AuthorTitleCitationSummaryYearKey Terms
James C. Wolf The Jurisprudence of Treaty Interpretation 21 U.C. Davis Law Review 1023 (Spring, 1988) The interpretation of treaties has been the dispositive question in cases both sacred and profane: from litigation over fundamental human rights to litigation over payroll taxes; from debate over anti-ballistic missile systems to debate over capitalist ethics. Unfortunately, such interpretation is not easily predictable. For treaty interpretation... 1988  
Ndiva Kofele-Kale The Principle of Preferential Treatment in the Law of Gatt: Toward Achieving the Objective of an Equitable World Trading System 18 California Western International Law Journal 291 (1987/1988) This Article examines the world trading system as embodied in the General Agreement on Tariffs and Trade and the degree to which I shall refer to these derogations from GATT law as the principle of preferential treatment. The first indication that the developing countries (DCs) were completely dissatisfied with the GATT framework of trade rules... 1988  
Vicki C. Jackson The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity 98 Yale Law Journal L.J. 1 (November, 1988) C1-3TABLE OF CONTENTS I. THE PRESENT FRAMEWORK 8 II. COHENS V. VIRGINIA, THE ELEVENTH AMENDMENT AND THE SUPREME COURT'S APPELLATE JURISDICTION: AN ANOMALY 13 A. Cohens v. Virginia 15 1. Facts 16 2. Counsels' Argument 16 3. The Court's Opinion 19 B. Supreme Court Review of State Court Judgments in Actions against States: From Cohens to the Present... 1988  
Brice M. Clagett , Daniel B. Poneman The Treatment of Economic Injury to Aliens in the Revised Restatement of Foreign Relations Law 22 International Lawyer 35 (Spring, 1988) The American Law Institute (ALI) approved the Restatement of the Law: Foreign Relations Law of the United States (Revised) (Revised Restatement; Restatement) in May 1986. The ALI is to be commended for a generally creditable treatment of economic injury to aliens. While the text omits some pertinent issues altogether and deals inadequately with... 1988  
Maria Frankowska The Vienna Convention on the Law of Treaties Before United States Court 28 Virginia Journal of International Law 281 (Winter, 1988) The role of national courts in the application, enforcement, and development of international law has been somewhat obscure. According to Richard Falk, domestic courts operate[ ] at that peculiarly sensitive point where national and international authority intersect. The character of this intersection is closely connected with the role that can be... 1988  
Thomas P. McLish Tribal Sovereign Immunity: Searching for Sensible Limits 88 Columbia Law Review 173 (January, 1988) A non-Indian child is struck and killed by a motorboat while swimming near an unmarked marina owned and operated by an Indian tribe. Her parents' suit for wrongful death is dismissed without consideration of the merits of the claim. The tribe's immunity from suit bars the claim, even though the tribe was engaged in an off-reservation commercial... 1988 Yes
M. Allen Core Tribal Sovereignty: Federal Court Review of Tribal Court Decisions-judicial Intrusion into Tribal Sovereignty 13 American Indian Law Review 175 (1988) In the latest developments concerning the authority of tribes to self-govern, the United States Supreme Court has moved closer to a position that allows the federal judiciary to act as appellate courts for decisions of tribal courts. In National Farmers Union Insurance Co. v. Crow Tribe, the Supreme Court concluded that the question of whether the... 1988 Yes
W.B. Dehan Welch v. Texas Department of Highways and Public Transportation: Eleventh Amendment Requires Express Abrogation of Sovereign Immunity 62 Tulane Law Review 670 (February, 1988) The Texas Department of Highways and Public Transportation operates a free automobile and passenger ferry between Point Bolivar and Galveston, Texas. Plaintiff, Jean Welch, was injured in the course of her employment as a marine technician for the Texas Highway Department while working on the ferry dock in Galveston. She filed suit under the Jones... 1988  
