AuthorTitleCitationSummaryYearKey Terms
S. Elizabeth Gibson Sovereign Immunity in Bankruptcy: the next Chapter 70 American Bankruptcy Law Journal 195 (Spring, 1996) In a recent issue of The Journal, I discussed the effort of Congress, as part of the Bankruptcy Reform Act of 1994, to abrogate the states' and the federal government's sovereign immunity in bankruptcy in sufficiently clear terms to satisfy the exacting standards imposed by the Supreme Court for such exercises by Congress. Concluding that amended ยง... 1996  
Robert Thornton Smith Tax Treaty Interpretation by the Judiciary 49 The Tax Lawyer 845 (Summer, 1996) Tax treaty interpretation is a topic distinct from domestic statutory interpretation, with its own underlying foundational difficulties and specific issues. This Article explores an appropriate foundation for tax treaty interpretation, and addresses certain issues commonly discussed or encountered. Tax treaties generally serve two primary purposes:... 1996  
David R. Tillinghast Tax Treaty Issues 50 University of Miami Law Review 455 (April, 1996) I. The Tax Treaty Program at a Crossroads. 455 II. The World of Withholding: Compliance, the Address System, Conduit Financing and the Enforcement of Treaty-Shopping Limitations. 459 III. The Application of Income Tax Treaties to Partnerships and Other Pass-Through Entities. 467 IV. Extending the United States Treaty Program to Latin America.... 1996  
Vince Lee Farhat Term Limits and the Tenth Amendment: the Popular Sovereignty Model of Reserved Powers 29 Loyola of Los Angeles Law Review 1163 (April, 1996) Nothing in the Constitution deprives the people of each State of the power to prescribe the eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people. In the last two elections,... 1996  
Gerry J. Simpson The Diffusion of Sovereignty: Self-determination in the Postcolonial Age 32 Stanford Journal of International Law 255 (Summer, 1996) -But do you know what a nation means? says John Wyse. -Yes, says Bloom. -What is it? says John Wyse. -A nation, says Bloom. A nation is the same people living in the same place. -By God, then, says Ned, laughing, if that's so I'm a nation for I'm living i 1996  
Catherine Sun The E-2 Treaty Investor Visa: the Current Law and the Proposed Regulations 11 American University Journal of International Law and Policy 511 (1996) For foreign investors who do not have one million dollars to exchange for a green card, many immigration practitioners regard the E-2 treaty investor visa as the next best thing to permanent resident status. With an investment of less than $50,000, and for as long as the E-2 investor maintains an E-2 status, the treaty investor can enjoy the... 1996  
Michael J. Zimmer The Emerging Uniform Structure of Disparate Treatment Discrimination Litigation 30 Georgia Law Review 563 (Winter 1996) Title VII of the 1964 Civil Rights Act makes it an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensa tion, terms, conditions or privileges of employment because of such individual's race, color, religion, sex or... 1996  
Patricia Doyle The European Community and Wildlife Supervision: the Sovereign Right to Protect National Resources 9 New York International Law Review 49 (Winter, 1996) Since the passage of the Treaty of Rome (Treaty) in 1957, the goal of the European Community (EC) has been free competition among its members. Member States did not discuss the need for enhanced environmental protection until the Paris Summit of 1972, and the issue was not fully incorporated into the Treaty until 1987. Environmental protection is... 1996  
Bruce J. Winick , University of Miami School of Law The Macarthur Treatment Competence Study: Legal and Therapeutic Implications 2 Psychology, Public Policy, and Law 137 (March, 1996) This article assesses the legal and public policy implications of the MacArthur Treatment Competence Study. The study's finding that treatment incapacity cannot be equated with mental illness or any particular diagnostic category creates the need for individualized determinations of incompetence. The incidence of involuntary hospitalization and... 1996  
Patrick Tangney The New Internationalism: the Cession of Sovereign Competences to Supranational Organizations and Constitutional Change in the United States and Germany 21 Yale Journal of International Law 395 (Summer, 1996) I. L2-5,T5introduction 396 L1-6 II. L2-5,T5the New Internationalism: Supranational Institutions and the Challenge to Constitutional Law 399 A. L3-5,T5traditional Notions of International Law and Sovereign Competence 401 B. L3-5,T5the New Internationalism: The Development of Supranational Organizations 402 1. L4-5,T5developing Countries: The... 1996  
Mark L. Movsesian The Persistent Nation State and the Foreign Sovereign Immunities Act 18 Cardozo Law Review 1083 (December, 1996) One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade... 1996  
