AuthorTitleCitationSummaryYearKey Terms
Michael C. Blumm Fulfilling the Parity Promise: a Perspective on Scientific Proof, Economic Cost, and Indian Treaty Rights in the Approval of the Columbia Basin Fish and Wildlife Program 13 Environmental Law 103 (Fall, 1982) I. INTRODUCTION. 104 II. THE FAILURE OF THE FISH AND WILDLIFE COORDINATION ACT AND THE REMEDIAL NATURE OF THE 4(H) PROGRAM. 108 III. AN OVERVIEW OF THE 4(H) PROGRAM APPROVAL STANDARDS. 112 IV. FISHERIES/HYDROPOWER BALANCING AND THE PRINCIPLE OF TEXTUAL CONSISTENCY. 118 V. INTERPRETING SOME OF THE SPECIFIC PROGRAM APPROVAL STANDARDS. 124 A. The... 1982 Yes
  In Defense of Tribal Sovereign Immunity 95 Harvard Law Review 1058 (March, 1982) The judicial doctrine of tribal sovereign immunity traditionally has protected Indian tribes from suit in state and federal courts. In the landmark case of United States v. United States Fidelity & Guaranty Company, the Supreme Court held that the Indian Nations are exempt from suit without Congressional authorization. More recently, however, in... 1982 Yes
Anthony A. Lusvardi Montana v. United States-effects on Liberal Treaty Interpretation and Indian Rights to Lands Underlying Navigable Waters 57 Notre Dame Lawyer 689 (1982) Title to lands underlying navigable waters gives the titleholder important rights and powers, including mineral rights and jurisdictional powers. Indian rights to such lands have been a frequently litigated question. This issue has arisen when an Indian tribe has claimed title to lands underlying navigable waters based upon a treaty executed and... 1982 Yes
David Frohnmayer A New Look at Federalism: the Theory and Implications of 'Dual Sovereignty' 12 Environmental Law 903 (Summer, 1982) The federal principle is one of the enduring centerpieces of American constitutional and political history. This Article briefly examines five components of the contemporary debate over the meaning and applicability of that principle. The first component attempts to address a recurring question: what place does federalism occupy in our... 1982  
Edward L. Rubin Generalizing the Trial Model of Procedural Due Process: a New Basis for the Right to Treatment 17 Harvard Civil Rights-Civil Liberties Law Review 61 (Spring, 1982) During the two decades of its existence, the right to treatment has been, to a large extent, a right in search of a rationale. The concept that an individual who has been involuntarily committed to a mental hospital has a right to receive treatment appeals to the judiciary's underlying sense of fairness. Certainly, the fact situations from which... 1982  
John R. D'angelo Reconciling Federalism and Individual Rights: the Burger Court's Treatment of the Eleventh and Fourteenth Amendments 68 Virginia Law Review 865 (April, 1982) The eleventh amendment to the Constitution of the United States prohibits citizens from suing states in federal court. Although this principle of sovereign immunity may appear to be an antidemocratic anachronism, recent decisions of the United States Supreme Court indicate that the amendment retains some vitality. These decisions provide useful... 1982  
Jeremy Travis Rethinking Sovereign Immunity after Bivens 57 New York University Law Review 597 (June, 1982) In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court held that a federal agent who had violated the command of the fourth amendment could be held liable in damages despite the absence of a federal statute authorizing such a remedy. The understated, almost casual tone of the opinion belies the Court's bold and... 1982  
Mohamed ElBaradei The Egyptian-israeli Peace Treaty and Access to the Gulf of Aqaba: a New Legal Regime 76 American Journal of International Law 532 (July, 1982) The Gulf of Aqaba is a long, narrow body of water on the eastern side of the Sinai Peninsula. The western shore is Egyptian, the eastern shore is Saudi Arabian, and the head of the Gulf is Israeli and Jordanian territory. The islands of Tiran and Sanafir front the entrance and have been under Egyptian occupation since 1950. Saudi Arabia, however,... 1982  
Raphael J. Rabalais The Influence of Spanish Laws and Treatises on the Jurisprudence of Louisiana: 1762-1828 42 Louisiana Law Review 1485 (1982) In recent years there has been a rebirth of interest in the civilian influences on the development of law in Louisiana. While a number of scholarly articles have discussed the French sources of the Louisiana Civil Codes of 1808 and 1825, there have been relatively few comprehensive attempts to assess Spain's influence on Louisiana jurisprudence.... 1982  
H. Burmester The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement 76 American Journal of International Law 321 (April, 1982) The delimitation of maritime boundaries is one of the major areas of ocean law where disputes between countries occur with frequency and where the development of governing principles of law remains difficult. At the Law of the Sea Conference, delimitation of the continental shelf and economic zones between states with opposite or adjacent coasts... 1982  
