AuthorTitleCitationSummaryYearKey Terms
Jeffrey Kahn Protection and Empire: the Martens Clause, State Sovereignty, and Individual Rights 56 Virginia Journal of International Law L. 1 (Spring 2016) The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. In its original formulation, the clause shielded individuals under the protection and empire of international law, principles of humanity, and the dictates of the public conscience. F. F. Martens, its author,... 2016  
  Reconciling State Sovereign Immunity with the Fourteenth Amendment 129 Harvard Law Review 1068 (February, 2016) The United States was and is an experiment with a previously unknown form of government: not a single sovereign, not a loose coalition of independent states, but both together. When ratified in 1788, the Constitution split the atom of sovereignty and established an unprecedented federal system. The states remained autonomous, but--after the... 2016  
Adam Sorenson South Ossetia and Russia: the Treaty, the Takeover, the Future 42 North Carolina Journal of International Law 223 (Fall, 2016) I. Introduction. 223 II. The Modern Right of Self-Determination. 225 III. The Treaty on Alliance and Integration. 228 A. The History of South Ossetia. 228 B. The Russia-South Ossetian Treaty on Alliance and Integration. 231 IV. The Legality of The Treaty on Alliance and Integration. 234 A. Russia's Argument for Self-Determination. 234 B. The... 2016  
Colin Miller Sovereign Impunity: Why Double Jeopardy Should Apply in Puerto Rico 73 Washington and Lee Law Review Online 174 (6/28/2016) On January 13th, 2016, the Supreme Court of the United States heard oral arguments in Puerto Rico v. Sanchez Valle. The question that the Court must decide is whether the federal government and the Commonwealth of Puerto Rico are separate sovereigns for purposes of the Double Jeopardy Clause. This essay argues that the Supreme Court cannot answer... 2016  
Melissa Stewart Sovereign Lands 2 One J: Oil and Gas, Natural Resources, and Energy Journal 391 (September, 2016) C1-2Table of Contents I. Introduction. 391 II. State of Wyoming v. United States Department of Interior. 392 A. Background and Facts. 392 B. Analysis. 392 III. Barlow & Haun, Inc. v. United States. 393 A. Background and Facts. 393 B. Analysis. 394 IV. Legislative Activity. 395 2016  
Kent McNeil Sovereignty and Indigenous Peoples in North America 22 U.C. Davis Journal of International Law and Policy 81 (Spring 2016) I. Introduction. 82 II. Defining Sovereignty. 82 III. Political Authority in Western Europe and Indigenous North America. 88 A. Western Europe. 88 B. Indigenous North America. 90 IV. De Facto Versus De Jure Sovereignty. 94 V. Defining De Facto Sovereignty. 100 VI. Conclusion. 103 2016  
Matthew T. King Sovereignty's Gray Area: the Delimitation of Air and Space in the Context of Aerospace Vehicles and the Use of Force 81 Journal of Air Law and Commerce 377 (Summer, 2016) Debate over the delimitation of airspace and outer space has persisted since the dawn of the space age, without resolution. With the development of hybrid aerospace vehicles that can operate in and transition between the two zones, the line between their disparate legal regimes will be tested. And this test may not come with an after-the-fact... 2016  
Noah M. Kazis Special Districts, Sovereignty, and the Structure of Local Police Services 48 Urban Lawyer 417 (Summer, 2016) Local government is fragmented--usually. It is fragmented geographically, of course, with metropolitan areas carved into hundreds of independent municipalities. But local government is also fragmented functionally. For decades, single-purpose special districts have been replacing traditional general-purpose local governments, like cities and... 2016  
Pablo J. Davis Spiritual-treatment Exemptions to Child Neglect Statutes--state v. Crank: Vagueness and Establishment Clause Challenges to Selective Prosecution of Faith-healing Parents 46 University of Memphis Law Review 761 (Spring, 2016) I. Introduction. 761 II. Background and Issues. 764 A. Vagueness. 764 B. Establishment Clause. 766 C. Elision. 769 D. Spiritual Treatment Exemptions. 772 1. Early Cases. 772 2. ST Exemptions. 774 3. Oklahoma. 776 4. Ohio. 777 5. California. 778 6. Minnesota. 779 7. Tennessee. 780 III. State v. Crank. 781 A. Background and History. 781 B. The... 2016  
