immunity has become a place of contest between important values of constitutionalism. On the one hand, constitutionalism entails a commitment that government should be limited by law and accountable under law for the protection of fundamental rights; if the essence of civil liberty is that the law provide remedies for violations of... 2003  
Abigail Hing Wen Suing the Sovereign's Servant: the Implications of Privatization for the Scope of Foreign Sovereign Immunities 103 Columbia Law Review 1538 (October, 2003) In light of the global trend of states' privatization of traditionally public functions, the question arises whether private entities performing sovereign functions for foreign states should be extended the immunity of their sovereign employers. This Note argues that under the current state of the law, immunity should not be extended to such... 2003  
Gabriel J. Chin Syllabus: Asian Pacific Americans and the Law 10 Asian Law Journal 115 (May, 2003) For background: Ronald T. Takaki, Strangers From a Different Shore 3-18 (1989). Report to the Governor, Senate and House of Representatives of the State of Wyoming Recommending Repeal of the Racially Discriminatory Alien Land Law, 1-15 (2000). Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 Iowa L. Rev. 151, 151-57 (1996)... 2003  
William E. Thro That Those Limits May Not Be Forgotten: an Explanation of Dual Sovereignty 12 Widener Law Journal 567 (2003) [T]hat those limits may not be mistaken or forgotten, the constitution is written. Chief Justice John Marshall, Marbury v. Madison Judicial Review is the power to nullify the results of the democratic process. The elected members of Congress, thinking that they are acting in accordance with the Constitution, pass a law that has the overwhelming... 2003  
Dr. John Temple Lang The Commission: the Key to the Constitutional Treaty for Europe 26 Fordham International Law Journal 1598 (June, 2003) It would be irrational, and contradictory, to suppose that things that have never yet been done could be done, except by means not yet tried. The human understanding more easily invents new things than new words. There is nothing more difficult to handle, more doubtful of success, and more dangerous to carry through than initiating changes in... 2003  
Ayelet Ben-Ezer , Ariel L. Bendor The Constitution and Conflict-of-laws Treaties: Upgrading the International Comity 29 North Carolina Journal of International Law and Commercial Regulation Reg. 1 (Fall 2003) In the United States, like other federations, the Constitution's relationship to the conflict-of-laws in the internal state context has been debated intensively. On the other hand, to date, little attention has been paid to the constitutional conflicts arising from international conflict-of-laws. More specifically, there has been little discussion... 2003  
Barbi Appelquist The European Union v. the North Atlantic Treaty Organization: Estonia's Conflicting Interests as a Party to the International Criminal Court 27 Hastings International and Comparative Law Review 77 (Fall 2003) Estonia, the United States and all current members of the European Union have signed the United Nations Declaration of Human Rights. This body of public international law protects the following human rights of alleged criminals: the protection against arbitrary arrest, detention, or invasions of privacy; a presumption of innocence; and a promise... 2003  
  The Extent of a State's Waiver of Sovereign Immunity by Filing a Proof of Claim 23 Bankruptcy Law Letter Letter 1 (9/1/2003) The courts continue to grapple with the full implications of state sovereign immunity in bankruptcy in the wake of the Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996) (Norton Bankruptcy Law and Practice (2d ed.) §§ 14:1, 14:2, 14:16, 4:58, 4:59, 4:62, 52:13, 157:7; Bankr. Serv., L Ed §§ 2B:40,... 2003  
Peter J. Spiro The Impossibility of Citizenship 101 Michigan Law Review 1492 (May, 2003) These are interesting times at the constitutional margins. Questions about where the Constitution takes up and leaves off are more frequently in play; one can no longer so readily assume the Constitution to supply an authoritative metric as we confront prominent cases of nonapplication. At the same time, the increasing robustness of international... 2003  
Marshall L. Wilde The Liability of Alaska Mental Health Providers for Mandated Treatment 20 Alaska Law Review 271 (December, 2003) This Article analyzes the liability of mental health professionals for services rendered to patients who are ordered by a court to undergo mental health treatment. After a brief review of relevant legal authority, this Article examines mandated treatment under the framework of quasi-judicial immunity and continues by discussing the specific duties... 2003  
