AuthorTitleCitationSummaryYearKey Terms
Gregory S. Lane Friendship, Commerce, and Navigation Treaties: an Analysis of the Foreign Corporation's Exemption from United States Labor Standards 16 Pepperdine Law Review 383 (January, 1989) Friendship, Commerce, and Navigation (FCN) treaties, like other treaties, create unique and difficult problems for the courts when attempting to reconcile their provisions with conflicting federal legislation. When signed by the President of the United States, an FCN treaty becomes part of the domestic law of this country without the necessity of... 1989  
Sandra H. Johnson From Medicalization to Legalization to Politicization: O'connor, Cruzan, and Refusal of Treatment in the 1990s 21 Connecticut Law Review 685 (Spring, 1989) As police and stunned hospital officials looked on helplessly, a distraught gunman unplugged the life-support equipment attached to his comatose infant son Wednesday, then cradled the baby until he died . . . . [The father] handed the [[[child's] lifeless body . . . to a nurse, put down the [loaded] gun, . . . and collapsed into tears . . . . The... 1989  
John E. Eichhorst, Ronald C. McCallum Garcia and Judicially-imposed Constitutional Protections of State Sovereignty: the Australian Experience 4 Florida International Law Journal 465 (Summer, 1989) I. Introduction. 465 II. Constitutional Protections of State Sovereignty in Late Nineteenth Century U.S. Supreme Court Jurisprudence. 467 III. Intergovernmental Immunities, Reserved Powers, and the Australian Constitution. 472 IV. Australia's Retreat from Implied Constitutional Protections of State Sovereignty. 484 V. The Australian High Court and... 1989  
Roberta Rosenthal Kwall Governmental Use of Copyrighted Property: the Sovereign's Prerogative 67 Texas Law Review 685 (March, 1989) I. Introduction. 686 II. The Compensated Use Paradigm: The Exercise of Eminent Domain Over Copyrighted Property. 692 A. Copyrighted Property and the Exercise of Eminent Domain. 693 1. Section 201(e) and the Exercise of Eminent Domain by the Federal Government. 697 2. Section 201(e) and the Exercise of Eminent Domain by States. 703 B. Condemnation... 1989  
Lance D. Cassak Hearing the Cries of Prisoners: the Third Circuit's Treatment of Prisoners' Rights Litigation 19 Seton Hall Law Review 526 (1989) The law, in all vicissitudes of government, fluctuations of passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to the uncertain wishes, imaginations and wanton tempers of men. . . . On the one hand it is inexorable to the cries and lamentations of prisoners; on the other, it is deaf, deaf as an adder to... 1989  
Curtis Berkey Indian Nations under Legal Assault 16-WTR Human Rights 18 (Winter 1989) During the last ten years, the sovereign authority of American Indian governments has come under legal attack. On many reservations, non-Indians comprise a large part of the population, and Indian governments naturally assert authority over them as part of the inherent and historic power of territorial self-government. Non-Indians are increasingly... 1989 Yes
Richard L. Doernberg Legislative Override of Income Tax Treaties: the Branch Profits Tax and Congressional Abrogation of Authority 42 Tax Lawyer 173 (Winter, 1989) With the budget deficit at an unprecedented level, Congress is under great pressure to increase government revenues. In response to that pressure, Congress enacted the Tax Reform Act of 1986 and the Revenue Act of 1987, both of which are expected in the short term to reduce the deficit. While pursuing large revenue increases, Congress finds it... 1989  
Carl Ullman New Players in the Public Borrowing Game: Tax and Sovereignty Considerations as Freely Associated States and Indian Tribes Approach Wall Street 11 University of Hawaii Law Review 111 (Fall, 1989) In recent years public borrowing in the United States has grown dramatically as authorities at all levels find themselves in greater need of significant capital accumulations in order to meet the needs of constituencies that have been either assigned to them or secured to them by the electoral process. This fiscal activity, encouraged by favorable... 1989 Yes
