Publication Date

6-1-2005

Comments

34 p. ; This student paper has been awarded 2004-2005 UNM Law School Thesis Honors.

Abstract

In State ex rel. Martinez v. City of Las Vegas, the Supreme Court of New Mexico struck the pueblo water rights doctrine from New Mexico law. State ex rel. Martinezs discussion of the pueblo water rights doctrine is primarily notable for its unprincipled use of history and the inconsistent application of the doctrine of stare decisis. This paper looks at the internal workings of the court's opinion rather than to the consequences it will have in the external world. There are several obvious lines of analysis that this paper might follow, but which it does not: This is not a historical piece. It does not address the question of whether the pueblo water right actually existed under Mexican law in 1848 except insofar as necessary to set out the historical evidence that was presented to the State ex rel. Martinez court. In doing so, the paper does not try to interpret the primary sources that the court makes use of; nor does it evaluate the correctness of the books, law review articles, and other secondary source materials discussing the right. Instead, it takes the sources that were before the court at face value, and examines the ways in which State ex rel. Martinez seeks to make use of them. This paper also does not attempt to assess whether the case was rightly or wrongly decided on either legal or policy grounds. Rather than evaluating State ex rel. Martinez with reference to history, law, or policy, this critique evaluates the text with reference to the expectations that the text itself establishes. In order to do so, it employs a formalist approach, in the sense of literary, rather than legal formalism.'

Publisher

University of New Mexico School of Law

Document Type

Student Paper

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