Eric Ting-Lun Huang The Modern Concept of Sovereignty, Statehood and Recognition: a Case Study of Taiwan 16 New York International Law Review 99 (Winter, 2003) In the past, contact between governments was essentially political. However, in today's world, multilateral contacts and intergovernmental organizations provide channels involving matters such as commercial, economic, humanitarian, trade, cultural and environmental-protection issues that have increased the cooperative machinery in our world... 2003  
Carrie M. Bowden The Need for Comity: a Proposal for Federal Court Review of Suppression Issues in the Dual Sovereignty Context after the Antiterrorism and Effective Death Penalty Act of 1996 60 Washington and Lee Law Review 185 (Winter, 2003) I. L2-5,T5Introduction 186 II. L2-5,T5The Dual Sovereignty Doctrine 190 A. L3-5,T5The Historical Development of the Doctrine 190 B. L3-5,T5Modern Development of the Doctrine 192 C. L3-5,T5Rationale and Criticism of the Doctrine 194 III. L2-5,T5The Dual Sovereignty Doctrine and Suppression Rulings 198 A. L3-5,T5State Versus Federal Exclusionary... 2003  
David Golove The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority 55 Stanford Law Review 1697 (May, 2003) Introduction. 1697 I. Delegations, Popular Sovereignty, and Confederations. 1702 A. Federal Theory Before the Founding. 17036 B. Congress Is Not a Legislative Assembly, nor a Representative Assembly, but Only a Diplomatic Assembly . 1706 C. The People Have No Right to Enter into Leagues, Alliances, or Confederations . . . . States and Foreign... 2003  
David N. Cinotti The New Isolationism: Non-self-execution Declarations and Treaties as the Supreme Law of the Land 91 Georgetown Law Journal 1277 (August, 2003) In December 1966, the International Covenant on Civil and Political Rights (ICCPR) was opened for signature; 151 countries are now parties to this treaty, the most comprehensive international expression of civil rights ever articulated. Although the ideals embodied in the ICCPR are derived from U.S. roots, it took twenty-six years for the United... 2003  
Thomas O. Sargentich The Rehnquist Court and State Sovereignty: Limitations of the New Federalism 12 Widener Law Journal 459 (2003) During the past decade, a bare majority of the Rehnquist Court has invalidated numerous national laws in the name of state sovereignty. As a group, these decisions reflect striking judicial activism directed at shrinking the dimensions of federal legislative power. The five-member majoritycomprised of Chief Justice Rehnquist and Associate Justices... 2003  
Jeremy I. Levitt The Responsibility to Protect: a Beaver Without a Dam? 25 Michigan Journal of International Law 153 (Fall 2003) The beaver's dam is comparable to protective intervention for at-risk populations. Beavers need dams to enlarge the underwater habitat that will be open to them in winter, by creating a pond deep enough so that the bottom will not freeze. Humanitarian corridors and safe havens serve parallel functions for displaced civilians during times of... 2003  
Frederick J. Kenney, Jr. , Vasilios Tasikas The Tampa Incident: Imo Perspectives and Responses on the Treatment of Persons Rescued at Sea 12 Pacific Rim Law & Policy Journal 143 (January, 2003) Abstract: The duty to provide aid to fellow seafarers in distress has long been enshrined in maritime tradition. The modern formalization of this duty in international law, however, has created a division between the duty to provide assistance and the obligation to rescue. This division has created ambiguity and friction as the former duty... 2003  
Gregory C. Sisk The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States 71 George Washington Law Review 602 (September/October, 2003) Introduction. 602 I. Weaving the Tapestry of Waivers of Sovereign Immunity. 606 A. The Origins of the Court of Federal Claims and the Tucker Act. 606 B. A Primer on Tucker Act Jurisprudence. 611 C. The Administrative Procedure Act and Sovereign Immunity. 615 II. The Tapestry is Unraveled: Bowen v. Massachusetts. 618 III. The Tear in the Fabric... 2003  
Todd Weiler The Treatment of Sps Measures under Nafta Chapter 11: Preliminary Answers to an Open-ended Question 26 Boston College International and Comparative Law Review 229 (Spring, 2003) Abstract: NAFTA Chapter 11 permits eligible foreign investors to use binding international arbitration to seek compensation for the harmful economic impacts of most regulatory measures. This mechanism effectively provides a second avenue of redress for individuals affected by risk regulation, in addition to any remedies that may be available to... 2003  
