Journals
Volume 36, No. 2, Spring 2006
Jurisdiction as May Be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico
Seth D. Montgomery & Andrew S. Montgomery
The New Mexico Constitution directs that, subject to a few exceptions and conditions, the state’s two principal appellate courts, the Supreme Court and the Court of Appeals, are to exercise such appellate jurisdiction as may be provided by law. The phrase “provided by law” ordinarily means provided by the legislature. That is the conclusion that New Mexico courts generally have reached when they have considered the issue. It is a conclusion in harmony with New Mexico’s legal and constitutional history and the courts’ proper role in a government of separate powers. This article argues, however, that the Supreme Court’s rules and practice departed in 1975 from the constitutional directive, a departure that remains today. The article reviews the scope of appellate jurisdiction in New Mexico from historical and analytical standpoints, providing an overview of where the law presently stands and how it arrived at that point. It concludes with recommendations for legislative or judicial changes to harmonize the Supreme Court’s rules with the constitutional definition of appellate jurisdiction.
Harry Potter and the Three-Second Crime: Are We Vanishing the De Minimis Defense from Copyright Law?
Julie D. Cromer
The 2004 decision about music sampling, Bridgeport Music, Inc. v. Dimension Films, suggested that the de minimis doctrine is inapplicable to the potential infringement of sound recordings. Citing little judicial precedent but several law review articles, the Sixth Circuit nevertheless maintained that the record industry should clarify or change the law directly with Congress, rather than have the court speculate on what Congress intended. The court looked to a literal reading of the Copyright Act to justify its bright-line interpretation. This ruling highlights certain effects of Congress’s attitude toward technologically oriented works that are potentially far-reaching. If the de minimis doctrine is truly unavailable in these instances, certain logical conclusions can be drawn. First, revocation of the de minimis doctrine effectively ends the legacy of Arnstein v. Porter, the “copying plus substantial similarity” test for infringement, for sound recordings. Second, it rewrites section 107 of the Copyright Act, eliminating the third “amount of work used” prong for determining whether an otherwise infringing activity amounts to fair use. Third, it elevates copyright infringement to a strict liability standard, a connection that scholars have embraced but Congress and courts have not yet fully adopted. Finally, it sets a precedent for technologically fixed works that might impact how courts and Congress view areas other than sound recordings—potentially creating an effect for section 114 that Congress never intended when it was drafted more than thirty years ago. This Article examines the importance of the de minimis doctrine in copyright law and these potential conclusions. It evaluates the history of application of the de minimis doctrine in copyright law, establishing that courts have long turned to the doctrine for guidance in copyright decisions. Further, it reviews legislative history to determine whether the application of the de minimis doctrine is indeed contrary to congressional purposes, as recent decisions suggest, and if there may be sufficient justification for its abolition in connection with sound recordings only. This Article also studies the effects of the doctrine’s elimination, evaluating whether copyright law written without the understood de minimis doctrine would be a workable regime. It then looks at other works that rely on technology for their existence—in particular, databases in light of the European Union Database Directive—and examines whether Congress or the courts have imposed such a bright-line rule on the reproduction right of those works as well, or if the trend suggests that they will make such an imposition. Finally, this Article questions whether revocation of the de minimis doctrine and the substantial similarity test helps or hinders the “Progress of Science and the useful Arts,” asking whether policy dictates that the technological ease of copying should in fact lead to the less stringent application of copyright law to future works.
A Taxonomic Analysis of Mortgage Broker Licensing Statutes: Developing a Programmatic Response to Predatory Lending
Lloyd T. Wilson, Jr.
Mortgage brokers occupy an important position, quantitatively and qualitatively, in the home mortgage lending process. Brokers originate approximately sixty-five percent of all residential loans in the United States, and they are likely to have the greatest degree of direct contact with the borrower. Unscrupulous mortgage brokers exploit power and information asymmetries to place the borrower into a loan with predatory terms, which strip the borrower’s equity in the property and can lead to foreclosure and loss of the borrower’s home. Licensing statutes are one means states employ to combat predatory acts by mortgage brokers.
