| Author | Title | Citation | Summary | Year | Key Terms |
| Tracy A. Kaye |
Show Me the Money: Congressional Limitations on State Tax Sovereignty |
35 Harvard Journal on Legislation 149 (Winter, 1998) |
Over the past few years, Congress has increasingly preempted the states' power to tax, and at the same time, has cut back funding for federally mandated programs. In this Article, Professor Kaye examines the growth of fiscal burdens placed on state and local governments in the form of unfunded mandates. She argues that this has grave policy... |
1998 |
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| Richard J. Pierce, Jr. |
Small Is Not Beautiful: the Case Against Special Regulatory Treatment of Small Firms |
50 Administrative Law Review 537 (Summer, 1998) |
L1-4,T4Introduction 538 I. L3-4,T4Subsidies to Small Firms 540 A. Direct Subsidies. 540 B. Indirect Subsidies in Procurement Programs and Taxation. 541 C. Special Regulatory Treatment of Small Firms. 542 D. The Future of Special Treatment for Small Firms. 543 II. L3-4,T4Justifications for Preferences for Small Firms 549 A. Political Costs. 549 B.... |
1998 |
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| John C. Yoo |
Sounds of Sovereignty: Defining Federalism in the 1990s |
32 Indiana Law Review 27 (1998) |
Federalism is back, with a vengeance. Not so long ago, in Garcia v. San Antonio Metropolitan Transit Authority, it appeared that we had witnessed the Second Death of Federalism, in the words of one prominent scholar. In that case, the Supreme Court had announced that it would no longer exercise judicial review to police the boundaries between the... |
1998 |
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| Raymond Cross |
Sovereign Bargains, Indian Takings, and the Preservation of Indian Country in the Twenty-first Century |
40 Arizona Law Review 425 (Summer 1998) |
C1-3Table of Contents I. Introduction. 426 A. Chief Justice Marshall's Construction of the Indian Bargaining Model. 433 B. The Giving and Taking of Indian America. 435 C. The First Era: Americanizing the European Doctrine of Discovery. 438 D. The Second Era: The Indian Peoples' Descent from Sovereign to Wardship Status. 441 E. The Third Era:... |
1998 |
Yes |
| Daniel Lee |
Sovereign Immunity |
66 George Washington Law Review 1066 (April, 1998) |
In Masonry Masters, Inc. v. Nelson, the D.C. Circuit held that a cost of living enhancement to update the statutory rate of an attorney's fees award under the Equal Access to Justice Act (EAJA) should be calculated from when attorneys perform their services (historic basis), rather than from when a court grants a party the fee award (current... |
1998 |
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| Eric B. Easton |
Sovereign Indignity? Values, Borders and the Internet: a Case Study |
21 Seattle University Law Review 441 (Winter 1998) |
Introduction. 442 I. The Mahaffy-French Murders. 446 A. Investigation and Arrest. 446 B. Press Coverage. 453 C. Pretrial Proceedings. 462 D. Trial and Sentence. 467 E. Defiance and Enforcement. 470 1. Public and Media Reaction. 470 2. Defiance in Cyberspace. 473 3. Attempts at Enforcement. 477 4. Washington Post Article. 482 5. The Legal Battle.... |
1998 |
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| Robert Stumberg |
Sovereignty by Subtraction: the Multilateral Agreement on Investment |
31 Cornell International Law Journal 491 (1998) |
Introduction. 492 I. Overview of the MAI Sovereignty Debate. 496 A. Trade-Offs in the MAI Negotiations. 496 B. Defining Sovereignty as the Balance of Power. 498 C. Main Features of the MAI. 501 D. Sovereignty Preservation Arguments. 503 1. Preemption by Federal Courts. 503 2. Administrative Implementation. 504 3. Legislation. 504 E. Likelihood of... |
1998 |
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| Julie Cassidy |
Sovereignty of Aboriginal Peoples |
9 Indiana International & Comparative Law Review 65 (1998) |
The relevance of establishing Aboriginal sovereignty is not confined to the practical exercise of sovereign powers within a given jurisdiction. It is also relevant to the judicial enforcement of rights. If, as suggested by traditional theory, international law only pertains to the actions of sovereign states and, perhaps as a corollary, only... |
1998 |
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| Stephen R. Bough |
Spitting in a Judge's Face: the 8th Circuit's Treatment of Rule 37 Dismissal and Default Discovery Sanctions |
43 South Dakota Law Review 36 (1998) |