Daniel L. Harris Western Coal Severance Taxes and Congress: a Question of State Sovereignty 61 Oregon Law Review 589 (1982) It has been over a century since Colonel George A. Custer marched his seventh cavalry into the heart of the Northern Great Plains to wrest land from the Sioux. While that great western conflict has long since been quieted, another battle is being waged today concerning the same land. This time, though, the conflict involves the right to control the... 1982  
Karl Forsgaard Statutory Construction-wildlife Protection Versus Indian Treaty Hunting Rights-united States v. Fryberg, 622 F.2d 1010 (9th Cir.), Cert.denied, 449 U.s. 1004 (1980). 57 Washington Law Review 225 (December, 1981) While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which... 1981 Yes
John M. Rogers Applying the International Law of Sovereign Immunity to the States of the Union 1981 Duke Law Journal 449 (June, 1981) A state of the Union may preserve its immunity from suit in its own courts, and the Constitution restricts its amenability to suit in the federal courts. Yet in Nevada v. Hall the Supreme Court held that in a motor-vehicle accident case a state cannot claim a constitutional immunity from suit in the courts of a sister state. The Court indicated,... 1981  
Larry A. Klein , Brad A. Chalker Developments in Florida's Doctrine of Sovereign Immunity 35 University of Miami Law Review 999 (September, 1981) Since Florida waived its governmental immunity in tort actions by enacting section 768.28 of the Florida Statutes, there has been much controversy over the extent of this waiver. The decision of the Supreme Court of Florida in 1979 in Commercial Carrier Corp. v. Indian River County developed a fourpronged test for determining when a governmental... 1981  
  Redefining the National League of Cities State Sovereignty Doctrine 129 University of Pennsylvania Law Review 1460 (June, 1981) A principal purpose for the creation of our system of constitutional federalism was to vest in a national government the authority to regulate commerce among the states and thereby to avoid the inconsistent pattern of regulation imposed by competing states under the Articles of Confederation. For this reason, the Constitution gives Congress the... 1981  
  Resolving Treaty Termination Disputes 129 University of Pennsylvania Law Review 1189 (May, 1981) In December 1978, President Carter announced that the United States intended to terminate unilaterally the Mutual Defense Treaty between the Republic of China (Taiwan) and the United States. The treaty committed both nations to the further development of defensive capabilities and to responding, in accordance with their respective constitutional... 1981  
David W. Burgett Substantive Due Process Limits on the Duration of Civil Commitment for the Treatment of Mental Illness 16 Harvard Civil Rights-Civil Liberties Law Review 205 (Summer, 1981) In the past decade many legal protections have been developed for citizens faced with commitment to mental health institutions. Many of the developments concern procedural and quasi-procedural matters, including the right to a judicial hearing, the right to counsel, and the required level of proof. Litigation involving substantive rights has most... 1981  
Miguel Angel Méndez Presumptions of Discriminatory Motive in Title Vii Disparate Treatment Cases 32 Stanford Law Review 1129 (July, 1980) In adjudicating employment discrimination cases under Title VII of the Civil Rights Act of 1964, the United States Supreme Court has dealt repeatedly with the proper allocation of the burden of proof between parties. The Court has paid particular attention to the burden of proof in disparate treatment casescases in which plaintiffs claim that... 1980  
William M. Speiller The Favored Tax Treatment of Purchasers of Art 80 Columbia Law Review 214 (March, 1980) I. Valuation Benefits . 216 A. The Charitable Deduction. 216 1. A Description of the Benefit. 216 2. The Magnitude of the Problem. 226 a. The Difficulty of Valuing Works of Art. 227 b. The Cooperation of the Appraisers and Donees. 229 c. The Inability of the Service to Police. 234 (1) Inadequacy of Audit. 234 (2) Lack of In-House Expertise. 234 (3)... 1980  
Jonathan B. Schwartz Commercial Treaties and the American Civil Rights Laws: the Case of Japanese Employers 31 Stanford Law Review 947 (May, 1979) Two cases currently in federal district court pose an entirely novel question for American civil rights law. The plaintiffs in both cases allege that Japanese-owned companies doing business in the United States have violated the American civil rights laws by discriminating impermissibly in choosing their managerial staff to work in the United... 1979  