Josh Blackman State Judicial Sovereignty 2016 University of Illinois Law Review 2033 (2016) In our dual sovereignty with a dual judiciary, it is the received wisdom that Congress has plenary power over the state courts through concurrent, mandatory, and exclusive jurisdiction. Congress, the argument goes, can allow, require, or forbid state courts from hearing federal causes of action. The Supreme Court, however, has sketched out an... 2016  
  Supreme Court Hears Oral Argument in State Sovereignty Case 26-MAR Journal of Multistate Taxation and Incentives 43 (March/April, 2016) DEBRA S. HERMAN is a partner in the New York City office of the law firm Hodgson Russ LLP. She thanks K. Craig Reilly for his contributions to this column. In this issue of the Journal, we discuss the oral argument in Franchise Tax Board of the State of California v. Hyatt (Docket No. 14-1175). At issue before the Court is the scope of sovereign... 2016  
Sonja B. Starr Testing Racial Profiling: Empirical Assessment of Disparate Treatment by Police 2016 University of Chicago Legal Forum 485 (2016) Statistical evidence plays a central role in litigation, scholarship, and public debates about race and policing. At one level, the statistical picture is clear: people of color in the United States, especially black men, interact with police far more often than white Americans do. Black Americans are about 2.5 times more likely to be arrested each... 2016  
Barbara Cosens The Columbia River Treaty: an Opportunity for Modernization of Basin Governance 27 Colorado Natural Resources, Energy & Environmental Law Review 27 (Winter 2016) I. INTRODUCTION. 29 II. THE 1964 COLUMBIA RIVER TREATY. 31 III. CHANGES IN THE COLUMBIA RIVER BASIN SINCE 1964. 33 IV. REVIEW OF THE COLUMBIA RIVER TREATY: 2010-2013. 38 V. CONCLUSION. 42 The headwaters of the Columbia River are in the Rocky Mountains of British Columbia, Idaho, and Montana. From its headwaters, the Columbia River's mainstem flows... 2016  
Jarrod Tudor The Common Market for International Students: Does a Right to Free Movement and Equal Treatment for Students Exist in the European Union? 37 Northern Illinois University Law Review Rev. 1 (Fall, 2016) The market for international students in Europe is a lucrative one. Although there is no express free movement of students in the Treaty on the Functioning of the European Union (TFEU), the European Court of Justice (ECJ) has combined, through its jurisprudence, several provisions of European Union (EU) law to create a de facto right of free... 2016  
Elizabeth Lohah Homer The Dynamic Legal Environment of Daily Fantasy Sports 41 American Indian Law Review 219 (2016) Up until the fall of 2015, Daily Fantasy Sports (DFS) in the United States had benefited from a rapid growth in revenue, an increasing acceptance into the American sports landscape, and scant regulation from state and federal governments. A respectable research firm in the gaming world projected unmitigated growth for 2016 until a mixture of... 2016  
Tiana J. Cherry The E-2 Treaty Investor Visa Dilemma: Violations of Law and Limitations on Foreign Investment 6 American University Business Law Review 137 (2016) Although the Immigration and Nationality Act established the E-2 treaty investor visa (E-2 visa) to attract foreign investors to the United States, the visa requirements limit many individuals from being eligible to invest in the United States' economy. To be eligible for the E-2 visa, the potential investor must show that he or she is a citizen... 2016  
Crowell & Moring LLP The Foreign Sovereign Immunities Act: 2014 Year in Review 22 Law & Business Review of the Americas 141 (Summer, 2016) The Foreign Sovereign Immunities Act (FSIA) provides the exclusive basis for suing a foreign sovereign in United States courts. While the FSIA generally grants immunity to foreign sovereigns, it also lays out a number of exceptions under which U.S. courts may exercise jurisdiction. Thus, plaintiffs have used this statute as a basis to sue foreign... 2016  
