Journals
Volume 35, No. 1, Winter 2005
Federal Courts, State Power, and Indian Tribes: Confronting the Well-Pleaded Complaint Rule
Kaighn Smith, Jr.
The well-pleaded complaint constrains the federal question jurisdiction of the federal district courts. A case “arises under” federal law only if it states a federal cause of action, not if it simply presents what would be a federal defense to a state cause of action. Indian tribes often seek federal court protection from the threatened imposition of state power by local authorities or private parties in violation of rights protected by federal law. The Supreme Court has yet to address the application of the well-pleaded complaint rule in this setting. This article shows that such actions should be deemed to “arise under” federal law and thereby invoke federal question jurisdiction.
Bartlett Revisited: The Impact of Several Liability on Pretrial Procedure in New Mexico—Part Two
M.E. Occhialino
This article is the second part in a series by the author addressing the fact that New Mexico has largely abandoned the doctrine of joint and several liability for torts in favor of liability based on comparative fault. In part one, the author explored the substantive scope and limits of the several liability doctrine: M.E. Occhialino, Bartlett Revisited: New Mexico Tort Law Twenty Years After the Abolition of Joint and Several Liability—Part One, 33 N.M. L. Rev. 1 (2003). This second article explores the impact of several liability on the procedural rules governing the pretrial phase of litigation and on the trial strategies of litigants. A third article will investigate the impact that the adoption of several liability has had on trial and appellate procedure and practice in New Mexico.
Public Health Protection and the Commerce Clause: Controlling Tobacco in the Internet Age
Wendy E. Parmet & Christopher Banthin
This article examines obstacles posed by the dormant commerce clause to state public health policy in the context of cigarette sales over the Internet. It begins discussing the traditional role of states in protecting public health and provides specific examples of state policies addressing Internet sales of cigarette. Next, the article examines developments in the dormant commerce clause doctrine including its application to Internet activity. The authors show that the courts frequently apply the dormant commerce clause in an inflexible manner, which has the effect of placing public health goals beyond the reach of states. The authors also discuss why the possibility of federal legislation does not resolve the problem. In conclusion, the authors propose an application of the dormant commerce clause that affords greater examination of and weight for state public health policies.
Criminal Justice and the 2003–2004 United States Supreme Court Term
Christopher E. Smith, Michael McCall & Madhavi McCall
The United States Supreme Court’s 2003–2004 term is of particular importance to criminal justice because the Court heard more criminal justice cases than in recent years and because the Court considered legal questions surrounding the “war on terrorism.” In this article, we explore the Supreme Court’s impact on criminal justice during the 2003–2004 term by empirically examining the Court’s decision-making tendencies and by reviewing the criminal justice cases decided during the term. We conclude that the Court’s 2003–2004 decisions were consistent with previously established patterns in the Rehnquist Court's decision making where most cases favor government interest but a few cases, like the three cases stemming from the war on terrorism, result in decisions that strengthen individual liberties.
Reflections on Fifteen Years of the Teague v. Lane Retroactivity Paradigm: A Study of the Persistence, the Pervasiveness, and the Perversity of the Court’s Doctrine
Lyn S. Entzeroth
This article looks at the retroactive application of criminal procedure decisional law. Who benefits from which constitutional criminal protections implicates significant jurisprudential, political, and practical considerations. The article explores the evolution of this important judicial doctrine over the last forty years, in particular focusing on the current retroactivity model which the Supreme Court crafted fifteen years ago in Teague v. Lane, 489 U.S. 288 (1989). As part of surveying and critiquing the Court’s current Teague doctrine, the article looks at the application of the doctrine to two recent death penalty cases: Schriro v. Summerlin, 489 U.S. 288 (1989), and Beard v. Banks, 542 U.S. 406 (2004). The article then considers the future implications and impact of the Court’s retroactivity model, including its potential effect on recent Supreme Court decisions such as Blakely v. Washington, 542 U.S. 296 (2004), and Roper v. Simmons, 540 U.S. 1160 (2004).
Terrorism and the Rule of Law
Lord Peter Goldsmith, QC
The Inaugural Ramo Lecture, held at the law school on October 28, 2004.
Excerpts:
“Despite…differences in the doctrine of judicial review on our respective sides of the Atlantic, we share a philosophy of the Rule of Law. It was summed up by Louis Jaffe, the American scholar, writing in 1965: ‘The availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate.’”
“It is against this background of the features of the modern threat of terrorism that we must consider the most appropriate steps to protect our citizens. The primary responsibility for this in both our countries, indeed in any modern democratic State, falls on the Government. It is, in the first instance, for Governments to assess the need for action. It is their responsibility to protect the security of the people. They are in the best position to judge the nature of the threat; they have sources of information denied to others and which cannot be shared. And Government has also, as Lord Hoffman, another of our senior House of Lords judges has said, the democratic accountability to make these decisions, which our judges lack. But that does not mean that the courts should abdicate all responsibility for these areas. Whilst paying proper respect to the role of the democratically elected bodies of Government and their decisions, the Courts will act to scrutinize the lawfulness of Government action, as Lord Woolf, our Lord Chief Justice, has described it, retaining their supervisory role to protect fundamental freedoms.”
Note: State v. Muniz: Authorizing Adult Sentencing of Juveniles Absent a Conviction That Authorizes an Adult Sentence
Kelly Waterfall
In State v. Muniz, the New Mexico Supreme Court interpreted state statutory provisions for sentencing juveniles as adults. The New Mexico Delinquency Act authorizes an adult trial in district court for juveniles over fourteen charged with first-degree murder and, if convicted, authorizes adult sentencing. All other juvenile adjudications are within the jurisdiction of the children’s court division of the district court. A child may receive a juvenile disposition from the children’s court or, for certain enumerated offenses, the children’s court may impose an adult sentence. Muniz addresses a question of first impression in New Mexico courts—whether a district court has authority to impose an adult sentence on a juvenile charged with first-degree murder, but convicted of lesser non-enumerated charges for which an adult sentence would not otherwise be authorized. The New Mexico Supreme Court held that such authority has been statutorily granted.
This note discusses the court’s statutory interpretation in Muniz, which allows the offense charged, rather than the offense of conviction, to determine whether a juvenile charged with first-degree murder but convicted of a lesser offense will be subject to adult sanctions. The note critiques the Muniz decision and argues that due process, statutory interpretation, and the rule of lenity support an alternate reading that bases sentencing on the offense of conviction, not the offense charged. The consequences of an adult criminal sentence are significant for juveniles and Muniz expanded the authority and discretion of the courts to impose an adult sentence, absent any conviction for an offense authorizing an adult sentence. This note argues for legislative amendment of the Delinquency Act to overrule the court’s holding in Muniz.