Lewis B. Kaden Politics, Money, and State Sovereignty: the Judicial Role 79 Columbia Law Review 847 (June, 1979) From 1936 to 1976 Congress determined the allocation of governmental power in the federal system virtually without judicial interference. The vast array of domestic programs initiated during this period signaled an expanding national attempt to promote social and economic activity, protect public health and welfare, redistribute resources, and... 1979  
Charles H. Dearborn, III The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self-executing 57 Texas Law Review 233 (January, 1979) On February 23, 1978, President Carter transmitted four human rights treaties to the Senate for its advice and consent. The President also recommended a number of reservations, understandings, and declarations, ostensibly designed to conform the treaties to United States law and thereby avoid constitutional or other legal obstacles to .... 1979  
David F. Levi The Equal Treatment of Aliens: Preemption or Equal Protection? 31 Stanford Law Review 1069 (July, 1979) In 1971 the Supreme Court in Graham v. Richardson declared that state restrictions on resident aliens were suspect under the equal protection clause and would be subject to strict judicial scrutiny. As a discrete and insular minority, aliens were entitled to heightened judicial solicitude. In the years following Graham, the Supreme Court and... 1979  
George Cameron Coggins , Sebastian T. Patti The Resurrection and Expansion of the Migratory Bird Treaty Act 50 University of Colorado Law Review 165 (Winter, 1979) Considerable legal attention has been focused recently upon developments under new and innovative federal wildlife statutes. But equally significant developments concerning the legal protection accorded migratory birds under the relatively ancient Migratory Bird Treaty Act have gone virtually unnoticed by legal writers. Because of the unique nature... 1979  
Eric Stein Treaty-based Federalism, A.d. 1979: a Gloss on Covey T. Oliver at the Hague Academy 127 University of Pennsylvania Law Review 897 (April, 1979) It is next to absurd for one not more than a few months Oliver's junior to participate in a tribute for a man who willfullywithout any apparent reason chose to retire early from teaching, an act tantamount to desertion under fire. Still, it is comforting that I am asked to praise, not to bury, a close professional associate and an even closer... 1979  
Michael P. Gross Indian Self-determination and Tribal Sovereignty: an Analysis of Recent Federal Indian Policy 56 Texas Law Review 1195 (August, 1978) If one were to pick a dominant theme in American history it would be the nation's attempt to create a workable national entity that can accomodate the independent interests of individuals and their communities. In the century following the American Revolution, that theme focused on the relationship between a national government and the states.... 1978 Yes
  Discriminatory Treatment of Nonresidents 92 Harvard Law Review 75 (November, 1978) Last Term the Supreme Court decided two cases arising under the privileges and immunities clause of article IV which, read together, create a two-step test for analyzing a state's discriminatory treatment of nonresidents. In Baldwin v. Fish & Game Commission the Court reaffirmed that the clause protects only those rights and activities which are,... 1978  
Martha A. Field The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit upon the States 126 University of Pennsylvania Law Review 1203 (June, 1978) This article is the second of a series collectively entitled The Eleventh Amendment and Other Sovereign Immunity Doctrines. The first article surveyed the historical context in which the eleventh amendment was adopted, and took the position that the Constitution does not impose the sovereign immunity doctrine; sovereign immunity is a common law... 1978  
Martha A. Field The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One 126 University of Pennsylvania Law Review 515 (January, 1978) This article is the first of a series collectively entitled The Eleventh Amendment and Other Sovereign Immunity Doctrines. The present article introduces the issues to be addressed by the series, and suggests that sovereign immunity is a common law doctrine, and is not constitutionally compelled. The second article will address congressional power... 1978  
  The International Human Rights Treaties: Some Problems of Policy and Interpretation 126 University of Pennsylvania Law Review 886 (April, 1978) Since his inauguration, President Carter has made a most striking departure from the policies of his Republican predecessors by elevating human rights to a central position in American foreign policy. The realpolitik of the Kissinger State Department was perceived by the new President to lack a basic concern for the human side of international... 1978  
