AuthorTitleCitationSummaryYearKey Terms
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
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
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
  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
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
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
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  
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  
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  
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  
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  
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  
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  
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  
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
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  
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