Cat and mouse games and trial by ambush by any party will not be tolerated. [I]t is not the function of [the appellate court] to substitute its judgment for that of the trial judge. I. INTRODUCTION. 36 II. RULE 37: THE HISTORY AND INTENT. 38 A. Sanctionable Actions. 38 B. Sanctions Available. 39 C. Supreme Court Precedent. 40 D. Goals of Rule... |
1998 |
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| Matthew F. Weil , William C. Rooklidge |
Stare Un-decisis: the Sometimes Rough Treatment of Precedent in Federal Circuit Decision-making |
80 Journal of the Patent and Trademark Office Society 791 (November, 1998) |
One of Congress' goals in creating the United States Court of Appeals for the Federal Circuit was to foster uniformity in the application of the law of patents. The importance of such uniformity in achieving the ultimate ends of the patent system is difficult to overstate. As one Chief Judge of the Federal Circuit has observed, consistency in this... |
1998 |
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| Derek P. Radtke |
State Encroachment into Tribal Sovereignty by Means of the Assimilative Crimes Act |
19 Whittier Law Review 655 (Spring 1998) |
Through the Assimilative Crimes Act (ACA), non-Public Law 280 states have been given the vehicle indirectly to proscribe and enforce state laws and punishments within Indian country. Although the states are not directly arresting tribal members pursuant to the ACA, federal agents are given the authority to enforce state law under this Act.... |
1998 |
Yes |
| Karen M. Gebbia-Pinetti |
State Sovereign Immunity and the Bankruptcy Code [Part One] |
7 Journal of Bankruptcy Law and Practice 521 (September/October, 1998) |
This article is the first of a two-part series in which Professor Gebbia-Pinetti considers how the complexities of state sovereign immunity apply to bankruptcy actions. The present article lays the foundation by analyzing the source, scope, and nature of states' immunity from suits filed in federal court to enforce state and federal law. This... |
1998 |
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| Karen M. Gebbia-Pinetti |
State Sovereign Immunity and the Bankruptcy Code [Part Two] |
8 Journal of Bankruptcy Law and Practice Prac. 3 (November/December, 1998) |
This article is the second of a two-part series in which Professor Gebbia-Pinetti considers how the complexities of state sovereign immunity apply to bankruptcy actions. The first article laid the foundation by analyzing the source, scope, and nature of states' immunity from suits filed in federal, court to enforce state and federal law (Journal of... |
1998 |
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| R. Andrew Lien |
Still Thirsting: Prospects for a Multilateral Treaty on the Euphrates and Tigris Rivers Following the Adoption of the United Nations Convention on International Watercourses |
16 Boston University International Law Journal 273 (Spring 1998) |
I. Introduction. 273 II. The Development of Euphrates and Tigris River Basins. 277 A.Historical Usage of the Euphrates and Tigris Rivers and Legal Approaches. 277 B.Iraq's Development of the Euphrates River. 279 C.Syria's Development of the Euphrates River. 281 D.Turkey's Southeast Anatolia Project. 281 III. Turkey's, Syria's, and Iraq's Agreements... |
1998 |
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| Wambdi Awanwicake Wastewin |
Strate v. A-1 Contractors: Intrusion into the Sovereign Native Nations |
74 North Dakota Law Review 711 (1998) |
With the decision in Strate v. A-1 Contractors, the United States Supreme Court overstepped the bounds of the government-to-government relationship between Tribal nations and the United States. The Strate decision follows a recent trend in the Supreme Court's decisions of judicial activism in terms of federal Indian law, and also signals a return... |
1998 |
Yes |
| Detlev F. Vagts |
Taking Treaties less Seriously |
92 American Journal of International Law 458 (July, 1998) |
A decade ago, my predecessor as Editor in Chief wrote a trenchant critique of what he saw as a tendency of the United States not to give its treaty obligations the weight they deserved. I return to the subject to report that the last ten years have seen an alarming exacerbation of that situation. The mood in the United States about treaty... |
1998 |
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| David Orentlicher |
The Alleged Distinction Between Euthanasia and the Withdrawal of Life-sustaining Treatment: Conceptually Incoherent and Impossible to Maintain |
1998 University of Illinois Law Review 837 (1998) |
Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal of treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction... |