Edwards v. Carter Transfer of the Panama Canal by Treaty Without House Approval: 92 Harvard Law Review 524 (December, 1978) The proper role of Congress in implementing treaty commitments has been the subject of considerable controversy. The national debate over the transfer of the Panama Canal raised the issue once again. In Edwards v. Carter, a divided United States Court of Appeals for the District of Columbia Circuit held that a treaty may, without authorization by... 1978  
  Federal Regulation of Municipal Securities: Disclosure Requirements and Dual Sovereignty 86 Yale Law Journal 919 (April, 1977) New York City's financial crisis in 1975 prompted investor demands for more extensive disclosure by municipal issuers. The long-standing exemption of municipal securities from federal disclosure regulation came under attack as investors, suddenly aware of New York's success in concealing its true financial condition, questioned the efficacy of... 1977  
Frank I. Michelman States' Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery 86 Yale Law Journal 1165 (May, 1977) A share of the blame for what follows belongs to Mr. Justice Brennan, whose twenty years of distinguished labor on behalf of our constitutional systemon behalf, I should say, of the men, women, and children whose rights and concerns that system servesthis journal justly celebrates. It was the Justice who, by his striking and powerful dissent in... 1977  
Charles D. Siegal Proposals for a True Comprehensive Nuclear Test Ban Treaty 27 Stanford Law Review 387 (January, 1975) On August 5, 1963, representatives of the United Kingdom, the United States, and the Soviet Union signed the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (LTB). The Treaty banned all weapon tests in the named environments, pledged the signatories to seek to achieve the discontinuance of all test explosions... 1975  
Albert J. Esgain , Waldemar A. Solf The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: its Principles, Innovations, and Deficiencies? 1975 Military Law Review 303 (September, 1975) It is the purpose of this study to consider some of the fundamental principles, major innovations, and deficiencies of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949. It is concerned particularly with the rights and obligations which the convention imposes on the signatory states and the individuals who are... 1975  
Reid Peyton Chambers , Monroe E. Price Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands 26 Stanford Law Review 1061 (May, 1974) Indian trust land can be leased by its tribal or individual owner only after the Secretary of the Interior has approved the transaction. Surface leasing of Indian land is governed principally by 25 U.S.C. § 415; enacted in 1955, section 415 permits leasing for a wide range of purposes--public, religious, educational, recreational, residential or... 1974 Yes
Robert D. Daniel Administrative Law 52 Texas Law Review 1210 (August, 1974) The Federal Highway Administrator ordered discontinuance of contract authorizations on federally assisted highway projects in Madison County, Illinois, because of the area's lack of equal employment opportunity. Plaintiffs challenged the legality of the funding suspension, alleging that the Administrator had failed to comply with required... 1974  
Alexander Morgan Capron Informed Consent in Catastrophic Disease Research and Treatment 123 University of Pennsylvania Law Review 340 (December, 1974) L2-5,T5Introduction: The Artificial Heart 341 I. L2-5,T5Catastrophic Disease Research and Treatment 350 A. L3-5,T5The Nature of Catastrophic Disease 350 B. L3-5,T5Major Participants Besides the Patient-Subject 353 II. L2-5,T5A Functional Approach to Informed Consent 364 A. L3-5,T5The Functions of Informed Consent 364 1. L4-5,T5To Promote Individual... 1974  
A. Leon Higginbotham, Jr. Race, Racism and American Law 122 University of Pennsylvania Law Review 1044 (April, 1974) [Can] American justice, American liberty, American civilization, American law, and American Christianity . be made to include and protect alike and forever all American citizens in the rights which have been guaranteed to them by the organic and fundamental laws of the land? Almost a century ago the distinguished abolitionist and statesman... 1974  
Lieutenant C. William Reamer, JAGC, USNR Matthews v. United States 27 JAG Journal 283 (Spring, 1973) in what is the first appellate decision on the question, the United States Court of Appeals for the Fifth Circuit has held in Matthews v. United States that redress under the Federal Tort Claims Act for damages allegedly suffered as the result of negligent counseling by military legal assistance attorneys is not necessarily barred by the... 1973  