Anne Loughran Rubin, Mary E. Scrupski When Ethics Collide: Enforcement of Institutional Policies of Nonparticipation in the Termination of Life-sustaining Treatment 41 Rutgers Law Review 399 (Fall, 1988) With increasing frequency, courts and legislatures are recognizing a patient's right to refuse life-sustaining medical treatment. Recognition of this basic right, however, does not guarantee that a patient's wishes will prevail in the decision whether to continue life-sustaining treatment. It is also widely acknowledged that a patient's right is... 1988  
Patricia Owen Who Is an Indian? Duro v. Rein's Examination of Tribal Sovereignty and Criminal Jurisdiction over Nonmember Indians 1988 Brigham Young University Law Review 161 (1988) Congress and the courts have grappled with Indian issues since the formation of our country. The difficulty of resolving Indian issues stems partially from the difference between what being an Indian' signifies to the Native American and what it signifies to Congress and to the courts. The determination of who is an Indian directly impacts the... 1988 Yes
Colonel Ned E. Felder , Senior Judge, Panel 5, United States Army Court of Military Review A Long Way since Houston: the Treatment of Blacks in the Military Justice System 1987-OCT Army Lawyer Law. 8 (October, 1987) I deem it a high honor to participate in this Eighth Annual JAG Training School and CLE Seminar. Neither the death of a close relative this week nor a severe sore throat could prevent me from attending this conference. Although I was graduated from a law school in South Carolina, this is my first visit to this illustrious law school. I attended a... 1987  
Brian Whiteley Avoiding the Perils of Judicial Treatywriting: in re Korean Air Lines Disaster 62 Saint John's Law Review 156 (Fall, 1987) Two years after Charles Lindbergh's historic flight across the Atlantic, the second of two international conferences completed work on an equally historic aviation treaty known as the Warsaw Convention (the Convention). The goal of the conferences had been twofold: first, to establish uniformity in documentation and legal procedure; and second,... 1987  
Deborah L. Zimic Foreign Sovereign Immunity-exceptions to Foreign Sovereign Immunity-the Foreign Sovereign Immunities Act Does Not Prohibit Invocation of the Alien Tort Claims Act to Exercise Federal Court Jurisdiction over a Foreign Nation's Non-commercial Tort in Violat 28 Virginia Journal of International Law 221 (Fall, 1987) Without provocation or advance notice, Argentine military aircraft repeatedly attacked the Hercules, an oil tanker, on June 8, 1982, as the ship attempted to navigate around the war zones established by Great Britain and Argentina during the Falklands War. Following an assessment that removal of an undetonated bomb lodged in its side presented too... 1987  
Arvid Anderson , Loren A. Krause Interest Arbitration: the Alternative to the Strike 56 Fordham Law Review 153 (November, 1987) THE right to bargain collectively has been so connected with the right to strike in this country that legitimate questions arise as to whether genuine collective bargaining can occur without the right to strike. The thesis of this Article is that an alternative to the right to strike exists and that that alternative is final and binding interest... 1987  
Donald G. Gross Negotiated Treaty Amendment: the Solution to the Sdi-abm Treaty Conflict 28 Harvard International Law Journal 31 (Winter, 1987) THE ADVOCATERS OF PRESIDENT REAGAN'S STRATEGIC DEFENSE INITIATIVE (SDI) ARGUE THAT THE UNITED STATES MUST DEVELOP A SPACE-BASED DEFENSE AGAINST SOVIET BALLISTIC MISSILES DURING THE 1990'S. THEIR AIM IS NO LESS THAN TO CONSTRUCT A TOTAL SHIELD OVER THE UNITED STATES TO PROTECT AGAINST A SOVIET ATTACK. YET BEFORE THESE SDI ADVOCATES CAN EXCEED THE... 1987  
Akhil Reed Amar Of Sovereignty and Federalism 96 Yale Law Journal 1425 (June, 1987) Victims of government-sponsored lawlessness have come to dread the word federalism. Whether emblazoned on the simple banner of Our Federalism or invoked in some grander phrase, the word is now regularly deployed to thwart full remedies for violations of constitutional rights. Consider, for example, the Burger Court. Rallying under flags of... 1987  