Eric Chung The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations 126 Yale Law Journal 170 (October, 2016) The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States' practices. In recent years, during and after the U.S. Supreme Court's... 2016  
Carlo Felizardo The Modern Treaty-executing Power: Constitutional Complexities in Contemporary Global Governance 110 Northwestern University Law Review 1235 (2016) Abstract--Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary... 2016  
Chelsea Creta The No-fly List: the New Redress Procedures, Criminal Treatment, and the Blanket of "National Security" 23 Washington and Lee Journal of Civil Rights and Social Justice 233 (Fall, 2016) C1-3Table of Contents I. Introduction. 234 II. The Department of Homeland Security's Traveler Redress Program (DHS TRIP), the Old Procedures, and Judicial Dismissal. 239 A. The Old Procedures. 239 B. District Courts Dismiss No-Fly List Cases in a Post 9/11 World. 241 III. The District Courts Gain Jurisdiction and the New Redress Procedures Are... 2016  
Eric C. Ip The Politics of the Constitutional Common Law in Hong Kong under Chinese Sovereignty 25 Washington International Law Journal 565 (June, 2016) Abstract :This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong's constitutional document, in ways unforeseen by the Chinese National People's Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of... 2016  
Joann Ezeoba The Rhetoric of Sovereignty in the Wto: How Sovereignty Can Impact State Conduct in the Dispute Settlement Framework 7 Creighton International and Comparative Law Journal 182 (2016) Sovereignty as it is understood in the modern day, dates back to the development of individual states, and became most apparent in practice by the time that the Peace of Westphalia treaties were signed in 1648. It was promulgated by the writings of scholars such as Machiavelli, Bodin, and Hobbes, and was etched in the teachings and practice of the... 2016  
Michael J. Glennon , Robert D. Sloane The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power 41 Yale Journal of International Law 51 (Winter 2016) Introduction. 52 I. The Treaty Clause Versus the Tenth Amendment?. 55 II. Deciphering Holmes's Cryptic Opinion in Holland. 58 A. The Textual Rationale. 59 B. The Force of Functionalism and Adaptivism in Holland. 61 1. How Holmes Framed the Constitutional Question--and Why. 61 2. Holland's Functionalist Rationale. 63 3. The Andrews Analogy. 65 C. An... 2016  
Lauren Bursey They're People Too: Why U.s. Courts Should Give Foreign Agencies and Instrumentalities Due Process Rights under the Foreign Sovereign Immunities Act (Fsia) 66 DePaul Law Review 221 (Fall, 2016) A domestic state's laws of incorporation define a corporation as a legal entity; rules of its creation, organization, and dissolution also stem from state law. But for their ownership or foundational origins, state-owned corporations' ties to a foreign state would be completely unknown and irrelevant. Determining which jurisdictions allow foreign... 2016  
J. Ross Macdonald Time Present and Time Past: U.s. Anti-treaty Shopping History, Policy and Rules 70 Tax Lawyer Law. 5 (Fall, 2016) This Article comprehensively discusses U.S. anti-treaty shopping (limitation on benefits) rules contained in U.S. income tax treaties up to and including the rules contained in the 2016 U.S. Model Treaty. In this context, anti-treaty shopping rules generally can be defined as rules intended to limit the circumstances in which residents of third... 2016  
Michael Adams Towards Reconciliation: a Proposal for a New Theory of Crown Sovereignty 49 U.B.C. Law Review Rev. 1 (January, 2016) Historically, Canada has been occupied by many different states, both European nations like Britain and France, and Aboriginal nations like the Haida, Iroquois, and Huron. While the descendants of these early inhabitants still call Canada home, only one nation continues to enjoy the absolute power that it enjoyed historically. The courts of this... 2016  
