Denver University Law Review, 2011/01/01, Vol: 88, p423
civil procedure, energy utilities law, environmental law, governments, real property law, and transportation law
INTRODUCTION One of the schemes Congress enacted for settling the vast expanses of the western United States was to deed to railroad companies alternating one-square-mile parcels on each side of the planned railroad. 1 Subsequent sales of parcels helped fund railroad expansion, but also created a checkerboard of ownerships, sometimes including tribal sovereign ownership interspersed with private sections. 2 In these areas, Congress attempted to avoid checkerboard jurisdiction with respect to criminal enforcement 3 by adopting 18 U.S.C. � 1151, a criminal statute that extends U.S. federal jurisdiction over "Indian country." 4 Section 1151 defines "Indian country" to mean Indian reservations, dependent Indian communities, and Indian allotments. 5 In Hydro Resources, Inc. v. U.S. EPA (HRI III), 6 the Tenth Circuit concluded that land adjacent to "parcels held in trust for the Navajo by the United States" 7 was not a "dependent Indian community" under � 1151(b). 8 As described below, interpretations of � 1151(b) that disregard the word "communities" in the statute result in the same checkerboard jurisdiction that Congress sought to avoid. 9 Such interpretations impact tribal sovereignty by taking from Indian 10 communities the power to control the destiny of valuable natural resources on or under their land: for example, in the context of HRI III, uranium and drinking water. Part I of this Comment briefly describes past impacts of uranium mining on Navajo land, broad principles of Indian sovereignty, the mining process that Hydro Resources, Inc. (Hydro) proposed, the Safe Drinking Water ...
Denver University Law Review, 2012/01/01, Vol: 89, p499
civil rights law, constitutional law, criminal law procedure, education law, governments, labor employment law, and torts
For over two hundred years, the First Amendment to the United States Constitution has served as the bedrock of our democratic system of government. The First Amendment has long been viewed as the quintessential guarantee of freedom, enabling individuals to voice contrary and unpopular opinions without fear of reprisal. It is these most fundamental American rights--the right to free speech, to free press, and to free assembly--that we associate with the greatness of our nation. These freedoms hold an elevated place not only in our system of government and political discourse, but also in our everyday lives. Accordingly, as a nation we have long sought to protect these fundamental rights against encroachment from both external and internal threats. In seeking to protect these rights, Congress passed 42 U.S.C. $ S 1983, 1 granting the federal courts jurisdiction over constitutional tort actions. Congress's intent in passing $ S 1983 was to utilize the federal courts to protect the constitutionally guaranteed rights of individuals in the face of governmental oppression. 2 Over time, the judicially created doctrines of absolute and qualified immunity have narrowed the ability of individuals to gain redress against governmental actors for constitutional violations. 3 Reichle v. Howards, 4 a case recently heard by the Supreme Court--on appeal from the Tenth Circuit--provided the Court with the opportunity to decide whether law enforcement officials should be immune from civil suits for arrests made in retaliation against an individual exercising free speech. 5 In an earlier case, Hartman v. Moore, 6
Denver University Law Review, 2003/01/01, Vol: 80, p577
admiralty law, civil procedure, criminal law procedure, evidence, governments, and securities law
INTRODUCTION You can't get discovery unless you have strong evidence of fraud, and you can't get strong evidence of fraud without discovery. 1 Recent revelations of corporate and individual malfeasance, fraud, and accounting irregularities 2 suggest that Congress may revisit, and possibly revise, 3 certain provisions of the Private Securities Litigation Reform Act of 1995 ("PSLRA"). 4 While private securities litigation actions augment the enforcement activities of the Securities and Exchange Commission ("SEC"), 5 critics of private securities actions claim that the threat of strike suits 6 creates enormous, unfair burdens on targeted companies. 7 Congress enacted the PSLRA, in large part, to rein in what it, as well as many members of the business and legal communities, believed to be abusive or unfounded securities lawsuits. 8 In order to protect defendants from the costs associated with frivolous suits, the PSLRA halts any discovery during the pendency of a motion to dismiss. 9 To survive such a motion, the PSLRA places plaintiffs in the unenviable position of having to present a very strong and compelling case at the pleading stage, without the benefit of discovery. 10 On the other hand, the PSLRA arguably provides corporations and other defendants with better protection from "vexatious litigation" 11 because a motion to dismiss will likely defeat a weak or poorly pled case. During the survey period, September 2001 to August 2002, the United States Court of Appeals for the Tenth Circuit, in City of Philadelphia v. Fleming Cos., 12 interpreted ...