1998 |
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| Joanne C. Brant |
The Ascent of Sovereign Immunity |
83 Iowa Law Review 767 (May, 1998) |
Eleventh Amendment jurisprudence has long been the uncontested domain of federal courts buffs, procedure wonks, and other amiable sorts. It is, even within the rarified air of the legal academy, awfully academic. Theories of the Eleventh Amendment proliferate, and since all of them are unsatisfactory, it seems pointless to choose among them.... |
1998 |
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The Avoidance of Constitutional Questions and the Preservation of Judicial Review: Federal Court Treatment of the New Habeas Provisions |
111 Harvard Law Review 1578 (April, 1998) |
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress dramatically circumscribed the Great Writ of Habeas Corpus. The significant limitations enacted as part of the AEDPA pose potentially difficult and troubling constitutional questions. However, many of the extensive constitutional debates on these issues... |
1998 |
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| Michael H. Graham |
The Daubert Dilemma: at Last a Viable Solution? |
179 Federal Rules Decisions F.R.D. 1 (July, 1998) |
When scientific evidence isoffered as substantive evidence or as forming the basis of an expert's opinion, the reliability of the scientific fact derived from a scientific principle generally depends on the following factors: (1) the reliability of the underlying scientific principle; (2) the reliability of the technique or process that... |
1998 |
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| Guy Pevtchin |
The E.c. - an Example of Breaking down the Barriers of Sovereignty - Implications for Canada and the United States |
24 Canada-United States Law Journal 89 (1998) |
As you know, towards the end of World War II, in 1945, guns had not yet been silenced when a handful of men of genius began to work, not to rebuild Europe, but to build a new Europe. One should never underestimate the trauma inflicted upon the European population by two major world wars in less than forty years. As many people say, if the European... |
1998 |
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| Franz Xaver Perrez |
The Efficiency of Cooperation: a Functional Analysis of Sovereignty |
15 Arizona Journal of International & Comparative Law 515 (1998) |
This article is a part of a larger project analyzing the relationship between permanent sovereignty over natural resources and the obligation not to cause transboundary environmental degradation. These principles seem to represent two fundamental objectives pulling in opposing directions. However, it is the aim of this project to reconcile the... |
1998 |
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| Frederick J. Petersen |
The Façade of Humanitarian Intervention for Human Rights in a Community of Sovereign Nations |
15 Arizona Journal of International & Comparative Law 871 (Fall, 1998) |
On the international scene, problems must often be approached as broad ideals. Freedom, equality, justice, and peace are all examples of concepts that the world agrees need to be pursued, but there is no one method of accomplishing these end goals that is appropriate for all situations. Approaches must be particularized for each circumstance.... |
1998 |
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| Alexandra New Holy |
The Heart of Everything That Is: Paha Sapa, Treaties, and Lakota Identity |
23 Oklahoma City University Law Review 317 (Spring-Summer 1998) |
The Black Hills, or Paha Sapa, are a critical source of Lakota identity. One of the most important and visible mechanisms the Lakota have employed to preserve and reassert their relationship to Paha Sapa has been the United States legal system. In this Article, the author theorizes three historical periods of the Lakota-Paha Sapa relationship,... |
1998 |
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| Michael C. Blumm , Brett M. Swift |
The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: a Property Rights Approach |
69 University of Colorado Law Review 407 (Spring 1998) |
Introduction. 409 I. The Unresolved Issues in Phase II of United States v. Washington. 413 II. Background. 420 A. The Pre-Treaty Fishery. 420 B. The Stevens and Palmer Treaties. 426 C. The Post-Treaty Fishery. 433 III. The Winans Doctrine: Treaty Rights As Property Rights. 435 A. The Early Cases. 436 B. United States v. Winans. 440 IV. The... |
1998 |
Yes |
| J. Michael Robinson |