D. Don Welch Removing Discriminatory Barriers: Basing Disparate Treatment Analysis on Motive Rather than Intent 60 Southern California Law Review 733 (March, 1987) I. DISTINGUISHING MOTIVE FROM INTENT. 736 II. THE PLACE FOR MOTIVE IN DISCRIMINATION THEORY. 740 A. MOTIVE AND THE CONCEPT OF DISCRIMINATION. 740 B. MOTIVE AND INTENT IN TITLE VII DISPARATE TREATMENT THEORY. 748 1. Title VII and Statutory Purpose. 750 2. Title VII and Statutory Language. 753 3. Title VII and Constitutional Standards. 759 III.... 1987  
David Lyons Substance, Process, and Outcome in Constitutional Theory 72 Cornell Law Review 745 (May, 1987) Scholarship in philosophy proceeds at a slower pace than in the law. As Tom Lehrer, the poet laureate of a recent generation, might have said, the law biz travels on a faster track. Or so it seems to a philosopher who has recently been treading the tracks of constitutional lawyers. And so it is with apprehension that I take as my text a book that... 1987  
Eric L. Richards The Jurisprudential Sin of Treating Differents Alike: Emergence of Full First Amendment Protection for Corporate Speakers 17 Memphis State University Law Review 173 (Winter, 1987) Perhaps more than any other legal development the rise of the business corporation will be remembered as the fundamental force shaping twentieth century life. This champion of material growth has demonstrated a remarkable ability to adapt to its environment and overcome seemingly insurmountable obstacles, thereby spurring tremendous advances in the... 1987  
Joy A. Yanagida The Pacific Salmon Treaty 81 American Journal of International Law 577 (July, 1987) At the Shamrock Summit on March 18, 1985, President Ronald Reagan and Prime Minister Brian Mulroney exchanged instruments of ratification bringing the United States-Canada Pacific Salmon Treaty into force. The event ended 14 years of bilateral negotiations, culminating in a treaty that represents a balance of the fishing and conservation... 1987  
Peter Westen The Place of Foreign Treaties in the Courts of the United States: a Reply to Louis Henkin 101 Harvard Law Review 511 (December, 1987) A policeman orders an innocent person, Cort, to submit to arrest. Cort knows that the policeman's order is unlawful under the state law governing arrests. He also knows that state law provides that it is no defense to a charge of resisting an arrest by a police officer to show that the arrest was illegal. With respect to the state's view of legal... 1987  
Michael G. Colantuono The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change 75 California Law Review 1473 (July, 1987) This Comment argues that revision of state constitutions ought to proceed slowly to promote stability in constitutional law. Such stability is valuable because it fosters popular sovereignty, pluralism, and limited constitutional government. This Comment thus criticizes judicial decisions upholding constitutional revision by extratextual means and... 1987  
Michael S. Levine United States v. James: Expanding the Scope of Sovereign Immunity for Federal Flood Control Activities 37 Catholic University Law Review 219 (Fall, 1987) The doctrine of sovereign immunity, rooted in the feudal theory of kingship, effectively bars suit against the sovereign absent its consent. The early American judiciary accepted sovereign immunity because it feared government would be incapable of preforming its duties and functions without the protection immunity offered. At the same time, it was... 1987  
Martha Minow When Difference Has its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference 22 Harvard Civil Rights-Civil Liberties Law Review 111 (1987) Introduction I. City of Cleburne v. Cleburne Living Center: Three Modes of Analysis A. The Abnormal Persons Approach B. The Rights Analysis Approach C. The Social Relations Approach 1. A Definition 2. Social Relations in Cleburne II. Histories and Critiques A. Abnormal Persons and Two Tracks of Legal Treatment 1. From Status to Contract: But Not... 1987  
Frederico M. Cheever A New Approach to Spanish and Mexican Land Grants and the Public Trust Doctrine: Defining the Property Interest Protected by the Treaty of Guadalupe-hidalgo 33 UCLA Law Review 1364 (June, 1986) The American Southwest is changing. Growing population and accelerated resource exploitation are putting unprecedented pressure on its environment. As the pressures from development escalate, government is using a variety of legal tools to preserve important environmental resources and public values. One of these tools is the ancient common-law... 1986  
