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New Mexico Law Review Current Issue

Winter 2016, Vol. 46, No. 1

Front Matter

The Supreme Court’s decision in Burnham v. Superior Court—despite producing a splintered vote with no opinion garnering a majority of the Court—made one thing clear: an individual defendant can be subject to personal jurisdiction simply by being served with process while he or she happens to be in a forum regardless of whether the defendant has any contacts with that forum. This method of acquiring personal jurisdiction is called transient, or “tag,” jurisdiction. Tag jurisdiction is older than minimum contacts jurisdiction, and once was the primary method for determining whether an out of state defendant could be hauled into a court. While Burnham held that tag jurisdiction remained constitutionally valid, the court split on the justification for allowing this form of jurisdiction, with four Justices approving the practice under an originalist methodology, and four others approving it based on contemporary notions of fairness. This Article argues that both the originalist and fairness based tests proposed in Burnham support allowing the assertion of tag jurisdiction over corporations and other entities through instate service on their officers.

This Article shows that at the time of the Fourteenth Amendment’s ratification, corporations were often subject to personal jurisdiction based only on their officers’ physical presence in a forum when served with process. The Article also demonstrates that the fairness considerations discussed in Burnham apply with even more force to modern corporations because of their greater ability to take advantage of the protections and services offered by states outside of their own. Finally, the Article examines how the application of tag jurisdiction to corporate entities would be in accord with general trends in constitutional law affording corporations rights equivalent to those of natural persons.

In January 2015, the New Mexico Supreme Court implemented major revisions to the procedural rules governing petitions for habeas corpus and post-conviction relief. These changes clarified the limits on post-conviction relief, expanded and altered the process, and adopted a new rule to clarify the relief available to petitioners who have completed their sentence. This Article, written by the Chair of the Ad Hoc Committee on Habeas Corpus, describes the changes to assist judges and lawyers in implementing the new rules.

The amendments have three major components. First, the rules now include a clear path for petitioners seeking to vacate their conviction after their sentence is complete. Second, the rule amendments expanded the case processing options for district judges presented with post-conviction petitions and also provide increased discovery rights to litigants in these cases. Third, the rules codify and clarify the exhaustion rules, the time limitations, and the preclusion doctrines for such petitions. Taken together, these changes are designed to simplify and expedite the resolution of post-conviction challenges in New Mexico.

This article examines the basics of two types of subsurface activity— geophysical prospecting (and the myriad of different surveys that comprise same) and hydraulic fracturing (or “fracing” sometimes herein)—describing the purpose of both, comparing the physical science background, field activities necessary, and data gathered in both, and analysis of the motivations of the parties conducting the activities. The article also contains an examination of selected germane subsurface trespass jurisprudence from New Mexico, Texas, and beyond. The article ends with thoughts and about what ought to be the state of subsurface trespass jurisprudence related to geophysical surveying and fracing and whether any uniformity exists between the two that could be applied to other activities. Ultimately, this article concludes that regulated fracing, which is currently less controllable than similar subsurface activities such as seismic reflection surveys, should not be liable for common law trespass claims in order to strengthen domestic energy security, prevent waste, and promote responsible self-development by mineral owners.

The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the use of force or attempted use of force against another person or person’s property, and yet prosecution may not serve the interests of society at large, the complaining witness, or, certainly, the accused. In many instances in which the crime is not deemed serious enough to warrant punishment, the accused pleads guilty and receives a sentence of probation. In some instances, the prosecution offers the defendant a diversionary program in lieu of court.

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