Gennady M. Danilenko Outer Space and the Multilateral Treaty-making Process 4 High Technology Law Journal 217 (Fall, 1989) I. INTRODUCTION. 217 II. THE CONTINUOUS NEED FOR SPACE LAW-MAKING. 218 III. THE SEARCH FOR GENUINE CONSENSUS. 223 IV. TOWARDS MORE REALISTIC SPACE LAW-MAKING. 229 V. ANTICIPATORY REGULATION. 232 VI. PROLIFERATION OF NEGOTIATING FORUMS. 236 VII. FRAGMENTATION OF THE LEGAL REGIME. 241 VIII. A COMPREHENSIVE CONVENTION?. 244 IX. CONCLUSION. 247 Among... 1989  
Letitia A. Sears Pennsylvania v. Union Gas: Congressional Abrogation of State Sovereign Immunity under the Commerce Clause, Or, Living with Hans 58 Fordham Law Review 513 (December, 1989) The eleventh amendment constricted the state-citizen diversity clause of article III by providing that citizens of one state could not sue another state in federal court. Its words appear innocent when compared with the amount of academic and judicial controversy they have generated. A purely textual analysis would hardly reveal the areas into... 1989  
D. Craig Lewis Proof and Prejudice: a Constitutional Challenge to the Treatment of Prejudicial Evidence in Federal Criminal Cases 64 Washington Law Review 289 (April, 1989) Abstract: The United States Supreme Court held its 1970 decision In re Winship that in criminal prosecutions the Constitution requires proof of guilt beyond a reasonable doubt. Professor Lewis argues that Winship governs the validity of evidence rules in criminal cases and requires that rules of evidence do not impair the reliability of criminal... 1989  
Ronald A. Lehmann Reinterpreting Advice and Consent: a Congressional Fast Track for Arms Control Treaties 98 Yale Law Journal 885 (March, 1989) The Reagan Administration's interpretation of the 1972 Anti-Ballistic Missile (ABM) Treaty, allowing development and deployment of the Strategic Defense Initiative (SDI), raised difficult questions about the relative scope of presidential and congressional powers to interpret treaties. Administration opponents, led by Democratic Senator Sam Nunn,... 1989  
Frederic L. Kirgis, Jr. Some Lingering Questions about Article 60 of the Vienna Convention on the Law of Treaties 22 Cornell International Law Journal 549 (Symposium, 1989) There is a rich literature on the topic of material breach in the law of treaties. It is richer, however, in doctrine than in analysis useful to decisionmakers. Article 60 of the Vienna Convention on the Law of Treaties raisesor at least leaves unresolvedtroublesome questions with respect to breaches. This essay aims to resolve these questions by... 1989  
Jeffrey S. Schira Sovereign Immunity to Copyright Infringement Actions after Atascadero 50 Ohio State Law Journal 197 (1989) The Constitution vests the power to issue letters of patent and copyright with Congress. Congress has, from time to time, passed and revised various copyright statutes, culminating with the passage of the Copyright Act of 1976 (1976 Act). These statutes have provided authors and artisans with some level of protection against the unauthorized use of... 1989  
John F. Duffy Sovereign Immunity, the Officer Suit Fiction, and Entitlement Benefits 56 University of Chicago Law Review 295 (Winter, 1989) The constitutional doctrine of sovereign immunity prohibits a federal court from entertaining any suits in which a sovereign entity, either a state or the United States, is named as defendant unless the sovereign has consented to be sued. Despite the absolute terms in which sovereign immunity is sometimes described, there exist two fundamental... 1989  
Jake Holdreith State Sovereign Immunity Against Private Citizens, the Commerce Clause Power, and the Supreme Court 74 Iowa Law Review 593 (3/1/1989) The eleventh amendment is ambiguous in itself and the Supreme Court has rendered it only more confusing. Those in favor of state immunity contend that the eleventh amendment embodies principles of federalism that constitutionally protect unconsenting states from suits by private citizens. Others argue that the eleventh amendment bars federal... 1989  
Calvin R. Massey State Sovereignty and the Tenth and Eleventh Amendments 56 University of Chicago Law Review 61 (Winter, 1989) The Eleventh Amendment is deceptively simple: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Yet, in recent years, a vigorous debate has emerged about the... 1989  