Tim Dockery The Rule of Law over the Law of Rulers: the Treatment of De Facto Laws in Argentina 19 Fordham International Law Journal 1578 (April, 1996) In 1983, constitutional and democratic government returned to Argentina. During the seven year absence of constitutional and democratic government from 1976 to 1983, a de facto government, a government that rules by force rather than by constitutional right, ruled the country. This de facto government seized power in a coup d'etat, a manner of... 1996  
Daniel J. Meltzer The Seminole Decision and State Sovereign Immunity 1996 Supreme Court Review Rev. 1 (1996) In recent years, the Eleventh Amendment has emerged from relative obscurity to become a major focus of constitutional controversy. A few crude statistics evidence this development: The Amendment was cited in only ten Warren Court decisions (over sixteen Terms), but has been mentioned in 125 decisions in the twenty-seven Terms since. Virtually... 1996  
Henry Paul Monaghan The Sovereign Immunity "Exception" 110 Harvard Law Review 102 (November, 1996) Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of Our Federalism. In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject... 1996  
Glen St.Louis The Tangled Web of Sovereignty and Self-governance: Canada's Obligation to the Cree Nation in Consideration of Quebec's Threats to Secede 14 Berkeley Journal of International Law 380 (1996) This article examines the relationship between traditional legal doctrine used in Canada for the protection of the First Nation Indian culture and the Canadian Constitutional Act of 1982, in light of the Province of Quebec's repeated promise to become its own sovereign. Specifically, this article focuses on the legal obligations arising out of... 1996  
Elizabeth A. Lingle Treating Children by Faith Colliding Constitutional Issues 17 Journal of Legal Medicine 301 (June, 1996) Seven-year-old Anthony Tony Hays from Brownsville, Oregon, died on November 4, 1994, of acute lymphocytic leukemia. Tony was sick for about three weeks prior to his death, but he never saw a physician about his condition. Christina Hays, Tony's mother, told police that Tony did not receive medical treatment because he did not ask to see a... 1996  
Matthew Calhoun Frost Treatment of Interest Rate Swaps under the Sec's Net Capital Rule: a Proposal for Change 37 William and Mary Law Review 791 (Winter, 1996) If a loss of this magnitude had happened on my watch, I would have slept like a baby. That is to say, I would have woken up every two hours screaming. So commented a derivatives broker and former county executive about the first reports of losses from speculative trading in interest-sensitive derivatives that eventually cost Orange County,... 1996  
Wendi Shohen United States v. Vertac Chemical Corporation, 46 F.3d 803 (8th Cir. 1995), Cert. Denied, 115 S. Ct. 2609 (1995): a Missed Opportunity to Clarify Whether the Government Waives Sovereign Immunity When Acting in its Regulatory Capacity 15 Temple Environmental Law and Technology Journal 143 (Spring 1996) Throughout the 1960's, the United States government entered into contracts with private chemical companies to supply chemical weapons for the Vietnam War. The government ensured that these chemical companies received the essential materials necessary for the production of chemical weapons. The chemical companies, in turn, sold their completed... 1996  
Antonio F. Perez Who Killed Sovereignty? Or: Changing Norms Concerning Sovereignty in International Law 14 Wisconsin International Law Journal 463 (Spring, 1996) One of the oldest distinctions in philosophical discourse is that between words about words and words about things. Much scholarship among international lawyers and political scientists, as well as table-talk of diplomats and other practitioners concerning the somewhat airy concept of sovereignty, has suffered all too much from a failure to... 1996  
Rsm International Tax Committee, Roger D. Lorence, Editor Will the World Follow the U.s. Lead on Limitation of Treaty Benefits? 7 Journal of International Taxation 124 (March, 1996) U.S. Policymakers are fixated on whether the underlying ownership of the taxpayer is Appropriate, which can lead to the extreme complexities of LOB provisions. A subject of intense scrutiny in U.S. international tax policy is the restriction of the benefits of bilateral income tax treaties to bona fide treaty country taxpayers. The U.S. has... 1996  
Tracy A. Diekemper Abrogating Treaty Rights under the Dion Test: Upholding Traditional Notions That Indian Treaties Are the Supreme Law of the Land 10 Journal of Environmental Law & Litigation 473 (1995) When the Native American Indians entered into treaties with the United States in the mid-1800's, many tribes expressly reserved certain rights, such as the right to fish and hunt. For example, several of the treaties entered into in 1854-55 with the tribes in the Pacific Northwest included nearly identical provisions, guaranteeing that: The... 1995 Yes