This article uses a taxonomic approach to analyze mortgage broker licensing statutes. A taxonomic analysis organizes objects into categories based on common traits and then arranges the categories into a hierarchy defined by a chosen organizing principle, which here is the licensing statutes’ effectiveness at protecting borrowers from predatory acts by mortgage brokers. A taxonomic analysis has two benefits. First, the categorical organization permits licensing statutes to be described in instrumental terms, which allows diverse statutes to be compared and to be mutually informative. Three categories analyzed herein are the gatekeeper function, the administrative oversight function, and the relationship defining function.
Second, the hierarchical organization provides a principled basis for judging the effectiveness of a particular licensing statute and for suggesting improvements. For the gatekeeping and administrative oversight categories, these suggestions tend toward filling gaps within a common framework. Within the relationship defining function, however, the licensing statutes reflect different concepts of the source and the extent of duties that a mortgage broker should owe to the borrower. Three concepts are identified as the contractual duty model, the opt-in agency duty model, and the mandatory quasi-agency model.
I propose that, when judged by the organizing principle of consumer protection, the contractual duty model is less effective than the opt-in agency model, which in turn is less effective than the mandatory, quasi-agency model. In addition, I propose that these models point toward an even more effective model—a fully developed borrower’s agency regime. A borrower’s agency regime, like the buyer’s agency regime that arose in the related field of real estate sales following the abandonment of mandatory subagency, would match the borrower’s legitimate expectations of the relationship with the broker, would eliminate the incentive for brokers to obfuscate the federally prescribed disclosures intended to inform and empower borrowers, and would provide disincentives, in the form of liability for breach of agency duties, for predatory acts.
Should the Tail Wag the Dog?: The Potential Effects of Recidivism Data on Character Evidence Rules
Charles H. Rose III
Recidivism data continues to fascinate those who solve crimes, those who prosecute crimes, and those who deal with the psychological damage caused by criminal activity. Whether that same recidivism data can transform our character evidence rules is an open question worth considering. The current system of evidentiary rules dealing with character is based on two competing theories of how a person’s character influences their actions - both used to support the idea that character evidence should normally not be considered. Our common law system of evidence is predicated on the idea that the character of the accused and victim does not matter when determining guilt or innocence. The most recent developments in personality theory call into question that basic assumption. The continuing development of recidivism data and the mechanisms to understand that data allow researchers to now correlate character traits and future criminal misconduct in a fashion not previously possible. The results are surprising, and they call out for a new approach to character evidence in our evidentiary rules. The resulting analysis demands that we consider substantive changes to the paradigms we apply to character evidence and the methodologies we employ to control its use.
Alone and Out of Excuses: The Tenth Circuit’s Refusal to Apply Federal Rule of Evidence 407 to Product Liability Actions
Evan Stephenson
Alone among the federal circuit courts, the United States Court of Appeals for the Tenth Circuit has declined to apply Federal Rule of Evidence 407, which excludes evidence of subsequent remedial measures in product liability suits, when it conflicts with state evidence rules. This position, based on the Erie doctrine, was adopted in a 1984 case but has since been superseded by the 1997 amendment to Rule 407. The Tenth Circuit has yet to acknowledge that its prior holding is no longer controlling. The Tenth Circuit’s prior holding is superseded because the 1997 amendment to the rule, unlike its pre-1997 predecessor, expressly extends the rule’s exclusion of remedial-measures evidence to product liability actions. The Tenth Circuit’s prior holding based on the Erie doctrine, therefore, is no longer controlling in light of Hanna v. Plumer. Under Hanna, a federal rule, such as amended Rule 407, that directly controls the issue before the court must be applied unless it cannot rationally be characterized as procedural. Because the 1997 amendment to Rule 407 is arguably procedural and now covers the subsequent remedial measure issue directly, the Tenth Circuit must apply the rule to product liability actions. Consequently, this Article argues that the Tenth Circuit should acknowledge that its prior holding based on the Erie doctrine has been superseded.
