AuthorTitleCitationSummaryYearKey Terms
Joseph D. Gebhardt Native Hawaiian Land Rights in the Context of the Native Hawaiian Sovereignty Movement 8 Arizona Journal of International & Comparative Law 265 (1991) During the 1980s, I worked on Native Hawaiian legal rights, particularly land rights cases involving the Hawaiian Homes Commission Act and the Hawaiian Admission Act. But rather than tell you war stories, since this is an academic conference, I will discuss Native Hawaiian land rights in the context of the Native Hawaiian sovereignty movement. My... 1991 Yes
Hiram E. Chodosh Neither Treaty Nor Custom: the Emergence of Declarative International Law 26 Texas International Law Journal 87 (Winter, 1991) A. The Shared Problem of Anthropology and International Law B. A Cross-Cultural Definition of Law C. The Two Origins of Law: Customs and Political Declarations D. The Distinction Between Customary and Declarative Law A. The Classical Definition B. The Traditional Definition C. The Emerging Modern Definition 1. Criteria of the Classical Definition... 1991  
Keith Cable Rosebud v. South Dakota: How Does Tribal Sovereignty Affect the Determination of State Jurisdiction on Reservation Highways? 36 South Dakota Law Review 400 (1991) In Rosebud v. South Dakota, the Eighth Circuit helped to reaffirm tribal sovereignty by not allowing South Dakota to assume civil and criminal jurisdiction over the highways running through Indian reservations in the state. This reaffirmation is undermined, however, by the absence of a strict application of Public Law 280. Because of this judicial... 1991 Yes
Robert A. Friedlander Separating the Powers: Constitutional Principles and the Treaty Process 16 Oklahoma City University Law Review 257 (Summer, 1991) Arthur M. Schlesinger, Jr., that liberal font of historical certitude, in the second chapter of his much-cited book, The Imperial Presidency (much-cited for its title and not for its content), wrote that t he men who framed the Constitution knew their international law. Indeed they did, but because they did, there was no need to debate... 1991  
Johan D. van der Vyver Sovereignty and Human Rights in Constitutional and International Law 5 Emory International Law Review 321 (Fall, 1991) The concept of sovereignty had its origin in constitutional law. More recently, sovereignty, with the notion of the equality of states, has also acquired special significance in international law. Many international lawyers regretted the infiltration of the notion of sovereignty into the confines of their discipline. Lowenfeld, for instance,... 1991  
Joseph William Singer Sovereignty and Property 86 Northwestern University Law Review Rev. 1 (Fall, 1991) Every part of this earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing, and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man. Chief Seattle, Suquamish Nation (1855) The District Court... 1991  
Lyman Johnson Sovereignty over Corporate Stock 16 Delaware Journal of Corporate Law 485 (1991) I. Introduction II. Common Ground III. Disputed Ground A. Degenerate State Law: Two Solutions to the Dilemma of Vulnerable Shareholders 1. The Corporatization of Federal Securities Law 2. The Corporation As Marketplace B. Initial Success for the Marketplace Solution: The Failure of First-Generation Antitakeover Statutes C. Countermoves: Curtailing... 1991  
Anupam Chander Sovereignty, Referenda, and the Entrenchment of a United Kingdom Bill of Rights 101 Yale Law Journal 457 (November, 1991) If a bill of rights were passed in the United Kingdom in 1992, could Parliament pass a Bill of Rights Repeal Act the following year? The principle of parliamentary sovereignty-that Parliament has the right to make or unmake any law whatever -suggests that Parliament would indeed have the power to pass a repeal act and, a fortiori, any lesser act... 1991  
Robert J. Miller Speaking with Forked Tongues: Indian Treaties, Salmon, and the Endangered Species Act 70 Oregon Law Review 543 (Fall, 1991) Great Nations, like great men, should keep their word. As long as water flows, or grass grows upon the earth, or the sun rises to show your pathway, or you kindle your camp fires, so long shall you be protected by this Government. In the mid-1800s, as white settlers began migrating to the Oregon and Washington territories, Northwest Indian... 1991 Yes