H. Barry Holt Can Indians Hunt in National Parks? Determinable Indian Treaty Rights and United States v. Hicks 16 Environmental Law 207 (Winter, 1986) The arrest and conviction of two members of the Quinault Indian Tribe for killing elk within Olympic National Park raise specific questions about the nature and extent of Indian treaty rights and the federal government's policy toward the treaty rights. This Article discusses the interpretation of Indian treaties, the nature of the rights reserved... 1986 Yes
Richard J. Lazarus Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine 71 Iowa Law Review 631 (March, 1986) With th[e public trust doctrine], the California Supreme Court appears enthusiastically to have embraced a new legal Renaissance, in which modern humanists' rediscover old texts and invoke the distant past to liberate the spirit from the confining shackles' of a more conventional era. But we are not witnessing Petrarch, mildly unorthodox in... 1986  
Jesse Michael Feder Congressional Abrogation of State Sovereign Immunity 86 Columbia Law Review 1436 (November, 1986) Author agrees to write an advertising slogan for State. After submitting his copy, Author discovers that State has employed his slogan as the centerpiece of its new tourism campaign without paying him for it. Author sues State for the value of his copyright in the advertising slogan. Although the Copyright Act provides that anyone who violates... 1986  
Dominic T. Holzhaus Double Jeopardy and Incremental Culpability: a Unitary Alternative to the Dual Sovereignty Doctrine 86 Columbia Law Review 1697 (December, 1986) A defendant agrees to plead guilty to murder in one state and in exchange is sentenced to life imprisonment. Subsequently, he is tried for the same murder in another state before a jury tainted by the knowledge of the prior guilty plea and is sentenced to die in the electric chair. A paradigm for double jeopardy? Not according to the recent United... 1986  
Monroe Leigh Extradition - Universal Jurisdiction - "War Crimes" - U.s.-israel Extradition Treaty - "Double Criminality" Requirement 80 American Journal of International Law 656 (July, 1986) Appellant, John Demjanjuk, appealed the denial of a petition for a writ of habeas corpus which he had filed after a court had certified that he was subject to extradition to Israel. A native of the USSR, appellant was admitted to the United States in 1952 and became a naturalized U.S. citizen in 1958. In 1981, after finding that appellant had... 1986  
Lawrence J. Nelson , Brian P. Buggy , Carol J. Weil Forced Medical Treatment of Pregnant Women: 'Compelling Each to Live as Seems Good to the Rest' 37 Hastings Law Journal 703 (May, 1986) For reasons ranging from fear of surgery to religious belief, competent pregnant women sometimes refuse medical treatment that a physician considers beneficial to the woman, the fetus, or both. If the woman intends to bring the fetus to term, the attending physician and other health care practitioners involved in the woman's care may find her... 1986  
Joel R. Paul Images from Abroad: Making Direct Broadcasting by Satellites Safe for Sovereignty 9 Hastings International and Comparative Law Review 329 (Winter, 1986) The advent of communications satellites will mean the end of present barriers to the free flow of information; no dictatorship can build a wall high enough to stop its citizens [from] listening to the voices from the stars. Arthur C. Clarke Our peoples are constantly subjected to the uncontrolled invasion of news that inculcates in our masses... 1986  
Matthew Orebic Japanese Companies on United States Soil: Treaty Privileges v. Title Vii Restraints 9 Hastings International and Comparative Law Review 377 (Winter, 1986) Affiliates of foreign companies currently employ nearly two million people in the United States. Yet basic questions concerning whose law controls employment discrimination suits brought by these employees remain unresolved. In the case of Japanese companies doing business in the United States, lawsuits in which American employees have asserted... 1986  