The Information Revolution - Culture and Sovereignty - a Canadian Perspective |
24 Canada-United States Law Journal 147 (1998) |
This session is unusual in at least two respects: it is a rematch from 1997, and it is your entertainment for today. We are going to do it in a debate/drama style. You have heard of the Thrilla from Manila, and there was the Rumble in the Jungle. Well, this is the Clash in Cleveland on Culture. Belligerence in the United States on this... |
1998 |
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| Robert E. Lutz |
The Mexican War and the Treaty of Guadalupe Hidalgo: What's Best and Worst about Us |
5 Southwestern Journal of Law and Trade in the Americas 27 (Spring 1998) |
The signing of the Treaty of the Guadalupe Hidalgo (Treaty) lives in infamy. Thus, on its one-hundred fiftieth anniversary, there is good reason to study, criticize and interpret that Treaty and the events ending the Mexican-American War. In doing so, however, two points--one past and one present--should be kept in mind. The past: it was as recent... |
1998 |
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| Roger C. Hartley |
The New Federalism and the Ada: State Sovereign Immunity from Private Damage Suits after Boerne |
24 New York University Review of Law and Social Change 481 (1998) |
State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment's Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational... |
1998 |
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| John C. Yoo |
The New Sovereignty and the Old Constitution: the Chemical Weapons Convention and the Appointments Clause |
15 Constitutional Commentary 87 (Spring 1998) |
A noted scholar on foreign affairs law has declared, [n]o provision in any treaty has been held unconstitutional by the Supreme Court and few have been seriously challenged there. The Constitution appears to subject treaties and executive agreements to the same limitations that apply to all other actions of the federal government. Further, the... |
1998 |
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| Darrel W. Amundsen |
The Ninth Circuit Court's Treatment of the History of Suicide by Ancient Jews and Christians in Compassion in Dying v. State of Washington: Historical Naivete or Special Pleading? |
13 Issues in Law and Medicine 365 (Spring, 1998) |
ABSTRACT: In this article, Prof. Darrel Amundsen critiques Judge Reinhardt's comments regarding Historical Attitudes Toward Suicide in his Compassion in Dying opinion. Amundsen demonstrates that the court's characterization of ancient Jewish and Christian practices is inaccurate and misleading because it fails to acknowledge the complexities of... |
1998 |
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| Bruce A. Crawford |
The Pacific Salmon Treaty: the Washington Department of Fish and Wildlife Perspective |
6 Willamette Journal of International Law and Dispute Resolution 113 (1998) |
The Pacific Salmon Treaty was entered into by both the United States and Canada to attempt to end years of conflict over harvest of Pacific salmon as they passed through the territorial waters of Alaska, British Columbia, Washington, and Oregon. The Treaty was established under the following principles: Each party shall conduct fisheries that... |
1998 |
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| Richard L. Garnett |
The Perils of Working for a Foreign Government: Foreign Sovereign Immunity and Employment |
29 California Western International Law Journal 133 (Fall, 1998) |
An increasingly-observed phenomenon in the employment field is the recruitment of persons from developed countries, particularly the United States, to work for foreign governments and their instrumentalities. Such employment may take place in the United States, in the foreign country itself, or in a third country. Employees may work in highly... |
1998 |
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| Roderick M. Hills, Jr. |
The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't |
96 Michigan Law Review 813 (February, 1998) |
I. The Inadequacy of the Supreme Court's Arguments for State Autonomy. 822 A. What Is the Function of the New York and Printz Anticommandeering Rule? The Inadequacy of the Argument Based on Political Accountability. 824 B. Searching for State Autonomy in Text, History, and Precedent: The Nationalistic Origins of State Autonomy Jurisprudence in... |
1998 |
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| Kevin J Worthen |
The Right to Keep and Bear Arms in Light of Thornton: the People and Essential AtTributes of Sovereignty |