Luis Li State Sovereignty and Nuclear Free Zones 79 California Law Review 1169 (July, 1991) Nuclear free zone ordinances present courts with choices between local and national interests and between judicial and legislative decisionmaking. This Comment argues that courts should not forbid state and local governments from using traditional police powers to ban the manufacture of nuclear weapons and weapons parts within their borders. First,... 1991  
John Altomare Stemming the Flow: the Role of International Environmental Law in Seeking a Solution to the Sewage Treatment Crisis at the Tijuana-san Diego Border Region 21 California Western International Law Journal 361 (1990/1991) Raw sewage spills originating in Tijuana, Baja California, and which flow daily across the Mexican-United States border into neighboring San Diego via the Tijuana River and ocean waters pose a serious international environmental problem. Approximately thirteen million gallons per day (mgd) of Tijuana's untreated sewage drains from city street... 1991  
Terrance A. Kline Suicide, Liberty and Our Imperfect Constitution: an Analysis of the Legitimacy of the Supreme Court's Entanglement in Decisions to Terminate Life-sustaining Medical Treatment 14 Campbell Law Review 69 (Winter, 1991) C1-3TABLE OF CONTENTS I. INTRODUCTION. 70 II. CRUZAN V. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH. 71 III. THE LEGITIMACY OF THE SUPREME COURT'S RECOGNITION OF A RIGHT TO SUICIDE UNDER THE CONSTITUTION. 76 A. The Notion of Rights Under the Constitution. 77 B. Expanding the Constitutional Scheme of Rights With Substantive Due Process. 80 C. Devising a... 1991  
Kevin J. Worthen Sword or Shield: the past and Future Impact of Western Legal Thought on American Indian Sovereignty 104 Harvard Law Review 1372 (April, 1991) [American Indian tribes'] rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it. Chief Justice Marshall's explanation of the... 1991 Yes
Samuel Jan Brakel, J.D. , John M. Davis, M.D. Taking Harms Seriously: Involuntary Mental Patients and the Right to Refuse Treatment 25 Indiana Law Review 429 (1991) One of the more controversial, if not paradoxical, developments in the continually expanding field known as mental health law has been the establishment in the mid-to-late 1960's of a patient's right to treatment, followed a short decade later by the legal consolidation of its counter pointthe right to refuse treatment. Although legal rights... 1991  
Robert Laurence The Abrogation of Indian Treaties by Federal Statutes Protective of the Environment 31 Natural Resources Journal 859 (Fall, 1991) Natural resource exploitation and conservation: these are words of the 1990s. The idea of an oil slick the size of a small state floating near our most pristine coastline was shocking to many Americans, but no more shocking than the idea that we might, for the sake of the environment, have to reduce our consumption of oil. Hard choices lie ahead;... 1991 Yes
Elizabeth A. Harvey The Aftermath of Duro v. Reina: a Congressional Attempt to Reaffirm Tribal Sovereignty Through Criminal Jurisdiction over Nonmember Indians 8 Thomas M. Cooley Law Review 573 (Michaelmas Term 1991) Throughout the history of the United States, congressional policy on Indian affairs has undergone a variety of changes. Change has often been extreme: from a policy of assimilation, to a policy of self-determination. These policies, and the courts' interpretation of them, have had varying effects on tribes' inherent sovereignty. Although current... 1991 Yes
Bernard Roberts The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause 101 Yale Law Journal 211 (October, 1991) The ascending theme of contemporary free exercise jurisprudence is that the Free Exercise Clause of the First Amendment imposes no presumptive structural limitations upon the state's authority to regulate religious activity. This theme resounds throughout the opinion of the U.S. Supreme Court in Employment Division, Department of Human Resources v.... 1991  