Siegfried Wiessner American Indian Treaties and Modern International Law 7 St. Thomas Law Review 567 (Summer, 1995) One of the cardinal principles of international law, if not the rock on which it stands, is the notion that nation-states are bound to keep their word. Pacta sunt servanda has been hailed as the basic norm of the law of nations, the foundation of all prescription in an essentially coarchical, consent-based and consent-driven system. The... 1995 Yes
  Arbitration Clause Ruled a Waiver of Tribal Sovereign Immunity 50-SEP Dispute Resolution Journal 89 (July/September, 1995) A provision calling for arbitration of disputes under the contract in accordance with AAA rules was a clear expression of intent to waive tribal sovereign immunity with respect to contract, but not tort, claims, the U.S. Court of Appeals for the Eighth Circuit ruled. The dispute arose out of a $6.3 million construction contract between the Rosebud... 1995 Yes
Brad Asher Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and the Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press, 1994. Xiii, 182 Pp. $37.50. 39 American Journal of Legal History 394 (July, 1995) In 1903, in the case of Lone Wolf v. Hitchcock, the Supreme Court upheld Congress's plenary power over Indian tribes and sanctioned congressionally authorized seizures of Indian lands without consent of the Indians involved and despite treaty guarantees. Blue Clark places the Lone Wolf decision in its specific historical contextthe Kiowa Indians'... 1995 Yes
Angela R. Hoeft Coming Full Circle: American Indian Treaty Litigation from an International Human Rights Perspective 14 Law & Inequality: A Journal of Theory and Practice 203 (December, 1995) L1-2Table of Contents Introduction. 204 I. From Sovereignty to Self-Determination. 209 A. The American Story. 209 1. Tribal Sovereignty: A Judicial Doctrine. 209 2. Tribal Self-Determination: A Federal Policy. 215 B. The International Story. 219 1. Self-Determination: From a Right of Nations to a Human Right 219 2. Self-Determination: A Right of... 1995 Yes
Laurie Reynolds Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal Jurisdiction 73 North Carolina Law Review 1089 (March, 1995) In recent years, the importance of Indian tribal courts as an independent legal forum has increased significantly. As the cases brought in tribal courts have grown in both number and complexity, however, new questions regarding the proper jurisdictional boundaries among tribal, state, and federal courts have reached the forefront in Native American... 1995 Yes
Lauralyn Brown Federal Courts--Indians: Can Congress Constitutionally Abrogate States' Eleventh Amendment Sovereign Immunity from Suits Initiated by Indian Tribes? 71 North Dakota Law Review 601 (1995) This Eleventh Circuit decision represents a consolidation of two separate district court decisions which reached opposite conclusions on the same issue. In the Florida case, Seminole Tribe of Florida v. Florida, the Tribe filed a complaint alleging that the state did not respond to the tribe's request for compact negotiations as required by the... 1995 Yes
By Mary Christina Wood Fulfilling the Executive's Trust Responsibility Toward Native Nations on Environmental Issues: a Partial Critique of the Clinton Administration's Promises and Performance 25 Environmental Law 733 (Summer 1995) This Article provides a partial critique of the Clinton Administration's emerging policies to accommodate native interests in the implementation of environmental and natural resource laws. It focuses on the Administration's implementation of the Endangered Species Act in the Columbia River Basin as a case study to illustrate the need for... 1995 Yes
Krista L. Twesme Let the Games Begin: Proposed Amendment to Indian Gaming Regulation Act Limiting Native American Tribes' Sovereign Immunity 17 Hamline Journal of Public Law and Policy 187 (Fall, 1995) The notion that Native American tribes should be treated as sovereign nations within the United States was explored and developed by Chief Justice John Marshall in what has since been dubbed the Marshall Trilogy. The importance of the Marshall Trilogy has not waned over the years; to the contrary, modern cases continue to cite language from these... 1995 Yes
Judith Resnik Multiple Sovereignties: Indian Tribes, States, and the Federal Government 79 Judicature 118 (November-December 1995) Although often unrecognized, three entities within the territory that constitutes the United States--Indian tribes, states, and the federal government--have forms of sovereignty. The rich and complex relationships among these three sovereignties need to become integrated into the discussion and law of federalism. Federal law about Indian tribes... 1995 Yes