1998 Brigham Young University Law Review 137 (1998) |
Few people think about gun control and term limits in the same way. They generally favor one or the other, but not both or neither. The thesis of this Article, however, is that the two concepts are connected--or at least that the Framers of the United States Constitution would have found a connection between the two--and that the connection between... |
1998 |
Yes |
| S. Elizabeth Wilborn |
The Right to Refuse Medical Treatment Where There Is a Right, There Ought to Be a Remedy |
25 Northern Kentucky Law Review 649 (Summer, 1998) |
Edward Winter saw his wife suffer through a prolonged terminal illness, and was particularly upset by the intrusiveness of the efforts to keep her alive in the end. He determined not to go through the same experience himself, and gave written instructions to his physician to that effect. Incredibly, Mr. Winter experienced the exact same treatment... |
1998 |
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| E. Christi Cunningham |
The Rise of Identity Politics I: the Myth of the Protected Class in Title Vii Disparate Treatment Cases |
30 Connecticut Law Review 441 (Winter 1998) |
During the Civil Rights Movement, many African Americans discarded their surnames, the names that had been given to their families by slave owners, and adopted the letter X, descriptive of some of what was missing because it had been stolen or forgotten. Having been named by their oppressors, some African Americans searched for ways to re-define... |
1998 |
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| Laura H. Huggins |
The South Carolina Workers' Compensation Act Treats Nonmarital Children like Bastards out of Carolina |
49 South Carolina Law Review 1281 (Summer 1998) |
Over 1.2 million children were born out of wedlock in the United States in 1993. Such births constituted 32% of all U.S. births that year, an increase from 2% thirty years ago. Of those families with children born out of wedlock, 83% rely on welfare or other government assistance. The public has become increasingly aware of the unique problems and... |
1998 |
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| Richard H. Seamon |
The Sovereign Immunity of States in Their Own Courts |
37 Brandeis Law Journal 319 (Spring, 1998) |
The United States Supreme Court decision in Seminole Tribe v. Florida makes it important to determine when, if ever, Congress can compel state courts to hear private lawsuits against their own state. The Seminole Tribe Court held that Congress cannot use its Article I powers to authorize private lawsuits brought against unconsenting states in the... |
1998 |
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| Lian A. Mito |
The Timor Gap Treaty as a Model for Joint Development in the Spratly Islands |
13 American University International Law Review 727 (1998) |
Introduction. 728 I. The International Law Standard. 730 A.Judicial Decisions. 730 B.The United Nations Convention on the Law of the Sea. 733 II. The Spratly Islands. 734 A.Background and History of the Dispute. 734 B.Claimant Countries. 737 1.China. 737 2.Taiwan. 739 3.Vietnam. 740 4.The Philippines. 742 5.Malaysia. 744 6.Brunei. 746 C.Evaluation... |
1998 |
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| Rodolfo F. Acuña |
The Treaty of Guadalupe Hidalgo: My Take on the Possible Implications for Today |
5 Southwestern Journal of Law and Trade in the Americas 109 (Spring 1998) |
I am not an expert on the Treaty of Guadalupe Hidalgo. I am not an attorney. I am but a lowly historian. So, I'll begin with a story that the Chicano activist Bert Corona used to tell about another activist who was one day lecturing an audience in Boyle Heights in the 1940s about Kearney's Army of the West and the atrocities it committed upon... |
1998 |
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| Curtis A. Bradley |
The Treaty Power and American Federalism |
97 Michigan Law Review 390 (November, 1998) |
Introduction. 391 I. Contemporary Significance of the Federalism Issue. 395 A. Changes in Treaty-Making. 396 B. Supreme Court's Renewed Commitment to Federalism. 399 C. Other Examples. 402 1. Human Rights Standards. 402 2. Criminal Law and Punishment. 403 3. Commerce and Trade. 406 4. Environmental Protection. 408 5. Commandeering of State... |
1998 |
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| Kristen B. Rosati |
The United Nations Convention Against Torture: a Self-executing Treaty That Prevents the Removal of Persons Ineligible for Asylum and Withholding of Removal |
26 Denver Journal of International Law and Policy 533 (Summer, 1998) |