Matthew D. Taggart Title Ii of the Americans with Disabilities Act after Garrett: Defective Abrogation of Sovereign Immunity and its Remedial Impact 91 California Law Review 827 (May, 2003) Introduction. 829 I Title II, Equal Protection, and the Doctrine of State Sovereign Immunity. 836 A. Title II of the Americans with Disabilities Act. 836 B. The Source of Congressional Authority to Enact Antidiscrimination Laws: The Equal Protection Clause and Section 5 Enforcement Powers. 839 C. The Rehnquist Court's Use of State Sovereign... 2003  
  Too Sovereign but Not Sovereign Enough: Are U.s. States Beyond the Reach of the Law of Nations? 116 Harvard Law Review 2654 (June, 2003) In June of 2001, the International Court of Justice (ICJ) ruled that governmental authorities in a signatory nation of the 1963 Vienna Convention on Consular Relations had fail[ed] . . . to comply with their obligation to provide consular access to detained foreign nationals, and had failed to take all the steps they could have taken to give... 2003  
Ryan Goodman , Derek Jinks Toward an Institutional Theory of Sovereignty 55 Stanford Law Review 1749 (May, 2003) Introduction. 1750 I. The Model: World Polity Institutionalism and the State. 1753 A. Understanding Social Organization: Sociological Institutionalism. 1754 B. Understanding the State as a Social Organization: An Introduction to the World Polity. 1757 C. The Production and Legitimation of States in the World Polity. 1758 1. Organizational... 2003  
Eric E. Bowman Trademark Distinctiveness in a Multilingual Context: Harmonization of the Treatment of Marks in the European Union and the United States 4 San Diego International Law Journal 513 (2003) I. Introduction. 514 II. The Community Trade Mark. 515 III. Grounds for Refusal of Community Trade Mark Registration. 516 IV. Linguistic Aspects of Community Trade Mark Examination. 519 V. Community Trade Mark Law Applied. 519 VI. Registration of Trademarks in the United States. 520 VII. Foreign Language Marks Under the Trademark Act. 521 VIII.... 2003  
Peter J. Spiro Treaties, International Law, and Constitutional Rights 55 Stanford Law Review 1999 (May, 2003) Introduction. 1999 I. Constitutional Hegemony in Historical Perspective. 2002 A. The Doctrine of Constitutional Hegemony. 2002 B. Overriding Rights, Quietly. 2007 C. Hegemony Entrenched. 2012 II. Questioning Hegemony. 2017 A. Current Practice in a National-Interests Perspective. 2018 B. Redefining Constitutional Community Upwards. 2021 C.... 2003  
Rodney K. Smith Treating Others as Our Own: Professor Levinson, Friendship, Religion, and the Public Square 38 Tulsa Law Review 731 (Summer 2003) As to matters of religion in the public square, Professor Sanford Levinson (Sandy) refers to himself as a secular[] accommodationist. In this self-description, Sandy adopts Professor Emily Hartigan's definition of secular accommodationist: one who asks for the public to embrace the previously personalized religious sphere, but does not... 2003  
O. Yale Lewis III Treaty Fishing Rights: a Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties 27 American Indian Law Review 281 (2002-2003) Abstract: The fishing right guaranteed by the fishing clause of the Stevens Treaties between the United States and the Indians of Western Washington should be considered a trinity of rights: a right of access, a right of equitable apportionment, and a habitat right. While seven different Supreme Court decisions and scores of lower court decisions... 2003  
John W. Ragsdale, Jr. Treaty-based Exclusions from the Boundaries and Jurisdiction of the States 71 UMKC Law Review 763 (Summer 2003) The Johnson County, Kansas codes officer, charged with the personal service of citations for the unlawful sale of fireworks on Shawnee Reserve 206, probably should have mailed them, as had been done in the past. On the other hand, Jim Oyler, Jr., who was fortunate to escape prosecution after pushing an official around and breaking his cell phone a... 2003  
Catherine T. Struve Turf Struggles: Land, Sovereignty, and Sovereign Immunity 37 New England Law Review 571 (Spring 2003) As the discussion today illustrates, land is central to tribal sovereignty. For a tribe that lost possession of some or all of its lands in prior years, land claims can form a key part of the strategy to reassert that sovereignty. For many of those tribes, claims against state governmental entities play a central role in obtaining effective... 2003  
Catherine T. Struve Turf Struggles: Land, Sovereignty, and Sovereign Immunity 37 New England Law Review 571 (Spring 2003) As the discussion today illustrates, land is central to tribal sovereignty. For a tribe that lost possession of some or all of its lands in prior years, land claims can form a key part of the strategy to reassert that sovereignty. For many of those tribes, claims against state governmental entities play a central role in obtaining effective... 2003  