Charles H. Brower II Trans-pacific Partnership: Continuity and Breakthroughs in U.s. Investment Treaty Practice 27 American Review of International Arbitration 145 (2016) In October 2015, the United States completed negotiations for the Trans-Pacific Partnership (TPP), a free trade agreement among twelve Pacific Rim states. According to the White House, TPP will rewrite the rules of trade, will include high standards . that . upgrade our existing agreements, and will have a profound impact on . how we invest... 2016  
Chelsea S. Novelli Treaty Law--the Broad Interpretation of "Lapse of Time" Provides Protections Beyond the Bounds of the U.s.-mex. Treaty--martinez v. United States, 793 F.3d 533 (6th Cir. 2015), Reh'g En Banc Granted, Vacated (Oct. 14, 2015). 39 Suffolk Transnational Law Review 239 (Winter 2016) The United States Extradition Treaty with Mexico is in place, as an agreement between the two sovereign nations, for the purpose of honoring each nation's laws. Article 7 of the U.S.-Mexico Extradition Treaty (Extradition Treaty) provides [e]xtradition shall not be granted when the prosecution or the enforcement of the penalty for the offense for... 2016  
Prof. Dr. Attila S.L. Andrade Jr. Treaty of Amity, Commerce, and Navigation Between Brazil and the U.s. 47 University of Miami Inter-American Law Review 200 (Summer, 2016) This Article deals with the analytical history of the Treaty of Amity, Commerce and Navigation between the U.S. and Brazil. In the first part of the Article, the author analyzed all the provisions of the Treaty entered into between the two countries on December 12, 1828. The second part examined the historical causes for the early termination of... 2016  
  U.k. Votes to Leave Eu-impact on U.s. Income Tax Treaties 27 Journal of International Taxation 13 (September, 2016) In a referendum on June 23, 2016, voters in the United Kingdom chose to leave the EU. Although the exact timing and impact of a departure is yet to be determined and seems likely to take more than two years, the impact on certain U.S. income tax treaties with European countries may be significant. When a majority of U.K. voters cast their ballots... 2016  
Gail Super Volatile Sovereignty: Governing Crime Through the Community in Khayelitsha 50 Law and Society Review 450 (June, 2016) This paper asks what crime prevention looks like for residents in informal settlements in Khayelitsha, a black township on the outskirts of Cape Town. It engages with the idea of vigilantism and hybrid policing formations, analyzing the overlaps and intersections between legal community-based crime prevention initiatives, and local punitive... 2016  
Major David L. Walker Waging War with Cercla: Divisibility for the Sovereign 75 Air Force Law Review 163 (2016) I. Introduction. 40 II. CERCLA Liability. 41 III. Sovereign Immunity. 43 A. Origin of Sovereign Immunity. 43 B. Evolution of Sovereign Immunity in United States Environmental Law. 44 C. CERCLA's Waiver of Sovereign Immunity. 49 IV. CERCLA's Liability Framework and the United States Supreme Court. 55 A. United States v. Bestfoods. 55 B. Burlington... 2016  
Jessica Wagner Waiver by Removal? An Analysis of State Sovereign Immunity 102 Virginia Law Review 549 (April, 2016) The Supreme Court has never definitively outlined the theoretical underpinnings of state sovereign immunity. The unresolved circuit split over whether a state waives immunity that it would otherwise retain by removing a case from state court to federal court provides a helpful lens to consider the broader doctrinal strands of state sovereign... 2016  
Jordon Parker Where Sovereign Immunity Ends and Liability Begins: a Functional Restructuring of the United States Military Tort Compensation Scheme 25 Cardozo Journal of International and Comparative Law 145 (Fall, 2016) I. Introduction. 147 II. Background. 149 A. Tort Law from a Formalist Perspective. 150 B. Tort Law from a Functionalist Perspective. 151 C. The Importance of the Distinction. 152 D. A Brief History: Sovereign Immunity and the FTCA. 153 E. Bivens Actions. 156 F. The Military Claims Act. 157 G. The Foreign Claims Act. 158 H. Other Codification for... 2016  