Charles T. DuMars , A. Dan Tarlock Symposium Introduction: New Challenges to State Water Allocation Sovereignty 29 Natural Resources Journal 331 (Spring, 1989) Western states are facing new challenges to their traditional water allocation primacy beyond the perennial problems of federal reserved rights and reclamation law. These challenges come from recent Supreme Court decisions announcing federalism doctrines that may allow a court to displace state law, and from state court decisions that may require... 1989  
Ifeanyi Achebe The Act of State Doctrine and Foreign Sovereign Immunities Act of 1976: Can They Coexist? 13 Maryland Journal of International Law and Trade 247 (Spring, 1989) Introduction Purpose of This Article I. Defining the Act of State Doctrine A. Distinguishing an Act of State B. Distinguishing Absolute Sovereignty II. Some Early and Recent Evidence of the Problems A. The Problem at the United States Supreme Court Level B. Views from the Second Circuit Cases (i) Anticipatory Repudiation (ii) International... 1989  
Frank R. Pommersheim The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction 31 Arizona Law Review 329 (April, 1989) Tribal courts are of growing significance and importance throughout Indian country. This is especially true in light of the recent United States Supreme Court decisions in National Farmers Union Insurance Cos. v. Crow Tribe of Indians and Iowa Mutual Insurance Co. v. LaPlante, which hold that tribal courts are the primary forums for adjudicating... 1989 Yes
Merritt R. Blakeslee The Eleventh Amendment and States' Sovereign Immunity from Suit by a Private Citizen: Hans v. Louisiana and its Progeny after Pennsylvania v. Union Gas Company 24 Georgia Law Review 113 (Fall, 1989) In 1980, while Pennsylvania was engaged in a long-term flood-control project on Brodhead Creek in Stroudsburg, Pennsylvania, workers excavating the creek banks struck a large deposit of coal tar, which leaked into the creek. The Environmental Protection Agency (EPA), which declared the tar a hazardous substance, designated Brodhead Creek an... 1989  
Bruce J. Winick The Right to Refuse Mental Health Treatment: a First Amendment Perspective 44 University of Miami Law Review Rev. 1 (September, 1989) A. The Supreme Court's Methodology: Deriving Corollary Rights from Freedom of Speech B. Supreme Court Protection for Freedom of Belief, Freedom of Mind, and Freedom of Thought C. Freedom to Believe Distinguished from Freedom to Act D. When Government Attempts to Impose Orthodoxy of Belief E. First Amendment Protection of Private Thoughts F.... 1989  
Lawrence J. Block , Lee A. Casey , David B. Rivkin, Jr. The Senate's Pie-in-the-sky Treaty Interpretation: Power and the Quest for Legislative Supremacy 137 University of Pennsylvania Law Review 1481 (May, 1989) The debate over ABM Treaty interpretation and reinterpretation into which Professor Koplow ventures is part and parcel of two much broader and dramatic confrontations: the struggle currently being waged over the direction of United States nuclear strategy and a battle between the Executive and the Congress over the formulation and implementation of... 1989  
Joseph R. Biden, Jr. , John B. Ritch III The Treaty Power: Upholding a Constitutional Partnership 137 University of Pennsylvania Law Review 1529 (May, 1989) In June of 1988, as the leaders of the United States and the Soviet Union met in Moscow to inaugurate the Treaty on Intermediate-Range Nuclear Forces (INF Treaty), their joint act of ratification ended more than a sixteen year hiatus in codified superpower arms control. It also brought to a close an extraordinary episode in American constitutional... 1989  
Abraham D. Sofaer Treaty Interpretation: a Comment 137 University of Pennsylvania Law Review 1437 (May, 1989) The key question in the treaty interpretation debate is: what standards are correct for judging whether the President is bound to an interpretation of a treaty under domestic law because of the manner in which the treaty was presented to the Senate? Professor Koplow's analysis of the treaty interpretation issue is more accurate than that of most... 1989  