Shannon K. Such Lifesaving Medical Treatment for the Nonviable Fetus: Limitations on State Authority under Roe v. Wade 54 Fordham Law Review 961 (April, 1986) Over a decade ago, the Supreme Court established that a woman has a constitutional right to decide whether to conclude or continue her pregnancy. The decision has provoked myriad challenges testing the perimeters of this right. These challenges are grounded, for the most part, on the underlying belief that the unborn child is a person who... 1986  
FLETCHER N. BALDWIN, JR. Some Observations Concerning External Power of Decentralized Units Within the Context of the Treaty Making Powers of Article Ii and Corresponding Transnational Implications 2 Florida International Law Journal 159 (Fall, 1986) I. INTRODUCTION. 160 II. GENERAL PRINCIPLES. 163 A. International. 163 B. Domestic Structure. 167 III TREATIES. 169 A. General International Interpretations. 169 1. General Obligations: Clarification of Goals and Strategies. 169 2. Extradition. 171 B. Domestic Interpretations. 172 1. Function and Character of Extradition Treaties. 172 2. Treaty... 1986  
Nobuhisa Ishizuka Subsidiary Assertion of Foreign Parent Corporation Rights under Commercial Treaties to Hire Employees "Of Their Choice" 86 Columbia Law Review 139 (January, 1986) Foreign and United States corporations doing business abroad may desire the discretion to staff their overseas operations with managerial or technical personnel from their home country. To encourage and protect foreign investment in this country, and United States investment abroad, the United States has signed over two dozen bilateral commercial... 1986  
Kenneth M. Murchison The Dual Sovereignty Exception to Double Jeopardy 14 New York University Review of Law and Social Change 383 (1986) C1-5TABLE OF CONTENTS L1-5Part One: The Forgotten Legacy of the Eighteenth Amendment L2-4,T2Introduction. .383 I. L2-4,T2Supreme Court Decisions Prior to Prohibition. .384 II. L2-4,T2Prohibition Reforms: The Eighteenth Amendment and the Volstead Act. .388 III. L2-4,T2The Judicial Response During the Prohibition Era. .391 A. L3-4,T3Acceptance of the... 1986  
Alan E. Lipkind The Foreign Sovereign Immunities Act of 1976 and Jurisdiction under the Commercial Activities Exception: Vencedora Oceanica Navegacion, S.a. v. Compagnie Nationale Algerienne De Navigation 4 Boston University International Law Journal 125 (Winter, 1986) Clause one of the commercial activities exception to the Foreign Sovereign Immunities Act of 1976 permits American courts to exercise jurisdiction over actions based upon a foreign sovereign's commercial activities in the United States. The scope of clause one is uncertain and the cases construing it appear inconsistent. A dispute exists over... 1986  
Jonathan Glasser The Government Contract Defense: Is Sovereign Immunity a Necessary Prerequisite? 52 Brooklyn Law Review 495 (1986) The government contract defense is an affirmative defense that can shield military contractors from liability for injuries resulting from design defects in goods they manufacture for the government. To successfully invoke the defense in its modern form, a defendant contractor has to prove that (1) the government designed the product, (2) the... 1986  
James E. Castello The Limits of Popular Sovereignty: Using the Initiative Power to Control Legislative Procedure 74 California Law Review 491 (March, 1986) At least since the seventeenth century, when political upheaval forced a broad inquiry into the principles of government, English-speaking society has struggled to reconcile two sovereignties: the supremacy of representative government and the supremacy of the people themselves. John Locke's Second Treatise of Government framed the dilemma. After... 1986  
Dynda L. Artz The Noncorporate Plaintiff: Hostage to the Gordian Knot of the Foreign Sovereign Immunities Act of 1976 54 University of Cincinnati Law Review 907 (1986) The passage of the Foreign Sovereign Immunities Act (FSIA or the Act) has been a mixed blessing. While it has been a boon to corporations by allowing them to sue foreign sovereigns in United States courts, it has been a bane to noncorporate plaintiffs with the same objective. Since the passage of the FSIA in 1976, the Act has enabled American... 1986  