Molly K. Webster Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a ReTributive System 84 Fordham Law Review 855 (November, 2015) Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the War on Drugs. However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of... 2015 Yes
Michael D. Oeser Avoiding Extinction, Preserving Culture: Sustainable, Sovereignty-centered Tribal Citizenship Requirements 91 North Dakota Law Review Rev. 1 (2015) Tribal populations are dwindling. These losses are primarily the result of high blood quantum requirements and high levels of inter-marriage with non-Indians. Consequently, tribes will eventually face either legal extinction--where no one can meet the tribal's citizenship criteria--or practical extinction--where few tribal citizens have any... 2015 Yes
Bethany R. Berger, University of Connecticut Colin G. Calloway, Pen & Ink Witchcraft: Treaties and Treaty Making in American Indian History, New York: Oxford University Press, 2013. Pp. Xii + 374. $34.95 Cloth (Isbn 978-0-19-991730-3). Doi:10.1017/s0738248015000176 33 Law and History Review 478 (May, 2015) Treaties with Native nations are foundational in federal Indian law and policy, and historians and legal scholars have written many great works on the subject. Colin Calloway's new book, however, stands out for giving at once a finely detailed portrait of the participants and motivations involved in the treaties and the changing place of those... 2015 Yes
David A. Bell Columbia River Treaty Renewal and Sovereign Tribal Authority under the Stevens Treaty "Right-to-fish" Clause 36 Public Land & Resources Law Review 269 (2015) Introduction. 270 II. Historic Use and Traditions of Native Americans on the Columbia River. 273 A. Historic Tribal Use of the Columbia River. 273 B. The Stevens Treaties. 275 C. Post Treaty Fishing Rights and the CRT. 276 III. The Columbia River Treaty. 277 A. History of the Columbia River Treaty. 277 B. Treaty Termination or Renegotiation. 279 C.... 2015 Yes
David A. Bell Columbia River Treaty Renewal and Sovereign Tribal Authority under the Stevens Treaty "Right-to-fish" Clause 36 Public Land & Resources Law Review 269 (2015) Introduction. 270 II. Historic Use and Traditions of Native Americans on the Columbia River. 273 A. Historic Tribal Use of the Columbia River. 273 B. The Stevens Treaties. 275 C. Post Treaty Fishing Rights and the CRT. 276 III. The Columbia River Treaty. 277 A. History of the Columbia River Treaty. 277 B. Treaty Termination or Renegotiation. 279 C.... 2015 Yes
Jessica Intermill Competing Sovereigns: Circuit Courts' Varied Approaches to Federal Statutes in Indian Country 62-SEP Federal Lawyer 64 (September, 2015) The Federal Lawyer's April 2015 Indian Law issue detailed jurisdictional hooks that allow private parties to sue Indian tribes in employment-law cases. The topic is an important one. Some federal laws expressly apply to tribes and allow suit, but Congress expressly exempted tribes from other laws. Where the text of a federal statute appears to... 2015 Yes
Bonnie Shucha Engaging the Third Sovereign: the Nature, Reach, and Sources of Tribal Law 88-MAY Wisconsin Lawyer 47 (May, 2015) Although not all tribal law is easily accessible, you can find what is available to the public with this handy guide from a U.W. law librarian. Today, in the United States, we have three types of sovereign entities [:] the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each... 2015 Yes
Robert Thomas Redwine Falling off Balance: How the Tenth Circuit's Stance on the Implementation of a Balancing Test Undermines Congressional Intent in Regard to Extending Sovereign Immunity to Economic Entities of a Tribe 39 American Indian Law Review 291 (2014-2015) According to the 2010 United States Census, 28.4% of all Native Americans lived in poverty-a figure that overshadows the national poverty rate of 15.3%. These statistics demonstrate a continued need to allow Native American businesses to grow, which would in turn allow the tribes to channel money back to their tribal members. One concept in... 2015 Yes