Roy G. Spece, Jr., J.D. Aids: Due Process, Equal Protection, and the Right to Treatment 4 Issues in Law and Medicine 283 (Winter, 1988) In 1973, Samuel Krislov, a political scientist at the University of Minnesota, who was not at all hostile to advocacy for the less fortunate, published an article entitled The OEO Lawyers Fail to Constitutionalize A Right to Welfare: A Study in the Uses and Limits of the Judicial Process. The title of the article is most suggestive, but a summary... 1988  
Patrick T. Bergin Antarctica, the Antarctic Treaty Regime, and Legal and Geopolitical Implications of Natural Resource Exploration and Exploitation 4 Florida International Law Journal L.J. 1 (Fall, 1988) I. L2-4,T4Introduction 2 II. L2-4,T4The Setting: The Southern Polar Region 6 III. L2-4,T4From Discovery to Diplomacy: An Historical Perspective 8 A. L3-4,T4Early Exploration 8. B. L3-4,T4Claims of Sovereignty 9. 1. Historic Right. 10 2. Contiguity and Proximity. 11 3. Geological Affinity. 11 4. Sector Principle. 12 5. Pan-American Primacy. 13 6.... 1988  
David A. Koplow Arms Control Inspection: Constitutional Restrictions on Treaty Verification in the United States 63 New York University Law Review 229 (May, 1988) The United States and the Soviet Union recently signed a treaty that eliminates an entire class of nuclear arms, and allows more intrusive verification procedures than ever before. As technology improves and verification becomes even more central in arms control negotiations, Professor Koplow warns that the United States Constitution limits the... 1988  
David A. Webster Beyond Federal Sovereign Immunity: 5 U.s.c. § 702 Spells Relief 49 Ohio State Law Journal 725 (1988) The trouble with the sovereign immunity doctrine is that it interferes with consideration of practical matters, and transforms everything into a play on words. These words were spoken by supporters of a partial abolition of the federal government's sovereign immunity, since adopted as an amendment to 5 U.S.C. § 702. Section 702 permits federal... 1988  
Thomas M. DiBiagio Federal Jurisdiction over Foreign Governments for Violations of International Law: Foreign Sovereign Immunity and the Alien Tort Statute after Amerada Hess Shipping Corp. v. Argentine Republic 12 Maryland Journal of International Law and Trade 153 (Spring, 1988) I. INTRODUCTION. 154 II. FOREIGN SOVEREIGN IMMUNITY IN UNITED STATES COURTS. 156 A. Traditional Principles. 156 B. The Foreign Sovereign Immunities Act 28 U.S.C. Sections 1602-11. 158 1. Purpose. 158 2. Comprehensive Provisions. 160 3. Exceptions to Foreign Sovereign Immunity. 161 III. ACT OF STATE DOCTRINE. 162 IV. ALIEN TORT STATUTE; 28 U.S.C.... 1988  
Joseph L. Miljak Forcing Sovereign Conformity: the Comprehensive Anti-apartheid Act of 1986 36 Cleveland State Law Review 261 (1988) I. INTRODUCTION. 261 II BACKGROUND. 263 III. CONSTITUTIONALITY. 268 IV. INTERNATIONAL LEGALITY. 280 V. APPLICATION. 287 VI. CONCLUSION. 290 1988  
Judith V. Royster , Rory SnowArrow Fausett Fr Native American Reservations: State Rights 'To Pursue Savage Hostile Indian Marauders Across the Border' 59 University of Colorado Law Review 191 (Spring, 1988) L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. Summary. 223 C. On-Reservation Arrest for... 1988 Yes
Judith V. Royster , Rory SnowArrow Fausett Fr Native American Reservations: State Rights 'To Pursue Savage Hostile Indian Marauders Across the Border' 59 University of Colorado Law Review 191 (Spring, 1988) L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. Summary. 223 C. On-Reservation Arrest for... 1988 Yes
Connie K. Haslam Indian Sovereignty: Confusion Prevails-california v. Cabazon Band of Mission Indians, 107 S Ct. 1083 (1987). 63 Washington Law Review 169 (January, 1988) The courts have failed to give the Indian tribes of the United States a straight answer on the boundaries of Indian sovereignty. The predominant issue before the courts is how to balance the disparate interests of the federal government, the states, and the tribes themselves. The courts have battled to balance the interests of each party involved... 1988 Yes