Philip S. Deloria , Nell Jessup Newton The Criminal Jurisdiction of Tribal Courts over Non-member Indians 38 Federal Bar News and Journal 70 (March, 1991) Throughout most of the history of federal Indian law, the United States Supreme Court has expressed extraordinary deference to Congress as the principal policymaker in Indian affairs, while often filling in gaps with imaginative characterizations of congressional intent or relying implicitly on its own power to create federal common law. Judicially... 1991 Yes
Peter Fabish The Decline of Tribal Sovereignty: the Journey from Dicta to Dogma in Duro v. Reina, 110 S.ct. 2053 (1990) 66 Washington Law Review 567 (April, 1991) Abstract: In Duro v. Reina, the Supreme Court held that tribal courts do not have jurisdiction over Indians committing crimes within their territorial jurisdiction, but not belonging to their tribe. This holding is incompatible with judicial precedent as well as contemporary executive and congressional policy. The decision also creates serious... 1991 Yes
Gary Minda The Dilemmas of Property and Sovereignty in the Postmodern Era: the Regulatory Takings Problem 62 University of Colorado Law Review 599 (1991) In the last decade there has been an explosion of Supreme Court case law struggling with the question of what makes a regulatory restriction on private property a taking for which just compensation is required by the Constitution. Judges, policy makers and legal scholars have offered various modern approaches to answer this question.... 1991  
Marsha L. Anastasia The Endangered Species Act and State Sovereignty: Defenders of Wildlife v. Lujan 7 Connecticut Journal of International Law 87 (Fall, 1991) The importance of preserving biological diversity throughout the world has come to the forefront of modern wildlife law. The Endangered Species Act marked the beginning of the United States effort to protect species from extinction, whatever the cost. The United States has recognized the need to consider the effects that developmental projects... 1991  
David Zachary Kaufman The Greenhouse Effect: Available and Needed Laws and Treaties 9 UCLA Journal of Environmental Law & Policy 219 (1991) The greenhouse effect is the common name for the physical processes by which energy from the sun penetrates the Earth's atmosphere and is reflected back, but is trapped and cannot escape. These processes raise the Earth's average temperature by approximately sixty degrees Fahrenheit. The most important of the gases that cause this process is carbon... 1991  
Stephen N. Sher The Identical Treatment of Obscene and Indecent Speech: the 1991 Nea Appropriations Act 67 Chicago-Kent Law Review 1107 (1991) I disapprove of what you say, but I will defend to the death your right to say it. De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. As a result of 1980s conservatism, fundamentalist groups have recently sprung up across the country, which advocate a back-to-the church or... 1991  
Perry Dane The Maps of Sovereignty: a Meditation 12 Cardozo Law Review 959 (February/March, 1991) C1-3TABLE OF CONTENTS I. Sovereignty-Talk. 965 A. Sovereignty and Rights. 966 B. Indian Bingo and Church Property. 967 C. More on Sovereignty and Rights. 970 D. Connections. 971 II. The State and Other Legal Orders. 973 A. Of State Exclusivism. 973 1. Logic. 977 2. Experience. 979 3. The Liberal State. 983 4. The Therapeutic State. 985 B. Of John... 1991  
Stephen C. McCaffrey The Restatement's Treatment of Sources and Evidence of International Law 25 International Lawyer 311 (Summer, 1991) The Restatement (Third) of the Foreign Relations Law of the United States is a comprehensive revision of its predecessor, the original Restatement, which the American Law Institute (ALI) published in 1965. The new version is an ambitious undertaking, covering many more subjects, and reflect ing important developments in the intervening decades .... 1991  
Edward J. Imwinkelried The Right to "Plead Out" Issues and Block the Admission of Prejudicial Evidence: the Differential Treatment of Civil Litigants and the Criminal Accused as a Denial of Equal Protection 40 Emory Law Journal 341 (Spring, 1991) The setting is a civil case. The plaintiff, Mrs. Anderson, has filed a wrongful death action against the defendant, Mr. Burton, and seeks punitive damages. Her complaint alleges that on January 1, 1990, the defendant intentionally shot and killed her husband. The complaint avers that the defendant did so maliciously and without justification. The... 1991  