  Wyatt v. Stickney and the Right of Civilly Committed Mental Patients to Adequate Treatment 86 Harvard Law Review 1282 (May, 1973) In Wyatt v. Stickney, the District Court for the Middle District of Alabama took the most extensive action to date in defining and enforcing the constitutional right of civilly committed mental patients to receive adequate treatment. Wyatt was a class action brought on behalf of patients in Alabama's three state institutions for the mentally... 1973  
David C. Loring The United States-peruvian "Fisheries" Dispute 23 Stanford Law Review 391 (February, 1971) For more than twenty years, the United States and Peru have disputed Peru's exercise of jurisdiction over fishing vessels within 200 miles of its coast. The controversy goes to the heart of the international order. The United States, whose global entanglements commit it to establishing a body of customary international law binding on all states and... 1971  
Lieutenant John C. Novogrod JAGC, USNR Collective Security under the Rio Treaty: the Problem of Indirect Aggression 24 JAG Journal 99 (December, 1969-January, 1970) The collective security system currently obtaining in the Western Hemisphere was established by the Rio Treaty in 1947. Since the establishment of that system, new and insidious methods of indirect aggression, typified by guerrilla warfare initiated or supported by foreign governments, have come to plague the Americas. Lieutenant Novogrod subjects... 1970  
Edgar S. Jean Camper Cahn The New Sovereign Immunity 81 Harvard Law Review 929 (March, 1968) The federal government is engaged in the administration of massive programs intended to eradicate poverty, or at least to attack it in its most rudimentary aspects and alleviate its most shocking manifestations. Dr. and Mrs. Cahn disclose the threat to the success of this worthy venture which is posed by entrusting its conduct to the hands of... 1968  
Mason Willrich The Treaty on Non-proliferation of Nuclear Weapons: Nuclear Technology Confronts World Politics 77 Yale Law Journal 1447 (July, 1968) I ask you to stop and think for a moment what it would mean to have nuclear weapons in so many hands, in the hands of countries large and small, stable and unstable, responsible and irresponsible, scattered throughout the world. President John F. Kennedy From the dawn of the nuclear era, the problem of nuclear weapons proliferation has confronted... 1968  
Lt Colonel Vincent A. Jordan Creation of Customary International Law by Way of Treaty 9 Air Force Law Review 38 (September-October, 1967) One of the most significant developments in international law during the twentieth century is the tremendous growth in the number of treaties. Whereas in the nineteenth century, greater reliance was placed on customary rather than conventional international law, as determined by publicists and the adjudications of international tribunals, the... 1967  
  Revolutions, Treaties, and State Succession 76 Yale Law Journal 1669 (July, 1967) International law does not generally count revolutions among those events that justify termination of existing treaty rights and obligations. This view is saidin the few instances when the question is squarely facedto derive from the need for state continuity in international affairs and from the general irrelevance of changes in government to... 1967  
Luke T. Lee Treaty Relations of the People's Republic of China: a Study of Compliance 116 University of Pennsylvania Law Review 244 (December, 1967) By their fruits ye shall know them. Matthew 7:20 The attitudes of the People's Republic of China (PRC) towards international law have been the object of several inquiries in recent years. Valuable as these studies are in providing information on the background and theories of Chinese international law, no systematic analysis of China's actual... 1967  
Fritz W. Scharpf Judicial Review and the Political Question: a Functional Analysis 75 Yale Law Journal 517 (March, 1966) In recent years, the Supreme Court's use of the political question doctrine has come to be regarded as a touchstone for the validity of competing theories of judicial review. The issue is joined on whether the doctrine is, or can be, employed as a discretionary technique for avoiding questions of law on which the decision of cases properly before... 1966  
  Liberty and Required Mental Health Treatment 114 University of Pennsylvania Law Review 1067 (May, 1966) There are driving forces in man which seek satisfaction. Often these internal drives are conflicting. Man is faced with additional conflict because of the demands made upon him by his surroundings. To reconcile these conflicts he has a mental balancing mechanism. Working at both an unconscious and a conscious level, this psycho-dynamic mechanism... 1966  
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