Benedict M. Lenhart International Agreements-treaty on Fishing Between the Governments of Certain Pacific Island States and the Government of the United States of America, Opened for Signature April 2, 1987, Reprinted in 26 I.l.m. 1048 (1987) 29 Harvard International Law Journal 192 (Winter, 1988) On April 2, 1987, the United States and several South Pacific Island states signed a regional fisheries treaty which provides for the licensing of United States vessels to fish for tuna within the 200-mile Exclusive Economic Zones of the participating Pacific Island states. The treaty is significant because it will permit the United States tuna... 1988  
Christopher Todd Roper Is Preferential Treatment Justified in Voluntary Affirmative Action Programs? 12 American Journal of Trial Advocacy 99 (Summer, 1988) This Note discusses some of the decisions by the United States Supreme Court concerning governmental affirmative action programs that discriminate in favor of a person based on his race or sex. The Supreme Court realizes the important governmental objective in establishing a society free of racial or sexual discrimination. In order to achieve this... 1988  
Thomas M. Clark More Plenary than Thou: a Post-welch Compromise Theory of Congressional Power to Abrogate State Sovereign Immunity 88 Columbia Law Review 1022 (June, 1988) The eleventh amendment states that the judicial power shall not extend to any suit against a state commenced by citizens of another state. Yet despite the language of the amendment, the Supreme Court has held that states enjoy immunity not only in diversity actions and federal question suits brought by noncitizens, but also in federal question... 1988  
Patricia A. Trujillo Municipal Bond Financing after South Carolina v. Baker and the Tax Reform Act of 1986: Can State Sovereignty Reemerge? 42 Tax Lawyer 147 (Fall, 1988) Federal control over states and municipalities increased substantially with Congress' sweeping revisions to the state and local bond financing provisions in the Tax Reform Act of 1986. New sections 141 through 149 impose stringent requirements on municipal obligations in order for bonds to qualify for tax exemption. These limitations on tax-exempt... 1988  
Paul A. Matteoni Native Indian Villages: the Question of Sovereign Rights 28 Santa Clara Law Review 875 (Fall, 1988) The judiciary of Alaska is confronted with independent Native Indian groups demanding enforcement of claims to sovereign rights. Despite numerous opportunities afforded in recent cases, the Alaskan courts have been unwilling to rule directly on this issue. These Alaskan Native Indian groups believe they are entitled to the identical rights,... 1988 Yes
Detlev Vagts, Thomas W. Walde , United Nations Permanent Sovereignty over Natural Resources in International Law: Principle and Practice. Edited by Kamal Hossain and Subrata Roy Chowdhury. New York: St. Martin's Press, 1984. Pp. Xx, 194. Index. $27.50. 82 American Journal of International Law 405 (April, 1988) Permanent sovereignty over natural resources was a leading theme of the debate about the New International Economic Order (NIEO) and the legal articulation of the Third World's goals of economic and political emancipation, revision of the international economic law formulated by the Western powers and acquisition of control over, and a maximal... 1988  
H. Barry Holt Property Clause Regulation off Federal Lands: an Analysis, and Possible Application to Indian Treaty Rights 19 Environmental Law 295 (Winter, 1988) I. INTRODUCTION. 295 II. EXTERNAL REGULATION UNDER THE PROPERTY CLAUSE. 296 A. Generally. 296 1. Traditional Cases. 297 2. Traditional Challenges. 299 a. State Power. 300 b. Takings. 301 B. Regulatory Purposes. 302 1. Nuisance Abatement. 302 2. Protection of Federal Property. 303 3. Protection of Federal Purposes. 305 C. Application. 308 1.... 1988 Yes
David R. E. Aladjem Public Use and Treatment as an Equal: an Essay on Poletown Neighborhood Council v. City of Detroit and Hawaii Housing Authority v. Midkiff 15 Ecology Law Quarterly 671 (1988) [N]or shall private property be taken for public use, without just compensation. An ACT of the Legislature (for I connot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on... 1988  