Lori Fisler Damrosch The Role of the United States Senate Concerning "Self-executing" and "Non-self-executing" Treaties 67 Chicago-Kent Law Review 515 (1991) This essay concerns a pattern in treaty actions of the U.S. Senate which tends to weaken the domestic legal effect of treaties. Under this pattern, the Senate qualifies its consent to U.S. ratification of the treaty with a declaration or other condition to the effect that the treaty shall be non-self-executing, or otherwise expresses its intention... 1991  
Stefan A. Riesenfeld , Frederick M. Abbott The Scope of U.s. Senate Control over the Conclusion and Operation of Treaties 67 Chicago-Kent Law Review 571 (1991) This article will briefly describe the basic allocation of the treaty power in the United States and the status of treaty law in the municipal legal system. These matters are the subject of a number of excellent studies by American and foreign scholars. Our main concern, however, is with a particular feature of the constitutional landscapethe role... 1991  
William C. Hoffman The Separate Entity Rule in International Perspective: Should State Ownership of Corporate Shares Confer Sovereign Status for Immunity Purposes? 65 Tulane Law Review 535 (February, 1991) INTRODUCTION. 536 I. THE SEPARATE ENTITY RULE: ITS DEVELOPMENT AND CURRENT APPLICATIONS. 542 A. The American Rule. 543 B. The English Rule. 551 C. The Separate Entity Rule in Western Europe. 554 1. Switzerland. 554 2. Germany. 557 3. France. 559 4. Belgium. 563 II. THEORETICAL AND PRACTICAL PROBLEMS ARISING UNDER SECTION 1603(b). 565 A.... 1991  
R. Michael Underhill The Sovereign as Plaintiff: Clean Seas and Other Coin of the Realm 3 University of San Francisco Maritime Law Journal 37 (Winter, 1990/1991) With the advent of instantaneous world-wide communications, as well as low cost, readily accessible trans-oceanic flight, everyman's concept of the importance of the admiralty has flagged. To the layman, the words maritime and sailing have little meaning beyond the Sunday sport of starched-linen weekend sailors; indeed, many members of the... 1991  
Willard L. Boyd III , Robert K. Huffman The Treatment of Implied-in-law and Implied-in-fact Contracts and Promissory Estoppel in the United States Claims Court 40 Catholic University Law Review 605 (Spring, 1991) Under the Tucker Act, the United States Claims Court has jurisdiction over actions involving express and implied-in-fact contract claims made by private parties against the United States Government. The court, however, has repeatedly stated that it does not have jurisdiction over actions arising under implied-in-law contracts. As a result, the... 1991  
Richard L. Doernberg The U.s.-india Income Tax Treaty: Breaking New Ground in Taxing Services Income from Licensing Technology 44 Tax Lawyer 735 (Spring, 1991) The new income tax treaty between the United States and India contains an unprecedented allocation of taxing authority to a state (the source state) that imports certain services (included services) from the other contracting state (the residence state) which constitutes an expedient erosion of the permanent establishment principle. Because in... 1991  
Charles F. Wilkinson To Feel the Summer in the Spring: the Treaty Fishing Rights of the Wisconsin Chippewa 1991 Wisconsin Law Review 375 (1991) In this Article, adapted from his Oliver Rundell Lecture delivered at the University of Wisconsin Law School in April 1990, Professor Charles Wilkinson explores the historical and contemporary conflict arising out of the Chippewa people's assertion of nineteenth century treaty fishing rights. A key to comprehending the Chippewa's position is a... 1991  
Abraham Abramovsky Transfer of Penal Sanctions Treaties: an Endangered Species? 24 Vanderbilt Journal of Transnational Law 449 (1991) During the past twenty-five years, the United States and Mexico have entered into a multitude of bilateral agreements aimed at combatting the insistent and ever-growing problem of narcotics trafficking. For example, in 1969, the governments of Mexico and the United States entered into Operation Intercept. Pursuant to this operation, customs... 1991  