Mark Sagoff The Principles of Federal Pollution Control Law 71 Minnesota Law Review 19 (October, 1986) Environmentalism at its inception was a grand vision, one that nearly all Americans willingly shared. Somehow that vision of the essential unity of nature and of the need for bringing industrial society into harmony with it has been lost among the parts per billion, and with it we have lost the capacity to reach social consensus on environmental... 1986  
Ethel R. Theis , Reporter The United Nations and the Antarctic Treaty System 80 American Society of International Law Proceedings 269 (April 9-12, 1986) The panel was convened at 10:00 a.m., April 11, 1986, Christopher C. Joyner presiding. At the outset I think it bears mentioning that Antarctica represents nearly onetenth of the earth's land surface, although land may be a misnomer since about 98 percent of the continent is buried beneath a mantle of ice some one to three miles in thickness. Today... 1986  
Thomas C. Jensen The United States-canada Pacific Salmon Interception Treaty: an Historical and Legal Overview 16 Environmental Law 363 (Spring, 1986) After several decades and a great deal of international and regional politicking, the United States and Canada in 1985 successfully completed negotiations on the Pacific Salmon Interception Treaty. The Treaty provides for the conservation and equitable sharing of Pacific Northwest, Canadian and Alaskan salmon stocks. The Treaty, almost scuttled by... 1986  
Ted Stevens United States-canada Salmon Treaty Negotiations: the Alaskan Perpective 16 Environmental Law 423 (Spring, 1986) The final ratification of the 1985 United States-Canada Pacific Salmon Treaty came as a result of Alaska's support for the Treaty. The initial Treaty, while tentatively approved, was opposed by Alaskan fishermen in general and Senator Stevens in particular. The Treaty as ultimately accepted by Canada and the United States provides for Alaska's... 1986  
Teresa Gillen A Proposed Model of the Sovereign/proprietary Distinction 133 University of Pennsylvania Law Review 661 (March, 1985) The United States Supreme Court has suggested that governments that act as sovereigns' are or should be subject to different constitutional standards than governments that act as proprietors. This sovereign/proprietary distinction has befuddled some commentators and has been criticized by others; few authorities off the Court have embraced it,... 1985  
Steve Tomashefsky Antipsychotic Drugs and Fitness to Stand Trial: the Right of Unfit Accused to Refuse Treatment 52 University of Chicago Law Review 773 (Summer, 1985) Due process prohibits the trial of a criminal defendant who, due to mental illness, is unfit to stand trial. To be fit, a defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand . . . a rational as well as factual understanding of the proceedings against him.DD... 1985  
Gary W. Larson Default on Foreign Sovereign Debt. A Question for the Courts? 18 Indiana Law Review 959 (1985) In the 1980's foreign sovereign debt has emerged as a major international crisis. Never before has sovereign debt owed to commercial banks risen to such a precarious level. The current inability of a number of foreign sovereign debtors to service adequately their debt obligations threatens the stability of both the international monetary system and... 1985  
Marian Nash Leich Fisheries 79 American Journal of International Law 432 (April, 1985) Representatives of the United States and the Canadian Governments on January 28, 1985 signed at Ottawa a Treaty Concerning Pacific Salmon, with annexes and Memorandum of Understanding, that concluded negotiations of nearly 15 years' duration. The purpose of the Treaty is to establish a framework for long-term bilateral cooperation in the Pacific... 1985  
Sanford Levinson Regulating Campaign Activity: the New Road to Contradiction? 83 Michigan Law Review 939 (February, 1985) Few contemporary political issues pose more theoretical difficulties than that of the role of money in electoral politics. To what degree should individuals be free to spend their unequal resources within the political marketplace by, for example, running for office, supporting the candidacies of others, or simply communicating their views on... 1985  
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