Heather Whitney-Williams, Hillary M. Hoffmann Fracking in Indian Country: the Federal Trust Relationship, Tribal Sovereignty, and the Beneficial Use of Produced Water 32 Yale Journal on Regulation 451 (Summer 2015) Potentially toxic wastewater discharges from hydraulic fracturing--known as produced water--are not subject to RCRA's or the CWA's permitting requirements. This is because the EPA has categorized produced water as a special waste when put to beneficial uses in arid regions. Some chemical components in produced water, however, are patented... 2015 Yes
Leah Jurss Halting the "Slide down the Sovereignty Slope" : Creative Remedies for Tribes Extending Civil Infraction Systems over Non-Indians 16 Rutgers Race & the Law Review 39 (2015) A slot machine player at the Four Winds Casino in Hartford, Michigan, took a payout ticket from another slot machine as he sat down to play. In situations like this, casino security and law enforcement take every opportunity to ensure the player returns the property to the rightful owner. As a last resort, after sitting before a judge and entering... 2015 Yes
Nizhone Meza Indian Education: Maintaining Tribal Sov Native American Culture and Language Preservation 2015 Brigham Young University Education and Law Journal 353 (2015) The United States government has attempted to accommodate, assimilate, and terminate the Indian since declaring its Independence. Indian Education Policy was no different as it duplicated the general Federal Indian Policy making an indirect substantial impact on tribal sovereignty. This impact is felt today as traditional Native American languages... 2015 Yes
Beth DiFelice Indian Treaties: a Bibliography 107 Law Library Journal 241 (Spring, 2015) This bibliography describes sources for research into treaties between the U.S. government and Indian tribes, focusing on primary sources. The sources are preceded by an overview of the treaty process and the termination of the government's power to enter into treaties with Indian nations. Overview of the Indian Treaty Process. 243 Congressional... 2015 Yes
Ann Tweedy Indian Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-your-ground Laws? 78 Albany Law Review 885 (2014-2015) In light of the Second Amendment's inapplicability to Indian tribes, tribes appear to have the greatest freedom to experiment with gun laws of any sovereign in the United States. What have they done with that freedom and what sorts of regulations should they pursue? This article attempts to answer both questions. As to the first, as discussed in... 2015 Yes
Robert Onders, M.D. Medicaid: Can Federal Responsibilities, State Authorities, and Tribal Sovereignty Be Reconciled? 15 Wyoming Law Review 165 (2015) I. Introduction. 165 II. Background. 167 A. The Medicaid Program. 167 B. Medicaid and the Patient Protection and Affordable Care Act. 169 C. Health Care for American Indians and Alaskan Natives. 171 1. Federal Responsibility to American Indians and Alaska Natives. 171 2. Medicaid Eligibility and Expansion. 173 3. Health and Medicaid. 175 4.... 2015 Yes
Kaighn Smith Jr. , Shareholder, Drummond Woodsum MacMahon Nuances and Challenges of Protecting Tribal Sovereignty 2015 Aspatore 9194949 (November, 2015) I have been practicing federal Indian law for over twenty-five years. I started working in the field in 1984 while in law school, when I worked part-time for a law firm dedicated to representing tribes. The firm was Tureen & Margolin, based in Portland, Maine. A friend, who was serving a co-op program there as a student at Northeastern Law School,... 2015 Yes
Judith V. Royster Revisiting Montana: Indian Treaty Rights and Tribal Authority over Nonmembers on Trust Lands 57 Arizona Law Review 889 (2015) In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes' territories. Initially, the Court confined itself to hobbling tribes' inherent sovereign authority over non-tribal members only on non-Indian... 2015 Yes
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