An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good
Lee J. Strang
There is substantial scholarly disagreement on whether and in what manner prior decisions of a court—especially the United States Supreme Court—interpreting the Constitution bind the same court later in time. This is despite the consensus of American legal practice that prior constitutional decisions do bind later courts. At the heart of the debate surrounding precedent is the tension between our written Constitution, which is the supreme law of the land, and the role of the unelected Supreme Court in exercising constitutional judicial review. Further, the existence of numerous and important nonoriginalist precedents is used by critics of originalism as an argument against originalism. This Article offers a theory of constitutional precedent within an originalist framework. It argues that a limited respect is due some nonoriginalist constitutional precedent because of the larger societal and constitutional goal of effectively pursuing the common good.
Part II describes the problem that precedent has posed for scholars and courts in the area of constitutional adjudication. First, it explains what is meant by a theory of precedent. Second, it briefly discusses the debate over the proper interpretative methodology of the Constitution. Third, it shows how, for any plausible theory of constitutional interpretation, there will be precedents that, under the methodology, are mistakes. Lastly, it reviews attempts by originalist scholars to elucidate a theory of precedent in constitutional adjudication.
Part III lays out a theory of originalist precedent. First, it describes the originalist interpretative methodology assumed for purposes of this Article. Central to that methodology is the concept of the common good. Next, it argues that courts should overrule nonoriginalist constitutional precedent, except when overruling the precedent would gravely harm society’s pursuit of the common good. It first demonstrates that, to be normatively attractive, originalism should accommodate a doctrine of precedent and that, unlike other forms of originalism, originalism grounded in the concept of the common good can do so. Second, it establishes that the original meaning of “judicial Power” in Article III included significant respect for precedent. Thereafter, it enumerates the criteria judges should employ when determining whether to overrule nonoriginalist precedent. Then, the Article applies the established originalist theory of precedent to the two modern constitutional law cases against which interpretative methodologies are—either explicitly or implicitly—judged: Brown and Roe.
Originalism requires judges to adhere to the meaning of the text of the Constitution as it was understood when ratified. In constitutional adjudication, therefore, judges may only apply the positive law of the Constitution and may not, generally, directly apply natural law norms. By contrast, when determining whether to overrule or limit nonoriginalist precedent, judges will be relatively unconstrained and will have to make their determinations by looking to what the common good of society requires. As a result, lastly the Article briefly discusses a theory of judicial virtue to account for how judges should exercise this discretion.
District Court Review of Judicial Officers in New Mexico Domestic Violence and Domestic Relations Cases: Rethinking the Rules
Seth McMillan
Judicial officers, including domestic relations hearing officers, domestic violence special commissioners, and child support hearing officers, play a critical role in the efficient management of New Mexico’s district court domestic relations and domestic violence dockets. Efficiency, however, should not come at the expense of the constitutional rights of parties. Although judicial officers are appointed to help the court determine factual and legal issues, the core judicial decision-making function must be performed independently by a district court judge. Judicial decision-making authority may not be impermissibly delegated to non-judges, and the procedures governing district court review of the recommendations of judicial officers must guarantee that such review is meaningful.
Recently, the New Mexico Court of Appeals has raised concerns regarding district court review of the recommendations of judicial officers. This Comment recommends changes to New Mexico Rules of Civil Procedure 1-053.1 and 1-053.2 and related statutes. These changes ensure that the appointment and the review of judicial officers in New Mexico domestic relations and domestic violence cases meet constitutional requirements while balancing the state’s interest in the efficient management of its dockets against the constitutional rights of parties.
Wheir’s the Beef? Buffalo Law and Taxation
Erik M. Jensen
The intersection of buffalo law and taxation hasn’t been a busy one, but accidents still happen: not everyone understands that buffalo have the right of way. This article critically analyzes the recent Tax Court summary opinion in Wheir v. Commissioner, which involved a bodybuilder who sought to deduct the cost of an incredible amount of buffalo meat. Along the way, the article brings buffalo law learning up-to-date; revisits some classic, nineteenth-century buffalo law cases; and, most important, considers whether there are important differences between the American bison and American beef cattle—differences that might have relevance to American tax law. (Hint: of course there are.)