C.E. Willoughby Native American Sovereignty Takes a Back Seat to the "Pig in the Parlor:" the Redefining of Tribal Sovereignty in Traditional Property Law Terms 19 Southern Illinois University Law Journal 593 (Spring, 1995) As stated by the late scholar of Native American law, Felix S. Cohen, the fight for tribal sovereignty is of central importance to us all: Our interest in Indian self-government today is not the interest of sentimentalists or antiquarians. We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the... 1995 Yes
Mary Christina Wood Protecting the AtTributes Native Sovereignty: a New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources 1995 Utah Law Review 109 (1995) I. Introduction. 111 II. Methodology for Establishing Standards of Fiduciary Care in the Indian Trust Context. 113 A. The Beacon of Fiduciary Obligation: The Best Interest Standard. 114 1. Applicability of Private Fiduciary Standards. 114 2. Statutory Standards as Substitutes for Fiduciary Obligations. 117 3. Constitutional Standards. 121 B. The... 1995 Yes
Sugata Bose Safeguards for Minorities Versus Sovereignty of Nations 19-SPG Fletcher Forum of World Affairs 21 (Winter/Spring 1995) Tyranny in modern history has not been a monopoly of either arrogant majorities or brutish minorities. Whether a normative sense of political justice calls for the defense of minority rights or majority rule depends on who the tyrant is. Rights can and have been denied to collectivities whose demographic status has ranged from microscopic minority... 1995 Yes
Gloria Valencia-Weber Shrinking Indian Country: a State Offensive to Divest Tribal Sovereignty 27 Connecticut Law Review 1281 (Summer 1995) Contemporary practices of some state governments attempt to shrink Indian country--the land over which American Indian tribes govern--as a way of divesting or voiding tribal sovereignty. States aggressively ask the courts to legitimate their state regulation, coupled with taxation, in an effort to change the size and status of Indian lands so that... 1995 Yes
Janis Searles South Dakota v. Bourland: Another Supreme Court Move Away from Recognition of Tribal Sovereignty 25 Environmental Law 209 (Winter, 1995) I. INTRODUCTION II. CONGRESSIONAL ABROGATION OF TREATY RIGHTS A. Shifting Standards of Abrogation B. The Dion Standard III. JUDICIAL EROSION OF TRIBAL SOVEREIGNTY: THE MONTANA AND BRENDALE DECISIONS A. Montana v. United States B. Brendale v. Confederated Tribes & Bands of the Yakima Nation IV. SOUTH DAKOTA V. BOURLAND A. The Cheyenne River... 1995 Yes
Rodney K. Smith Sovereignty and the Sacred: the Establishment Clause in Indian Country 56 Montana Law Review 295 (Winter 1995) Shortly after arriving in Montana, to serve as Dean of the School of Law, I had the opportunity to visit six of the seven tribal colleges in the state. As I visited each of those colleges, I was struck by the pervasive role of religion in sustaining the culture that makes those colleges special, places with the capacity to significantly increase... 1995 Yes
Mark J. Wolff Spirituality, Culture and Tradition: an Introduction to the Role of Tribal Courts and Councils in Native American Heritage and Sovereignty 7 St. Thomas Law Review 761 (Summer, 1995) It is appropriate that we now turn our attention to tribal court systems, not because the Symposium is being hosted by St. Thomas University School of Law nor because we are physically in this law school's moot court room, but because the law and its administration embodies and reflects a civilization's spirituality, tradition and culture.... 1995 Yes
Winston P. Nagan Strengthening Humanitarian Law: Sovereignty, International Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia 6 Duke Journal of Comparative & International Law 127 (Fall, 1995) The importance of strengthening humanitarian law, and, for that matter, human rights law, is evident in light of the ubiquity of recourse to violence to resolve international as well as internal conflicts. This use of violence provokes the most grave deviations from even the most minimal level of moral sensibility. Two conflicts that have shocked... 1995 Yes
John S. Harbison The Broken Promise L Native American Tribal Sovereignty over Reservation Resources 14 Stanford Environmental Law Journal 347 (May, 1995) I. Territory and Collective Rights . 347 II. The Bourland-Brendale-Montana Trilogy . 351 III. Collective Rights in the Liberal Polity . 367 1995 Yes
John S. Harbison The Downstream People: Treating Indian Tribes as States under the Clean Water Act 71 North Dakota Law Review 473 (1995) In the early summer of 1763, a party of French adventurers led by Father Jacques Marquette, a Jesuit priest, and Louis Joliet, a cours de bois, came upon a group of villages at the confluence of the Arkansas and Mississippi Rivers. The villagers were Siouan speakers who called themselves the Quapaw, or Downstream People. Exactly when the Quapaw... 1995 Yes