Beverly Weinberg Treating the Sumptom Instead of the Cause: Regulating Student Speech at the University of Connecticut 23 Connecticut Law Review 743 (Spring, 1991) WITHIN an eighteen-month period, the University of Connecticut added a provision to its student conduct code aimed at reducing the frequency of personal slurs or epithets made by students on campus, then repealed and amended the provision due to concerns over its constitutionality. To maintain a healthy learning environment for all by ridding the... 1991  
Richard A. Matasar Treatise Writing and Federal Jurisdiction Scholarship: Does Doctrine Matter When Law Is Politics? 89 Michigan Law Review 1499 (May, 1991) Reviewing books is much harder than the two thumbs up approach of Siskel and Ebert. One could merely describe a book, place it within scholarly literature, and evaluate it. Or, one could take on a far more complex task: rethinking starting points, and measuring a book not just on its own terms, but against the framework of an emerging new... 1991  
Ludwik A. Teclaff Treaty Practice Relating to Transboundary Flooding 31 Natural Resources Journal 109 (Winter, 1991) Most agreements surveyed in this paper focus on maximum flood restraint by means of dams and other structures. As a rule, only floods having detrimental effects were perceived as the object of international regulation, and the idea of permitting some flooding for beneficial purposes, such as ecosystem preservation, does not appear in treaties until... 1991  
Mark A. Kornfeld United States v. Gelb: the Second Circuit's Disappointing Treatment of the Fair Cross-section Guarantee 57 Brooklyn Law Review 341 (Summer, 1991) The Sixth Amendment guarantees every criminal defendant the right to a trial by an impartial jury. To protect this guarantee and to ensure the legitimacy of jury decisions it is essential that the process of jury selection be impartial. As a result, discriminatory jury selection procedures have historically been an issue of profound constitutional... 1991  
Megan R. Golden When Pregnancy Discrimination Is Gender Discrimination: the Constitutionality of Excluding Pregnant Women from Drug Treatment Programs 66 New York University Law Review 1832 (December, 1991) On October 27, 1989, a twenty-one-year-old New York City woman who was four months pregnant contacted St. Barnabas Hospital. Concerned that her alcohol use could cause birth defects to her fetus and health risks to herself, she sought admission to its inpatient alcohol detoxification program. Hospital personnel told her that they did not admit... 1991  
Richard E. Andersen Worldwide Treaty Network Expands During 1990 1 Journal of International Taxation 380 (March/April, 1991) Last issue's column discussed some significant tax treaty developments involving European nations. In this column's survey of global treaty developments during 1990, the focus shifts to other parts of the world. One of the most interesting developments in Japan's international tax relations was the entry into force of a new treaty between Japan and... 1991  
Roseann Eshbach A Global Approach to the Protection of the Environment: Balancing State Sovereignty and Global Interests 4 Temple International and Comparative Law Journal 271 (Fall, 1990) For centuries, man assumed that the earth and its environment was indestructible. Consequently, as the modern world began to industrialize, great emphasis was not placed on conserving natural resources. Instead, mankind sought only immediate economic gain, all the while believing that resources were bountiful and immense in their capability to... 1990  
Greg Warnagieris A Treaty in Conflict with Title Vii: Macnamara v. Korean Air Lines from an International Human Rights Perspective 13 Loyola of Los Angeles International and Comparative Law Journal 331 (December, 1990) Direct foreign investment in the United States, including joint ventures as well as the outright purchase of American companies, increased dramatically in the past decade. With the accompanying importation of foreign management and culture, questions naturally arise over how American workers will fare under their new foreign managers. A fundamental... 1990  
