Journals
Volume 33, No. 1, Winter 2003
Bartlett Revisited: New Mexico Tort Law Twenty
Years after the Abolition of Joint and Several Liability – Part One
M.E. Occhialino
On the twentieth anniversary of the abolition of joint and several liability in New Mexico, this article reviews the development of the New Mexico law of several liability. Part One, published here, focuses on the substantive scope of the doctrine, tracing the judicial and legislative developments that have established the breadth and the limits of several liability. Part Two, which is forthcoming, will explore the myriad procedural issues that have arisen in the litigation of several liability cases and the changes in litigation strategies occasioned by the movement from joint and several liability to several liability. In both Part One and Part Two, the article compares New Mexico law to that set forth in the recently adopted Restatement (Third) of Torts: Apportionment of Liability in order to test the soundness of New Mexico’s evolving law and to provide New Mexico’s two decades of experience with several liability as a counterpoint to jurisdictions that might consider adopting the Third Restatement.
The E-Brief: Legal Writing for an Online World
Maria Perez Crist
A transformation is underway in the American court system, as courts shift from print communication to electronic communication. Within the court system, the attorney’s primary "voice" is the brief. As one court noted, "the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value." This article focuses on the attorney’s vital court communication, the trial and appellate brief, and the transition of these briefs from paper medium to electronic media. At this early stage, both the courts and the lawyers that practice before them are beginning to explore the range of options available in electronic communication. If an attorney fails to consider the unique characteristics of electronic communication, a straight switch from paper brief to electronic brief can result in a brief that fails to achieve the goals intended and can even be counter-productive. Electronic communication can enhance advocacy, but lawyers must do more than scan in a paper brief to achieve a persuasive document. An effective advocate in the new millennium needs to understand electronic communication and the role of its key characteristic: hypertext. Through this understanding, lawyers can craft briefs that use technology effectively.
Military Tribunals, Terrorists, and the Constitution
Roberto Iraola
On November 13, 2001, President George W. Bush issued an executive order authorizing the trial of non-U.S. citizens before military tribunals if they are found to be members of al Qaeda, have engaged in international terrorism, or have harbored such persons. Military tribunals or commissions have their roots in the Revolutionary War. Most recently, such commissions were used extensively following World War II. In support of the order, President Bush relied upon the authority vested in him by the Constitution as President and Commander in Chief, as well as the laws of the United States, which included the congressional resolution authorizing the use of force, and 10 U.S.C. Sections 821 and 836. In light of the present armed conflict, any constitutional challenge to the establishment and use of military tribunals with respect to offenses related to the September 11 attacks is not likely to succeed.
Comment: Of Hammers and Saws: The Toolbox of Federalism and Sources of Law for the Web
Thomas A. Lane
The U.S. federalist scheme is sufficiently flexible to accommodate law from multiple sources, including international, federal, state, and non-governmental sources. The World Wide Web is young, and the legal issues it raises are diverse. Although certain issues fit relatively neatly under existing law, other issues can find nothing more direct than a rough analogy. The diversity and newness of issues for the Web, when combined with the fluidity and flexibility of the U.S. federalist system, compel the conclusion that the federalist system has the potential to be particularly well suited to the application of law to the Web. Along with the potential, the mix creates the challenge to use the federalist system to develop effective law for the Web.
Note: Does the Federal Arbitration Act Mandate the Holding of Bowen v. Amoco Pipeline Company?
Arlyn Crow
The Federal Arbitration Act (FAA) limits judicial scrutiny of arbitration awards to cases where there was fraud, evident bias, or corruption, or where arbitrators exceeded their authority. Because of this limited review, parties wary of the arbitral decision-making process have attempted to expand the scope of judicial review by private contract, inserting a judicial review clause in the arbitration agreement to expand the scope of review beyond that articulated in the FAA in the hopes that the court will enforce the clause. The Ninth and Fifth Circuit Courts have allowed parties to expand the scope of judicial review by contract, finding that U.S. Supreme Court precedent mandates the enforcement of arbitration agreements and requires courts to enforce clauses that expand judicial review according to their terms. Yet the Tenth Circuit, standing alone, has refused to enforce these contract clauses beyond the review articulated in Section 10 of the FAA and the "manifest disregard of the law" exception articulated in Wilko v. Swan. In Bowen v. Amoco Pipeline Company, the Tenth Circuit concluded that the "purposes behind the FAA, as well as the principles announced in various Supreme Court cases, do not support a rule allowing parties to alter the judicial process by private contract." This note will focus on the effects of the Tenth Circuit’s differing rationales and the implications of the Bowen decision on state courts.