Darby L. Hoggatt The Wyoming Tribal Full Faith and Credit Act: Enforcing Tribal Judgments and Protecting Tribal Sovereignty 30 Land and Water Law Review 531 (1995) In 1994 the Fifty-Second Wyoming Legislature enacted the Wyoming Tribal Full Faith and Credit Act (WTFF&CA) requiring Wyoming state courts to recognize judicial records, orders, and judgments of the Eastern Shoshone and Northern Arapaho Tribes as long as tribal courts recognize Wyoming's judicial records, orders, and judgments. Prior to passage,... 1995 Yes
Richard Monette, James M. Grijalva, P.S. Deloria, Judith V. Royster, Rebecca Tsosie Treating Tribes as States under the Clean Water Act: the Good and the Bad 71 North Dakota Law Review 497 (1995) MR. MONETTE: Good morning. Nice to see you all again. We have a slight change in the panel, as you can see. Let me just first mention that John Harbison has, I understand, taken ill and probably won't be with us today. So he could probably use some of our good thoughts. And Sam Deloria will sit in his place to help respond. Our topic is, as you can... 1995 Yes
Frank Pommersheim Tribal Courts: Providers of Justice and Protectors of Sovereignty 79 Judicature 110 (November-December 1995) Tribal courts are now the premier institutions that struggle to analyze and identify the extent of tribal jurisdiction and sovereignty. Tribal courts are the frontline institutions that most often confront issues of American Indian self-determination and sovereignty. At the same time they are charged with providing reliable and equitable... 1995 Yes
Kirke Kickingbird What's past Is Prologue : the Status and Contemporary Relevance of American Indian Treaties 7 St. Thomas Law Review 603 (Summer, 1995) If there is any subject related to American Indians of which the average American has any knowledge, it is Indian treaties. Those citizens who possess this passing knowledge of Indian history and American Indian law often dismiss Indian treaty rights because they believe in the myth of the broken treaty. This myth says that conduct on the part of... 1995 Yes
Professor Catherine Tinker A "New Breed" of Treaty: the United Nations Convention on Biological Diversity 13 Pace Environmental Law Review 191 (Fall 1995) The United Nations Convention on Biological Diversity (Treaty or Convention) entered into force on December 29, 1993. One of the unique things about this Convention is the speed with which it was negotiated, which was a record due to the desire to produce a document for signing at the United Nations Conference on Environment and Development in Rio... 1995  
Arthur R. Hessel , Susan M. Sturman A Lean and Mean Hud? 4-WTR Journal of Affordable Housing & Community Development Law 20 (Fall/Winter, 1994/1995) The U.S. Department of Housing and Urban Development has been in the midst of a massive reorganization since February 1993. Prompted by Vice President Al Gore's reinventing government campaign, the reorganization is intended to pare down the bureaucracy and make the department more results-oriented rather than process-driven. The HUD... 1995  
Norman B. Smith A Plea for the Total Ban of Land Mines by International Treaty 17 Loyola of Los Angeles International and Comparative Law Journal 507 (April, 1995) A child picks up a curiously-shaped plastic object lying on the ground; her arms are blown off, she is blinded, and she receives horribly disfiguring facial wounds. A herdsman driving his cattle to water hears an ominous clicking noise underfoot, and, in a blinding flash, one of his legs is destroyed up to the knee, his other foot is mangled beyond... 1995  
Dianne Otto A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia 21 Syracuse Journal of International Law and Commerce 65 (Spring 1995) I. Introduction . 65 II. Indigenous Discourses of Sovereignty . 68 A. The Emerging Narrative of a Post-Colonial Australia . 69 B. The Continuing Importance of Indigenous Sovereignty . 72 1. Sovereignty as Fundamental to Identity . 74 2. Sovereignty as the Means to International Personality . 75 3. Sovereignty as Acknowledgement of Indigenous... 1995  
Brad W. Morse A View from the North: Aboriginal and Treaty Issues in Canada 7 St. Thomas Law Review 671 (Summer, 1995) Let me begin by expressing my sincere appreciation to the organizers, and in particular Professor Siegfried Wiessner, for inviting me to participate in this symposium. As Professor Wiessner indicated, for the past 18 years I have been a law professor and legal counsel for a number of Indian tribes, which are called First Nations in Canada, and... 1995  
Hiram E. Chodosh An Interpretive Theory of International Law: the Distinction Between Treaty and Customary Law 28 Vanderbilt Journal of Transnational Law 973 (11/1/1995) The author begins with an explanation of the importance of the distinction between treaty and customary law. The author then presents six alternative principles currently used to inform that distinction (dichotomy, overlap, relativity, interdependence, equivalence, and indeterminacy) and evaluates the application of these principles according to... 1995  
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