Jonathan R. Siegel Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment 52 Duke Law Journal 1167 (April, 2003) States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court's steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This Article explores the boundaries of waiver doctrine. This Article shows... 2003  
Carole Goldberg American Indians and "Preferential" Treatment 49 UCLA Law Review 943 (April, 2002) Preferences and benefits for American Indians predate the American policy of affirmative action and flow from different rationales. Nonetheless, Indian preferences are the latest targets in the battle against affirmative action. Opponents of Indian preferences and benefits have long deployed the rhetoric of equal rights to attack treaty rights and... 2002 Yes
Nancy Carol Carter American Indians and Law Libraries: Acknowledging the Third Sovereign 94 Law Library Journal J. 7 (Winter, 2002) American Indian tribal governments constitute a third sovereign within the United States federal system. A higher legal profile among these self-governing entities multiplies legal issues and challenges law libraries. Law librarians are urged to deepen their understanding of American Indian law and tribal law and reconsider their handling within... 2002 Yes
Anthony G. Gulig , Sidney L. Harring An Indian Cannot Get a Morsel of Pork . . . . a Retrospective on Crow Dog, Lone Wolf, Blackbird, Tribal Sovereignty, Indian Land, and Writing Indian Legal History 38 Tulsa Law Review 87 (Fall 2002) Lone Wolf v. Hitchcock, one of the many landmark Indian law cases wrongfully decided in the United States, can be discussed on a number of levels. One place to start is with the role that the case played in depriving many Indian tribes of their lands. Lone Wolf's infamous holding that Congress has plenary power over Indians and can dispose of... 2002 Yes
Leonika Charging Atkinson Trading Company v. Shirley: a Taxing Decision on Tribal Sovereign Power 47 South Dakota Law Review 134 (2002) In Atkinson Trading Company v. Shirley, the United States Supreme Court held that the Navajo Nation did not possess the authority to impose a hotel occupancy tax on non-members located on fee land within the reservation. In so deciding, the Court failed to properly consider the consensual relationship established between the tribe and non-member... 2002 Yes
Sam Deloria Commentary on Nation-building: the Future of Indian Nations 34 Arizona State Law Journal 55 (Spring, 2002) One time I was about to testify to the Senate Committee, one of the rare occasions when I wrangled an invitation. Mr. Gover came up and said, Now don't go rolling a hand grenade down the aisle there. So I guess the few people that know me consider me something of a loose hand grenade launcher-which is alright. I've listened with great interest to... 2002 Yes
Melissa L. Meyer, University of California, Los Angeles David E. Wilkins, American Indian Sovereignty and the U.s. Supreme Court: the Masking of Justice, Austin, University of Texas Press, 1997. Pp. Vii + 403. $40.00 (0-292-79108-9). 20 Law and History Review 200 (Spring, 2002) In American Indian Sovereignty and the U. S. Supreme Court: The Masking of Justice, David E. Wilkins painstakingly analyzes fifteen Supreme Court decisions that repeatedly eroded American Indian tribal sovereignty step by step. By systematically rendering the situations that gave rise to the cases and the precedents for ruling otherwise, Wilkins... 2002 Yes
Todd Miller Easements on Tribal Sovereignty 26 American Indian Law Review 105 (2001-2002) There are more than fifty million acres of Indian trust lands in the United States, with the bulk of them located in the western half of the country. Thousands of miles of easements cross over Indian lands for one purpose or another. These easements include rights-of-way for highways, railroads, electric transmission lines, oil and gas pipelines,... 2002 Yes
Kaighn Smith Jr. Fighting for a Federal Forum in Indian Sovereignty Cases: a Primer 49-APR Federal Lawyer 37 (March/April, 2002) Every Indian lawyer knows that principles of tribal sovereignty should be fought out in federal court not in state court. Although Indian affairs are uniquely federal concerns, a host of obstacles stands in the way of assuring the adjudication of tribal rights in a federal forum. The Supreme Court's penchant for states' rights does not help. The... 2002 Yes