Mary Lynn Canmann Antarctic Oil Spills of 1989: a Review of the Application of the Antarctic Treaty and the New Law of the Sea to the Antarctic Environment 1 Colorado Journal of International Environmental Law and Policy 211 (Summer, 1990) Antarctica is a beautiful, pristine place and one of the last relatively unspoiled areas left on the planet. The continent holds many natural wonders and is a perfect laboratory for scientific study. But, as food, energy, and fresh water are increasingly demanded, nations seek new and plentiful sources to provide for these necessities. Naturally,... 1990  
Michael H. Hoffheimer Artistic Convention and Natural Law: Didactic Treatment of Justice and Authority in Works of Fielding, Hawthorne, and Fritz Lang 63 Temple Law Review 483 (Fall, 1990) There are two prosecuting attorneys. The one at your door prosecutes crimes against society. The other is nature, and it knows all vices that escape the law. If you are promiscuous, you will suffer dropsy. Engage in gluttony, you will become consumptive. Open your door to criminals and consort with them, and you will be betrayed, assailed, scorned.... 1990  
Craig D. Sjostrom Comment, of Birds and Men: the Migratory Bird Treaty Act 26 Idaho Law Review 371 (1989/1990) The Migratory Bird Treaty Act (MBTA) is one of the pioneering federal wildlife statutes. The MBTA was enacted in 1918 as an outgrowth of a treaty entered into between the United States and the United Kingdom acting on behalf of Canada. For much of its history the MBTA was viewed as a statute that merely authorized the regulation of bird hunting.... 1990  
James A. Gardner Consent, Legitimacy and Elections: Implementing Popular Sovereignty under the Lockean Constitution 52 University of Pittsburgh Law Review 189 (Fall, 1990) I. The Consent of the Governed as the Basis of Governmental Legitimacy A. The Reshaping of the Historical Landscape 1. The Identification of Multiple Influences on the Founders 2. The Republican Revival B. Popular Sovereignty and the Consent of the Governed 1. Some Basics of Lockean Theory 2. The Constitution and the Lockean Theory of Popular... 1990  
Jennifer Trahan Constitutional Law: Parental Denial of a Child's Medical Treatment for Religious Reasons 1989 Annual Survey of American Law 307 (December, 1990) In Florida, a child is rushed to an emergency room, where doctors realize the child will die unless they administer blood transfusions. The parents, Jehovah's Witnesses, refuse to consent to transfusions. In California, a child with cancer is treated with chemotherapy and radiation. The child's cancer is in remission, but doctors believe there is a... 1990  
Catherine Goldberg Constitutional Law-abrogation of State Sovereign Immunity under Cercla 16 William Mitchell Law Review 1075 (1990) In Pennsylvania v. Union Gas Co., the United States Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), permits a private party to sue a state for damages in federal court. This case is... 1990  
Gary M. Buechler Constitutional Limits on the President's Power to Interpret Treaties: the Sofaer Doctrine, the Biden Condition, and the Doctrine of Binding Authoritative Representations 78 Georgetown Law Journal 1983 (August, 1990) The latter half of the 1980s witnessed a furious debate over the contours of the Senate's constitutionally prescribed role in the treaty-making process. The Reagan Administration's attempt to reinterpret the Anti-Ballistic Missile Treaty (ABM Treaty) to permit the testing and development of Star Wars (the Strategic Defense Initiative or SDI) in... 1990  
Sidney L. Harring Crazy Snake and the Creek Struggle for Native American Legal Culture and American Law 34 American Journal of Legal History 365 (October, 1990) The continued strength of Native American culture in the 1980s has a clear relationship to the renewed attention that sovereignty has received as the key unifying concept in both Indian law (and here I mean both federal Indian law and tribal law) and in tribal politics. The precise nature of this relationship is complex, for in tribal society... 1990 Yes
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