The crack of the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the shock of the electric cattle prod are forms of torture that the international order will not tolerate. To subject a person to such horrors is to commit one of the most egregious violations of the personal security and... |
1998 |
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| José Angel Pescador Osuna |
The War Between Mexico and the U.s.a. and the Treaty of Guadalupe Hidalgo of 1848 |
5 Southwestern Journal of Law and Trade in the Americas 193 (Spring 1998) |
The title of the panel--Guadalupe Hidlago on its 150th Anniversary: Legacy or Liability: Understanding NAFTA in Light of the Treaty of Guadalupe Hidalgo-- which was the theme suggested to me, seems to me amazing and inappropriate. It is true that there are similarities between the NAFTA and the Treaty of Guadalupe Hidalgo. First, both documents... |
1998 |
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| William R. Sprance |
The World Trade Organization and United States' Sovereignty: the Political and Procedural Realities of the System |
13 American University International Law Review 1225 (1998) |
Introduction. 1226 I. What is Sovereignty. 1227 A. Surrendering Sovereignty?. 1231 B. Critics' Arguments Against the WTO. 1233 II. A Brief History of GATT Dispute Resolution. 1236 A. The Tokyo Round. 1240 B. The Uruguay Round. 1242 III. The World Trade Organization. 1243 A. WTO Voting Procedure. 1245 B. The Dispute Settlement Body. 1246 1. WTO... |
1998 |
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| Reuven Cohen |
Treating and Releasing the Mule: the Rational, Non-discriminatory Provisions of 18 U.s.c. § 3621 |
7 Southern California Interdisciplinary Law Journal 255 (Summer 1998) |
Ten years ago, a prisoner with a history of drug abuse in New York state prison would serve his last day and receive forty dollars from the institution. On June 6, 1991, members of the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary in the United States House of Representatives heard the testimony of Jose Luis Diaz, a... |
1998 |
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| Jami K. Elison |
Tribal Sovereignty and the Endangered Species Act |
6 Willamette Journal of International Law and Dispute Resolution 131 (1998) |
Gone Fishing. Although that phrase usually communicates a sabbatical from anxiety, it connotes no such respite for fishers who must extricate treaty rights on the banks of the Endangered Species Act (ESA). The ESA forbids taking of listed species, but the ESA is silent about Indian treaties. A legal question can be articulated, neatly: Does the... |
1998 |
Yes |
| Jeffrey Jacobson |
Trying to Fit a Square Peg into a Round Hole: the Foreign Sovereign Immunities Act and Human Rights Violations |
19 Whittier Law Review 757 (Summer, 1998) |
In America, a deep societal concern has developed over the past decade for human rights violations against American citizens and interests both on native and foreign soil. While the international community continues to make progress in the area of human rights law, the lack of a viable international forum for these disputes forces victims to turn... |
1998 |
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| By Steve Lash |
U.s. Department of the Army |
1998-99 Preview of United States Supreme Court Cases 146 (11/20/1998) |
The doctrine of sovereign immunity generally provides that the federal government may not be sued without its consent. In the Administrative Procedure Act (APA), however, the government has waived its immunity to suits that seek something other than money damages. After the Ninth Circuit ruled that the APA permits a subcontractor to pursue an... |
1998 |
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| Troy M. Yoshino |
Ua Mau Ke Ea O Ka Aina I Ka Pono: Voting Native Hawaiian Sovereignty Plebiscite |
3 Michigan Journal of Race and Law 475 (Spring 1998) |
Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this... |
1998 |
Yes |
| Karen Bridges |
Uncooperative Federalism: the Struggle over Subsistence and Sovereignty in Alaska Continues |
19 Public Land & Resources Law Review 131 (1998) |
We're very mindful of the important role subsistence plays in rural Alaska, but as a sovereign state within the United States we can't tolerate this kind of incursion (by the federal government) into lands and waters that are clearly governed by the state. Because of its vast geographic area which extends from coastal forests in the southeast far... |
1998 |
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