Tracie A. Sundack Republic of Philippines v. Marcos: the Ninth Circuit Allows a Former Ruler to Invoke the Act of State Doctrine Against a Resisting Sovereign 38 American University Law Review 225 (Fall, 1988) Article II of the United Sttaes Constitution grants the executive branch power to conduct foreign relations. United States courts adjudicating disputes in which a foreign official is a defendant, however, may interfere with the executive's efforts to convey a unified foreign policy by ruling contrary to the executive's wishes. The act of state... 1988  
Jordan J. Paust Self-executing Treaties 82 American Journal of International Law 760 (October, 1988) The distinction found in certain cases between self-executing and non-self-executing treaties is a judicially invented notion that is patently inconsistent with express language in the Constitution affirming that all Treaties . . . shall be the supreme Law of the Land. Indeed, such a distinction may involve the most glaring of attempts to... 1988  
  Sovereign Immunity-Indian Tribal Sovereignty-Tribes Not Immune from Suits Arising from Off-reservation Business Activity-padilla v. Pueblo of Acoma, 107 N.m. 174, 754 P.2d 845 (1988). 102 Harvard Law Review 556 (December, 1988) Indian tribes have enjoyed a quasi-sovereign status since the Supreme Court decision in Cherokee Nation v. Georgia in 1831. Chief Justice Marshall, describing the nature of this status, explained that, although the tribes are nations, they are domestic dependent nations, and their relationship to the national government resembles that of a... 1988 Yes
  Sovereign Immunity-Indian Tribal Sovereignty-Tribes Not Immune from Suits Arising from Off-reservation Business Activity-padilla v. Pueblo of Acoma, 107 N.m. 174, 754 P.2d 845 (1988). 102 Harvard Law Review 556 (December, 1988) Indian tribes have enjoyed a quasi-sovereign status since the Supreme Court decision in Cherokee Nation v. Georgia in 1831. Chief Justice Marshall, describing the nature of this status, explained that, although the tribes are nations, they are domestic dependent nations, and their relationship to the national government resembles that of a... 1988 Yes
George F. Carpinello State Protective Legislation and Nonresident Corporations: the Privileges and Immunities Clause as a Treaty of Nondiscrimination 73 Iowa Law Review 351 (January, 1988) Economic union requires more than the elimination of barriers to the movement of goods; it also requires the free movement of business enterprise itself. This is especially true in an economy in which service industry plays an important role. Most consumers are unable to benefit from the services provided by banks, professionals, or unsurance... 1988  
John E. Noyes , Brian D. Smith State Responsibility and the Principle of Joint and Several Liability 13 Yale Journal of International Law 225 (Summer, 1988) The law of multiple state responsibility is undeveloped. The scholarly literature is surprisingly devoid of reference to the circumstances or consequences of multiple state responsibility. Judicial or arbitral decisions addressing a state's assertions that other states share responsibility are essentially unknown. Given this lack of attention to... 1988  
None The Abm Treaty Interpretation Resolution 82 American Journal of International Law 151 (January, 1988) On September 22, 1987, the Committee on Foreign Relations of the U.S. Senate filed its report on The ABM Treaty Interpretation Resolution. This followed publication of the 828-page volume of joint hearings before the Committees on Foreign Relations and on the Judiciary, The ABM Treaty and the Constitution. The resolution on interpreting the Treaty,... 1988  
Michael D. Vhay The Harms of Asking: Towards a Comprehensive Treatment of Sexual Harassment 55 University of Chicago Law Review 328 (Winter, 1988) Commentators have discussed the legal consequences of acts constituting sexual harassment for some time, albeit with less concern than that shown by many writers on the subject today. In an article that appeared fifty years ago, Calvert Magruder wrote that women have occasionally sought damages for mental distress and humiliation on account of... 1988  
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