William Trapani Native American Sovereignty in an Age of Manifest Manners 3 Journal of Law in Society Society 1 (Winter, 2002) According to a circular law with which philosophy is familiar, we will affirm that the one who is the most, most purely, or most rigorously, most essentially, Franco-Maghrebian would allow us to decipher what it is to be Franco-Maghrebian in general. We will decipher the essence of the Franco-Maghrebian from the paradigmatic example of the most... 2002 Yes
Emily J. Huitsing Native American Tribes to Waive Their Tribal Sovereign Immunity in Clear and Unequivocal Contracts to Arbitrate 2002 Journal of Dispute Resolution 213 (2002) Native American tribes enjoy immunity from suits on contracts made on or off a reservation. A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit. Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial... 2002 Yes
R. H K Lei Lindsey Native Hawaiians, Legal Realities, and Politics as Usual 24 University of Hawaii Law Review 693 (Summer, 2002) This land is ours, our Hawai'i. Shall we be deprived of our nationality? More than 104 years have passed since Native Hawaiians united in protest to support their nation-the Hawaiian Kingdom-and to oppose annexation to the United States. The century since has witnessed significant changes that have had a detrimental impact on the Native Hawaiian... 2002 Yes
Amy Crafts Nevada v. Hicks and its Implication on American Indian Sovereignty 34 Connecticut Law Review 1249 (Summer, 2002) In Oliphant v. Suquamish Indian Tribe, we held that tribes have no inherent criminal jurisdiction over non-Indians in tribal court. In light of the nearly universal understanding dating from the origins of this country's dealings with the tribes that they do not possess criminal jurisdiction over non-Indians except as permitted by treaty, and in... 2002 Yes
Sarah H. Cleveland Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs 81 Texas Law Review Rev. 1 (November, 2002) I. Introduction. 3 II. Sovereignty and the Constitution. 15 A. Sovereignty. 15 B. The Constitution's Scope. 17 1. Enumerated Powers-Limited Government. 19 2. Social Contract-Membership. 20 3. Territoriality. 22 III. Inherent Power Over Indian Tribes. 25 A. Indians and Sovereignty under International Law. 28 B. The Doctrine of Discovery and The... 2002 Yes
Robert Erickson Protecting Tribal Waters: the Clean Water Act Takes over Where Tribal Sovereignty Leaves off 15 Tulane Environmental Law Journal 425 (Summer 2002) I. Introduction. 425 II. Tribal Sovereignty and Early Reservation Water Rights. 426 III. The Clean Water Act. 429 IV. Treating Tribes as States. 432 V. Improving and Preserving Reservation Water Quality. 437 VI. Conclusion. 442 2002 Yes
Gavin Clarkson Reclaiming Jurisprudential Sovereignty: a Tribal Judiciary Analysis 50 University of Kansas Law Review 473 (April, 2002) For both political and economic reasons, American Indian tribes should reclaim jurisprudential sovereignty by establishing or reestablishing vibrant judiciaries, and those tribes can look to other tribal court systems as potential structural models of jurisprudence. Such reclamation is politically important since tribal courts are the primary... 2002 Yes
Francine R. Skenandore Revisiting Santa Clara Pueblo v. Martinez: Feminist Perspectives on Tribal Sovereignty 17 Wisconsin Women's Law Journal 347 (Fall 2002) Much has been written about tribal sovereignty. If those words have any meaning at all, they must mean that a tribe can make and enforce its decisions without regard to whether an external authority considers those decisions wise. To abrogate tribal decisions, particularly in the delicate area of membership, for whatever good reasons, is to... 2002 Yes
Jeanette Wolfley Rice v. Cayetano: the Supreme Court Declines to Extend Federal Indian Law Native Hawaiians Sovereign Rights 3 Asian-Pacific Law and Policy Journal J. 6 (July, 2002) Good Evening. I am honored to be here with you and to participate on this panel to discuss the decision in Rice v. Cayetano. I feel privileged to share some thoughts with you about the decision as it relates to Indian Country, and its impact on Indian tribes and individual Indians. The grand scholar of federal Indian law, Felix S. Cohen, wrote in... 2002 Yes
Thomas E. Luebben , Cathy Nelson The Indian Wars: Efforts to Resolve Western Shoshone Land and Treaty Issues and to DisTribute the Indian Claims Commission Judgment Fund 42 Natural Resources Journal 801 (Fall, 2002) International human rights agencies have found the United States in violation of international treaties and human rights standards by denying the Western Shoshone Nation the use of their ancestral lands. The 1863 Treaty of Ruby Valley did not cede any Western Shoshone land to the United States, nor did it purport to take or extinguish Western... 2002 Yes
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